Vexation

An article by Peter Munro in The Age provides a surprisingly sophisticated analysis of the ‘problem’ of vexatious litigants. The unrepresented obsessed do pose problems for the administration of justice. Consider the web of litigation sketched out in Mentyn v Law Society of Tasmania [2004] TASSC 24. That was a decision in a bias application by the Law Society in which it submitted that Justice Slicer was actually biased agianst it, to the extent that he should not sit on any case involving a claim for damages against it.  The application seems to have arisen, in part, from a comment he made to an unrepresented litigant obsessed with the Law Society: ‘You want to beat up the Law Society, quite properly – I don’t have a problem with you trying to beat up the Law Society.’  Biffo between judges and counsel is always eye-catching, and this certainly seems to have been a case where relations between bench and bar were strained.  It is worth reading for that reason, but also because his Honour went to great lengths to examine  the proper role of judges faced with contests between the represented and the unrepresented, and cited much of the then-available literature on the subject.

But many lawyers’ standard modus operandi in litigation is vexatious, and vexatious in a way which exacerbates whatever negative qualities their clients may have. (Note the use of ‘many’.  I am not saying ‘most’, and the proposition is not inconsistent with the proposition ‘Many lawyers’ standard modus operandi in litigation is sensible and honest, and assists in the cost-effective resolution of disputes’. I would say, however, that most litigation is conducted in a manner far-removed from the theories of professional responsibility articulated so comprehensively by Justice Ipp’s outstanding article ‘Lawyers’ Duties to the Court’ (1998) 114 Law Quarterly Review 63.) Furthermore, the involvement of lawyers in many disputes, and the vexation they are allowed to get away with, creates problems for the ascertainment of justice, as the costs of losing become toxic to the parties’ otherwise-willingness to cooperate and tell the truth.  It is terribly important to recognise that if vexation (which I conceive of as bad-faith litigation) is to be measured by departure from the principles of good faith litigation articulated by Justice Ipp, a substantial contribution to the world of vexation is made by lawyers.  And yet I have never seen the proposition written down before.