I have come across the ECHR case of LUORDO v. ITALY and BOTTARO v.
ITALY 17.7.2003.
Quote;
Article 6 § 1 of the Convention, relied on in the Luordo v.
Italy case
The Court considered that this complaint was to be examined
from the standpoint of the right of access to a court. It noted
that from the time of the bankruptcy order it fell to the trustee
in bankruptcy to represent the bankrupt in the courts in matters
relating to his financial rights; the limitation on the right to
bring judicial proceedings was intended to protect the rights of
others, namely the bankrupt's creditors.
Such a restriction on the right of access to a court was not open
to criticism in itself. However, there was a risk that such a
system might impose an excessive burden on the applicant,
particularly in view of the length of proceedings which, in
the present case, had lasted 14 years and 8 months. The Court
considered that this restriction had not been justified
throughout the proceedings, since although in principle
limitation of the right to bring judicial proceedings was
a necessary measure in order to achieve the aim pursued,
the need for it diminished with the passage of time. In
the Court's view, the length of the proceedings had
therefore upset the balance to be maintained between the
general interest in payment of a bankrupt's creditors and
the applicant's individual interest in access to a court.
*The interference with the applicant's right had therefore
been disproportionate to the objective pursued.* The Court
accordingly held that there had been a violation of the
Convention in that respect.
END QUOTE.

How would this effect the length of a section 42 Order ,
in anyone's opinion ?.

"Bloomin Heck" wrote in message
...

I have come across the ECHR case of LUORDO v. ITALY and BOTTARO v.
ITALY 17.7.2003.
Quote;
Article 6 § 1 of the Convention, relied on in the Luordo v.
Italy case
The Court considered that this complaint was to be examined
from the standpoint of the right of access to a court. It noted
that from the time of the bankruptcy order it fell to the trustee
in bankruptcy to represent the bankrupt in the courts in matters
relating to his financial rights; the limitation on the right to
bring judicial proceedings was intended to protect the rights of
others, namely the bankrupt's creditors.
Such a restriction on the right of access to a court was not open
to criticism in itself. However, there was a risk that such a
system might impose an excessive burden on the applicant,
particularly in view of the length of proceedings which, in
the present case, had lasted 14 years and 8 months. The Court
considered that this restriction had not been justified
throughout the proceedings, since although in principle
limitation of the right to bring judicial proceedings was
a necessary measure in order to achieve the aim pursued,
the need for it diminished with the passage of time. In
the Court's view, the length of the proceedings had
therefore upset the balance to be maintained between the
general interest in payment of a bankrupt's creditors and
the applicant's individual interest in access to a court.
*The interference with the applicant's right had therefore
been disproportionate to the objective pursued.* The Court
accordingly held that there had been a violation of the
Convention in that respect.
END QUOTE.

How would this effect the length of a section 42 Order ,
in anyone's opinion ?.


I think the issues are quite different. In bankruptcy the purpose is to
protect the creditors. Once the estate has been administered and the
bankruptcy has been discharged (two quite separate concepts) there is no
longer any need for the protection.

In the case of section 42, the order needs to remain in force so long as the
danger of vexatious litigation remains. That may be for a very long time, as
is apparent from the cases of some of those obsessives who have over the
years pursued their hopeless cases through the courts, and sometimes via
uk.legal.

Andrew McGee

Andrew McGee wrote:


I think the issues are quite different.

Different in some respects but not others.

In bankruptcy the purpose is to
protect the creditors. Once the estate has been administered and the
bankruptcy has been discharged (two quite separate concepts) there is no
longer any need for the protection.
In the case of section 42, the order needs to remain in force so long as the
danger of vexatious litigation remains. That may be for a very long time, as
is apparent from the cases of some of those obsessives who have over the
years pursued their hopeless cases through the courts, and sometimes via
uk.legal.

I note that some vexatious litigants have been given unlimited
Orders. That is effectively for life. Compare that to say a repeat
burglar. He is clearly someone likely to commit again, so what do you
propose jail him for life and be done with it ?. There surely is a much
better and less oppresive method of controlling litigants that can
and should be invoked BEFORE section 42 ?. Should that not be tried
first,
should the party not be made aware of his likelihood of being made
subject
to section 42 ?.
Of course if a man commits murder one would expect him to know that
he will likely be jailed for life or at least a long time.How/Is
a litigant in person meant to know that if he has 2 cases struck out
he will be given a "life sentence" (order) ?.

On Sun, 6 Jun 2004 13:25:05 +0100, Bloomin Heck
wrote:


I note that some vexatious litigants have been given unlimited
Orders. That is effectively for life. Compare that to say a repeat
burglar. He is clearly someone likely to commit again, so what do you
propose jail him for life and be done with it ?. There surely is a much
better and less oppresive method of controlling litigants that can
and should be invoked BEFORE section 42 ?. Should that not be tried
first,
should the party not be made aware of his likelihood of being made
subject
to section 42 ?.
Of course if a man commits murder one would expect him to know that
he will likely be jailed for life or at least a long time.How/Is
a litigant in person meant to know that if he has 2 cases struck out
he will be given a "life sentence" (order) ?.

Have a look at
http://www.treasury-solicitor.gov.uk...nts_policy.doc

This outlines how the treasury solicitors' office will look at s42
orders. You'll see that orders are normally indefinite and that
determinate periods are the exception rather than the norm. That's
why lists of vexatious litigants include orders made in the 19th
Century

Also they won't normally consider a s42 application until there are 6
or more unmeritorious claims.

In any event an order under s42 is not a total ban as the claimant can
still issue proceedings if they get prior leave of the court. If a
person is deemed to have previously been determined to be abusing the
law where is their a detriment in them having to establish the
validity of a claim before they can issue it.

And before there are too many bleatings about the human rights of the
claimant put yourself in the position of the defendants in these
proceedings who have to deal with situations that have gone why beyond
what should be encountered - they have rights too.

Nigel
========================
Replace spamhater with n

Nigel wrote:


Also they won't normally consider a s42 application until there are 6
or more unmeritorious claims.

Who won't , and please define "unmeritorious" .thanks

And before there are too many bleatings about the human rights of the
claimant put yourself in the position of the defendants in these
proceedings who have to deal with situations that have gone why beyond
what should be encountered - they have rights too.

Of course ,but those defendants must have done to warrant an issue
of the proceedings one would guess. Also, is it not excessive to impose
a life sentence before trying the matters ?.

In article ,
Bloomin Heck wrote:
Of course ,but those defendants must have done to warrant an issue
of the proceedings one would guess.

One would be wrong to jump to that conclusion. That kind of assumption
would seem to me to precisely underline one of the kinds of problems
that lead to vexatious litigation.

That is, in some cases, litigants really _do_ wind up with a world view
that is completely out of kilter with reality. And you really _do_ need
a mechanism for managing them, such as the "vexatious litigant" system.

And it's a pretty mild restraint that is imposed, all things considered.

-patrick.

"Bloomin Heck" wrote in message
...


Nigel wrote:


Also they won't normally consider a s42 application until there are 6
or more unmeritorious claims.

Who won't , and please define "unmeritorious" .thanks

And before there are too many bleatings about the human rights of the
claimant put yourself in the position of the defendants in these
proceedings who have to deal with situations that have gone why beyond
what should be encountered - they have rights too.

Of course ,but those defendants must have done to warrant an issue
of the proceedings one would guess. Also, is it not excessive to impose
a life sentence before trying the matters ?.

In my experience, you can get caught up in these things through no fault of
your own. I am a trustee of a fund where two beneficiaries fell out. Just
defending my position as impartial, I ran up costs of nearly 100k. The
matter settled and I got my costs back, but there's no compensation for all
the hassle.

Patrick Gosling wrote:


One would be wrong to jump to that conclusion. That kind of assumption
would seem to me to precisely underline one of the kinds of problems
that lead to vexatious litigation.

That is, in some cases, litigants really _do_ wind up with a world view
that is completely out of kilter with reality. And you really _do_ need
a mechanism for managing them, such as the "vexatious litigant" system.

And it's a pretty mild restraint that is imposed, all things considered.


Just to underline this point, in Bhamjee, Mr Bhamjee started to sue all
the lawyers (in particular barristers) who appeared against him. One of
the things that influenced the court of appeal against him was that he
appeared to be trying to discover the addresses of his opponents'
barristers (who were representing other barristers sued by Mr Bhamjee)
in order to sue them as well.

That is as stupid as a football manager suing the other side's players
because they scored goals against him.

Obviously, in my profession, we get a lot of hostile litigation and
complaints against us. In any case that gets to trial one side at least
is likely to loose. They will be looking for someone to blame and we are
an obvious target. All litigants can't be right (at least 50% must be
wrong), but few are prepared to recognise that their own cases might
have any weaknesses.

Up to a point all of this is just a risk of the job, and we do have a
certain amount of insurance, but left to themselves the Mr Bhamjees of
this world would tie up all our time defending misconceived claims and
we would never be able to live our lives. The court system would also
waste a lot of its time and resources on such things.

Most normal litigants, even quite obsessive litigants in person, get
nowhere near to being vexatious. The line is quite hard to cross, you
have to be someone who really won't take anyone else's advice and won't
stop when advised to do so.

Francis Davey