LITIGATION PR FROM A LITIGATOR- PART 2

So what is litigation? This is an instance where a little knowledge is a dangerous thing when confronting the media, but where you also have a distinct advantage if you are better informed than the journos you are dealing with. Conducting litigation is like playing three-dimensional chess; though with the sobering knowledge that you are doing so not to win for you, but for your client.

The PR consequences of error in high profile litigation can be catastrophic – as the Sussex’s learned when parts of their well-founded claim against the Mail on Sunday were humiliatingly struck out because of mistakes made by their lawyers: https://www.theguardian.com/uk-news/2020/may/01/setback-for-meghan-in-privacy-claim-against-mail-on-sunday-owner.

This was a monumental own-goal for which their (media) lawyers must take responsibility.

Though conceptually straightforward, even claims founded on law of privacy must still comply with the strictures of the Civil Procedure Rules – two huge white volumes which should sit on every litigator’s desk.

In this case the way in which their claim was presented breached those procedural rules, and their lawyers then spurned the opportunity to correct those errors discretely without suffering a costs penalty; another grave error of judgment on their part.

A privacy action is a form of civil litigation – legal proceedings where the parties are individuals or companies; which is distinct from the criminal process where the state prosecutes an individual or company. The Civil Procedure Rules stipulate that all civil litigation should be preceded by correspondence between the parties in which the claimant sets out details of the claim, and the defendant sets out why the claim is rejected.

This correspondence has become increasingly important in recent years and so needs to be finely judged; especially if some of it may end up in the public domain. Some recipients, such as Private Eye, will publish it as a matter of course. All such correspondence which concerns parties or issues which may interest the media should be drafted on the assumption that it may end up on a website.

The most common exception is where an application is made for what is called an interim injunction; which is a court order usually preventing some activity unlawful activity – usually a threatened breach of confidence. In that case there sometimes will not be time to set out the basis of a claim in a letter, such as where you are dealing with a blackmailer.

I have a tiny footnote in legal history when in 1996 I obtained an injunction against an individual who was blackmailing my lady rock star client. I only had an email address for him and was able to persuade a judge to let me serve the injunction by that means. It did the trick.

The next stage will be the issue at court of the claim form – once called a writ. That is usually served on the other side with the first really important document in a claim; the statement of case. That document, nearly always prepared by a barrister, sets out in detail what the claimant wants from the action, and why it believes that it is entitled to a remedy from the court.

It was the defective nature this document which caused such a PR disaster for the Sussex’s, and red faces at their solicitors, Schillings – though the primary fault lay with the barrister David Sherborne because he will have drafted that document, which because of recent changes in the Civil Procedure Rules is now publicly accessible.

It is however possible to apply for an order to seal a court file where issues of confidentiality are concerned; as has in my experience been done by Simon Cowell’s lawyers when I have opposed them on privacy issues. Exactly the same principle would apply where commercially sensitive information was at issue.

The next stage will usually be that the defendant serves a defence. But there are alternatives to that if – for example – you wish to strike out parts of the particulars of claim before serving the defence. You may wish to do this because there are allegations made in the particulars of claim that you do not want to have to deal with, and which a judge may strike out; as Warby J did in the Sussex’s case. You may also add a counter-claim to the defence.

The defendant may then serve a “reply” to the defence (and a defence to the counter-claim if there is one) at which point there is what is called a case management conference, where a judge will set out how the case will progress to trial, and set limits on how much each side should spend on legal costs – known as “costs budgeting”.

The next stage is what is called “disclosure”, which the in the US is called “discovery”, as it used to be called in the UK. At this stage both sides in the action are supposed to prepare lists of all the documents that they hold, including electronic documents, which both support and undermine their cases.

This process requires both sides to act ethically in fulfilling their duties to the court – especially the lawyers who have their own professional obligations to ensure that this exercise is done properly. Nobody wants to disclose a document which undermines their chances of success. Where the solicitors are acting for a client (such as a bank) which pays then millions of pounds in fees every year, or a newspaper that pays them well to win at all costs, the temptation not to comply with this obligation is strong.

Where you suspect that documents are being withheld by the other side you can apply to a judge for a disclosure order; but you can only apply for such an order where you can persuade a judge on the balance of possibilities that such a document exists. You must also – of course – know that there is such a document or class of document.

Another tactic, exemplified in the excellent true-life movie “Dark Waters” is to send over a warehouse full of documents and hope that the lawyers on the other side will not sift through all of them. That ruse failed in the movie because of the determination of the lawyer seeking compensation for people poisoned by waste from DuPont Chemicals.   

The next stage is usually to prepare statements for all the witnesses that you intend to call to give evidence at a trial. After that you will prepare reports of the evidence that experts would give at trial if such evidence is required. 

Then comes the trial, at which point not only the press has a very great latitude to report events, but the witnesses are - subject to any restraints imposed by the judge - free to make hugely defamatory allegations for which there is no legal recourse. Litigation PR should have kicked in long before that point, but if it is ever needed - it is at that point.