The problem of ‘vexatious litigation’ supported by a McKenzie friend

High Court, Ireland, family law

I was flicking through the Recent Additions List on the Bailii website the other day when I came across a most remarkable case. It is an Irish High Court case and has nothing directly to do with family law, but nevertheless I think it is worth a mention here, in particular for the lessons it contains regarding vexatious litigants, especially when supported by a McKenzie friend.

Vexatious litigants, i.e. litigants who keep returning to court time and again despite having no good reason to do so, have been mentioned on this blog previously, most notably by Marilyn Stowe herself in this post, back in 2015. As Marilyn said then, the issue is exacerbated these days by the large numbers of litigants in person since the legal aid cuts, who both have no lawyer to advise them on the error of their ways, and are not constrained by having to pay legal fees. In the Irish case, Smith v Ireland and Another, the problem was made worse by the vexatious litigant being supported in her endeavours by a McKenzie friend.

As I said, the case has nothing directly to do with family law, and I am not therefore going to go into too much detail about it. It is summarised by Mr Justice Twomey in the very first paragraph, thus:

“This is a case involving Mrs. June Smith, a lay litigant who, with the assistance of Mr. William Murphy, who ‘practises’ as a McKenzie Friend, have been involved in abuse of process upon abuse of process in relation to Mrs. Smith’s obsessive, hopeless and vexatious litigation which she has pursued for approximately five years in relation to her former farm at Carn in Portarlington, Co. Laois, which she mortgaged to ACC Loan Management Limited (“ACC”).”

Very briefly, Mrs Smith and her husband failed to repay the loan, as a result of which the farm was repossessed, and sold. Unfortunately, Mrs Smith was unable to accept this state of affairs, so she embarked upon five years of relentless litigation in relation to the farm. As a result of this, the court imposed upon her an ‘Isaac Wunder Order’, which is a great name for what we would rather boringly call over here a civil restraint order, prevented her from ever again issuing proceedings in relation to her former farm against, inter alia, ACC, without the prior leave of the High Court.

Undeterred, and supported by Mr Murphy, Mrs Smith subsequently issued further proceedings in relation to the farm, against the new owner. As part of those proceedings she deliberately misled the judge by claiming that the farm was hers, in order to obtain an injunction against the new owner from trespassing on what is its own farm.

The judgment of Mr Justice Twomey goes into detail about Mrs Smith’s repeated abuse of the court process, and Mr Murphy’s involvement in it. The upshot of all of this was that Mrs Smith’s latest applications were (unsurprisingly) refused, that she was made the subject of a more expansive Isaac Wunder Order (requiring her to obtain the permission of the President of the High Court before issuing any further proceedings in relation to the farm) and Mr Murphy was disqualified from ever acting as a McKenzie friend again, without the consent of the President of the High Court.

Now, obviously I am not saying that all McKenzie friends are likely to behave in the fashion of the one in this case. Indeed, it is quite possible that you might find a qualified lawyer who would behave this way. However, the point is that it is surely far less likely, given the training a lawyer has to go through and the regulation they are subjected to. Vexatious litigation by itself is bad enough, but when it is supported and encouraged by a McKenzie friend then it becomes much more likely, and quite possibly much more serious. Legal advisers, whether qualified or not, should be discouraging it, and any adviser who encourages it is doing the litigant an extreme disservice.

I think the report of Smith v Ireland is worth a read, in particular for the remarkable language used by Mr Justice Twomey to describe Mrs Smith’s behaviour. You can find it here.

Photo of The Four Courts, home of the Irish High Court, by William Murphy via Flickr under a Creative Commons licence.

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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1 comment

Philip Kedge - November 16, 2017 at 9:35am

Balanced against the institutionalized behaviour of the vast number of lawyers who keep their clients at the boiling point of conflict for ££££££ under the guise of just ‘following instructions,’ with no regard for the emotional harm to children that is caused.

Phil Kedge

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