Government cuts to legal aid, added to the financial pressures linked to Covid, have resulted in a surge of people representing themselves in court (“litigants-in-person” (LIP)), in an attempt to save themselves some money. This may initially seem like a cheaper option, however, the specialist nature of the law and notoriously complicated court rules, means that representing yourself in court is not only risky, but sometimes a very expensive decision.
To illustrate this point, let us look at how the civil courts have been used by victims of crime to attain damages or vindication, where the criminal courts have not produced a guilty verdict. This famously happened in the 1990s US murder case involving O. J. Simpson, and more recently, when the alleged child victim of sexual abuse, Wade Robson, sued the estate of the late Michael Jackson.
The standard of proof required in a civil case is ‘on the balance of probabilities’, which allows a judge to weigh contrasting evidence and agree with the version of events that seems more ‘probable’. Compare this with the criminal version, which is much stricter at ‘beyond reasonable doubt’, reflective of the severe consequences of being found guilty of a crime. So a defendant may not be convicted in a criminal trial due to the high standard of proof, but may be ordered to pay damages in a civil case to the victim where the burden of proof is lower.
On the flip side, a more unusual situation can be where the accused is neither charged nor convicted of a crime but then sues for defamation in the civil courts, claiming the victim has ‘lied’ when making criminal allegations against them.
This is exactly what happened in a recent defamation ruling in Coker v Nwkanma  EWHC 1011 (QB), where both parties were LIPs. The claimant, Mr Coker, was accused of rape by the victim, who had reported the incident to the police, but the police did not have the evidence to charge the claimant of the crime. The victim was a friend of the defendant. The claimant and defendant were in the same social circle and the alleged rape happened on a night out in which the victim was also present. Following that evening, various WhatsApp messages were sent by the defendant to this social circle accusing the claimant of ‘rape’. There were also heated WhatsApp exchanges directly between the claimant and the defendant, also using the term ‘rapist’. These messages also included the claimant’s photo.
In those unedifying messages, the claimant threatened defamation proceedings, stating that he would have the defendant ‘sent to jail’ for harassment, as well as alleging there was a blackmail plot involving the defendant and victim.
In his judgment, Mr Justice Saini believed the witness evidence of the victim and ruled that the statement in the defendant’s WhatsApp messages that the claimant had raped the victim were true. The judgment also included a detailed and disturbing account from the victim about the incident. It also dismissed the allegation from the claimant that the whole episode was a ruse by the defendant and victim to extort money from him. The judge rebuked both the claimant and the defendant for their language and threats in the messages, and in an unusual move, published all the WhatsApp messages in an exhibit to the judgment. This included the parties’ unpleasant language, threats and a photo of the claimant.
The result here is that the claimant has been named and shamed, with his photo published in a High Court judgment that concluded he is a rapist. His reputation is in tatters. And it was not just the claimant that has been adversely affected - the defendant’s full name is also listed in the judgment and his regrettable messages published for the world to read.
Both parties put themselves into a terrible position by not having specialist defamation lawyers representing them. Even though Mr Coker was not even charged with a criminal offence, he decided to sue for libel and then went on to represent himself in court. A lawyer could have advised him against this tactic, explaining that shining a light on the incident that was not being pursued by the courts may in fact only have the negative effect of bad press or fallout. And this is exactly what happened, with a published judgment against the claimant’s name, which is searchable online. This is known in libel law as the ‘Streisand Effect’, which occurs where someone attempts to conceal something but it actually backfires and attracts even more attention. This term was coined after Barbara Streisand’s failed attempt to suppress the publication of a photo of her clifftop home in Florida, that actually resulted in the story and photo going viral online and defeated the whole purpose of her efforts.
It is sometimes wiser to step back, take a breath and not pursue a matter, especially if there is a significant risk of blow-back. I will sometimes advise a client against pursuing court proceedings where their particular circumstances mean it may be too risky to follow this route, either due to the negative press it may generate (press reports on court hearings and judgments can remain online indefinitely) or the risk of a harmful public judgment entering a searchable register of judgments.
It is not just the reputational risks, but also the financial woes that can arise if you lack proper legal representation that need to be considered. Under English law, the loser pays the winner’s costs, so a losing LIP against an opponent with proper legal representation can face a bill for legal costs of High Court litigation that could run to hundreds of thousands of pounds.
Libel law is an extremely specialist area, and where the correct route to pursue is court proceedings in order to vindicate your reputation, then proper legal representation in court is essential. This will ensure both the best outcome but will also reduce the risks of harmful and public reputational damage, as well as reducing the threat of losing the case and then having to pay the other side’s costs.
This case serves as a stark warning that commencing legal proceedings as an LIP may be counter-productive. It is also a crucial indicator that legal advice must always be sought when embarking on court proceedings, especially if those proceedings relate to allegations of criminal conduct. If you do decide to go into battle, then make sure you have an army with the necessary weapons to prevail.