LiP sanctioned for revealing ‘without prejudice’ offer in court

Courts: LiPs will be assisted but are not a protected class

A litigant in person (LiP) who disclosed a ‘without prejudice’ offer during trial had been warned not to and the judge was right to sanction him, the Court of Appeal has ruled.

Lord Justice Irwin said LiPs would always attract the assistance of the court, but “are not and cannot be a privileged class”, relieved of their obligations under the CPR.

Ogiehor v Belinfantie [2018] EWCA Civ 2423 concerned a quantum-only trial of a personal injury claim where the claimant sought around £230,000 in damages. By this point, the defendant had racked up costs of £110,000.

Citing surveillance evidence, the defendant accused the claimant of fraud. Mr Ogiehor said he revealed the existence of the ‘without prejudice’ offer for £10,000 that he had rejected three weeks earlier to counter that allegation, questioning why the defendant would offer him money if it was a fraudulent claim.

Following his action, the trial was adjourned and His Honour Judge Cryan ordered that, unless he made an interim payment of £10,000 within four months on account of the defendant’s costs thrown away, Mr Ogiehor’s claim would be struck out. The judge also recused himself from the case.

In his appeal, Mr Ogiehor said that, as a LiP, he did not know the meaning of ‘without prejudice’.

Irwin LJ said: “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 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 [Personal Support Unit] 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.”

He continued that it was “entirely proper” for HHJ Cryan to make to order for an interim payment of costs before permitting the claimant 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… It was also relevant to consider the very large costs already incurred by the defence.”

The judge undertook the process properly, taking into account the claimant’s means, including the possibility that he might raise the money from others. As a result, he set the figure at £10,000, less than 10% of the defendant’s costs accrued at that point, and allowed a long time for the deposit of the money.

While dismissing the appeal, Irwin LJ advised that “it would be wise in such circumstances to ensure that the LiP 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”.

More generally, he said: “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.

“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.”

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