McKenzie Friend: Friend or Foe?

In a judgment delivered last week in Bank of Ireland Mortgage Bank v James Martin and Deirdre Martin [2017] IEHC 707, Mr Justice Noonan addressed the problematic increase of ‘agenda-driven pressure groups’ since the Recession. Background The plaintiff sought summary judgment on foot of a loan advanced to the Defendants in January 2005, which in turn was secured by way of mortgage against the defendant’s property. Subsequently, the defendants defaulted on the repayments, ... In a judgment delivered last week in Bank of Ireland Mortgage Bank v James Martin and Deirdre Martin [2017] IEHC 707, Mr Justice Noonan addressed the problematic increase of ‘agenda-driven pressure groups’ since the Recession.

Background

The plaintiff sought summary judgment on foot of a loan advanced to the Defendants in January 2005, which in turn was secured by way of mortgage against the defendant’s property. Subsequently, the defendants defaulted on the repayments, none having been made since August 2012. As a result, the Bank called in the debt and appointed a receiver over the property. The plaintiff claimed for the balance due following the sale. These proceedings issued in 2014. It is noteworthy that they have been in the Court system for over three years.

The Affidavits/Demands

Mr Martin swore multiple affidavits in the matter however none were sworn by Mrs Martin. Judge Noonan honed in on specific aspects of Mr Martin's affidavits, which he said “proclaim at the outset that he is a non-individual living man.” He also commented on the length of the affidavits, containing “extraordinarily prolix and obtuse averments.” The Judge said they are “replete with references to original wet-ink documents” and “free-floating quasi legal concepts” which ultimately fail to connect to any facts arising from the case itself. These affidavits are awash with “mantra-like demands for the proceedings to be struck out” and are “suffused” with material that is not only “frivolous and vexatious” but also wherein allegations of a “serious” and “baseless” nature were made as regards the plaintiff, its solicitors and indeed its counsel. The affidavits insist that any member of the judiciary who may hear the case should “recuse him or herself from the matter to avoid any situation of conflict of interest” or “actual bias”. The first defendant also claimed that any judge being a shareholder in a major bank would be conflicted in hearing the case. This suggestion extended to their spouses also. Noonan J described such passages as “contemptuous”. Judge Noonan also referred to the first defendant's request for the affidavit to be “read into the record”. Pursuant to the Supreme Court case of Tracey v Burton [2016] IESC 16 we know this is no longer applicable and as Noonan J states, the “Courts have a duty to protect their own processes from manifest abuse of this kind for the benefit of genuine litigants with genuine claims.”

Third Party Role

Judge Noonan also stated that these affidavits were “clearly drafted by some third party” on behalf of the first defendant. Furthermore, the son of the defendants had failed at multiple attempts “to act as advocate for his parents in the guise of McKenzie friend.” This was attempted on foot of a power attorney however by Order of the President of the High Court in November 2015, the defendants’ son was prohibited from doing so. The Judge also addressed the reference to “this alleged court” in the first defendant's affidavit. Noonan J reiterated that both he and other judges have previously commented on such “pressure groups and McKenzie friends who espouse this approach to litigation which is a form of legal quackery”.

Consequences

Judge Noonan explained however that the situation is far more serious, in that the “pursuit of litigation by these means is a deliberate and conscious waste of court time, an attempt to obstruct the administration of justice and a manifest abuse of process.” Noonan J said it “remains a constant source of mystery” how lay litigants and/or their advisors would believe any of the forgoing to be in the defendants' interest.

Prejudicial to a defence?

The Judge continued that, in reality, this approach to litigation brings about a result contrary to the desired effect. By advancing a myriad of “irrelevant, incoherent and nonsensical pseudo-legal points” the defendants in such scenarios may either (i) “increase the cost of the litigation to their own detriment” and/or more importantly (ii) risk any potentially valid points being lost in the “quagmire of mantra-like incantation that bears only a passing resemblance to understandable English.”

“Miasma of Fake Law”

On the hearing date, the first defendant served counsel for the plaintiff with a new 86 paragraph affidavit together with a “dossier of exhibits”, likely in an attempt to avail of a further adjournment. Despite this, Noonan J stated that the first named defendant does not once (i) “deny that the money was lent” nor does he deny (ii) that the money was “not repaid”. Instead, the first defendant claimed the money “never actually existed” despite never having addressed how they came to then purchase the property with “non-existent funds”. Affidavits of this kind and the seemingly simultaneous approach to litigation is becoming a motif in the Irish court system. Such affidavits often display an “extraordinary knowledge of the minutiae of statutes, court rules, EU and case law” generally resulting in the aforementioned undesirable consequence for such defendants. This practice of drafting affidavits in such a manner is in fact forbidden by Order 40 of the Rules of the Superior Courts. In the past, “a certain degree of latitude” was afforded to lay litigants who could not avail of legal advice “for genuine and understandable reasons”. However, given the “sea-change” following our economic collapse, there has been a sea-swell in litigants, such as the defendants herein, being assisted by “pressure groups and individuals providing McKenzie friend services for reward”. Judge Noonan continued that such groups “cause significant harm” in his experience “without exception”, as defendants may swear same “perhaps genuinely believing it will help his case”.  He was also of the view that there are many other legal resources available either of little or no charge.

Observations

Noonan J stated that the deliberate choice litigants make in veering towards this type of quasi-legal assistance is “to engage in political protest and obstruction not just towards the opposing party but to the Court”. The Court concluded that such an obstruction poses a burdensome and grave challenge for the Irish courts today. It was further suggested that the time to indulge or tolerate such behaviour is “well past” as its objective is merely “an anarchic attempt to frustrate and obstruct the administration of justice”. Judge Noonan was satisfied the Plaintiff’s proofs were in order and further still, that neither defendant had put forward anything “remotely approaching an arguable defence” forward. For the purpose of completeness, Judge Noonan also held that nothing arose from the loan documentation to suggest an unfair contract term as alleged by the defendants. The judgment can be accessed here.