Let’s see if I can prompt any of you out of your commentless indolence with a question: what is the right thing to do when a self-represented man with self-evident psychosis characterised by florid delusions of a type which no sane person could possibly have sues your client? A friend of mine was appalled that I was considering applying for a guardianship order. For him, to have persisted with the defence of a proceeding which probably did not exist because the man was not capable of bringing it, winning, getting costs, and executing on the judgment for costs against the man was far preferable than combining paternalism with adversarialism. The other option would be to apply for summary judgment on the basis that the plaintiff was not permitted in law to commence proceedings. But that would involve the defendant undertaking the task of proving insanity, about the last thing in the world I would ever undertake to prove.
A better way? They call it the inquisitorial system.
I used to work in banking litigation, and sometimes we had to execute judgment against crazy people. I really wished there was some kind of mechanism to deal with that situation, but, hey, I was acting for a bank, and I had to act in its best interests. Nothing I could do about the fact that the defendant was crazy. It was kinda frustrating, but my first duty was to the court, second duty to the client, third to the firm, and in an adversarial situation, there’s no room for looking after the person from the other side. 🙁
At one point I thought it might be good if the Court had some kind of mental health service available, but then that might be a conflict of interest, and lead crazies to conclude that the law was against them. Although they do generally conclude that anyway.
There does need to be better ways of dealing with these things.
Yes, a guardian is obviously desirable. But whose responsibility is it to make the application? And what if (i) winning the case, getting costs, and executing against the poor plaintiff is in your client’s best (financial) interests and (ii) that’s what your client tells you to do? I know of no duty to the Court to ensure that the mentally ill do not use it which would countermand the duty to follow your client’s instructions.
Oh dear. That’s a disaster area. In some ways a guardian may be the best thing for this guy, seriously. There’s nothing worse than seeing an unmeritorious claim brought by someone who is delusional. I really hate cases like that.
It also raises issues about the standard of mental health care in this country.