The Irish judiciary has long been cognisant of the rights of all parties – whether represented or unrepresented – to access the courts and have a right to a fair hearing. However, due to straitened economic circumstances, litigation is increasingly conducted by litigants in person, meaning that strict compliance with court processes and procedures is not always possible. Although genuine litigants are typically treated flexibly and often sympathetically, there is well-known jurisdiction to preclude serial vexatious litigants from pursuing spurious cases. The Supreme Court recently offered some guidance1 with regard to the allocation of court resources and the extent to which litigants (and particularly litigants in person) might be indulged by the court, all of which is potentially relevant when a claim might be perceived as having little merit.
The appeal to the Supreme Court arose from a set of proceedings brought by the plaintiff, an experienced litigant who was representing himself against defendants following the termination of an alleged contract between them. The plaintiff, Mr Tracey, felt that the case raised defamation-related issues and he sought to have the matter heard before a judge and jury. However, the then-president of the High Court had determined that no defamation had been pleaded and, on the basis that Tracey had no right to a jury trial, moved the matter to the non-jury list and awarded costs of the application against Tracey. Tracey was not present when determination was made because the president was not satisfied with the medical evidence to justify Tracey's absence (evidence that the president had previously directed be presented to him on the relevant date).
Tracey appealed, claiming that the proceedings did involve a defamation element and that the president was biased against him. The Supreme Court rejected Tracey's contention that the president was in any way biased or had acted improperly, and noted that the order made was a procedural one and did not dismiss his claim. The Supreme Court also held that the proceedings could not be properly characterised as defamation proceedings, as there was no such plea and defamation requires clear and explicit pleading.
However, it did conclude that costs should not have been ordered against Tracey and, while it did set aside that aspect of the High Court order, the balance of the proceedings were remitted to be dealt with as a nonjury case.
The guidance that the case offers with regard to how the courts should approach the allocation of court resources and how the courts should deal with litigation not being conducted strictly in accordance with good practice and procedure is of particular note.
In addition to determining the appeal, Judge McMenamin for the Supreme Court took the opportunity to address what he described as the "second dimension" to the appeal. In the first instance, he observed that the fact that the appellant was a litigant in person "does not alter the duties he owes a court, or his obligation to comply with the rules of court" and he was critical of Tracey for not first seeking to set aside the order made in absentia rather than issuing his appeal – which, in any event, he did not progress with expedition.
In dealing with cases before it, he conceded that "a court sometimes exercises a degree of latitude towards litigants in person", but nonetheless he observed that "the courts are entitled to monitor and police their own proceedings to avoid drawn out litigation". Taking into account experiences in other matters, he felt that it was "necessary to reiterate some matters which are fundamental". He went on to state:
"In all legal proceedings, whether a litigant is legally represented or not, a point may be reached where the conduct of such litigation so dilatory, or so vexatious, or proceeds in a manner which either breaks or ignores rules of procedure, or where there is such egregious misconduct either before the court, or in court itself, as to raise questions as to whether the right of access to the court should be limited, or, in extreme cases, whether a case should actually be struck out. Put simply, the questions are whether there is abuse of process to such a degree that the claim simply should not be allowed to proceed, or whether such a claim should be allowed to proceed only under identified procedural conditions, or in a manner proportionate to the circumstances, while seeking, as far as practicable, to vindicate that constitutional right to litigate proceedings."
McMenamin cautioned that:
"the time has long since past where is either necessary, or desirable, to permit litigants, or their legal representatives, to read documents or submissions 'into the record of the court', where court time, a scarce public resources, is unnecessarily wasted. Court time is not solely the concern of litigants, or their legal representatives. There is a strong public interest aspect to these issues. Time allotted to the parties may be apportioned by judge fairly, prior to, or during a hearing. But such time must be predicated on realistic appraisal of the time case, matter, should ordinarily and properly, take."
He cited the chief justice2 to the effect that the constitutional right of access to the courts is not absolute, and that the court must also protect the rights of opposing parties, the principle of finality of litigation, the resources of the courts and the right to fair procedures for each party to the litigation. McMenamin summarised the reasons as follows:
"It is an injustice that defendants or plaintiffs be exposed to repeated and vexatious litigation, in which either party incurs unnecessary legal costs which may not easily be recoverable against an offending party. The public have a right to a court system which operates effectively and expeditiously in the public interest, while ensuring that justice is administered as the Constitution requires. Finality is necessary in the interest of justice. It must be clearly understood that one adverse ruling, or even a series of adverse rulings, by a court is not, without significantly more, to be regarded as grounds for claiming either subjective or objective bias."
He concluded by observing that:
"a court may, under the Constitution, take whatever proportionate steps are necessary to protect the integrity of its own processes and procedures, and the inherent right of courts, themselves, to manage their own procedures in a manner which balances the rights of litigants with the rights of the public, and other litigants."
In remitting the matter to the High Court to be dealt with on a non-jury basis, McMenamin suggested that the High Court deal with a number of matters as preliminary issues as part of case management including the identification of the proper parties to the proceedings, the question of the liability of certain defendants and the proper quantification of the claim.
The Supreme Court took the opportunity to reiterate a number of principles with regard to the conduct of proceedings to ensure that all parties and the public good is not displaced or subjugated to the benefit of an unscrupulous litigant (which often happens to be a litigant in person). The decision is a helpful reminder that the case management powers of the courts which may be exercised to ensure that litigation is not used oppressively and it is hoped that, to the extent necessary, trial courts will invoke the principles identified to limit some of the abuses experienced, particularly in cases involving litigants in person.
1. Tracey T/A Engineering Design & Management v Burton  IESC 16.
2. O'Reilly McCabe v Minister for Justice  IEC 52, at paragraph 33.
This article first appeared in the International Law Office Litigation newsletter, 05 July 2016.
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