In this post we look at vexatious litigation and why a litigant chooses the route of hyper litigation.
- How does the litigant benefit from this behaviour?
- How does this behaviour affect the recipients?
- What effect does this behaviour have on the legal system?
Who Are Hyper Litigants?
They are persons who:
- Initiate numerous law suits
- Are not be deterred by repeated negative outcomes
- File suits that are frivolous or unfounded
- Invest great amounts of time in litigation
- Find legal representatives who sympathise with their dilemma, whether real or not
- Have legal representatives who may have their same personality traits
- Refuse to settle disputes through negotiation especially if such a settlement will terminate litigation
The Rampant March into Hyper Litigation
Here’s an overview of our hyper litigation process so far.
2019 The Start – Vexatious Litigation
- 19th June 2019 – Developer’s legal team issues a Notice of Motion (NOM) to remove the bed from the upstairs bedroom in order to get an occupation certificate for the house.
- 18th December 2019 – Developer amends NOM removing the request to remove the bed. New plea asking for more time to work on the house even though the house should have been completed 2 years prior.
2020 Three Urgent Notices of Motion
- 11th June 2020 – same NOM as above, now URGENT with a new first respondent and new plea. New pleading for the first respondent to complete work in the cellar and a further plea for yet more time.
- 30th October 2020 – URGENT NOM for the municipality to issue an occupation certificate.
- 26th November 2020 – URGENT NOM to remove the arbitrator and special costs from arbitration.
2021-2022 In the Vortex of Hyper Litigation
- 25th January 2021 the court heard the case against the municipality. The case was dismissed with costs.
- 29th January 2021 – new NOM for the municipality to accept the rider plans as the approved building plans.
- 28th July 2021 – URGENT NOM to remove On Rocky Ground from the internet. The judge dismissed the case as not urgent and granted a costs order.
- 10th August 2021 the order from 4th December 2020 removing the arbitrator was rescinded.
- 14th October 2021 – Developer’s APPEAL to overturn the rescindment of August. The judge dismissed the appeal with costs.
- 1st December 2021 – Developer takes APPEAL to the Supreme Court of Appeal.
- 9th February 2022 the Supreme Court of Appeal dismissed the applicant’s appeal with costs.
- 22nd February 2022 the developer applied to court to hear the case about the arbitrator on the papers already filed in court. Case put on the roll for 13th June 2022.
- 8th March 2022 the court heard the case to remove On Rocky Ground. The judge dismissed the pleas and granted a costs order.
- 11th May 2022 the developer changed their mind in the case to remove the arbitrator. They wanted to amend their papers.
- 10th June 2022 the developer submits a strike-out application.
- 13th June 2022 arbitrator case was to be heard but the judge had not seen the strike-out application and postponed the hearing.
- Mid-August 2022 the judge to hear the case against the arbitrator. (Read our post The Whole Truth to see what happened next.)
How is the vexatious litigant benefitting from hyper litigation?
We believe they are playing for time to avoid or delay arbitration. In the 3 years since going to the courts:
- The developer has opened a number of new companies.
- One company markets the selling of erven.
- Other companies market the development of certain tracts of land.
Could it be that by the time we get to arbitration the developer will be nothing more than a shell company? In that case they will not be in a position to honour any award granted to us.
How does this affect the recipients?
We have a fully paid for house that we cannot occupy, rent or sell. While the developer continues to kick the ball into touch, the house continues to deteriorate. See some of the new problems in our post Winter Blues.
To read more about our eco home and our expectations, read How We Got Here.
A Brief Look At Some cases
if you’d like to read more about these cases, press the +
Or, skip to the investigation into hyper litigation.
The First Notice of Motion (NOM) - June 2019
The applicant wanted to remove the bed from the upstairs bedroom. They believed that without a bed the municipality would issue an occupation certificate. This was both frivolous and vexatious.
They would never have obtained the certificate for 2 main reasons:
- The house did not comply with building regulations
- The house was not built according to the municipally approved building plans.
Soon after the initial NOM, the applicant amended their plea. Instead of removing the bed they asked for more time to perform remedial works. Even though the house should have been completed 2 years prior, we gave them the time.
We even put the arbitration on hold to accommodate their plea!
How did the applicant benefit?
By opening the case, the applicant hoped to, and managed to, postpone arbitration. They claimed that certain matters were “sub judice”. But they were, and are, not. Through arbitration we are still hoping to get an award to repair the house.
What effect does this have on the respondents?
- The builder was paid in full in May 2017; we have been out of pocket to the tune of millions for over 5 years;
- The Certificate of Occupancy is more than 5 years overdue
For some music to set the scene, listen to Sixpence singing There She Goes Again.
Case with the Municipality
The applicant was hoping to force the municipality to issue an occupation certificate. However the case was dismissed with costs.
How would the applicant / litigant benefit?
If the developer had won the case:
- The municipality would have to approve the as-built plans with all the developer’s changes. These changes were made without our knowledge and consent.
- The plans altered the description of the upstairs rooms and changed the ceiling position.
- The result – the developer would not have to raise the upstairs ceiling height.
How would this affect the recipients?
- We paid for a 3-bedroom house but we would have to accept a 2 bedroom house.
- Without a functional first floor, our house would be worth much less.
Case to Remove the Arbitrator
This Urgent Notice of Motion was to remove certain claims from the arbitration. In addition, the applicant wanted to remove the arbitrator. But, the arbitrator had been appointed according to the terms of the building agreement. And, importantly, everyone ratified his appointment.
Why then remove the arbitrator?
The only plausible reason is that the developer did not like a ruling the arbitrator made. The ruling was over his jurisdiction in certain matters. As it turns out the arbitrator was absolutely within his rights to make that ruling. (Our post Urgent Notice of Motion of 4 December 2020 gives the full details of the case.)
Vexatious Litigant or Spoilt Child?
This knee-jerk reaction to the arbitrator’s ruling was a bit like a spoilt child.
If you don’t get your own way, throw your toys out of the cot.
In her founding affidavit the developer made an interesting statement. She said they were “ad idem” with us wanting to reach finality. But they were asking for the arbitrator to be removed! All those toys getting a bit muddled! Removing the arbitrator was unlikely to be a time-saving measure to reach finality. If anything, the NOM was another delay tactic.
Case to Remove On Rocky Ground
The applicant wants us to remove from the website all:
- references to the developer
- references to the development
- the name of the director and
- the name of the builder.
Abuse of the Court System
But their names appear nowhere on the website! Their faces are blacked out of the photos. It is absurd that the case is even worth hearing! Another abuse of the court system? But who is allowing this abuse?
The matter was on the court roll for 1st December 2021. As it turns out, the day before the hearing, no judge was allocated to the case.
- Is it possible that someone sabotaged the hearing?
- Perhaps the court papers were not submitted correctly, or, maybe not even at all. More delay tactics?
So, we wasted time and money for a case to be heard in March 2022. And yes we were charged the full daily fee by the advocate. After all he had set aside the day to be in court. The case was heard in March. The judge published her order on 3rd May 2022. She dismissed the applicant’s pleas that she said were untenable. There are no references to the developer, development, director or builder in any post on On Rocky Ground. So, how can there an order to remove them! Bizarre! A waste of our money and tax-payers’ money.
Another day, another dollar down the proverbial drain.
- Defending oneself against hyper litigation is exorbitantly expensive.
Why This Hyper Litigation?
We have often speculated as to why the developer chose the litigation route.
- Maybe the litigant doesn’t have the money to pay for the remedial works to the house?
- Is it possible that said litigant is not paying their legal team to appear in court? Significantly, the litigant has a long-standing relationship with her attorney. The attorney may even have invested money in the eco development. After all there was every likelihood that the eco estate would give great returns in a relatively short period.
- In one affidavit the applicant said they would be prejudiced if they had to lead evidence in arbitration. This begs the question, “Why?”
- Could investors in the development company be demanding returns from their investments? Given that 6 years have passed, they may be expecting a return.
- Is the developer selling off all company assets? That process needs time and they have bought themselves 3 years by going to the courts.
The Psychology of a Vexatious Litigant
- What motivates the behaviour?
- Why is the litigant doing this?
In addition to considering the litigant’s behaviour, what about the legal team’s behaviour?
- After all, the attorney and advocate facilitate the litigation.
- And they also benefit materially from the legal processes.
I’ll See You In Court … Again
The Authors
The Authors Investigate, Consider and Suggest
In the article, the authors:
- investigate “hyperlitigious behavior” by “hyperlitigious litigants”;
- consider the motivation behind the behaviour;
- suggest three strategies for treatment by mental health practitioners.
The main interest in this post is the motivation behind vexatious litigation.
Hyper Litigious Behaviour
Hyper litigation is by no means new. In fact, the first recorded reference is in a play, “The Wasps”, by the Greek playwright Aristophanes in 422BCE. Well, that’s a long time ago! And we humans are still at it!
A summary of The Wasps in Britannica.com shows us a view of litigiousness in ancient Athens.
Benjamin Levy published a 2-part article on the history of hyper litigious behaviour. Levy states:
Persistent litigation is a problem … and is costly at individual and systemic level
Costly is an understatement. It is crippling and as we are of pension age it is even worse. We do not have 30 or 40 years to recoup our lost life-savings. On a systemic level, abuse of the court system slows down justice and ultimately the cost goes to the taxpayer.
Unfortunately I cannot find a link to the original Levy article.
Motivation Behind the Behaviour
According to German psychiatrist Johann Ludwig Casper:
- all human beings strongly resent real or imagined threats to their basic rights;
- this leads them to take legal action to protect their rights when necessary;
- when these individuals are … displeased with the outcome of legal proceedings, they become fixated on attaining justice;
- This fixation begins a downward spiral….that may end in a full-blown delusional disorder.
Look at the first statement “all human beings strongly resent real or imagined threats to their basic rights”. Although this may be true, are we then all potential hyper litigants? One hopes not. Surely there is something else in the psyche that triggers this action?
- Could it be that these individuals are craving something else?
- Perhaps their low self-esteem drives them to seek some form of vindication to relieve their pain.
As suggested by Carlos A Abadi in his article The Problem of the Obsessive Litigant, they crave unconditional love.
Delusions of Passion and Delusions of Revindication
Benjamin Pailhas, the French psychiatrist, referred to “delusions of revindication” or revenge. According to Pailhas hyper litigants believe they have lost something that rightfully belonged to them:
and were bitterly revolting against the person .. responsible …
Gaetan De Clerambault described persons with “delusions of passion” as:
fixated on a goal and feverishly pursue the goal to its end
What other triggers cause hyper litigation?
- Can hyper litigation be a game to some? Possibly a gamble or addiction, or both?
- And what if their actions have the potential to leave them destitute?
Impact on the legal system
Most research into hyperlitigious behaviour is by legal researchers. Understandably, they want to know the impact on the legal system and the cost to the fiscus and taxpayer.
Little research is done on the impact on the individual. Nor is there much research on the rehabilitation of the perpetrator.
In the United Kingdom and United States the courts are responsible for managing vexatious litigants.
- The court may ban an individual from initiating further legal procedures.
But this does not address the underlying causes of hyper litigation. Neither does it prevent the hyper litigant from finding a new route to get back to court.
So Sue Me
Ruth Lee Johnson J.D is a graduate of Harvard Law School. She writes a blog called So Sue Me: The intersection between law and psychology.
A lawsuit is a 21st century American equivalent of a duel. … fighting with papers instead of swords, risking money instead of blood.
…people who routinely threaten baseless lawsuits are often just adult versions of playground bullies.
Treat the threat the same way you would treat a child’s anger tantrum. … stay calm, try to muster some sympathy for this obviously ill-adjusted person
Ruth Lee Johnson notes that absurd lawsuits are there to harass the victims. (Surely the original Notice of Motion of 2019 may be thought as absurd: it was simply there to harass us? Our post Vexatious and Frivolous Litigation gives details of this and other cases.) Ms Johnson also considers the effect on victims. Just seeing your name in court papers is both scary and stressful.
Court papers create panic for a naïve victim not least because of the expense involved. The victim must find the right guidance and the right legal assistance and that is not always easy. In our case we had to find legal assistance in Johannesburg for a matter in the Western cape High Court.
Conclusion
The fact that hyper litigation has been around for many hundreds of years is no consolation when you are caught in its trap.
The fact that little research is done on how to rehabilitate vexatious litigants also offers little consolation.
What does offer consolation is the hope that there are judges in the legal system who see through vexatious and frivolous litigation and are prepared to put a stop to it.
We have seen numerous frivolous law suits initiated by this hyper litigant and her legal team. They must have spent great amounts of time on all this litigation. It seems they are not deterred by the many negative outcomes they have had to bear. And yet they have chosen not to settle the disputes through arbitration.
I’m sure no one can foresee being dragged into a litigation saga. But when it happens it is horrifying. To see one’s life savings go down the drain is scary. This hyper litigant’s actions will affect our retirement for years to come.
It’s a sad state of affairs.
Well written and poses some very interesting questions!