Proceedings denounced by High Court as ‘frivolous and vexatious’ in context of ‘campaign of litigation’ by the applicants

Peter Nowak and Agnieszka Nowak v Residential Tenancies Board

This matter concerned an application for leave to seek judicial review of a determination of the
Residential Tenancies Board (“RTB”) which fixed the market rent in respect of the applicants’ tenancy.

In refusing leave, Judge Humphreys in the High Court found that no arguable ground had been established by the applicants for challenging the validity of the RTB’s determination. In particular, the applicants’ complaints were held to relate to the substance or merits of the decision, not to its legality. In response to the applicants’ contention of bias and prejudice on the part of the RTB’s tribunal members, the Court found that no facts had been presented to the Court which would support a serious allegation of that kind. In particular, the fact that the chairperson of the tribunal had been a member of a tribunal involving the parties some years previously was held to not even be arguably a basis for contending that objective bias existed or that the decision should be quashed. In addition, an allegation of fraud as against the RTB (which was the subject of previous unsuccessful injunctive proceedings issued by the applicants against the RTB) was found by the Court to be “at the most charitable, a huge overreaction and certainly not an arguable basis to quash the decision”.

Existing appeal

Any determination of a RTB tribunal is appealable to the High Court on a point of law, under section 123 of the RTB’s governing legislation, the Residential Tenancies Act 2004 (as amended). The applicants in this case had already issued proceedings under this section, in respect of the same RTB determination. Importantly, Judge Humphreys found that it is “simply not open to a party to both actively appeal and challenge on judicial review the same decision”. The applicants in this case were, in the learned Judge’s view, engaging in ‘legal frivolity’.

Requirements for a valid affidavit – ‘fanciful descriptions’ not allowed

Judge Humphreys also held in this case that the Central Office of the High Court was absolutely correct in refusing to file an affidavit of the first named applicant in which the applicant described himself as ‘a Disciple of the Lord Jesus Christ’.

Order 40 Rule 9 of the Rules of the Superior Courts provides that every affidavit shall state the description and true place of abode of the deponent. Judge Humphreys clarified that the term ‘description’ means ‘occupation’ and that ‘fanciful’ descriptions such as the one proffered by the applicant in this case would not suffice. The Judge commented that it is hard to know which the applicant’s affidavit trivialises more; religion or court procedure.

The takeaway for public sector bodies…

This strongly worded decision will be welcomed by public sector bodies who find themselves defending ‘campaigns’ of seemingly frivolous proceedings issued by lay litigants who have little regard for the implications of serious allegations which may be made. The leave application in this case was the fifth High Court action instituted by the applicants against the RTB. Judge Humphreys warned that “the courts are not a playground in which litigants can amuse themselves at will. The State in all its manifestations may have enough time and patience to weather the efforts of frivolous litigants, but in an underlying private law context such as this, such conduct has a significant downstream effect on private persons such as the landlords in this case”.

The judgment may encourage public bodies to consider, in appropriate cases, an application to limit such applicants from engaging in further frivolous applications.