Monday, 16 June 2014

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.

Sunday, 15 June 2014

A Forensic Psychologist is determined to get her two penn'orth in a few weeks ago...

Dear Kayleigh 
Thank you very much for this. I think it is very important that knowledgeable 
members of the home educating community are involved in the creation of the new 
guidelines, rather than the minister (or more likely his staff) electing to use only 
home educators local to Cardiff for convenience. 
As Welsh liaison for Education Otherwise, the largest home educating charity in the 
UK and author of the briefing paper used during the consultations, I am anxious 
that I should be involved from the very start in all aspects of the new guidelines. 
I would be very grateful if the committee felt able to recommend that my 
involvement is accepted from day one. 
Best wishes 

Wendy Charles-Warner 

Friday, 13 June 2014

Alison Sauer's latest business venture

Readers might be interested to know that Alison Sauer has started a new company with Wendy Charles-Warner; Heatherside Educational Consultants Limited. They only registered this business  a little over a week ago, so it is too early to say much about it. There are already one or two points of interest though. Mrs Charles-Warner is listed as a forensic psychologist; rather than a lawyer. Also, her service address is given as being the same as Alison Sauer's in Barnoldswick. Most companies, when registering with Companies House, give at least some vague indication of the nature of the business being undertaken. This is not the case with Heatherside  Educational Consultants Limited, which is slightly unusual.

Readers will perhaps be aware that Alison Sauer is already director of a company with a similar-sounding name to the new one; namely, Heatherside Homes Ltd.

Sunday, 8 June 2014

Litigants in Person; a Guide to the Perplexed

With the cuts in legal aid, many people are choosing to conduct their own cases. This is seldom a good idea, especially if your mental faculties are impaired or you are not as bright as you wish others to suppose. I want to look today at a couple of the ways in which litigants in person can easily come a cropper, especially if their knowledge of the law is of a purely theoretical nature; drawn from library books and not actual court practice. It is all well and good studying law  with the Open University, but unless you know what you are doing, it is so fatally  easy to get your fingers badly burned.

 Let us look first at the case of Mrs X, a vexatious litigant from the provinces. She arrives in the capital for her big day in court, the whole adventure being rather overwhelming; after all, she is not used to big cities. There are so many cars, and the buildings are far taller than the cottages and farm buildings with which she is familiar. Never the less, she makes her way resolutely to the Royal Courts of Justice in the famous Strand, full of her own importance. Perhaps she is the first member of her family ever actually to visit London; only previously having seen the place on pathe newsreels at her local cinema.

Once in court, Mrs X at once  makes a terrible faux pas, which immediately alienates the judge in her case! It is the convention that all High Court Judges are addressed as ’My Lord’; even if they are only knights. Having only read about courts in a book called, perhaps, ’Every Woman her Own Lawyer’, and having no direct experience of them, poor Mrs X cannot be expected to know this and calls the judge, ’Your honour’. It is twenty years since he was addressed in this way, as though he were only a humble circuit judge. At once, Mrs X has put his back up, without even realising it!

Or take the case of Mrs Z, a decrepit farmer’s wife from a remote part of the country. She is determined to recover her costs in travelling to the court from Giggleswick and feels that the best way to do this is to deny that she has any money or occupation and to claim  that she is wholly reliant upon state benefits. Surely, this will melt the hardest judge’s heart? What an error! If only she had known about the Litigants in Person (Costs and Expenses) Act 1975. By admitting that she was running a business, she would have been able to claim for loss of earnings. But because she insisted on maintaining the fiction that she had no money other than her benefits; she got nothing!

Next week, we shall be looking at the mysterious  case of the woman who couldn’t tell the difference between her witnesses and her legal advisers and also examining the disadvantages for a litigant in person of speaking in a slow, patient, patronising  and annoying tone of voice, like  a cross between a  teacher for the deaf and  a relationship counsellor.