Increasingly, people are experiencing the cost, stress and inconvenience of having to deal with obsessive and vexatious litigants or complainants. As litigation lawyers, we see many of these cases. 

They seem to be increasing. The availability of AI appears to have encouraged obsessive and vexatious litigants. AI tools are helping them identify strategies to further their grievances as well as generating content for their complaints and legal proceedings. 

It is important for those who are targeted by vexatious complainants or litigants to be aware of the strategies and options available to respond.

Who are these people?

Obsessive complainants and litigants are individuals who use formal complaint processes or legal proceedings to advance causes that are meritless, irrational, or intended to harass. They may broadly be grouped into three main types.

Unsuccessful defendants 

As lawyers, we often deal with complainants whose obsession began as a result of legal processes in which they were unsuccessful. Many of them have lost positions, properties or businesses through court proceedings. Their defence of those claims having been unsuccessful, they embark on claims or proceedings against those whom they see as responsible for their misfortunes. 

Their targets can include lawyers who acted for the successful parties, individuals within those organisations, judicial officers and others. One individual, for example, brought multiple proceedings and appeals against a well-known insolvency professional who was appointed as receiver of the complainant’s business. This action continued for many years, even after the insolvency professional and his firm successfully sued the complainant in defamation and bankrupted him, with a brief pause for a few years when he was declared a vexatious litigant by the courts. The Court in one decision observed that: 

“The litigation has grown almost exponentially and on a scale not previously seen in New Zealand to include claims against the receiver and his company, other lawyers, the Solicitor General, the Attorney General, judges who heard and determined the cases (…) and the Judicial Conduct Commissioner.”

There is an important distinction between vexatious litigants who initiate and pursue complaints or causes, and those who merely seek to defend claims against them by raising meritless arguments. Most lawyers will have experience of the latter, who cause reputable parties to incur further costs but are otherwise relatively harmless. They include adherents to the ‘sovereign citizen’ movement and those who raise other pseudo-law arguments to the effect that laws and court procedures do not apply to them, normally on the basis that they have not consented to be subject to them. They often rely on materials published online which cite overseas case law and statutes that have no relevance to the New Zealand legal system. These people are invariably unsuccessful in defending the cases brought against them and judgment and enforcement normally brings an end to the matter. 

We are concerned here about those litigants who cannot take “no” for an answer and never give up. Typically, they are driven by obsessive beliefs that their cause is just, or that they are victims of injustice. They file multiple proceedings or applications and appeal every decision against them, often over many years.

Campaigners for a cause

Many companies and other incorporated bodies have attracted unwanted attention from campaigners who have a grievance or political viewpoint, not necessarily related to their personal interests, which they seek to advance by using Companies Act mechanisms for putting resolutions to meetings, or litigation in the courts. One such person, for instance, repeatedly put resolutions to the annual general meeting of a listed New Zealand company in the oil and gas sector, seeking to compel it to increase the prices it charged its customers for services. When that strategy was unsuccessful, he made repeated complaints to the Serious Fraud Office, Financial Markets Authority and Ministry for Business, Innovation and Employment, among others, as well as complaints to the Law Society about the company’s lawyers and appeals from decisions dismissing his complaints. While all of his complaints were unsuccessful, they required considerable time, effort and legal cost to deal with. 

Abusive or malicious

A small, but significant, category comprises those who deliberately use legal or formal complaint processes to harass and intimidate others. For instance, in the "Veronica" case (not her real name), an abusive ex-husband is reported to have filed over a hundred court applications and appeals against his former wife in the course of Family Court proceedings, causing her to incur around $250,000 in legal fees.

Legal remedies 

Unfortunately, the legal remedies available to prevent vexatious litigants from misusing the court process are limited. The main problem is that the bar to have a person declared a vexatious litigant is high, and even when it is satisfied, orders preventing a person from issuing new proceedings are often restricted in time and scope. 

Section 166 of the Senior Courts Act empowers the High Court to make an order restricting a person from commencing or continuing a civil proceeding. Three types of orders are available:

• A limited order. This is an order which restrains a party from commencing or continuing civil proceedings on a particular matter, but does not prevent them commencing proceedings in other matters, including related matters. This order will seldom be of much use, because vexatious litigants are usually ingenious in finding indirect ways to progress their campaigns. 
• An extended order. This is an order which restrains a party from commencing or continuing civil proceedings on a particular or a related matter. This is more useful than a limited order, although what is “related” may be unclear and vexatious litigants will exploit any loopholes.
• A general order. This restrains a party from commencing or continuing any civil proceedings. This is intended to address vexatious litigants who have no particular axe to grind but who misuse the courts’ processes by bringing actions for unrelated reasons. 

The powers conferred by this section are an improvement upon the former powers under s 88B of the Judicature Act to control vexatious litigants. Those powers were available only on the application of the Attorney-General and an order would be made only where there had been a “persistent” initiation of vexatious proceedings. The section also permitted persons who were subject to an order to apply to the court for leave to issue further proceedings, which they often did.

The bar for obtaining orders is still high, as the courts are reluctant to impose barriers upon access to justice. In “Veronica’s” case, the victim applied for an order under s 166 of the Senior Courts Act. At that time, her ex-husband had made 88 applications, all of which had been unsuccessful and some had been dismissed as an abuse of process. Unfortunately, the Court felt obliged to decline to make the order on the basis that at least two proceedings were required, and her ex-husband had not filed any new proceedings but had merely filed multiple applications, albeit all of them hopeless, in an existing proceeding. Another problem was that he had not initiated the Family Court proceedings in which those applications were made, which “Veronica” had been obliged to begin. 

However, the judge acknowledged the hardship that the ex-husband was causing, and, ingeniously, used ancillary powers to order that he take no further steps in the proceeding until he had paid the costs he owed her, then around $98,000. Unfortunately, that did not provide an effective solution, because he appealed that order and later sought to appeal further, all the while filing new applications in the appellate courts.

Some jurisdictions have introduced laws that may be more effective to prevent this sort of conduct, at least for family law cases. The US state of Tennessee empowers judges to bar people from filing proceedings for up to six years if they have brought lawsuits intended to harass or maliciously injure a domestic partner or other family member.

In the case involving the receiver, referred to above, the Court made an order under the former s 88B regime, but when it lapsed after 3 years, the complainant started his campaign again. There is an argument for indefinite bans for serial vexatious litigants.

Challenges from AI 

Vexatious litigants are increasingly using AI tools to identify ways to advance their causes, such as identifying legal methods to challenge decisions. In addition, AI tools enable them to identify potential causes of action and to draft submissions and other court documents.

While AI might be thought to be a helpful aide to self-represented litigants who do not have access to qualified lawyers, the reality is that the output is generally so inaccurate that it does more harm than good. AI tools do not generally enable vexatious litigants – or indeed any litigants – to identify truly relevant legal principles and draft accurate and compelling submissions. More usually, they produce confidently expressed but misguided legal analysis, and legal submissions that are not only misconceived but unduly lengthy. 

Specific problems include the following:

• AI tools produce documents with references to principles and case authorities that suffer from ‘hallucinations’, i.e. they do not cite relevant case law or sources for the propositions they advance, but refer to irrelevant authorities or so-called ‘authorities’ that are complete inventions. 
• AI generated legal documents are likely to give false encouragement to self-represented litigants by expressing what appear to be well-reasoned arguments for conclusions that accord with the litigants’ wishes, but which are misconceived.
• AI tools tend to generate voluminous documents. Judges have expressed frustration about very lengthy AI-drafted documents from lay litigants which take considerable time to unpick and address.

Strategies for dealing with obsessive complainants and vexatious litigants

In almost all cases, obsessive complainants and vexatious litigants are not rational actors. They will not be persuaded that their claims are without merit and should be abandoned. It is futile to try.

It is helpful to understand a few things about their psychology:

• Many are complaining or litigating because they have lost something of great importance to them, be it a job or position, a relationship, a property or a business. With it, they may have lost their status and authority. The agency that is the subject of their complaint cannot usually solve this.
• Not all have been unsuccessful in a claim or dispute. Many are retired men who once occupied senior positions and are struggling to come to terms with the loss of status and importance that has come with their retirement. The solution is to find a hopeless cause to fight for.
• By bringing complaints using a formal process, or litigation, they reclaim a sense of control or agency. This does not require them to succeed in that process, as long as they can prolong it by appeals or other challenges.
• They are often angry, emotional, and irrational. They may be deluded, but they may also know that they will not succeed yet are not prepared to give up their fight.

Their engagement with organisations often follows a typical pattern:

• The initial complaint is listened to politely and rejected in a measured manner which expresses understanding or sympathy for their views or position. They take this as affirmation and disregard those parts of the response that are not consistent with their own views. 
• They escalate their complaint – often by contacting senior people (such as a chief executive or board members) directly – and deal with a series of new people within the organisation. These people are polite and courteous at first, knowing that they are dealing with a difficult person. The complainant takes this as affirmation and believes they have found someone who is willing to consider their position and will come to see things as they do. This hope is dashed when the new person eventually rejects the complaint. The complainant then feels betrayed and becomes hostile to those people, often making personal complaints or other criticisms of them. Often this process is repeated a number of times as new people become involved.
• This is not helped when senior people step in to help because they are confident of their ability to persuade and influence others. They have developed this confidence through their success in dealing with rational actors, but dealing with irrational people requires a different approach.

Unfortunately, it is very difficult to shake off a determined complainant or litigant. We often recommend the following strategies:

• Initially, listen to them politely, remain neutral, keep any responses factual and do not become defensive.
• Be realistic about what you are likely to achieve by engaging with them further. It is a mistake to think that you are likely to persuade them that their complaint has no merit. Accept that you cannot control their views and you can do little to control their actions without taking expensive steps. 
• Once the engagement has resulted in a decision that should resolve the issue, it is time to starve the complainant of the oxygen of attention. Without it, they may turn elsewhere and leave your organisation alone. 
• Limit engagement to the absolute minimum. It is not necessary to respond to every email or phone call once a substantive response has been provided. It is acceptable to inform them that you will not respond further.
• Nominate a single point of contact and insist that only that person deals with the complainant. Warn all likely points of contact within your organisation that the complainant may contact them and instruct them not to engage. Block telephone numbers and redirect emails where possible.
• If more than one person may deal with the complainant, have a clear position in response to each element of the claim or complaint and ensure consistency in communications.
• Ensure that all information provided is accurate. If an error is made, correct it promptly in writing. Errors, no matter how minor, may be seized upon as a new issue for dispute.
• If documents containing information about the complainant are requested, consider whether this should be treated as a request under the Privacy Act. 
• Make sure reception staff can identify the person. If you are concerned about anyone’s safety, take appropriate steps immediately. Make a Police report if threats are made and take legal steps, such as applying for restraining orders or injunctions, if appropriate. There may be options under the Harassment Act 1997 and the Harmful Digital Communications Act 2015.

In addition to how you deal with the complainant, think about the following: 

• Keep in mind the potential reputational impact, particularly if the complainant goes to the media, and how to manage this.
• Keep records of all communication. This may be helpful to rebut allegations about the way your organisation has handled the complaint or dispute. 
• Make sure your staff do not create insulting or other potentially embarrassing emails or other internal documents about the complaint or the complainant. 
• Consider pre-warning likely recipients of complaints, such as media and industry regulators, of the matter. 
• If complaints are made to external bodies, keep responses brief and to the point, and do not respond to additional material provided by the complainant unless necessary.

When to engage external counsel? External lawyers will not necessarily have any more success in persuading an obsessive complainant or litigant to go away, and they often become a target of complaints themselves. They can, however, help in the following ways:

• Taking the pressure off your organisation so you are not distracted.
• Helping with strategies for dealing with the complaint, with independent and dispassionate advice.
• Dealing with external bodies such as regulators.
• Protecting documents with legal privilege. 
• Defending proceedings and taking proactive action to seek restraining orders as necessary.

Obsessive complainants and vexatious litigants can cause ongoing stress, disruption and cost that is disproportionate to the importance of the issues they raise, and their prevalence appears to be increasing. It is important to have a clear strategy in place to deal with them.