Even judges can be libelled

It’s not often you’ll see a Senior Judge – a member of the Court of Appeal no less – listed as the plaintiff in a libel action, so the case of Sedley v Telegraph Media Group is immediately noteworthy.

Bringing such an action is an extremely unusual thing for such a senior judge to do. It is important to consider the context.

Yvonne Hossack, a solicitor advocate with a speciality in representing care home residents, became known for a series of high profile actions against local authorities seeking to close care homes. In 2009, two of the cases handled by Hossack came before the Court of Appeal – specifically before courts which included Lord Justice Sedley (for example, he dealt with a leave to appeal application in R (Watts) v Wolverhampton CC [2009] EWCA Civ 1168).

It is unarguable that Ms. Hossack was popular with many of her clients, and was undoubtedly unpopular with many of those she acted against. Neither of these facts is relevant to the merits of the cases she brought, nor to the manner in which she conducted them, but – as we shall see – was directly relevant to the way in which the media approached her.

In September 2009, Ms. Hossack faced charges of professional misconduct before the Solicitors Disciplinary Tribunal. The six charges made against her related to the conduct of litigation, principally cases dealing with care home closures, dating back to 2006.

The first complaint at issue before the SDT related to a 2006 case in which Ms. Hossack acted against Sue Ryder Care on behalf of residents of one of its care homes. By an order of 16 May 2006, Mr. Justice Holman refused permission to apply for Judicial Review, and further directed that:

The statement of Philip Luxford dated 16th May and the statement of Yvonne Hossack dated 16th May and any other relevant papers from these proceedings be sent to each of the Professional Conduct Committees of the Law Society and the Legal Services Commission so that they may respectively, if they think fit, investigate any matters arising in particular from paragraphs 32 to 40 of Mr Luxford’s statement.

That referral led to allegations before the SDT of breaches of Rule 1 of the Solicitors Practice Rules 1990, and of breaches of confidentially – among the most serious “non-dishonesty” breaches of professional conduct a solicitor can be accused of.

It was not the only occasion on which Ms. Hossack was strongly criticised by the judges before whom she appeared. In connection with other allegations, the SDT quoted these 2007 comments from Mr. Justice Williams:

For reasons which will become apparent I do not propose to dwell in any detail upon whether or not the Claimants Solicitor Advocate engaged in behaviour which can properly be regarded as improper, unreasonable and/or negligent. I am completely satisfied that her behaviour throughout the proceedings before me was unreasonable and negligent, at the very least. I reach that conclusion for the reasons which are advanced in the written submissions put in on behalf of the Defendant and elucidated orally by Mr Knafler, Nothing that Ms Hossack had written or said persuades me that the thrust of Mr Knafler’s point should not be accepted. In short these proceedings were completely unnecessary. They were doomed to failure and a reasonably competent solicitor should have known as much.

In contrast to the views of some of the judiciary, the media appeared to view Yvonne Hossock as a crusading lawyer straight out of a TV drama.

In 2008, the Guardian’s David Brindle said:

To hundreds of families that have faced care home closures or cuts in care provision, solicitor Yvonne Hossack is a saintly figure. To government ministers, local authorities and other care providers, and, it now appears, powerful interests in her own profession, she is a vexatious litigant.

while the Daily Mail – rarely noted for sharing the Guardian’s line – offered this a year later:

There can be few crusaders as selfless in their pursuit of justice on behalf of the helpless as lawyer Yvonne Hossack.

Her campaign has consumed her life for seven years. It has also brought her to the brink of bankruptcy, jeopardised her health and exerted such intolerable pressure on her personal life that it has ended her 23-year marriage.

…

Yet this selfless woman has been the subject of an extraordinary witch hunt, which ended yesterday in the ‘miracle’ of her acquittal on charges of breaching rules of solicitors’ conduct.

On 18 September 2009 the Solicitors Disciplinary Tribunal held all but one of the charges not proven, and in respect of a single breach of Rule 16.01 (stated that “…it considered the breach as proved to be at the lowest level”. (Full SDT Findings here (PDF))

After the SDT’s decision, the further litigation followed, notably Hossack herself seeking unsuccessfully to bring judicial review proceedings against the Legal Services Commission in May 2010.

In delivering his judgement, Mr. Justice Owen found the application to be completely without merit, a finding which led him to consider a Civil Restrain Order (an order preventing an unsuccessful litigant from bringing further proceedings). In doing so, he recalled an earlier decision of Mr. Justice Collins in June 2006, who had similarly dismissed an application from Ms. Hossack to bring judicial review proceedings against the LSC. He had also found the application to be without merit, and expressly warned her that further litigation might be met with a CRO.

It is not clear whether a CRO was finally imposed following Mr. Justice Owen’s decision.

The LSC subsequently decided not to offer Hossacks Solicitors a legal aid contract, and Ms. Hossack brought further proceedings in response. Media reports again offered a particular view of her:

Yvonne Hossack, a solicitor who has specialised in fighting battles for the elderly and disabled, lost her appeal yesterday against a decision to deny her firm any legal aid contracts in the coming year.

It is feared that the decision could mean disaster for thousands of highly vulnerable people who do not have enough money to pay their legal costs, including residents of care homes who face eviction as local councils struggle to save money.
Underdogs’ solicitor locked out of legal aid

The headline – “Underdogs’ solicitor…” makes clear the newspaper’s take on the story. It bears noting that the decision to deny a particular firm a legal aid contract does not – necessarily – reduce the availability to legal aid for particular clients: it prevents them from using that particular firm on a legally aided basis. This is clearly not the impression given by the Independent’s article.

The Daily Telegraph had also previously written numerous articles about Ms. Hassock’s cases, one of which had led to the Daily Telegraph’s Simon Heffer giving evidence before the SDT:

158. Simon Heffer, Associate Editor and Columnist of the Daily Telegraph, read his statement dated 12th August 2009 to the Tribunal. In that statement he gave evidence as to the complaint by Hull City Council, the closure of the Sue Ryder Care Home in Snettisham and as to the allegation of bringing the profession into disrepute.

159. In cross examination, referring to the article published by the Daily Telegraph on 24th December 2007, Mr Heffer explained that as far as the readers of his paper had been concerned the Respondent had been attempting, as their solicitor, to represent the interests of three vulnerable people, in re-examination, Mr Heffer confirmed that he had not appreciated the technicality but he believed that the three men had not been moved because of his newspaper’s article. In response to a question from the Tribunal, Mr Heffer confirmed that he had been aware, at the relevant time, that the three men had been assigned an Independent Mental Capacity Advocate.
Findings of the SDT; Matter No. 9959-2008 (PDF)

The Telegraph article referred to Ms. Hossack as the solicitor for three men by whom she was not instructed. It was this “technicality” – that she was not, in fact, their solicitor – that Simon Heffer had not appreciated. Despite not being instructed by them, she had made an application to the court for an interim injunction to prevent them being moved, but the SDT accepted that she did this on the basis of instructions from residents of the same home (by whom she was instructed) to “preserve the status quo”.

The Telegraph coverage does not appear to engage with the legal merits of the applications being brought.

The men, who have difficulty walking and speaking, will be moved to unfamiliar surroundings without their support network, she claims.
The High Court in London rejected an application by Mrs Hossack last week for an injunction to prevent the removal of any residents.

The SDT’s Findings tell a rather different story:

93. The Respondent had then issued an application requesting urgent interim relief, which had been rejected by His Honour Judge Gilbart on 30th November 2007. He had said that he had refused interim relief on the basis that the papers had failed to disclose even, ‘a just arguable claim for Judicial Review’.

94. On 19th December 2007 the Respondent had made a further application for urgent interim relief, to prevent the transfer of 3 incapacitated adults from Rokeby House. That had been dismissed by Mr Justice Burnton as an inappropriate application, observing that ‘It is in substance an inadmissible appeal against the Order…… of HHJ Gilbart QC’.

95. The Respondent had then made a further application by letter which had been refused on the 21st December 2007 by Mr Justice Wyn Williams who had observed, ‘The reality is this claim had no prospects of success’.

Following the SDT decision, in December 2009 the Telegraph named her one of its “Britons of the Year”.

In one of the earliest articles it wrote about her, in April 2003, the Telegraph printed comments from Yvonne Hossack about a decision of Mr. Justice Silber in a case regarding a private care home. Commenting on the decision, she told the newspaper:

It is a judgment to kill people. The judge’s expression of sympathy is just a sop to these people.
Care home closure verdict will kill pensioners, says lawyer

This, then, is the context in which the action brought by Lord Justice Sedley must be placed.

Late last year a complaint was made to the Office of Judicial Complaints about Sedley LJ. This complaint was dismissed in its entirety.

However, on 20 November) the Daily Telegraph published an article about the complaint, under the headline “Judge ‘hastened deaths of elderly’“. This article, in the words of LJ Sedley’s counsel:

…repeated, and so placed in the public domain, a series of allegations derived from the complaint which were so professionally damaging that it became necessary to commence proceedings so as to make the truth known…
Agreed Statement in Court (PDF)

A judge, deciding a judicial review application, does not make “…a judgement to kill people” when he finds against them. He makes a decision based on facts, and on applying the law to those facts. Saying otherwise is hyperbolic at best.

The media are free to pick sides in disputes. But they are not free to mislead their readers, or to make or reprint allegations against people which are unfounded and damaging. As counsel noted before the court today:

To that end the Daily Telegraph is here today to make it clear that the allegations to which it gave currency were wholly without foundation. The paper, to its credit, has at no stage sought to suggest that they were true.

Even judges are entitled to protect themselves from unfounded allegations, and to vindicate their reputations. Unlike the United States, we do not have a system in which public figures are denied that protection in all but the most exceptional circumstances.

Even judges can be libelled, and it’s to be hoped newspapers will pay a little more attention to that when reporting legal matters in future.