LOOKING AT LITIGATION FROM THE LITIGANT'S VIEWPOINT 1: A BOOK WORTH READING
There is surprisingly little written about the actual experience of being a litigant, particularly a litigant in the civil courts. What is more the “experience”, or viewpoint of the client does not figure greatly (if at all) in legal training. Doctors have better training. There are several excellent books, by doctors, on their experience of being a patient. Doctors in training are told to read the late John Diamond’s Because Cowards Get Cancer Too, on his experience of suffering from throat cancer. There is a compelling book “The Other Side” on the experience of a doctor as a patient who had a terminal cancer diagnosis who wrote so that doctors could better understand what being a patient is really like.
CAN (OR SHOULD) THIS BE APPLIED TO LAWYERS?
I have been looking for material on the experience of being a litigant for a while. I found a book, by accident, at an airport bookstall (in fact it wasn’t even found by me). Victim Zero, by Kat Ward, describes her experiences as a defendant in a defamation action brought by Freddie Starr. It is a book that everyone involved in the litigation process should consider reading. It shows the experience of a civil case from the point of view of a litigant.
The book, is about much more than this one court case. I am doing it a disservice in looking at this one issue. It catalogues the author’s life and her experience of systematic abuse at the hands of many, including Jimmy Savile. However the structure of the book, is built around the author’s experience of being sued by Freddie Starr and the court case itself.
Doctors are encouraged to have empathy with patients by learning and reading about the experience of being a patient. The question I have is whether lawyers could benefit from the same insight. Reading this book would be a good start. The writer here is perceptive, and extremely open, in her account, including her daily experiences at the trial.
The action itself was unusual. In a publication, where much more serious matters are dealt with, Ms Ward mentioned that whilst on a Jimmy Saville television show she had been “goosed” by Freddie Starr who, when she reacted, made derogatory remarks about her breasts. Ms Ward’s own evidence was that, by the standards of the times, this was normal conduct.
“I explained that the Claimant had behaved in a manner that was entirely acceptable in 1974.”
However Mr Starr was affronted by this and brought an action which led to a five day trial in the High Court.
THE EXPERIENCE OF THE COURT PROCESS
The chapters on the court case are interspersed throughout the book.
1. The initial experience of being in court and the “physical weariness and nausea”(chapter 1).
2. The importance of courtesy shown by the court staff and their knowledge of the court building (chapter three)
3. The experience of re-living events from many years before and listening to allegations being made against you (chapter 5).
4. The experience of being cross-examined at length, not only about an event that happened many years before, but about your whole life history (chapter 7 and 9).
5. It is significant that this author has centered on the word “credible”. It forms a chapter beginning and is clearly what the case was about. “Worthy of belief or confidence”.
6. The difficulty in following legal argument and submissions (chapter 20).
7. The joy of winning (Chapter 22). (However this should not overshadow the real pain, worry and concern that the litigation caused.)
There is plenty here for lawyers to think about. Judges, lawyers and writers are often invited to speak to law students. How often is a litigant asked to speak? What would a litigant most like to say to their lawyers?
This may be viewed as an “extreme” case where credibility, and witness recollection, were to the fore. However there is so little information on this topic that this book is a valuable asset in a lawyer’s attempt to gain empathy and a real understanding of the entire litigation process. Everything is considered from the financial strain of actually getting to court; the courtesy shown by court staff; the problem of what to do over lunchtime; the actual experience of being cross-examined. Matters missing, for the most part, from the legal curriculum.
READ THE BOOK AND THEN READ THE JUDGMENT
What makes this book particularly interesting is that, after reading the book, you can read the judgment. The judgment of Mr Justice Nicol in Frederick Leslie Ward -v- Karin Ward  EWHC 1987 (QB) is available for all to read. In itself, it is a important examination of the issues relating to witness credibility. (and another reason this book and the judgment should be read by lawyers)
The case came down to a matter of who the judge believed: who was the most “credible”.
“In the end I have to decide whether the Defendant’s account is true on the balance of probabilities. I must do so, taking account of the oral evidence of these witnesses (which, necessarily, I have only summarised above), the documentary evidence that has been put before me and the submissions of Mr Price and Mr Dunham. In my judgment the Defendant’s account is true.
i) It is, of course, a matter which took place a long time ago. But I find that the Claimant’s remark to the Defendant, ‘you’re a titless wonder’ was a striking one. It lodged in her memory. She was sensitive about her appearance (as are many teenage girls) and this remark in a crowded room which included some of the other girls at her school was understandably humiliating. I reject the submission by Mr Dunham that the Defendant had confused the Claimant with some other celebrity.
ii) I find as well that the Defendant’s account of what led up to this remark by the Claimant is also more likely to be true than not, that is the Claimant touched or grabbed her bottom and she recoiled. The recoil, at least, was seen by Susan Bunce. Ms Bunce did not see what caused the Defendant to behave in this fashion. I have considered Mr Dunham’s submission that it may have been the Claimant’s smell which the Defendant associated with her step-father, but I have decided that it was more likely than not the smell, plus the sexual advance which grabbing of the Defendant’s bottom was.
iii) The Defendant was being given Lithium at Duncroft at this time. She has accepted that this affected her memory. On peripheral matters her account has varied. Thus she said at some points that the Claimant’s smell included a component of alcohol. She has accepted that she may have been wrong about that. In her BBC interview she said she was 14 at the time. We know that she was in fact 15. But in its core elements, her account has been consistent.
iv) In her BBC interview the Defendant had said ‘I had a famous person who would try, he smelled awful, he smelled of sweat and alcohol and it made me heave just to be near him, so I certainly didn’t want him to do anything to me’. Mr Dunham emphasised the word ‘try’ and suggested that the Defendant had later in her ITV interview sexed up what was previously described as an attempt to an actual grope. I reject this argument. In the first place, in the BBC interview she did not go on to explain what was ‘tried’. In her evidence she said that the Claimant had tried to complete the ‘goose’, but got no further than grabbing her bottom. Secondly, the account which the Defendant gave in her FanStory words (and which was written in about 2008 so well before the BBC interview) was that the Claimant’s hands ‘wandered incessantly’ and the meaning attributed to this in the Particulars of Claim was that the Claimant had groped and sexually assaulted her. Next, I do not accept that Mr Williams-Thomas encouraged the Defendant to elevate an ‘attempt’ to a ‘grope’ for the purpose of the ITV interview. I agree with his response that that would have been unprofessional. Mr Williams-Thomas, like Ms MacKean and Mr Jones, impressed me as a professional reporter and broadcaster. It would also be a curious thing to do in relation to a person who was not the focus of the programme he was making and where the difference between an attempted grope and an actual grope was not of the highest magnitude. I do not attach significance to the Defendant’s omission to use the word ‘goose’ until she gave evidence. It is not a common idiom now and she would be right to consider that her audience (whether readers of FanStory, watchers of ‘Newsnight’ or viewers of the ITV interview) would be mystified if she used it.
v) As I have said, I find that in truth the Claimant has no recollection of what actually happened on this evening. He originally said that he could not remember being on a show with Jimmy Savile at all. I accept that the Claimant has appeared on several thousand TV shows and he could not be expected to remember each one, but his response when initially approached was to deny his appearance categorically – not to say he could not remember. He then said that he had left immediately after the show. In his evidence he said he may have stayed for a short time with him manager, Mr Cartwright. Later in his evidence he said that his wife remained as well with him and Mr Cartwright. There has been no evidence from either Mr Cartwright (whose absence in the USA would not have prevented him providing a witness statement) or the Claimant’s wife at the time (who could have been witness summonsed if she was unwilling to attend voluntarily).
vi) In his evidence, Mr Starr accepted that he had a voracious sexual appetite in 1974. Slapping a girl’s bottom is what people did in the 1970’s, he said. It did not mean anything and was acceptable. He revelled in the reputation of being a ‘cheeky bastard’ as he put it in his autobiography. He agreed that he did make jokes about women’s breasts. ‘Every man does it, even my 15 year old son’, he said in evidence. He was asked about a passage in his autobiography which recounted his first meeting with Sandy, whom he later married in the mid-1970s. The book recorded him as saying to this woman to whom he had not previously spoken and, when learning her name, ‘Hello Sandy. Can I play with your fur purse?’ He said in his evidence this was inaccurate. In fact he had asked if he could play with her fur clitoris.
vii) In his witness statement, the Claimant said ‘my humour was and remains the opposite of humiliation.’ That is difficult to reconcile with an extract which Mr Price played from one of the Claimant’s shows in which he takes two women from the audience on to the stage: one beautiful; the other, not so. The audience is repeatedly invited to laugh at the latter. Mr Starr emphasised that this was an adult show to which children were not admitted. That may be and it may explain why the jokes could be sexually frank. But it also showed that the Claimant felt free to raise a laugh at another person’s embarrassment about her body.
viii) The Claimant’s response was to say that his behaviour towards young girls was different. He said he didn’t like younger women. In his interview for ‘This Morning’ he had said ‘I always kept away from girls because I knew it spelt trouble.’ In his evidence he said the cut off point was 22 or 23. However, his behaviour on the very same occasion as the Defendant spoke about tells a different story. Susan Bunce was a small 15 year old. He picked her up, held her in the air and gave her a long passionate kiss. Later in the evening he offered to drive her home. There was, according to Ms Bunce, a conversation about her age in which she allowed the Claimant to believe that she was 18. In her evidence she said that this took place before the Claimant had kissed her. Even if this was the case, it would mean that the Claimant’s cut off below which he avoided girls was lower than he was prepared to admit. However, I prefer the account which Ms Bunce gave in her more detailed interview with the police. In this she said the conversation about her age took place only after the incident in which she and the Claimant had kissed. I also accept the evidence of witness C. When she, also a 15 year old school girl, asked for a memento, he offered her a tuft of his pubic hair. I reject the claim that this was impossible because of the tightness of his trousers or the width of his belt. Ms Bunce had described him as wearing loose trousers when he invited her to look in his pocket for a packet of cigarettes. He had obviously changed from the trousers he had been wearing during the ‘Clunk Click’ show.
ix) The accounts of the Defendant, Witness C and Ms Bunce appear to be independent of each other. There is no evidence to the contrary. Indeed, Ms Bunce was called in the Claimant’s support. Ms Bunce did not see what the Claimant did and said to Witness C. Witness C and the Defendant gave no evidence about what took place between Ms Bunce and the Claimant. I do not find this surprising. There were lots of people in the room. Each of these three remembered most clearly what happened to her. The accounts of Ms Bunce and Witness C however, provide support as to the Claimant’s behaviour towards 15 year old girls that night. They contradict the Claimant’s evidence that below 22 or 23 was the cut off for his interest in women. They support the Defendant’s account that it included girls of 15.
The ITV words also meant that the Claimant had frightened the Defendant. She said in her evidence that it was his smell which frightened her because it resembled her step-father. In my judgment the ITV words made the same link. It may be that in this sense the words were not defamatory of the Claimant, but, to the extent that they were, I find they were true.
AND WHAT HAPPENED AFTERWARDS? MR STARR DID A RUNNER
Realising, perhaps, that he was going to lose Mr Starr took all his assets abroad and bought a flat on the Cast Del Sol. I understand that attempts are being made to recover the costs of the action.
MS WARD’S LAWYERS: THE GOOD GUYS
One aspect of the book that should be noted is the author’s unstinted praise for her lawyers (David Price) who were acting on a conditional fee basis. I suspect that Mr Starr pursued Ms Ward because he did not expect her to obtain representation. The judgment notes, with some surprise, that Mr Starr did not sue the broadcasting organisations (who would have the money to pay damages) but pursued Ms Ward (who did not).
ON STRESS AND LITIGATION
- Stress and the litigation process: how can lawyers make matters better?
- Stress, litigation and litigators: useful links to avoid and deal with problems.
ON WITNESS CREDIBILITY
- Witness evidence, reliability and credibility: why everyone should read Gestmin
- Litigators must know about credibility.
- Witness Statements and Witness Evidence: More about Credibility.
- Which Witness will be believed?Is it all a lottery?
- The witnesses say the other side is lying: What does the judge do?
- Assessing the reliability of witnesses: How does the judge decide?
- Which witness is going to be believed? A High Court case.
- The Mitchell case and witness evidence: credibility, strong views and reliability.
- Witness statements and witness credibility: getting back to basics
- Appealing on the judge’s findings of facts: a trial is not a dress rehearsal but “the first and last night of the show”.
- Assessing the credibility of a witness: it is a matter of communications.
- Reconstruction and recollection: honest witnesses get things wrong: which witness will be believed.
- The Central Bank of Ecuador case revisited: the Ocean Frost approach.
- When a witness says different things in different witness statements: don’t bank on winning.
- Reliability of witness evidence: honesty is not the same as reliability