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Litigant in person’s ‘misconceived’ applications an abuse of process

Munby J rejects serial litigant’s ‘scurrilous’ allegations

22 November 2016

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The latest applications by a litigant in person embroiled in long-running court wrangles involving his aunt and his wife amounted to the ‘plainest possible’ abuse of process, the president of the family division has ruled.

Last March, Desmond Maurice Fitzgerald was issued with an extended civil restraint order banning him from bringing further proceedings in respect of his aunt in the Court of Protection. The order, by Sir James Munby, did not extend to the financial remedy proceedings brought separately by Fitzgerald’s wife against him in the family court.

Earlier this month, Fitzgerald applied again, this time to the family court, for an order quashing the previous orders. Dismissing the applications this morning, Munby P said they were ‘misconceived and totally without merit’, and that ‘[Fitzgerald’s] attempt to ventilate these matters by application in the family division is an abuse of process.’

Ruling in Akester v Fitzgerald [2016] EWHC 2961 (Fam), the president said Fitzgerald should have sought permission to make these new applications in relation to the Court of Protection case. ‘He cannot evade this requirement, as seemingly he seeks to do, either by attempting to make a spurious link with the proceedings in the family court or by making an application in the High Court.’

Fitzgerald first applied to the Court of Protection against a 2013 decision by Senior Judge Denzil Lush to appoint a property and affairs deputy for his aunt, who was deemed to lack capacity. He objected to the appointment, to the solicitors acting for his aunt, and to experts’ findings in relation to her capacity.

The serial litigant’s judicial saga culminated in August with a judgment by Sir James upholding a £92,000 costs order against him. Fitzgerald’s allegations against solicitor Frances Hughes, the Hughes Fowler Carruthers partner acting for his aunt, were ‘a farrago of nonsense’, the judge said at the time.

The litigant in person made a further attempt to have Hughes committed for contempt of court, which again Munby P rejected. Citing his previous ruling, the president repeated that Fitzgerald’s allegations were ‘scurrilous, fatuous, and should never have been made’.

The judge added that there was ‘no factual, logical, or legal nexus between the alleged contempt and the proceedings in the family court’.

Munby P dismissed a further four claims by Fitzgerald alleging dishonesty and fraud by solicitors handling his aunt’s affairs and the sale of his matrimonial home. The way Fitzgerald had chosen to pursue these ‘scurrilous’ claims, the judge said, was ‘the plainest possible abuse of process’.

Fitzgerald argued that ‘the reputation of Central Family Court, the President himself, and of Family Division generally for the impartial dispensation of justice would suffer considerable damage’ if the judge refused his application.

In response, Munby P said: ‘I shall continue to do my duty whatever insults Mr Fitzgerald may continue to throw at me.’

Jean-Yves Gilg is editor-in-chief of Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg

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court of protection litigant in person