Litigants in person, complexity and media cases

Here’s a postscript to yesterday’s post about Leveson. It comes from Mr J Tugendhadt in O’Dwyer v ITV [2012] EWHC 3321 (hat tip Andrew Keogh for pointing it out) and is an interesting take on the power dynamics between self-represented parties and their opponents in media cases. It is a striking out of a defamation claim from a self represented litigant. Having struck him out, Tugendhadt J indicated the unsuccessful claimant’s pleadings contained these words:

“The Claimant is a litigant in person with no legal training and will seek appropriate guidance and directions from the court”.

And then proceeded:

With him in court was a law student in her second year at university. If he has had any other legal assistance, he did not say so (nor was he under any obligation to say so). He presented himself as being at a disadvantage faced with the very experienced lawyers representing ITV.

It is not uncommon for self represented litigants to invite the court to act as a source of guidance. The court is under an obligation to do justice, and so, where a litigant is without representation, the court will be bound to look for points in the litigant’s favour which the court would not have to look for if the litigant was represented. But the English legal system is adversarial. The court employs no legally qualified staff to assist the judge. Not only is the court without any means to provide such assistance, the court is also obliged to be impartial. A litigant who explicitly seeks the guidance of the court in the way that Mr O’Dwyer does is seeking what he may suppose to be free legal advice. But he is seeking it from a source which is unable to provide it, and it is certainly not free. The hearing before me has generated very substantial lawyer’s fees, and someone has to pay them.

In terms of knowledge of the law, Mr O’Dwyer was, of course, at a disadvantage. But that is not the only possible of view of the situation of the parties.

Miss Addy submitted that ITV was at risk of not recovering any costs that Mr O’Dwyer may be ordered to pay to ITV. The court has no information as to Mr O’Dwyer’s means.

If Mr O’Dwyer has financial means, the inequality in knowledge of the law has arisen by his own choice in not obtaining representation. The risk is that costs orders may be made against him, which would not have been made if he had been represented. If any such costs orders were to be made in this case, they would be likely to exceed by a substantial margin any costs which he might have had to incur to be represented.

If, on the other hand, Mr O’Dwyer has no means to obtain legal advice from a practitioner with experience of this area of the law, then he will not have the means to meet any substantial order for costs that may be made against him. If that is the situation, then it is ITV that is at a disadvantage vis à vis Mr O’Dwyer. If that is the position, it will stand to pay its own costs whether it wins or loses, whereas Mr O’Dwyer stands to only to win.

In practice the course adopted by Mr O’Dwyer in this case in seeking guidance from the court is extravagantly costly, whoever it may be who has to bear those costs.

Any experienced practitioner knowledgeable in the law of defamation would be likely to have given to Mr O’Dwyer advice broadly along the lines of the conclusions I have reached in this judgment. And that practitioner would have done that at a small fraction of the costs that have been incurred by ITV, and by the public (who pay for the courts and judges).

In Campbell at para [29] Lord Hoffmann said:

“I cannot however part with this case without some comment upon other problems which defamation litigation under CFAs is currently causing and which have given rise to concern that freedom of expression may be seriously inhibited. They are vividly illustrated by the recent judgment of Eady J in Turcu v News Group Newspapers Ltd
[2005] EWHC 799 (QB) 6. …

6.   [the claimant] is able to pursue his claim purely because [his lawyer] has been prepared to act on his behalf on the basis of a conditional fee agreement. This means, of course, that significant costs can be run up for the defendant without any prospect of recovery if they are successful, since one of the matters on which [his lawyer] does apparently have instructions is that his client is without funds. On the other hand, if the defendant is unsuccessful it may be ordered to pay, quite apart from any damages, the costs of the claimant’s solicitors including a substantial mark-up in respect of a success fee. The defendant’s position is thus wholly unenviable.

7. Faced with these circumstances, there must be a significant temptation for media defendants to pay up something, to be rid of litigation for purely commercial reasons, and without regard to the true merits of any pleaded defence. This is the so-called “chilling effect” or “ransom factor” inherent in the conditional fee system, which was discussed by the Court of Appeal in King v Telegraph Group Ltd… This is a situation which could not have arisen in the past and is very much a modern development.”

The situation of defendants as described by Lord Hoffmann and Eady J is particularly unenviable. But it is a situation which can and does arise to a lesser (but still very serious) extent where a claim is pursued by a self represented litigant (or by any other litigant, who does not have a CFA), and who does not have the means to pay any order for costs that may be made against him.

In the present case Mr O’Dwyer had an alternative remedy, and for which he did not need to take any risk as to costs. He pursued that remedy. That was by way of complaint to Ofcom that he had suffered unfair treatment. That complaint was different from a complaint in libel, and it would in principle be possible to pursue both complaints. But Mr O’Dwyer’s complaint to Ofcom was not upheld.

Changes in the law relating to CFAs may improve the situation of some defendants. But it will not make any difference in cases where claimants are self represented. It is not clear that there is anything that the court or the legislature can do about this. In many cases self represented litigants have genuine grievances and their claims succeed. But the potential injustice to a defendant in the position of ITV is such that the court must exercise its powers of case management in the light of the overriding objective with great care. If a case cannot succeed, the sooner that is decided the better for everyone.

I am not going to comment on the possible rights and wrongs of the judges statements here, but what it shows for me is the unsuitability of party-driven, complex adjudication of what appear to be, in this case a rather simple dispute, which is most helpfully dealt with by the judge in two sentences: “The main basis for the decision I have reached is that it is not arguable that the Programme harmed Mr O’Dwyer’s reputation. Rather it portrays him (whether rightly or wrongly) as the victim of serious assaults, and other wrongs, suffered in the course of an attempt to buy a house for his family.” Strip out the procedural points about evidence, and pleadings, and what may proceed as an allegation which may then be found to be defamatory and this would be all that needed to be said.  An Ombudsman, with statutory powers to decide such cases to the (normal) exclusion of the courts, would be freer to do just that.

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