Jean-Yves Gilg

Editor, Solicitors Journal

LiP slapped with £100k costs bill for 'farrago of nonsense' application

LiP slapped with £100k costs bill for 'farrago of nonsense' application


Case highlights the difficulties encountered by the judiciary when dealing with the 'chaos' created by litigants in person

Case highlights the difficulties encountered by the judiciary when dealing with the 'chaos' created by litigants in person

A litigant in person has been told that his committal application against a well-known private client lawyer was 'a farrago of nonsense' and has been ordered to pay costs on an indemnity basis for nearly £100,000.

Ruling in Re A (A Patient) In the matter of applications by and against Desmond Maurice Fitzgerald [2016] EWCOP 38 Munby J said Desmond Fitzgerald's allegations against Frances Hughes, a partner at Hughes Fowler Carruthers, were 'scurrilous, fatuous, and should never have been made'.

Hughes and her firm sought to recover costs on an indemnity basis, claiming a total of £101,995 in respect of Mr Fitzgerald's two claims against them. The president of the Court of Protection accepted the indemnity approach but revised the amount down to £92,000.

'In the circumstances,' he said, 'justice demanded that […] all the costs of this misconceived and meritless application be borne by Mr Fitzgerald […] on the indemnity basis sought by [Hughes' counsel].'

'Litigants in person often cause mayhem in the courts,' Hughes told Solicitors Journal, 'but, even worse, there can be terrible consequences financially for these litigants.'

Judges will often warn litigants in person about the risk of pursuing unreasonable litigation, and the likely escalation of costs, but Hughes suggested there should be a better system to deal with these cases, especially following the withdrawal of legal aid.

'Judges are being told they must give litigants in person a chance but it's almost always inevitably an unhappy outcome for litigants who are not clear about a process which is complicated and that they don't really understand.'

Fitzgerald's first applications were directed at a decision by Senior Judge Denzil Lush in May 2013 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 persistence with which he kept filing application notices, if not intentionally designed to disrupt and derail the litigation process, almost succeeded in having that effect,' SJ Lush observed in his judgment at the time.

'What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person,' he continued. 'Two problems in particular are revealed. The first is to bring order to the chaos which litigants in person invariably - and wholly understandably - manage to create in putting forward their claims and defences.

'Judges should not have to micro-manage cases, coaxing, and cajoling the parties to focus on the issues that need to be resolved.'

Sir James criticised Fitzgerald for opposing the deputy's appointment 'in a way which was, for the most part, utterly unreasonable' and which resulted in 'the grotesque driving up of costs'.

While allowing Fitzgerald's appeal against SJ Lush's £127,465.59 costs order, Munby J, having exercised his discretion afresh, ended up agreeing with the judge's decision and reasoning. He also upheld a £27,296 costs order in respect of the challenges to the medical expert's appointment and reports.

The senior judge also confirmed an extended restraint order against Fitzgerald for two years. 'Those who have been harried by Mr Fitzgerald are entitled to be protected. The court is entitled to protect itself, its processes and, indeed, other litigants from having so much of its time taken up - wasted - by Mr Fitzgerald,' he concluded.