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Say in Bob v Rob there is a legal argument about how the law applies to a certain factual situation.

Bob interprets/applies the applicable law one way. Rob — a different way. Both sound reasonably serious and well-thought, not frivolous. Both require analysis to accept or reject.

The judge has to make a choice and makes it, accepting Bob's interpretation and rejecting Rob's.

Does that make up an objective ground to label Rob's argument meritless? Can the finding of lack of merit in situations like this be objective in principle?

Or does "lack or merit" refer to something clearly fallacious i.e. straightforwardly identifiable as not holding water without analysis?

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3 Answers 3

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In , an illuminating judgement of the Court of Appeal explores the relationship between such terms as "bound to fail", "not arguable", "no rational basis", "unfounded", "misconcieved", "hopeless", "totally without merit", and "no realistic prospect of success"; Wasif v Secretary of State for the Home Department [2016] EWCA Civ 82. This arose in the context of a judicial review application, where procedural rules allow some claims to be rejected at an early stage, rather than proceeding to a full hearing.

The normal course is that the claimant (the person who objects to a decision the government has made) will file papers with the court describing their claim. If the judge deems their case "arguable", then it can carry on, ultimately with the judge deciding who is right. If not, then there can be a "renewal hearing", where the applicant can explain their case orally, in the hope of persuading the judge that their case is arguable after all. But if the judge says the case, on the basis of the written material, is "totally without merit", then there is no renewal hearing, and we are done. The claimant could file a fresh case, if the judge's reasons for denial gave them enough clues about what might be arguable instead, or can appeal the finding. Evidently, then, some points can be not arguable, but also not totally without merit.

In Wasif, the court differentiated between (paras 15ff):

  1. Cases where the judge "can see no rational basis on which the claim could succeed" are certainly bound to fail, and a hearing would be pointless; they are totally without merit.
  2. Cases which contain a rational argument, but the judge "is confident that, even taking the case at its highest, it is wrong". Notwithstanding the judge's confidence, it is possible that his mind could be changed if an oral hearing took place, so these should not be deemed to be totally without merit. They are described as "not arguable" at this stage, but the claimant gets to argue that they are arguable.

The decision is one involving, well, judgement, and is not totally precise, but the experienced judges in Wasif felt that it was a realistic distinction in practice.

The court points out (17(3) and (5)) that a hearing gives the claimant the chance to address specific issues the judge has noted, especially when they are self-represented and their documents are not well-prepared. In those instances, the judge might be able to spot an actual arguable claim lurking in the material, and "the correct course" could be to refuse permission but allow an oral hearing so that the real issue can be drawn out.

What we can see from this is that a point might be "not arguable" (the judge thinks it is plainly wrong), but still have some level of merit at that stage (the judge is willing to let the claimant address his objections). When the judge comes to deliver his opinion at the very end, he might still say that a particular point is without merit (he has heard all about it and thinks it is completely wrong) even if he'd conceded earlier that the claimant deserved a chance to present it.

Not all arguments that fail are described as "without merit". If Bob prevails in Bob v Rob it does not follow that all of Rob's points were hopeless. Judges can deploy colourful opprobrium but are just as likely to recognize that some arguments are strong, even when the opposing argument was stronger. Equally, a judge might decide that neither Bob nor Rob is completely correct, and the real answer is some other position - even when they both presented reasonable arguments that were worth hearing.

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    That's a splendid case to cite! Is there any indication as to how deep and laborous a judge's assessment can be to still conclude that a case is "totally without merit"? In other words, isn't this conclusion supposed to be reached by way of only a superficial glance, and if a deeper analysis is required then the case should be deemed at the very least "not arguable"?
    – Greendrake
    Commented May 31, 2023 at 15:04
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    Grace v SSHD (2014), cited in Wasif, suggests that "no judge will certify an application as TWM unless he is confident after careful consideration that the case truly is bound to fail", and the latter case says that in these instances, "peculiar care must be taken to ensure that all the arguments raised in the grounds are properly addressed". So it is more than a glance. This thorough examination can still be less burdensome than carrying on with the case.
    – alexg
    Commented May 31, 2023 at 15:21
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Saying that a case had a "lack of merit" does not have an unambiguously clear meaning. It can be used in different contexts with different meanings:

  • Colloquially, it could just mean that a party ultimately lost the case
  • A judge might say this after their analysis to announce that they are rejecting an argument
  • Courts of Appeal often look to whether an appeal has merit when deciding whether to grant an extension of time ("An assessment of the merits of the appeal is relevant to a decision about whether to grant an extension of time ... the relevance is confined to the question of whether the appeal is bound to fail just as it is on the question of striking out an appeal as being vexatious, frivolous, or entirely without merit": Davies v. C.I.B.C. (1987), 15 B.C.L.R. (2d) 256 (B.C.C.A.))
  • It might be used to describe a claim that is summarily dismissed or a successful motion to strike ("assuming that the facts as stated in the statement of claim can be proved, is it 'plain and obvious' that the plaintiff's statement of claim discloses no reasonable cause of action?": Hunt v. Carey Canada Inc, [1990] 2 S.C.R. 959)
  • It might be used to describe vexatious litigation ("where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious": Grosz v. Guo, 2019 BCSC 1545)

(I have tried to list those in increasing order of "severity," but that is just my own ordering, and the latter three are very similar.)

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"Lack of merit" means that someone is concluding that the argument shouldn't win.

"Frivolous" is the word for a legal argument that has no basis in law or in a reasonable argument for an extension of or change to the case law interpreting the applicable law.

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  • Can you cite a source for your 'lack of merit" meaning? The plain meaning of "merit" is "the quality of being good or worthy", and it just doesn't follow that a losing argument necessarily lacks those qualities — only that the winning argument is more worthy.
    – Greendrake
    Commented Jun 1, 2023 at 6:40
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    Some random examples of it use this way (and without an modifying like "entirely" or something similar) include Grace United Methodist Church v. City Of Cheyenne, 451 F.3d 643, 668 (10th Cir. 2006), Ankeney v. Raemisch, 344 P.3d 847, 849 fn 4 (Colo. 2015); Munoz v. Measner, 247 P.3d 1031, 1035 (Colo. 2011) ("simply because a claim lacks merit does not mean that it was frivolous, groundless, or vexatious"). Chatfield E. Well Co., Ltd. v. Chatfield E. Prop. Owners Ass'n, 956 P.2d 1260, 1275 fn 15 (Colo. 1998) ("though the appeal lacks merit, it was not frivolously brought.").
    – ohwilleke
    Commented Jun 1, 2023 at 9:31

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