Swagat Baruah
On account of increasing awareness of the people about their rights, there has been a considerable increase in litigation resulting in delay in dispensation of justice by the courts. Although this has opened up various alternative avenues for adjudication of disputes, the disease of backlog of cases, as admitted by the Apex Court itself, remains critical with no relief in the near future. Ex-Chief Justice of India T.S. Thakur, while addressing this issue back in 2015 during his keynote address at the Asia Pacific International Mediation Summit, blamed it on the government, calling them the “biggest litigant in the country”.[1] We must however be clear on one thing, that there exists no ‘root cause’ for this but a plethora of societal and legal complications (the stricture of law worsening the situation). A cause which has gone fairly unexplored is frivolous litigation which really affect the ‘roots’ of the judiciary although such cases are weeded out mostly at district level itself. Frivolous litigation can be explained as a suit instituted by a litigant without any ‘cause of action.’ It can be divided (as I see it) into four categories:
Long shots with little chance of success.
Publicity petitions.
Abuse of legal process by use of fraudulent arguments.
Baseless and unsubstantiated filing of suits.
Charles Guthrie of University of Missouri School of Law brilliantly analyses frivolous litigation from the psychological perspective (note that he forms his views on the basis of American cases). In his article Framing Frivolous Litigation: A Psychological Theory, he categorises frivolous litigants into tricksters, Don Quixotes, slackers and gamblers. Drawing upon his classification, and after going through over 200 cases in India (the author regrets his inability to reveal this research data at this moment as it will come out in the form of a report very soon, authored by Vidhi Centre for Legal Policy), I came to the conclusion that most litigants in India would fall under “tricksters” who are merely abusing the process of law by filing fraudulent arguments while furthering their claims (see point 3 of my categorization), in contrast to the categories that come closest to it, which are “slackers” (see point 4 of my categorization) and “gamblers” (see point 1 of my categorization). Don Quixotes, are as stupid as they get, and the quantity of such cases in India, at least in district court level, are quite minimal keeping up with the obscurity of stupidity of the character of Don Quixote. Don Quixotes in the Indian scenario would be the publicity petitioners (see point 2 of my categorization), the ones who file suits in order to further an ideological agenda. Such cases are usually filed in the Supreme Court, thereby making them obscure at the district court level. Guthrie also goes on to invoke the cognitive psychologists and Nobel Prize winning pair of economists Daniel Kahneman and Amos Tversky and their “prospect theory” and the “fourfold patterns of risk attitudes”, a tempting section of the article which I must resist from invoking here for the fear of drifting into an entirely different dimension of law.
In the United States, Rule 11 of the Federal Rules of Civil Procedure (from its adoption in 1937 until 1983) required that an attorney or the party sign each paper filed in court; that the paper not be interposed for delay; and that there be “good ground to support it” to the best of the signer’s “knowledge, information and belief.” While a violation of any of these requirements theoretically was sanctionable in the court’s discretion, the rule was rarely used to regulate lawyers’ conduct.[2]
There were two amendments to Rule 11, once in 1983 which didn’t work out as was expected. In fact, it did quite the opposite of what it had intended: to put teeth into the rule, reduce unnecessary costs, and quell perceived litigation abuses. The second amendment however, which worked out fairly well came ten years later, in 1993.
Two key changes were adopted in 1993. First, sanctions became discretionary. Second, a “safe harbor” provision was created, whereby a party seeking Rule 11 sanctions was required to give the adverse party notice and the opportunity to withdraw the objectionable paper without penalty. As one commentator has noted: “while lawyers are still sanctioned for wrongful conduct under Rule 11, there is no longer a scourge of frivolous Rule 11 motions being filed. At the same time, this drop off in meritless Rule 11 motion practice has not been accompanied by an increase in groundless litigation practices.”[3] The 1993 amendments form the foundation for Charles Yablon’s article on how it has helped curb frivolous litigation in America.
Yablon in his article[4], appreciates the 1993 amendments for three specific provisions (my summary): (1) The effect of ‘safe harbour’ provisions of 21 days, prohibits making weak motions after the merits of the underlying claims have been adjudicated; (2) This has deprived movants of the powerful “hindsight effect” under which judges, having just dismissed or having decided to dismiss a case as non-meritorious, are then asked whether the claim lacked such a basis in law or fact that it should never have been brought in the first place; (3) To make the point of his “regret theory”(litigants regretting filing the frivolous suit), which is based on behavioural sciences and psychology and which must be read with Chris Guthrie’s psychological analysis of frivolous litigation[5].
In India, even after the Supreme Court made comments on the nominal fees for filing suits[6] and the need to revise it, the fees for subordinate courts still remain minimal, although revised. This has been perhaps because of the need to make courts and justice more accessible to the common people and also owing to India’s unchanged percentages of people living in poverty. As for the costs for filing frivolous litigation are concerned, their unrealistic rates were noted by the Supreme Court and High Courts in various cases and was taken up the Law Commission of India in its 240th Report, which suggested that the principle that “costs should follow the event” which finds statutory recognition in Sec. 35 of CPC ought to be given effect by the Courts and deviations should be rare. The ceiling of compensatory costs of Rs. 3,000 was raised to Rs. 1,00,000 as per Sec. 35A of CPC. This however has not been followed very well as of now by Indian courts. The Supreme Court has also encouraged punitive costs under Sec. 35A along with a revision of advocates’ fees, in order to compensate the ‘actual loss’ of the victims, but this again hasn’t been followed very well.[7] Taking from Guthrie’s concentration on the second half of Kahneman’s and Tversky’s Prospect Theory, plaintiffs in frivolous litigation will always be risk seeking and psychologically inclined towards trials, in contrast to the defendants who will be risk averse and psychologically inclined towards settlements.
Post the 1993 amendments, it was found that decrease in the likelihood of monetary sanctions for frivolous filings discouraged “tricksters” and “gamblers” from such frivolous filing whereas the number of “slackers” and “Don Quixotes” still remained high due to the sheer negligence of the former and the sheer stupidity of the will power of the latter. We must however understand how the ‘safe harbour’ provisions affected the “tricksters” whose incentives were the most complex, and which comprise majority of the cases in India. The trickster’s strategy is to settle baseless claims by convincing opponents that the cost of litigation was greater than the cost of settling. An opponent who has made a Rule 11 motion has litigated sufficiently to make a strong showing that the case is baseless, and therefore represents a failure of the tricksters’ strategy. Therefore the opponent, once he is confident of the merit of his defence, won’t settle and once the merit is proved, subsequent frivolous motions can’t exist due to the ‘safe harbour’ provision.
Frivolous litigation still remains a big problem for the Indian judiciary, with almost no sanctions against such litigants or even against the lawyers who take up such cases. Possible remedies could be imposing exemplary costs on such suits or compelling such litigants to bear the other party’s costs. It is a disease which has been diagnosed too late with no signs of improvement and it only lingers as an unnecessary burden over the already existing backlog of cases.
References
[1] Anand Teltumbde, A Case of Too Many Cases, The Indian Express (May 23, 2016)
[2] Charles S. Fax, Does the Proposed Congressional Amendment to Rule 11 Solve a Problem or Create One?, American Bar Association
[3] Ibid
[4] Charles Yablon, Hindsight, Regret & Safe Harbours, Loyola of Los Angeles Law Review
[5] Chris Guthrie, Framing Frivolous Litigation, University of Chicago Law Review
[6] Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust, (2012) 1 SCC 455
[7] Ibid
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