Howard Cohen succeeds at the Court of Appeal in Ogiehor v Belinfantie [2018] EWCA Civ 2423

Published: 07/11/2018 | News, Personal Injury


Howard Cohen successfully defended an appeal against a Claimant/Appellant acting in person before the Court of Appeal in October 2018.

Background
The Claimant’s claim for damages of £225,000 arose from a road traffic accident that occurred on 18th March 2011. Although liability was admitted, causation and quantum were heavily disputed. The Defendant accepted that the Claimant had sustained only the most minor injuries. By the date of trial in March 2016, the Claimant was no longer represented and his medical experts had not viewed the surveillance evidence obtained by the Defendant which showed him performing activities that he had told them – and contended within his witness statement – that he was unable to perform. As a result of these discrepancies (which the Claimant had failed to respond to in a supplemental witness statement, despite having been given the opportunity to do so), and the findings reached by its own Orthopaedic and Psychiatric experts, the Defendant pleaded fraudulent exaggeration within its Counter-Schedule. It argued that any such finding might attract an application for contempt of court proceedings and, in consequence, a term of imprisonment of up to 2 years.

In the days leading up to trial, the Defendant made a written “without prejudice” offer to the Claimant which he rejected. At court, discussions continued between the parties in which the Defendant repeated its offer but again, indicated that dishonesty would be alleged once cross-examination began.

At trial
On the morning of the second day of trial, apparently unhappy that fraud was being alleged against him, the Claimant made an unwise choice. His Honour Judge Cryan describes what happened next:-

“There then followed, however, a most unfortunate event. Because I was entirely unclear what his [the Claimant’s] case was in relation to the surveillance evidence which by then I had watched, I enquired of the Claimant about his case…Before I had said very much on the subject at all, however, the Claimant insisted on referring to a letter. It seemed to me that that letter might be one containing an offer, as in the light of what he was beginning to say, it might be a “without prejudice” letter. I endeavoured to stop the Claimant from pursuing that matter. He was, in effect, unstoppable. He has a loud and dominant presence in Court and I was unable to prevent him from telling the court that this was a letter which had offered him £10,000 to settle the case….”

Despite being told by the trial judge, the Claimant’s PSU representative and myself to stop, His Honour Judge Cryan found that the Claimant had acted “wilfully, indeed extremely wilfully, in not being stopped…he wished to achieve a certain effect and did not heed the court’s indications that he should not proceed until it was too late.” Because he now knew about a relevant offer, Judge Cryan did not feel able to continue to hear the trial, but concluded that the Claimant should pay the Defendant’s wasted costs, with an interim payment of £10,000 to be paid within 4 months, or else the claim would be struck out. In reaching his decision, he considered the Defendant’s total costs bill of £110,000, the likelihood that those costs would never be met even in the event of success at trial, and the fact that the Claimant had still not clarified his case in relation to the surveillance evidence.

Grounds of Appeal
On his first appeal before Leggatt J against that costs order, the Claimant failed. However, he was granted permission on paper by Gloster L.J. to bring a 2nd appeal to the Court of Appeal. She found that 2 points were arguable:-

i. That His Honour Judge Cryan erred in awarding wasted costs against the Claimant as a litigant in person; and
ii. That His Honour Judge Cryan erred in making payment of an interim sum a pre-condition to the Claimant’s claim continuing.

Having heard argument, the Court of Appeal found entirely for the Defendant and dismissed both limbs of the Claimant’s appeal. Irwin L. J gave the leading Judgment.

Ground 1 – Wasted Costs
Irwin L. J. held that His Honour Judge Cryan acted entirely within his jurisdiction in awarding wasted costs against the Claimant pursuant to s.51(6) of the Senior Courts Act 1981. The appropriate test for wasted costs was that set out in Ridehalgh v Horsefield [1994] Ch 205 CA and involved asking whether (1) A party’s legal representative had acted improperly, unreasonably or negligently and (2) If so, whether such conduct caused the applicant to incur unnecessary costs and (3) If so, whether it was just to order that legal representative to compensate the applicant for some or all of those costs. Had a legal representative acted in the same way the Claimant did in the instant case, the relevant test would have been satisfied.

Irwin L. J. asked himself whether the same test was met in light of the conduct of this particular (unrepresented) Applicant and concluded that it was. Lord Sumption had given some recent helpful guidance about the standard of compliance to be expected of litigants in person in Barton v Wright Hassall LLP [2018] UKSC 12 where he stated that,

“At a time when the availability of legal aid and conditional fee agreements have been restricted, some litigants may have little option but to represent themselves. Their lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court…The rules do not in any relevant respect distinguish between represented and unrepresented parties….At best, it may affect the issue “at the margin”….The rules provide a framework within which to balance the interests of both sides. That balance is invariably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent….Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any steps which he is about to take.”

Irwin L.J. did not feel that this was a case “at the margin” in which the Claimant’s status as a litigant in person represented a disadvantage “which he could not have reasonably been expected to overcome.” Unlike the case of Sang Kook Suh and another v Mace (UK) Ltd [2016] EWCA Civ 4 in which the Claimant litigant in person could not have been expected to know about the without prejudice rule, in this case, the Claimant had been warned expressly (by me!) not to reveal the letter in Court. Even as he began to reveal its contents, all of those present made efforts to stop him. Even if he did not know the precise meaning of the words, “without prejudice”, he certainly “…must have known that he was doing something that he should not do.” As a result, the test in Ridehalgh was met and there was nothing improper about His Honour Judge Cryan making a wasted costs order against him.

Ground 2 – Making the costs order a pre-condition of the claim continuing
Irwin L.J. stated that the Court’s discretion to make orders subject to conditions is set out in CPR 3.1 but guarded that that any condition must be one which is capable of being complied with. An impecunious party should not be ordered to pay into court a sum of money that they are completely unable to raise MV Yorke Motors v Edwards [1982] 1 WLR 444.

He felt that His Honour Judge Cryan was entirely correct in considering the Claimant’s problems on his substantive case and further, in considering the very large costs already incurred by the Defendant. He also took into account the Claimant’s financial means by ordering less than 10% of the Defendant’s costs against him and in giving him the extended period of 4 months in which to pay.

He also advised that in future, where a litigant’s means are in question, that person should be brought to the witness box and sworn, giving evidence as to his means and the possibility of raising particular sums. That course is preferable to simply relying on “…assertions from the well of the Court.”

Summary
In blurting out the existence of a “without prejudice” offer, despite warnings and exhortations not to, the Claimant created a problem for himself that he was later unable to fix. As a litigant in person, a certain latitude might have been expected in response to unknowingly unfortunate behaviour. However, the difference in this case was that the Court found that the Claimant knew that what he was doing was improper. In the words of Irwin L.J, “While litigants in person will always attract the assistance of the Court, they are not and cannot be a privileged class, relieved of their obligations under the Civil Procedure Rules. Judges will show common sense and often flexibility, but in the end, must enforce the Rules and have a proper eye to the legitimate interests of the other parties to litigation, including as to costs.”

This decision serves as a useful reminder that the wasted costs jurisdiction does not just apply to legal representatives, but may also be deployed against litigants in person who act in ways that are improper, unreasonable or negligent. As their numbers rise, judges will wish to assist them where appropriate but as ever, a balance must be struck to ensure that represented parties litigating against them are not disadvantaged.