The Perils and Pitfalls of DIY Libel Actions

A little over forty years ago, before my family had quite despaired of shoehorning me into a respectable career, they managed to obtain a position for me at a firm of City solicitors; Crawley and de Reya, in Austin Friars. This firm handled a lot of libel cases and it was my job to go and make applications and keep an eye on cases when they were being heard. The ones I most enjoyed were those where one or both parties were not represented by barristers. I had the pleasure of watching such a case recently and it brought back many fond memories. I thought it worth mentioning one or two points which struck me during the hearing that took place at the High Court earlier this year.

One of the phrases that many litigants in person fail fully to understand is, ‘absolute privilege’. They believe that it means that they can say what they please and tell any lies in the courtroom without fear of any consequence. This can be a double-edged sword!  It is true that one cannot be sued for defamation as a result of anything said during judicial proceedings, but that also means that the person you have hauled into court can also say all sorts of unflattering and possibly untruthful things about you once they are themselves in the witness box. If they have had enough foresight to ensure that friendly journalists are present, then these people can then go off and report whatever has been said in court. Needless to say, this can work to the disadvantage of the person who brought the action in the first place. It means that the statements complained of will  receive a national circulation in magazines and newspapers; rather than just being read by a handful of people on closed internet groups.

I said that some people fail to grasp the nature of ‘absolute privilege’ and we saw a beautiful example of this at the hearing a few weeks ago.  Having pretended that she had been menaced by one of the witnesses for the other side, the applicant in the case made the mistake of repeating the allegations once the hearing had been adjourned and the judge had left the court. Oh dear! Worse still, she made the statements in the hearing of a journalist from a national magazine, saying of the witness, for example,  ‘I’m frightened of that man!’ Alas, the court usher and the journalist had now been told something likely to lower the reputation of the witness concerned among right thinking members of society. Far from being covered by absolute privilege, her statements were actionable.

Another way that those bringing libel actions without the help of a barrister can fall down is over the questions of damages and costs. One of the most despicable methods used to try and shut people up is to threaten them and their children with the loss of the family home. Most people are alarmed at such threats. If the person you are threatening to sue is living in social housing, you can tell them that if the case goes your way, you’ll put in the bailiffs and seize the kids games consoles and toys. Ugh! Fortunately, it seldom comes to this. If judgement is awarded against a defendant and he or she does not have enough money or property to pay, the court usually arranges easy terms. Now the defendant has to abide by such an order, or can be found in contempt. On the plus side, the weekly sums to be paid are often laughably small. I recall one case in 1973, where a man had been awarded damages and costs of over £10,000; an enormous sum in those days. An order was made for him to pay this to the plaintiff at the rate of 50p a week! Even this wasn’t done, the procedure in such cases being that the person would pay one week and then not the next.  Paying your lawyer to haul him back into court was pointless. You would have to pay for your solicitor and the amount would just be added to the original amount that he technically owed you. Don’t even ask about people declaring bankruptcy to get out of this sort of pickle…

Barristers and solicitors know all about these things, which is why they very seldom advice people to start proceedings  for defamation; unless the client is wealthy enough not to worry about losing money on the business. I am watching with enormous enjoyment to the latest case in which I have an interest, because I have a strong suspicion that the applicant is going to regret getting embroiled with the courts in the first place.

Home educators set out, very much against their own best interests, to alienate the Open University.

I have for several years entertained the suspicion that home educators are the most quarrelsome and disagreeable special interest group in this country. I am increasingly inclined to believe that some of them must be quite literally stark, raving mad.

The Open University has been a very good thing for home educated children in this country. It has enabled them to gain access to places at universities such as Oxford and Exeter, which might otherwise have been denied them. The OU is one of the most progressive and enlightened universities and given how helpful they have been to home educators and their children, you might think that the news that they are thinking of running a course to teach people about home education would be greeted with pleasure. You would? Why, you gullible fool! Don’t you realise that the OU are all part of the military/industrial complex, in the pocket of Big Pharma, part of the New World Order and probably controlled by the Illuminati? Who funds them? Central government of course and they are heavily involved with orthodox educationalists. What sort of course would they run on home education?

The first angry and suspicious emails have already begun arriving at the Open University and unless I am very much mistaken in my understanding of British home educators, this small trickle will soon become a mighty flood; thus persuading the OU that many home educating parents in this country are completely off their heads.
What are the objections to the Open University teaching about home education, say as part of a course about education and childhood development? Where shall we start? For one thing, they might not let home educators check what sort of things they will be saying before they start the course. This is of course perfectly true. When the OU run a course on Comparative Religion, they will certainly ask leaders of various faiths for their views, but will not allow them to vet the materials used. This is because the OU is independent. Imagine if the only things they were allowed to teach about Islam were those things approved by various Imams. Their impartiality would be shot to pieces at a stroke.

Another problem seems to be that local government officers might take such a course and then think that they know as much about home education as parents. It does not bear thinking about! Suppose that home educating parents wanted to go on the course and did not have the money to afford it? This would mean that the OU was discriminating in favour of professionals and against parents. Perhaps the maddest objection of all is one being promoted by a former head teacher, who fears that such a course might become compulsory for any parent who wished to educate her child. This would mean that a de facto register of home educators would be started and those who were too poor to afford the course would not be allowed to be home educators! You see what might happen? Home education in this country would be restricted to the wealthy. And all because the Open University went blindly ahead and began to teach a unit about it. As one person puts it:

'this would be a very dangerous step towards needing some sort of licence to home educate, and an agreed/prescribed method of doing it.'

All this is so completely loopy that I feel like putting my head in my hands and groaning. At the moment many home educating parents enjoy excellent relations with the Open University. I have a suspicion that this why they are considering running a unit about home education; because they have seen what a good thing it is. They wish to show people that it is a rising trend and that it is something worth learning about. Whether they will still be feeling so amiably disposed towards home educators after they have been on the receiving end of one of the home educating community’s famous campaigns, remains to be seen.

Home educated children and the Open University

The question as to what people might be entitled to if they turn down public services and make their own arrangements with regard to education, is once again rearing its head. We are probably all familiar with the views of somebody who comments regularly here and believes that it is unjust that his son is not provided with money from the public purse to enable him to send his son to Eton. Most of those who come on this blog reject his point of view. A rather subtler, but essentially the same, argument is currently being advanced on some of the British home education support lists.

When we earn money, a certain proportion of it is taken from us in various taxes and used to provide services which are of public benefit. These include hospitals, police forces, fire brigades and of course schools. Nobody is obliged to make use of those services. If I wish to pay for private medical treatment, I am free to do so. If my house catches fire, I can put it out myself instead of ringing the fire brigade. If I don't like the local state school, I can send my child to an independent, fee-paying school or teach her myself. We are not entitled to a cash alternative if we do not use these services. I did not call the fire brigade last year, but I still have to pay a share of their costs in my Council Tax. The same goes for schools, the police and hospitals.

Some home educating parents have advanced the idea that because they don't use schools, they should be given a sum of money as an alternative. This would presumably mean that to be fair, childless people should also receive a similar rebate. It is an unworkable idea and those who advocate this are in the minority. A variation of this idea though is more popular. It is this; because home educators don't send their children to school, they should be allowed to have free education from other sources. The main sources to which they claim they should be entitled are Further Education Colleges and the Open University. There is really no such thing as free education of course and what these people are really asking is that other people pay for their choices. This is exactly the same argument as that used on here by the man who wants £30,000 of public money each year to send his son to Eton!

Free schools are provided for all children between the ages of five and sixteen. After that age, free colleges and sixth form centres are provided. Those who wish can send their children to these places. If local authorities and individual colleges wish, they can allow children under the age of sixteen to use the colleges. This is uncommon and not a right, but something which the college might allow in special circumstances. With the raising of tuition fees at universities, the Open University is now planning to charge more. Some home educating parents are protesting that this is unfair and that because they do not use the free schools, their children should instead be entitled to free university courses! This is a very strange proposition indeed. These courses are not free at all; the rest of us have to pay for them through our taxes. What these parents are really asking is that we subsidise their unconventional lifestyle via our taxes. They are in the position of those whom we mentioned above who have elected not to use the state health service. Having opted not to do so, imagine a family claiming that the state should provide them with some alternative form of health care for them so that they had a better service than those using the NHS, but also, at the same time, had it for nothing. Most of us would regard that as being a bit unfair on those who had stuck with the NHS.

The most grotesque piece of cant which I have seen in connection with this question was the assertion made by one woman that she feels that we are moving towards a position where all learning will be prescribed and that no other learning will be allowed except that sanctioned by the state! Any of us are free to learn anything we wish. We are also free to teach our children anything we wish. We can reject the free school being offered to us for our children, just as we can reject the health service and even the police. The local police are not very often in evidence in my street. If I wished, I could hire a private security guard to patrol my garden at night and deter burglars. I have a perfect right to do this. What I would not have a right to do, would be to expect others to pay for this private arrangement through their taxes. Regardless of how things may have worked in the past, expecting free university tuition for children whose parents have decided to reject the free education already on offer, is precisely the same as hoping that others will pay for private health care. It is not really on.

There are other qualifications besides GCSEs.

I have in the past been accused of an obsession with GCSEs and also of ignoring all the other qualifications out there, such as Open University courses. This is quite an interesting point, because my daughter herself almost went along this path. She did a few units of an OU course when she was eight, but in the end it was decided that International GCSEs were a better bet.

There are quite a few things to be said in favour of GCSEs and some things to be said in favour of OU courses. As far as GCSEs go, they are a standard measure of education. I don't want to get into a debate about whether they have been 'dumbed down'. We chose not to do ordinary GCSEs, partly because the coursework was a problem and partly because the IGCSEs are more rigorous and highly regarded; very much like the old GCE. When taken purely as examinations, there is no scope for the sort of cheating which has been endemic in the GCSEs for over twenty years. Everybody understands the yardstick being used for a reasonable education; five GCSEs at grades A*-C, including English and mathematics. This is the sort of standard measure which will allow you access to study A levels at a college and which many employers regard as the bare minimum level of education which they require for people applying for jobs. Universities too, often want to see good GCSEs in addition to A levels. Really, they are most useful and apart from those who cannot afford them, I can't imagine why anybody would prefer her child not to have them.

Mind, I don't personally think that five GCSEs at C, is what the government seem to imagine it is; the infallible mark of a teenager who has had a good education. Their lack, after a child has spent eleven years in the educational system certainly tells you something, but unless a child has learning difficulties, it would be hard to see how she could avoid scraping a C at five subjects. This again, gives IGCSEs an edge over the standard GCSE.

Open University courses are another way of gaining qualifications. We saw this year that a child who had gained a certain number of points at the OU was able to get a place at Exeter university to study law. They certainly can be used in this way, although it is rather more difficult than using GCSEs and A levels. The problem is partly that when everybody else is using one measure, it is bound to be a little harder to get them to accept something a little different. Getting into university in this way is not particularly common. Still, not everybody wants to go to university and this is another difficulty. Most employers are not familiar with Open University points as a way of judging the educational attainment of a teenager. How many points on what course works out as five GCSEs at A*-C? What is the equivalent to a couple of A levels? As I say, my daughter was doing fine getting a few points at the OU when she was eight. The only thing is, that although she was doing all the work herself, there was no way of checking this. It might have been like a coursework scam and I might have been doing it for her. This makes some course of this sort a little less reliable than if a child actually sits in a room under moderated conditions and takes an examination. The IGCSEs show that she is capable of certain level of work at mathematics; they show that she herself can perform calculus. Points on an Open University course do not necessarily demonstrate the same thing at all.

There is something a little quixotic about the determination of so many home educating parents to avoid GCSEs. It is as though they are set on making life for their children just that little bit harder as they grow up. Everybody else is using an accepted scale of measuring something and they are hell bent on using something quite different.

None of this has anything to do with whether one believes or not that GCSEs or IGCSEs are actually measuring anything or saying anything worthwhile about the intelligence or education of a teenager. It is a matter of realpolitic; this what everybody believes and this is the system which is generally accepted. That being the case, it is hard to see any justification for engaging our children, who are not old enough to make an informed choice in the matter, in opposing the system. Certainly as adults, we can choose to make our lives difficult by being bloody-minded, but it is hardly fair to encourage our children to adopt a similar frame of mind as they deal with the world. Why would you do that, anyway?