Ogiehor v Ogiehor

On 15 March 2016, the Appellant, a litigant in person, disclosed a “without prejudice” offer of settlement made by the Respondent during trial. As a result, the trial was adjourned and HHJ Cryan ordered that, unless the Appellant makes an interim payment in the sum of £10,000 within a 4 month period on account of the Respondent’s costs thrown away, his claim would be struck out. Further case management directions, to follow should the Appellant make the interim payment, were also made in the order.

The Order was originally drawn in error to order payment of £11,000. On 2 March 2017, the order was varied by Leggatt J to require payment of £10,000 within 6 months. However, the Order was otherwise maintained.

This is a second appeal brought by the appellant against the order to make an interim payment. Permission to appeal was granted by Gloster LJ on 21 December 2017 in respect of grounds which are set out below.

These proceedings concern a personal injury claim brought by the Appellant, following a road traffic accident on 18 March 2011. Liability was admitted by the Respondent on 15 June 2011. A two-day trial was listed on 14-16 March 2016 on the issue of damages alone.

The claim as formulated whilst the Appellant was represented, was for damages in the region of £225,000/235,000, allowing for general damages. By the time of the relevant hearing, the Defendant’s costs already stood at just under £110,000. The Appellant had lost his representation many months before, in mid-2015. There was no realistic prospect of him instructing fresh solicitors. He had reports from two experts supportive of his claim, a consultant neurosurgeon Mr Kirkpatrick, whose latest report is dated 25 February 2014, and a consultant psychiatrist Dr Baggaley, whose latest report is dated 15 June 2015.

In the process of investigation, the Respondent obtained video surveillance footage on various dates between 6 January 2013 and 5 November 2014 which, the Respondent alleges, shows that the Appellant exaggerated the injuries he suffered as a result of the accident on 18 March 2011. This evidence was reviewed by the experts instructed by the Respondent and incorporated into its Counter-Schedule of Loss. On the basis of this evidence, the Respondent alleged fraud against the Appellant.

By contrast, the video surveillance footage was not reviewed by the experts instructed by the Appellant, he says due to his inability to pay them to do so. The Appellant had been without representation for approximately nine months prior to the trial date. The Appellant was in default of an Order to serve a revised or further witness statement addressing the video surveillance evidence. There was no evidence at all from him addressing the surveillance material.

On 24 February 2016, the Respondent made an offer of settlement to the Appellant in the sum of £10,000, by way of a letter marked “WITHOUT PREJUDICE SAVE AS

On the second day of trial, HHJ Cryan began the hearing by notifying the Appellant that he had now seen the video surveillance footage the Respondent sought to rely upon and asking the Appellant how he intended to respond. When addressing the trial judge, the Appellant revealed the contents of the Respondent’s “without prejudice” letter, despite HHJ Cryan’s efforts to warn him that the letter was “without prejudice” and he should not introduce it. The Appellant acknowledged the “without prejudice” heading at the top of the letter yet, perhaps not appreciating its significance, continued to reveal its contents. The background to this is significant.

Although there is no precise record of it, it is clear that there was discussion outside court between the Appellant and Mr Cohen for the Defendant/Respondent, before the hearing on 14 March 2016. That included discussion of the video surveillance evidence. It is clear that there was mention of the fact that it would be suggested the Appellant had exaggerated his claim, and that the surveillance evidence would reveal that. It is also clear that it would be put to the Appellant that he had been lying, and there was discussion in some terms of the claim being fraudulent, and that a prison sentence of up to two years for contempt might be in question.

We have not been provided with a transcript or audio recording of what transpired on that day. However, the facts were set out by the judge in his judgment of the following day, 15 March 2016:

The matter, when it came on before me yesterday, dealt with various case management matters and I was requested, amongst other things, by counsel for the defendant to explain the court’s powers in relation to fraudulent claims because I was told that the claimant would not listen to what was being said to him by counsel for the defendant and said he would rather hear it from the court. At that stage, I must emphasise, that I had not seen any of the video evidence and I had not a very commanding view of the case. I was aware of the defendant’s case in the counterschedule and I explained to the claimant, in the most neutral terms possible, what the law was and how the court might react in relation to a fraudulent claim.

I emphasise that I was entirely satisfied that the claimant understood that I was making no judgment whatsoever about his case and, indeed, I was at pains to encourage him to continue to litigate if he had confidence in the integrity of his case. It is no part of this court’s function – and never can be or never will be – to discourage honest litigants from bringing their claims before the court.”

On the afternoon of 14 March it was discovered that the Appellant had not paid the court fee for the trial. The judge arranged for the PSU to assist him with a waiver application that day, which would enable the case to proceed.

It is the Respondent’s case that, before the hearing commenced on 15 March, there was further discussion between counsel and the Appellant, in the course of which and amongst other matters, counsel warned the Appellant not to mention the “without prejudice” letter to the Court. In the course of his remarks to us, the Appellant directly denied that he had been warned about this, either outside the courtroom or inside the courtroom before the judge entered. Unusually, this Court has been supplied with an audio recording of the proceedings on 15 March, which includes a recording of conversation between Counsel and the Appellant in the courtroom before the judge entered. It is sufficient to say that the recording supports the Respondent’s assertion on this point.

The judge dealt with events after he came into court as follows:

I asked the claimant what his position was because I had had the opportunity to note that in recent expert medical evidence before the court it was said that the claimant could not lift heavy objects and, indeed, could not drive. Yet in the video evidence which, by then which I had seen, there was clear footage of the claimant lifting relatively heavy objects, certainly much heavier objects than he had indicated he could lift; and, indeed, driving quite a bit.

It was subsequently drawn to my attention in relation to the driving that in his recent statement he said he was unable to drive and no longer owned a car. He had stopped driving because it was difficult for him to turn the steering wheel with his right hand and he did not feel sufficiently in control. That was his own statement and yet the video evidence showed him driving frequently, using both hands on the steering wheel and having obvious control of the vehicle.

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 and he went on to complain about the conduct of counsel for the defendant in approaching him in relation to that letter and saying that he was at risk of going to prison for two years.

Although, when I managed to intervene at some point, it was denied by the claimant that the letter was a “Without Prejudice” letter, it was in fact a “Without Prejudice” letter. It has therefore caused considerable difficulty.

Now I note that the PSU representative who was with the claimant endeavoured to see whether she could help on the subject, but he was not going to be stopped. It is clear that he was behaving wilfully, indeed extremely wilfully, in not being stopped. I am less sure as to whether he was behaving knowingly and wilfully, but 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.”

At the time, and in submissions to us, the Appellant emphasised that the reason he mentioned the letter was the allegation of fraud. If he was mounting a fraudulent claim, he asks rhetorically, why would the Respondents offer him more money? Paragraph 4 of his Grounds encapsulates his complaint:

Finding that the court would now ‘be faced (unless it took an extremely robust view) with the prospect of having to decide what damages might be fair knowing what offer has been made’, HHJ Cryan concluded that he had been placed in an ‘unworkable position’ and adjourned the trial hearing.

The Appellant does not challenge the decision of the judge to withdraw from the case, or suggest that the case should have proceeded. The challenge is to the consequential costs order.

In his judgment, the judge considered what had happened, in the context of all that had gone before in this litigation. He heard submissions from the Respondent, emphasising the huge costs bill which had already been built up, and the likelihood that the existing costs could never be met, never mind more costs arising from an adjourned trial. He noted that the Appellant had been unrepresented for some nine months, and noted the difficulty of presenting cases for litigants in person. He noted the difficulty with the Appellant’s experts; he also noted that the Respondents were at a disadvantage because they did not know the Appellant’s case on the surveillance evidence, although he had elicited some answers in the process of the hearing. The Appellant said his own experts had mis-recorded what he had said to them about his hand.

The video showed him lifting sizeable objects when the doctors had recorded him saying he could not. His existing witness statement, and the account recorded by his doctors, was that he could not drive. The video showed him driving on a number of occasions. Here too his doctors had mis-recorded his account. The judge observed that the inclusion of the same assertion in the Appellant’s own statement on this issue was “a little more puzzling”. The judge then indicated that he would give specific directions which would enable matters to be tried, if the case proceeded: essentially that the Respondent would formulate questions in writing for the Appellant to answer, which would elicit his case on these matters, and in essence take the place of a further witness statement. We note that inevitably these directions, intended to overcome the problems arising from the Appellant being unrepresented, would throw an additional burden on the Respondent’s legal representatives and add to costs.

The judge then turned to costs. He concluded squarely that the adjournment was the fault of the Appellant. The application was for the Respondent’s costs of the day thrown away, and for an “unless” order. In his judgment he said:

I appreciate that in conducting himself in the way that he did, the claimant might well not have wholly appreciated the very serious consequences of what he was doing, but he conducted himself in a way which was heedless of the court’s attempts to prevent him from doing so and he took that risk, and I fear that in taking that risk he has cost himself a great deal of money.

The alternative to that is that it would have cost the defendant a great deal of money and it is not the defendant’s fault. So, if somebody has got to pick up the bill for it and sadly somebody has, it can only be the claimant.”

In remarks in court following delivering his judgment as above, the judge expanded on his reasoning, as to the unless order and the order for interim payment. He asked the Appellant if there was any reason against such an order. In a series of remarks over four pages of transcript the Appellant repeated his explanation as to why he had mentioned the “without prejudice” letter. In response to further questions from the judge he did address the question of whether he could satisfy the interim payment. He said he did not have that much money, and he was on Jobseeker’s Allowance. The judge indicated he would set a “long period of time for you to get that money together from family and friends and however you want to do it. Once you have paid that, the trial can continue …” The Appellant replied that he did not see where he was going to get the money from, but “if I get it I will pay the money”.

In granting permission to appeal, Gloster LJ found the following issues to be arguable:

as a matter of principle and in all the circumstances, HHJ Cryan erred in requiring the appellant to pay the costs of two days trial hearing “thrown away” as a result of his blurting out the fact that he had received an offer of settlement in the sum of £10,000 from the defendant’s solicitors;

in making payment of the interim sum a pre-condition to the case continuing, the judge erred in principle.

These grounds will be addressed in turn.

Section 51(6) of the Senior Courts Act 1981 gives the court the jurisdiction to make a wasted costs order where it sees fit, by outlining that:

In line with the discretionary nature of the costs regime, wasted costs orders can be made at any stage of a case (CPR rule 44.2). However, in Ridehalgh v Horsefield [1994] Ch.205 CA, the Court of Appeal narrowed this discretion as it held that while litigants should not be financially prejudiced by the unjustifiable conduct of litigation by their or their opponent’s lawyers, the court in the exercise of the wasted costs jurisdiction, should be astute to control the threat of a new and costly form of satellite litigation. It set out a three-stage test for when a wasted costs order was contemplated, namely:

Had the legal representative of whom the complaint was made acted improperly, unreasonably or negligently?

If so, did such conduct cause the applicant to incur unnecessary costs?

If so, was it, in all the circumstances, just to order the legal representative to compensate the applicant for the whole or part of the relevant costs?

As is clear from its wording, this rule and corresponding test primarily concern the conduct of a legal representative in relation to wasted costs orders. There can be no doubt that, if the conduct in issue in this case, namely the disclosure of without prejudice information to the court, was that of a legal representative, each stage of the test would be met.

Under the first stage of the test, it would be improper for a legal representative to disclose “without prejudice” information to the court. A member of the profession would be well aware that the without prejudice rule is:

The Respondent attended the second day of the trial accompanied by counsel, instructing solicitors and experts. As the trial was adjourned, the cost of attendance by these parties alone amounts to substantial costs unnecessarily incurred. Given these facts, the second stage of the test is also met. Finally, it is clearly just to compensate the Respondent for unnecessary costs incurred through the fault of an opposing legal representative.

In this case however, the court is dealing with a litigant in person. The question here is whether the three-stage test is met in light of the conduct of this Appellant.

In its recent judgment in Barton (Appellant) v Wright Hassall LLP (Respondent) [2018] UKSC 12, the Supreme Court provided some guidance on the standard of compliance to be expected by a litigant in person:

In Nata Lee Ltd v Abid [2015] 2 P & CR 3, Briggs LJ (as he then was) described cases

The inadmissibility of “without prejudice” material is a very specific rule of evidence in the Civil Procedure Rules. It is a relatively complex provision of these rules and may not be immediately accessible to a lay person. In Sang KookSuh and another v Mace (UK) Ltd[2016] EWCA Civ 4, this court found that a litigant in person would not have been aware of the without prejudice rule and on the facts of that case ignorance should not be held against them. In considering whether the Appellant, Mrs Suh, had waived her without prejudice privilege to the issues discussed in a meeting with the Respondent’s solicitor, Vos LJ found:

In this case, however, the Appellant had been warned expressly outside the hearing not to reveal the letter in court. Even as he began to do so, as the judge said, all those present made efforts to stop him: the judge himself, the barrister for the Respondent and the PSU representative. As the judge found, the Appellant ploughed on heedlessly and was “in effect unstoppable”. This may well have sprung from his feelings at the suggestion of fraud. It may well be that he had no full or developed understanding of the law concerning “without prejudice” letters. However, in my judgment he must have known that he was doing something that he should not do. The evidence is clear that many present tried energetically to pre-empt him. In my view therefore, the Appellant’s conduct, even as a litigant in person, was improper and satisfied the first limb of the test in Ridehalgh v Horsefield.

There can be no issue about the second limb of the test: his action caused considerable unnecessary costs.

Turning to the third limb of the test, it appears to me unarguable that the judge was correct to order that the Appellant should bear those costs.

The final question to be considered is whether the judge was wrong to make the “unless” order.

The court’s discretion to make orders subject to conditions is governed by CPR Rule 3.1, the relevant parts of which state:

make it subject to conditions, including a condition to pay a sum of money into court; and

specify the consequence of failure to comply with the order or condition.

The condition must be one which is capable of being complied with and an impecunious party should not be ordered to pay into court a sum of money that they are completely unable to raise. In MV Yorke Motors v Edwards 1981 WL 186796 (Unreported), the Court of Appeal was dealing with a case involving the sale of a Rolls Royce motor car. It was alleged to be a fraudulent sale, in that the Defendant had (it was said) no title to sell. The Claimant sought summary judgment on the ground that there was no defence, under the relevant rule then in force, RSC 0.14. The Court of Appeal had upheld a finding that there was one arguable line of defence. The Court then went on to consider the order made below that the Defendant should pay into court £12,000, a very large

It is helpful to quote the reasoning of Brandon LJ as follows:

The court went on to reduce the sum to be paid in to £3,000, and extended the time to pay.

When the matter came to the House of Lords (M.V. Yorke Motors v Edwards[1982] 1 WLR 444) their Lordships upheld the decision of the Court of Appeal, and dismissed the appeal. In his leading speech, Lord Diplock quoted the central passages from the judgment below, and went on to say:

The increase in the numbers of litigants in person has been notable in recent years, as the availability of legal aid has so markedly declined. This makes the transaction of business in the courts ever more difficult, perhaps particularly in the County Court, where so many litigants act in person, and where there is such a press of business. The judges will always wish to assist litigants in person, as HHJ Cryan sought to do in a number of ways. But it is inevitable that problems will arise, nevertheless.

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. That is a fundamental obligation, as the overriding objective makes clear: “enabling the court to deal with cases justly and at proportionate cost”; see CPR 1.1(1).

In my judgment it was entirely proper here to order the Appellant to make an interim payment of costs, before permitting him to continue to pursue his claim. The judge was fully familiar with all the circumstances. There had been significant previous failures by the Appellant, some of which he could have been expected to remedy, even though unrepresented. Perhaps most important, he really should have given a detailed and timely answer to the surveillance evidence.

The judge was right to consider the problems faced by the Appellant on his substantive case. That was precisely what the Court of Appeal and the House of Lords did in M.V. Yorke Motors v Edwards (“one of his defences is, as I think, quite worthless, and the

Against that background, the judge needed to take into account the Appellant’s means, including the possibility that he might raise the money from others. This again was precisely what was approved by the House of Lords in M.V. Yorke Motors v Edwards. The judge did so here, and responded by setting the figure at £10,000, less than 10% of the Defendant’s costs already accrued, and allowing a long time for the deposit of the money.

For those reasons, it appears to me that the order of HHJ Cryan was not wrong, and I would dismiss the appeal.

I add one further comment. In my view it would be wise in such circumstances to ensure that the litigant in person is brought to the witness box, sworn and gives evidence as to his means and the possibility of raising the necessary sum, rather than simply rely on assertions from the well of the Court.

I agree.