Overwhelming an opponent: a cautionary tale
FKJ was a junior solicitor at a firm owned and operated by its managing partner RVT (all parties having been anonymised). She began working at the firm as a newly qualified solicitor in February 2017. In December 2017 she was dismissed for gross misconduct. In March 2018, she commenced proceedings in the Employment Tribunal (“the Tribunal”) against RVT and the firm for sex discrimination and wrongful and unfair dismissal. She lost.
In the Tribunal RVT and the firm adduced in evidence some 80,000 private WhatsApp messages FKJ had exchanged with her boyfriend (now husband) and best friend. They included messages and images “of the most intimate kind”.
FKJ threatened and then commenced a misuse of private information claim against RVT and the firm (‘the Defendants’) alleging that her WhatsApp account had been hacked by using her smartphone to access WhatsApp Web. The Defendants say that the WhatsApp messages were found on RVT’s work laptop when it was being restored for use by another employee and printed for storage. They also say that further WhatsApp messages were received in two tranches from anonymous sources in the post.
Procedural issues and interlocutory applications
The claim was commenced on 6 November 2019. The Defendants counterclaimed for malicious prosecution, abuse of process, and harassment. On 11 November 2020, a day before the CCMC was to be heard, the Defendants issued applications for strike out and/or reverse summary judgment on the claim, summary judgment on the counterclaim, and, if unsuccessful, an order for an interim payment and making the Claimant’s prosecution of the claim and defence of the counterclaim contingent on the payment into Court of a very significant sum. The sums sought were £250,000 as an interim payment, £350,000 into Court funds on account of the Defendants’ costs of defending the claim, and £100,000 on account of the Defendants’ costs of bringing the counterclaim.
At the same time, the Defendants applied to rely on the terms of a Part 36 offer made by FKJ in the strike out application. That application was refused at first instance by Senior Master Fontaine, a decision which was upheld on appeal to Mrs Justice Collins Rice. Permission to appeal to the Court of Appeal was refused by Lord Justice Warby. As a result of the appeal and application for permission, the 11 November 2020 applications were only heard by Master Davison on 8 December 2022.
The strike out application was put on three different abuse of process grounds. All three relied on there being ‘significant problems’ with the claim moving forward, a proposition which Master Davison was quick to dismiss, saying “ Indeed, on present material (and without so deciding) it seems to me that the issue will more likely be the extent rather than the principle of the claimant’s recovery in her MPI claim”.
Master Davison was particularly scathing about the Defendants’ arguments. He described their submission that there was no real or substantial wrong as “unrealistic”, and “Indeed, it is so unrealistic as to call into question whether the defendants have any genuine or honest belief in this being a proper basis for strike-out”.
After refusing the strike out application, Master Davison turned his ire on the applications for summary judgment on the counterclaim and the various payments into Court (which were, in effect, for security for costs – though not couched in those terms). He determined that the Defendants’ objective was merely to prevent FKJ from continuing the claim and defending the counterclaim, and was “again driven to question the defendants’ bona fides”.
Master Davison dismissed the application for summary judgment, stating that the defendants had fallen “well short”. He also explained that “due to the need to make findings as to the claimant’s state of mind and motivation, the claims for malicious prosecution and abuse of process are inherently unsuitable for summary judgment”. As a consequence, he refused to make an order for an interim payment on the counterclaim. The payment into court was also refused on the basis of the merits of the claim, but also because FKJ had taken out an after the event insurance policy to cover the Defendants’ costs in case they were ordered to be paid.
Criticism of the defendants
Master Davison was plainly irked by the defendants’ litigation strategy. He held that parts of the applications were “not worth of serious consideration” and went on to say that his “overall impression is that [the applications] are an attempt to stifle a claim that the defendants would prefer not to contest on its merits”. He reached the conclusion that the applications were “without merit”.
At various points that criticism was taken further. At paragraph 22 of his judgment, Master Davison went so far as to say that it was obvious to him that it was the defendants’ objective that the claimant would be made bankrupt and/or have her claim stayed or struck out for non-compliance with the order for interim payments/payment into Court. Without having seen what evidence (if any) was relied on, it is difficult to reconcile the application for interim payments and payment into Court with the well-established principles of security for costs. It is exceedingly rare for an individual in the jurisdiction to be compelled to make such payments.
The strategy of overwhelming an opponent of lesser means is best consigned to the annals of history. Parties always run the risk of facing an inequality of arms in litigation, but that should not be determinative. Wars of attrition involving low (or no) merit interlocutory applications designed to oppress, exhaust, and overwhelm an opponent need to be dealt with robustly by the Court.
In this case, unlike in many others, the Court has ‘grasped the nettle’, and given the defendants a clear and unambiguous admonishment about their conduct. Given the tenor of the judgment, it is quite possible that the order following the hearing will involve an award of costs to the claimant on the indemnity basis – Master Davison having found that the applications were ‘without merit’.
This judgment ought to serve as a wider lesson also: that parties may not avoid arguing the merits of a claim by overwhelming a poorly resourced opponent with unmeritorious interlocutory applications. That said, it is unclear how FKJ would have fared if she were not represented by specialist lawyers (including Adrienne Page KC, a pre-eminent media law barrister). Despite Master Davison deciding that the applications were meritless, the Court seemingly did not take the opportunity to comment on the application prior to the listing of a hearing. Only when meritless applications are dealt with without the respondent needing to incur significant costs (or costs risk), will these tactics be stamped out entirely. There is no obviously easy way to do that, because there is a fine line between illegitimate meritless applications made improperly, and legitimate but speculative applications made properly.
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Articles are intended as an introduction to the topic and do not constitute legal advice.