18th May 2022
The “Wagatha Christie” case is currently adding to the gaiety of the nation.
And as the wise Marina Hyde avers in her Guardian column, the case indicates the truth that one should avoid civil litigation wherever possible.
https://twitter.com/MarinaHyde/status/1525099409624686593
But as the legal journalist John Hyde points out in his Law Gazette blog, avoiding litigation is what litigation lawyers spend a lot of their time advising clients to do.
New blog: The #wagathachristie trial might be racking up costs, but most lawyers would advise their clients to stay away from court. https://t.co/1IedJFAmes
— John Hyde (@JohnHyde1982) May 18, 2022
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Litigation is risky and expensive – and not only for the clients.
The notion that the lawyers will be dancing all the way to the bank whatever happens is not correct – some outcomes will not make them dance at all.
And, as this blog has previously pointed out, a high-profile and/or high-value civil trial usually means there has been a failure somewhere.
(In general, a civil trial is where one party sues another, as opposed to a criminal trial where the state prosecutes a party.)
This is because the process of civil litigation is geared towards settlement of a dispute before it reaches trial.
Trials – like battles – are expensive and unpredictable.
Trials also hand practical control of the case to a third party – the court.
So just as the prudent general seeks to prevail against their opponent without risking an open battle, so does the prudent civil litigator.
Civil litigators generally prefer to settle on the best possible terms than risk any trial.
This is especially true in a case where either the evidence or the law is stacked obviously in favour of one party and against the other.
On the face of it – the “Wagatha Christie” case is one-sided – at least in respect of what has been reported from court and the documents disclosed.
And few would say that the claimant has come out of the hearings well, on any view of the overall merits.
This is not a case that should ever have gone to trial.
So – how has such a case ended up in court?
One possible explanation is that the court reporting and publicly disclosed documents are misleading us onlookers, and that the case is finely balanced – and both sides are confident of victory.
This does happen in civil litigation sometimes – though usually be the time the two sides know the respective cases, and the evidence to be relied on, both the parties’ lawyers will usually have a common assessment of the merits of the claim.
A second explanation is that one or both of the parties is/are determined to have ‘their day in court’.
In other words: it is open to a client to disregard the advice of their lawyer to settle on the best possible terms.
And here, even if Rebekah Vardy wins the claim, she has lost overall.
There is a third explanation.
This is that the costs of the litigation – the various overall costs consequences and elaborate funding mechanisms – now mean that the parties are locked into a trial, as the chance of success outweighs the burden of costs they may incur.
In essence, the parties are going to trial because it would now be too expensive to settle.
You then have the spectacle of a trial going ahead which the parties probably do not want, the lawyers no doubt advised against, but it is now too expensive for settlement.
I do not know if this is what has happened in the ‘Wagatha Christie’ case – I will leave the detective work to the peerless Coleen Rooney.
But there has been a failure somewhere.
It is a mistake for onlookers to assume that the parties and the lawyers necessarily wanted this spectacle to go ahead – they may not have had an alternative once the case had got so far.
And so the problem is not necessarily the bad decisions of a party or the bad advice of lawyers, but a systemic problem with high-profile and/or high-value civil cases.
If so, then it is the civil litigation system that is adding to the gaiety of the nation, and not just the parties and their lawyers.
Charles Dickens would understand.
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You have written my thoughts better than I could think them.
I would only add a comment of a much better lawyer than me:
“Principles are expensive.”
Marina Hyde’s “Wagnarok” pun is surpassed only by “Bleak Scouse” from the Twitterati.
As you imply, though; it couldn’t be a better advertisement for Alternative Dispute Resolution.
How may one be vindicated in private? (Unless a settlement included a published apology or announcement.)
In precisely that way. The route to such a settlement would be less painful, less public and far less expensive to all concerned.
I have been watching this, and the Depp/Heard trial, and nodding along sagely with all those who have been saying that the best course of action would have been to avoid trial. But then I also had the thought that the trials are generating huge publicity for all concerned, and started to wonder if a sensible calculation is in fact being made. It may well be that the Rebekah Vardy brand will be worth more post this trial than it was before, and it may even be that the increase in the value of the brand dwarfs the (huge) costs of the trial. Sure, it is a difficult, and risky, calculation, but is it possible that it is a choice which may, in the medium to long term, start to pay off?
It might be (is) somewhat trite to repeat, but I am reminded of that old maxim:-
“A good lawyer can secure a win in court for their clients. A great lawyer will keep their clients out of court in the first place.”
It appears Coleen Rooney tried very hard to settle but was unsuccessful. If Vardy wins on a technicality – and she may as the onus is on Rooney to prove her case I believe – it will be a pyrrhic victory indeed. And if the Judge has the latitude to do so, she might be minded to award £1 in damages and not allow Vardy’s legal expenses to be paid by Rooney. Whatever one might think of Vardy as a character and I will not venture my opinion, the “loss” of critical evidence from her phone and the equally mysterious loss of her agent’s phone in the North Sea, plus said agent’s inability to appear as a witness because not sufficiently mentally stable, is telling, but presumably can only be viewed as “circumstantial”. The “who is Davy Jones?” moment was priceless. No wonder Vardy and her husband left Court early yesterday as she was feeling “unwell”. Sick as a parrot I should think.
There have been some interesting developments in this case, that’s for sure. I think your observation that it is Rooney who bears responsibility to prove her allegation that it was Vardy who leaked information to the press is one. It’s interesting because it supposes that Rooney’s allegation was “someone with access to Vardy’s account” is the key factor here, and not Vardy’s obligation to show that she has been harmed as a result of that statement. Harmed in what way?
Another is the fact that the Judge ruled that it was impermissible to add Vardy’s publicist, Caroline Watt, to the case because it was “too late” to do so, even though the request was made more than 2 months before the trial started. The court declared that it would be “unfair” on Vardy to grant more time and delay the start of the trial, despite the fact that she has already been waiting *4 years*, since the events in question took place in 2018.
Or how about the fact that the court has alos ruled that Ms Watt will not be required to attend or give evidence because she has been deemed to be “in a fragile state” and “not fit” to “provide evidence”. Really? Not even a deposition under penalty of purjury?
And the real kicker? All of these back-and-forth arguments are doing one thing for sure – selling more copies of The Sun newspaper that printed the leaked allegations in the first place. I suspect that the protagonists may remain unaware of this, but from the Sun’s perspective, it doesn’t matter who wins or loses this case, the Sun wins every time.
That’s relevant here because ultimately in this case the law is being [ab]used. I’m not sure if the question has been asked by Mrs. Rooney’s counsel, but I’d love to know if the Vardy’s received any financial supports, contributions or payments from the Sun or any other newspaper. After all, why would Murdoch want to get caught with his employees hacking phones of famous people, when he can dupe other famous people to do it for him?
All very good points. That Coleen is a Scouser and hates the Sun like many in Liverpool because of the outrageous lies it disseminated after Hillsborough perhaps made the Sun even more keen to embarrass her. Private Eye has some salient points too about the Sun’s coverage, with it referring to the “press” when it was, in fact, only the Sun. And at the top – or bottom in this case, Murdoch, who really is lower than a snake’s armpit.
To add to the advice never to go to court if you can help it, equally never be the subject of a press article if you can help it, the old adage holds that the truth never gets in the way of a good story.
By definition, litigation of this nature – civil – is “voluntary” in the sense that the plaintiff has chosen to take a matter to court.
In the specific context of this case, in which the perceived/alleged harm is “reputation” (and pretty much nothing else), we could probably infer that the primary motive for going to court was pride.
There is a reason that we have the expression, “Pride comes before the fall” and that pride is typically listed as the first of the seven deadly sins.
Just saying.
You say it is wrong to believe that the lawyers will be dancing all the way to the bank.
No doubt that is right. But I will maintain the mumpsimus, because I like my father’s advice to stay well away from the courts on the grounds that “You never see a fat litigant or a thin lawyer”.
I don’t understand your argument that costs could have impelled both sides to go to trial rather than settle – the barristers’ trial fees alone will be substantial – unless one party or other is unable to meet their own costs and is therefore gambling on the judge awarding costs in their favour, which seems highly risky to me. Is someone playing double or quits? If so, should the case go against them, next stop the bankruptcy courts, presumably ?
Is reputation alone a reason for seeking a public vindication or are these cases examples of damnum sine injuria?
Always good to see a reference to Jarndyce.
Who knows, but I doubt it’s about money or systemic problems. I suspect that the real problem is that any settlement would, of necessity, be public – we’d see whether Rooney withdrew or ‘qualified’ her post, or whether Vardy gave up and left it out there. I don’t think either of them are up for that.
Given the opinions eloquently expressed by Marina Hyde and John Hyde, would it be fair to suggest that the litigants were on a Hyding to nothing?
My kids think I am a technophobe on the grounds I apparently know nothing about how to use social media. The truth is I know a lot more about it than them ( I am a developer ) and that is why I studiously fail to figure out how to use it, unless it is on behalf of a paying client.
Mrs Rooney is no hacker, but nevertheless seems to have ‘phished’ Mrs Vardy hook, line and sinker. This illustrates one of the many reasons I advise clients to stay away from social media unless they are media professionals.
Just like civil courts, you have no idea quite how bad it is likely to be for you until it is too late.
my (social) landlords trying to evict me at the moment, seem determined to see it through to the bitter end, it’ll probably need a trial due to my disability, arrears of about £1000, they’ve spent more than that on 3 previous failed attempts (just on court fees never mind anything else), now they’ve instructed this fancy pants lawyer from birmingham, seems like they left common sense behind long ago, either that or they aren’t bothered because it’s the charities money they’re spending not theirs, beggars belief, not sure they’ll be awarded costs due to completely ignoring a pre-action protocol, first line of their reply to my defence was “for the avoidance of doubt”, would you believe it…
The real problem? Call me an old grump, but perhaps it is one of the following:
1. someone expecting information to remain private when they publish it on the internet, even the recipient list is restricted
2. someone willing to divulge private information to journalists, presumably for reward
3. a tabloid press willing to (a) provide rewards for the disclosure of private information, and then (b) publish that information in as exaggerated and/or sensationalised manner as possible in order to sell newpapers (or, nowadays, advertisting)
4. lawyers and courts willing to stoke the publicity machine
5. a public, mesmerised by “celebrities”, lapping up this nonsense
[You are an old grump. – Ed.]
“Too expensive to settle.”
Crikey.
That’s not good, is it?
Didn’t the judge in this case urge the parties to try and settle out of court? I believe he said the maximum damages awarded would be £40k or so
Having last played the litigation game
20 years ago it is hard to know where to start or end.
1. Never litigate for under
20K. Just accept the risk and effectively self insure. You will be a lot happier and life generally will be easier
2. All commercial injunctions are commenced to obtain commercial advantage and not justice.
3. Female divorce clients might look elegant in the office but looks and dress wear often changes dramatically when up against a trial judge.
4. ask a well aimed question during cross examination and if the witness notices the Bible has dropped to
the floor and picks it up and waves it in the air just hope the Judge is on your side .
5. If your opponent turns up
with a Silk check where he went to school and how well he knows the Judge.
6. If a witness turns up needing an interpreter any cross examination will
be a waste of time.
7. negotiating directly with an opponent or insurer will inevitably be a disappointment as they can always say no just before the limitation period when memories have faded and witnesses have died. Issue proceedings immediately you can , build a dialogue with the Judge and largely control the litigation whilst still negotiating .
8. Mass Court closures and the fashion for negotiated non judicial settlements inevitably leads back to point 1.
Young people can easily spend/be charged 60/90 K for a legal education these days which will effectively teach them very little.
True an Oxbridge education can still open doors but on balance if you study law these days best to have just the one client i.e yourself !