Frivolous Litigation, Cost, Time and the Law to deal with them

Introduction

Small or non existent issues, enlarged with a zeal to drag the opposite party in false and frivolous litigation to teach them lesson or gain media publicity causes sheer waste of court’s valuable time. The court is a temple of justice and not a place for settling scores or nurturing personal egos or even catching unnecessary attention. The issue of frivolous litigation is not so simple to be just ignored as it comes with consequences of harassing parties, abusing the process of law, stealing valuable court’s time and unjust deviation of court concern from pending litigation. Pandemic has already squeezed court’s time and increased pendency. This article focuses attention on the problem of “frivolous litigation“.

Understanding the term ‘Frivolous’

In legal world, these terms are quite popular but if we open the law books there definitions are missing. Another popular term is vexatious but frivolous is not to be confused with vexatious. The terms frivolous, vexatious litigation refers to the distinct types of cases but both have tremendous impact on the system where pendency is a concern.  International literature defines the purpose of frivolous litigation as-

• Harassing the defendant. The purpose behind such litigation is that even if the case is meritless, the defendant has to expend time, energy, and financial resources to have the case dismissed. What’s more, the defendant’s reputation might be tarnished if people hear about the lawsuit and assume it’s legitimate. For these reasons, frivolous lawsuits are often used by plaintiffs as a way to harass defendants. They can also be relevant for forcing the defendant to arrive at particular settlement litigation pressure.
• Generating media attention. Sometimes lawsuits are filed for no other reason than to generate buzz. Generally, these lawsuits are filed by advocacy groups who wish to catch attention.

Cornell Law School Definition

According to Cornell Law School definition a frivolous claim, often called a bad faith claim, refers to a lawsuit, motion or appeal that is intended to harass, delay or embarrass the opposition. A claim is frivolous when the claim lacks any arguable basis either in law or in fact. That means, in a frivolous claim, either: the ‘factual contentions are clearly baseless,’ or “the claim is ‘based on an indisputably meritless legal theory.

Difference between Frivolous and Vexatious and Views on Curbing them: Law Commission Report

As regards frivolous and vexatious litigation, there is some consensus that they should be nipped in the first possible instance to save the court’s time. Vexatious’ litigation means habitually or persistently filing cases on the issues in which have already been decided once or more than once or against the same parties or their successors in interest or against different parties.  The 189th Report of the Law Commission of India referred to ‘frivolous and vexatious’ litigation while agreeing with the remarks of Lord Macaulay on the preamble to the Bengal Regulation of 1795. The regulation conveyed the view that frivolous litigation can be curbed by increasing the court fee. However, Lord Macaulay was of the view that frivolous and vexatious litigation has been in practice even before the system of court levying fees existed. In his view, although increasing court fees may prevent dishonest plaintiffs, it will also discourage honest plaintiffs with bonafide litigation. He posed serious questions:

Why did dishonest plaintiffs apply to the Courts before the institution fee was imposed? Evidently because they thought that they had a chance of success. Does the institution of fee diminish that chance? Not in the smallest degree. It neither makes pleadings clearer, nor the law plain … It will no doubt drive away dishonest plaintiffs who cannot pay the fee. But it will also drive away honest plaintiff.”

In the Indian context, the 192nd Law Commission Report dealt with the prevention of vexatious litigation but it differentiated it from frivolous. ‘But so far as ‘frivolous’ litigation is concerned, a litigation may be frivolous,- without the need for persistent filing of similar case,- even if it has no merits whatsoever and is intended to harass the defendant or is an abuse of the process of the Court.

Supreme Court View on Curbing Frivolous Litigation

That frivolous and vexatious litigation has to be separately tackled and not by way of increase in court fee was also stated by the Supreme Court in Secretary to Govt. of Madras vs. P.R. Sriramulu : (1996)(1) SCC 345 (p 351) where it was observed as follows:

“In the beginning the imposition of the (court) fee was nominal but in the course of time, it was enhanced gradually under the impression that it would prevent the institution of frivolous and groundless litigation and as an effective deterrent to the abuse of process of the Court without causing any impediment in the institution of just claims. However significant this view may be that the levy of fees would have a tendency to put a restraint on frivolous litigation, that view, at any rate, had the merit of seeking to achieve a purpose which was believed to have some relevance to the administration of justice. Since about past two decades, the levy of court fee on higher scales would seem to find its justification, nor in any purpose related to the sound administration of justice but in the need of the State Government for revenue as a means for recompense.”

The Supreme Court (“SC”) in Vinod Seth v. Devinder Bajaj made slightly different observations and noted that the provision for costs is intended to, among other goals, act as a deterrent to frivolous litigation’s. The Court further noted that the court fee should be such that an individual thinks twice before putting forth a frivolous claim.

In a recent judgment, the SC noted that “The justice dispensation machinery in India is plagued with backlogs, with 70% of the pendency before the subordinate courts being on the criminal side. A significant factor in this backlog is the vast mass of frivolous litigation instituted year after year by litigants with intent to use the courts of justice for their own mischievous ends”.

Provision of Cost in Civil Procedure to Tackle the Issue, Criminal cases and PILs

Further, there are some existing provisions in the Code of Civil Procedure like Order 6 Rule 16, Order 7 Rule 1, sec 35A etc. which deal with law handling‘frivolous’ litigation. It is also necessary to deal with vexatious criminal proceedings which now fall under sec 250 of the Code of Criminal procedure, 1973. Those provisions may indeed have to be strengthened further as per the report. Here, the court applies the Loser pay principle i.e. the entity bringing the frivolous suit shall pay the legal cost incurred by the defendants. However, in criminal cases it will come with more serious consequences which is not subject matter of article. Although it is discussed above the cost alone has not being a good deterrent factor to deal with the issue

For criminal suits, there is no statutory provision in place however, the courts with time have developed various rules to curtail frivolous claims such as courts have directed the practice of conducting a preliminary enquiry before registering an FIR of a criminal complaint.

PIL is good case study. The Courts have also from time to time adopted various methods to curtail frivolous Public Interest Litigation (“PIL”). In 2010, the SC laid down the Maintainability of PIL Rules which made it compulsory for petitioners to first disclose their credentials and motives to the court’s registry, based on which the PIL could be entertained. Further, the petitioners will have to deposit a certain amount if a PIL is found to be frivolous. The Madras High Court according to Law Commission Report, expressed intolerance towards frivolous PILs and noted that appropriate costs must be awarded to such petitioners. Frivolous suits have clogged and disrupted the court system in India leading to a huge backlog of cases, thus affecting taxpayers and honest litigants. The situation is a cry for help and it is important to have central legislation specifically dealing with the issue, owing to the fact that CPC provisions are rendered ineffective.

International Practice

A. Inherent Powers of the Court in UK to strike off Frivolous litigation: The Supreme Court Practice (UK)in its commentary under Order 18 Rule 19 refers to “inherent power” of Courts to stay or dismiss actions which are frivolous or vexatious. It states: (page 346) An order to strike off frivolous or vexatious pleadings can also be passed where pleadings contain such pleas. The relevant provision in UK is as follows:

“Order 18 Rule 19 (1) The Court may, at any stage of the proceedings, order to be struck out or amended any pleading or the endorsement of any writ in the actions, or anything in any pleading or in the endorsement, on the ground that –

(a) it discloses no reasonable cause of action or defence, as the case may be; or

(b) it is scandalous, frivolous or vexatious; or

(d) it is otherwise an abuse of the process of the Court; and may order the actions to be stayed or dismissed or judgment to be entered accordingly, as the case may be.”

B. New Zealand law on Frivolous Litigation: We may also refer to sec 477 of the High Court Rules (Part 5) relating to stay or dismissal. That section reads:

“Section 477: Summary stay or dismissal: When in any proceeding, it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding –

(a) No reasonable cause of action is disclosed, or

(b) The proceeding is frivolous or vexatious, or

(c) The proceeding is an abuse of the process of the Court, the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief of the proceeding.”

The provisions have been quoted from Law Commission Report 277.

Role of Legal Advisory and Issue Notice

The branch of legal practice is much restricted to oral conversations between client and lawyer during engaging process in general beyond law firms. But before filing case the documentation of merit of case evaluations are not exercised as to on what count should the case proceed. In many cases such, filing such cases is  also a pressure tactics arms to help party reach the desired conclusion. Another crucial stage of nipping the frivolous litigation is “Issue notice” stage in court.

Provision of Case Evaluation in US

Conclusion