How NOT to behave as a litigant in person

Hot on the heels of the CoP’s recent lesson in how not to behave as a professional deputy, we might learn more lessons here from someone who got it wrong.

In brief
This extraordinary case involved a litigant in person who took persistence to a new level.  Unfortunately many of the numerous applications he brought before the Court of Protection had little or nothing to do with his aunt’s best interests.

This is a rather extreme case but there are some interesting legal points to take away relating to:

• A costs warning is not a pre-requisite to an order for costs.
• The court’s step to name the litigant in the case report.

My comments below explore these areas further.

Case Summary
A is an elderly lady whose affairs have been administered by the Court of Protection in its various guises for almost sixty years.  She had schizophrenia and lacked capacity to manage her own affairs because of that and some surgery which was  carried out a number of years ago and which, it is safe to say, would not be attempted now.

A’s niece, C, was appointed as her Deputy for Property and Affairs in May 2013.  Mr Fitzgerald, her nephew, objected. In fact, Mr Fitzgerald seems to have objected to pretty much everything, being extremely prolific and putting in nine applications to the Court of Protection between 7th March 2013 and 9th May 2013.  At the hearing on 15th March 2016 he produced a further twelve applications with accompanying documents.

Mr Fitzgerald raised the fact that he was a litigant in person.  The Judge said that he had made every proper allowance for the fact that Mr Fitzgerald was but that “he is an articulate and intelligent man. Why in these circumstances should he be relieved? Justice and fairness to him do not, in my judgment, justify giving him relief; justice and fairness to Ms Hughes, on the other hand, require, in my judgment, that he should not be given relief“.

Mr Fitzgerald tried to argue that because his first costs warning occurred on 8th May 2013, any order for costs against him should have been limited to costs incurred after that date.  The Judge did not agree.  He made it clear that the giving of a costs warning was not a pre-requisite for the application.  He also noted that it made no difference to how Mr Fitzgerald conducted proceedings.

Mr Fitzgerald had not restricted his activities to putting applications to the Court of Protection.  He had also attempted to have C’s solicitors committed for “income tax fraud” and “criminal tax evasion”. He also accused the solicitor of “deliberate falsification” in his evidence to the Court and invited the Judge to refer her to the Attorney General.

In addition to that, he reported her previous solicitors to the Legal Ombudsman who did not see any problem with the way the solicitor had acted.  During the 2013 hearing, Senior Judge Lush observed, “There has been no effective challenge to C’s competence or integrity. Mr Fitzgerald’s allegations in this respect are simply bluff and bluster.”

During the 2013 proceedings the manner in which he handled those proceedings was described by the Judge as ‘repetitive and vociferous‘, ‘tantamount to harassment‘, and ‘actionably defamatory‘

The usual rule is that costs come out of the estate of the incapacitated person but the extreme facts of this case were that very substantial costs orders were made against Mr Fitzgerald. More of that in the commentary above.

Mr Fitzgerald had objected to Professor Howard being instructed to give evidence of his aunt’s capacity on the basis that he was apparently not expert enough. In an attempt to manage the situation, the Judge said that Mr Fitzgerald could ask further questions of Professor Howard but they would have to come through the Judge first.  Mr Fitzgerald came up with forty of them, some of which the Judge felt should be answered and some he did not.  Not everything went against Mr Fitzgerald though. There was an application that he should pay the entire second costs of Professor Howard’s report but this was reduced by the Judge.

Moving things on rather from a complaint that the pressure of the proceedings brought about the end of his marriage, Mr Fitzgerald instead suggested that the solicitor had “intentionally sought to destroy the marriage in order to achieve this end“, the end being her own enrichment.  She was accused of pursuing a strategy of costs intimidation.

Mr Fitzgerald proceeded to claim wasted costs which were not in fact costs at all, but compensation for his financial loss and marital difficulties, against the solicitor.

Mr Fitzgerald also suggested that the Judge should resign.  The Judge was none other than Sir James Munby, President of the Court of Protection – oops!

As part of these proceedings, readers might be relieved to learn that Mr Fitzgerald is not allowed to bring any further applications in relation to these proceedings until 21st March 2018.

The allegations under the solicitor, Miss Hughes, were described as “scurrilous, fatuous” and “a farrago of nonsense“.   For those of you who do not have a dictionary to hand, a farrago is a confused mixture or an untidy heap.  This Judgment is so rich with adjectives in an attempt to describe Mr Fitzgerald’s extreme behaviour that it is a recommended read for that reason alone.

Despite the unfounded nature of the allegations, Miss Hughes had understandably run up significant costs in defending herself against these most serious allegations including contempt, which can of course carry a term of imprisonment.  Those costs were borne by Mr Fitzgerald himself.

You would think that Mr Fitzgerald would have learned his lesson but it seems he was not done yet. The Judge says, “On 8 August I received from Mr Fitzgerald an email identifying what he described as ‘a number of errors, omissions, mistakes and lapses of memory’ which he asked me to correct. None of his observations call for any correction to the judgment or any additions to the text. For the sake of completeness, I set out each of his observations, with my response, in a footnote to the relevant part of the judgment. Subsequently, on 9 August 2016, I received seven further emails from Mr Fitzgerald (timed at 11:34, 11:42, 12:55, 13:59, 15:27, 15:35 and 15:52). Except in relation to one point, none of his observations call for any correction to the judgment or any additions to the text“.

In a separate judgment, despite Mr Fitzgerald’s objections, the Judge decided that the first judgment should be publicised.  This had been requested by the solicitors who acted for C.  Their two reasons for asking were because they had matters still in the Chancery Division for A and Mr Fitzgerald kept mentioning the Court of Protection proceedings in those proceedings.  They would find it helpful to rely on the judgment if it was published.  It was, quite rightly, pointed out that it contained important observations about the application for costs jurisdiction of the Court of Protection which would be of interest to the profession as a whole. That, and a warning to people intending to ‘do a Fitzgerald’.

Comment
This is a rather extreme case.  The legal points to take away relate to the costs position.  As we know the Court can depart from the usual costs position which is that the incapacitated person’s estate pays.  However, Mr Fitzgerald raised a couple of points to which the answers are important.

A costs warning is not a pre-requisite to the application of the rule for costs to be awarded against another party.  As the Judge said, “It is asserted that, because SJ Lush placed reliance upon the costs warning he had issued on 8 May 2013, any order for costs against Mr Fitzgerald should have been limited to costs incurred thereafter. I do not agree. The giving of a costs warning is not a pre-requisite to the application of rule 159, and the fact that such a warning is given cannot immunise a litigant from the application of rule 159 to previously incurred costs. Moreover, it is not as if the giving of the costs warning induced Mr Fitzgerald to moderate his behaviour in the slightest. He simply carried on regardless“.

Mr Fitzgerald also said that no order for costs should be made against him given that he had at no stage been given an indication of the level those costs could reach. The Judge’s response was, “It is asserted that no order for costs should have been made against Mr Fitzgerald given that he “had at no stage been given any indication as to the scale of the costs he was at risk of having to pay”, alternatively, that the costs “should have been capped at a reasonable foreseeable sum so as to not to permit the exorbitant claim for £127,500.” There is nothing in either of these points. There is no requirement, whether in law or in practice, for someone in Mr Fitzgerald’s position to be given such an indication. And the second point is met by the fact that the order (that is, both the order that SJ Lush made and the order I made) provides for a detailed assessment of the costs, so there is no risk of Mr Fitzgerald being required to pay anything unreasonable, let alone exorbitant“.

So, in summary, the Judge said there was no requirement for somebody in Mr Fitzgerald’s position to be given such an indication.  Of course, costs should be assessed anyway and so Mr Fitzgerald would not be required to pay anything unreasonable let alone exorbitant.

Finally, of course in allowing publication of the case, neither A, the incapacitated person, nor C, her niece, should be identified.  The Court clearly felt though that Mr Fitzgerald should be identified. Perhaps they are hopeful that this will stop him making threats of any applications in the future.

Case reports:

A (A Patient), Re [2016] EWCOP 38 (10 August 2016)

A (A Patient), Re (No 2) [2016] EWCOP 39 (18 August 2016)