Dismissing Fergus

And so, after mentioning my instruction on Danny Hyde’s defence to a claim by Fergus Wilson here, the hearing came to pass…. but we’ll come to the result in a minute or several.

Fergus Wilson, for the few amongst you who will not have come across him, is a very large scale buy to let landlord based in Kent. He has an interesting history, of which some highlights are:

It was as a result of that last court decision that Danny Hyde, a young youtube vlogger from Somerset, made a video, which was, we might say, demotically critical of Mr Wilson. Danny described Mr Wilson by a couple of choice terms, best described as vulgar. I won’t include them, so that the email of this post gets through filters, but the Metro newspaper helpfully set them out in its article, screenshot below.

Somehow, given that youtube channels by young men from Somerset are not, one imagines, Fergus Wilson’s natural browsing territory, it came to his attention. Mr Wilson did not, he has publicly said, mind being called racist, it was the names he had been called that gave rise to what followed.

The result was a civil claim against Danny Hyde for £10,000 (or rather £9,999 – cynically aimed at the small claims track). However, as became rapidly apparent once I and the excellent Gerard Clarke of Blackstone Chambers came on board pro bono, there were some oddities about the claim.

The claim was in the name of Mrs Wilson. Who, of course, was not mentioned in the video at all. We were later assured this was ‘a mistake’. Heaven knows how one brings a claim in someone else’s name by mistake, but there we are,

And then, the claim purported to be for ‘breach of the Malicious Communications Act 1988’. Two problems there. First, that Act only provides for a criminal offence, not a civil tort or other civil cause of action. Second, there is simply no way in law that the words that so offended Mr Wilson could be ‘grossly offensive’ for the purposes of the Act. Witness, for instance, that they were published on a national media outlet’s website without any public offence or outcry whatsoever.

This was pointed out to Mrs & Mr Wilson, as was the utter lack of any basis for an alternative head of claim. Nonetheless, if I may hugely misapply a current phrase, he persisted.

And so, to the hearing at Yeovil County Court of 31 January. There is a gloriously bewildered report in the Western Gazette – a reporter attended – but the upshot was this.

Gerard Clarke attended for Danny Hyde. Neither of the Wilsons attended. Apparently it was ‘too far’ for them to come. Instead they had instructed an ‘advocate’ (often someone who has passed the BPTC, but not got pupillage (yet), so has no practising rights and no rights of audience in any matter heard outside of chambers – and arguably not even in chambers).

Despite the hearing being in open court, the District Judge kindly agreed to hear the advocate, whose instructions extended only to seeking a transfer of the claim to Maidstone County Court (Wilson’s home court. That was never going to fly, as had been explained to him – CPR 26.2A(3)), and a request for permission to amend the claim to be under Protection from Harassment Act 1997, albeit with no draft amended particulars and no explanation of the basis for such a claim. Both were unsurprisingly refused.

Danny Hyde’s application to have the claim dismissed, on the other hand, was successful. There was no cause of action as pleaded and the claim appeared to be an attempt to interfere with Danny Hyde’s Article 10 rights to freedom of expression.

According to the Western Gazette, District Judge Davis found “I have to say it’d be hard to think of a case better suited to be struck out. This claim has no justifiable basis in law.”

A costs schedule for pro bono costs had been served. DJ Davis found a pro bono costs order was appropriate and ordered the claimant to pay £3000 in costs payable to the Legal Access Foundation. Costs were at large as the claim had not been allocated to track, I must note.

Wilson’s attempt to get Danny Hyde to take down the words that he disliked, under threat of a £9,999 damages claim, has ended in the claim being dismissed, the video remaining up and a £3000 costs order against Wilson.

Thanks again to Gerard Clarke and my sympathies to the poor advocate thrown into this by Wilson. I understand that the Judge took the time to make clear there was nothing else she could have done.

There is, of course, an access to justice issue here. Wilson might have been doing this largely in person, but he is a person of considerable means. Danny Hyde has no money and, I don’t think he would mind me saying, he had no idea of the legal process and was somewhat scared of having to put a case to a judge. As there is no reasonable basis for relying on pro bono to fill this hole – Gerard and I happened to pick this matter up through a media report – what actually is there to stop those who can afford it bringing abusive, bullying claims to get their own ends, and drawing out the process to intimidate, even if they lose the claim in the end?

Update: Kentonline has the story with a reaction from Fergus Wilson. I don’t think he has quite grasped why the case wasn’t ‘suitable for the county court’.

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About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Various (non-housing) and tagged .

14 Comments

  1. It’s unusual for NL to be incomplete, but I feel that in your description of Mr. Wilson’s history you should have included Fergus’ campaign to become Kent Commissioner for Police.

    My personal memory of that campaign is that Fergus wasn’t eligible to run courtesy of his conviction for assault, but that this was never tested due to his nomination papers arriving a day late. However news reports suggest that my memory, whilst close, isn’t totally accurate.

    http://www.bbc.co.uk/news/uk-england-kent-36105928
    http://www.kentonline.co.uk/maidstone/news/court-rules-fergus-wilson-cannot-94674/

  2. I must also say that the persisting assumption, as per The Metro above, that the Wilsons actually did sell their portfolio to foreign investors seems to be due to a lack of fact checking. There were no mass sales in Hawkinge or Ashford showing in the land registry where the bulk of the properties are located. They still have many houses available to let, confirmed when I asked a letting agent about a few I was interested in renting but then turned down after my question as to whether it was a Wilson house was answered positively. I think the publicity over the mass sale was possibly one dreamt up to induce a bidding war which, I suspect, but may be wrong, has never happened, probably like the sales.

    I believe the property portfolio is held under a bewildering array of different personal titles rather than one company, making the disposal of the rapidly deteriorating properties all the harder. Some of the estates blighted by the Wilsons are in danger of becoming slum-like going forward.

  3. Please explain how you got costs awarded on what looks like a “small claims” case to someone like me with no legal training?

    PS, Well done, I have no time for Fergus, but the costs will not stop him doing it to the next person, the risk of other case is likely to sadly stop people speaking out about him.

    • It isn’t a small claim (or fast track, or whatever) until it has been allocated to track. This was pre-allocation, so costs were a possibility.

  4. Yes, the danger of the fabulously wealthy Mr Wilson seeking to intimidate anyone who says something about him that he doesn’t like is a real one. And if Mr Wilson deigns to get himself a lawyer another time, probably a serious one.
    But ‘twas ever thus. When the Legal Aid Act came in (oh for the days when the title of an Act of Parliament told you what the Act was about, not, as in the case of the Access to Justice Act, what it was definitely not about), one blanket exclusion was the taking or defending of defamation proceedings. So the combined effect of the libel laws and the legal aid system meant that you were rude about someone wealthy at your peril. Or someone who could pull strings and secure funding – look at Bognor Regis UDC v Campion and weep.
    And if Parliament tries to sort matters out, the libel bar once it gets on to the Bench does its best to maintain the status quo. Does anyone really think that Jack Monroe (a person I admire) really suffered “significant harm” from a couple of stupid and short-lived, though admittedly offensive, tweets from professional motormouth Katie Hopkins?

    • Well if Wilson does get a lawyer, there won’t be anything further in this case, as there are zero grounds. And it wasn’t a defamation claim (though still outside legal aid scope, of course) as I suspect even Wilson realised the video was not capable of amounting to defamation. As for Monroe, I’d be prepared to believe that having hundreds of Hopkins followers unleashed upon you could indeed be painful.

      All that said, defamation law remains a problem, yes.

  5. ” what actually is there to stop those who can afford it bringing abusive, bullying claims to get their own ends, and drawing out the process to intimidate, even if they lose the claim in the end?”

    Isn’t this a failure of the legal system rather than the fault of those with the means to exploit it? Don’t forget that “the means to exploit” doesn’t always mean wealth, access to pro bono lawyers or legal aid can be used to take advantage of those rich enough not to have access to free support, yet unable to afford the extraordinary costs of legal representation. Fergus lost this case so dramatically because he could not, or would not, employ legal advice no doubt on cost grounds.

    We need an affordable legal system.

    • Legal aid and pro bono can’t be used for abusive cases. Legal aid has a merits test to be granted. And precisely zero lawyers will do an abusive case pro bono (the clue is in the name – pro bono publicum, for the public good – any case that is solely designed to further someone’s self-interests by abusing the legal system is well outside that. If lawyers are going to do evil things on a client’s instructions, they very much want to be paid for it).

      But you may get what you wish for (and then find out it isn’t what you wanted). The new ‘online court’ which will be for all money claims below £25,000 (and maybe rising to £50,000) will be designed to be ‘lawyer-free’. You will find your claim or defence being triaged by a court admin officer, and steered into mediation. No legal costs will be recoverable from the opponent. Everyone will be a litigant in person… Affordable justice, if you consider having your case assessed by an admin officer to be justice. There may be a Judge, at the very end of things.

      But we already know how that works. The leasehold First Tier Tribunal is a ‘costs free zone’, supposedly designed for leaseholders and freeholders to act in person. But what actually happens is that the party with money lawyers up, even if they aren’t going to recover the costs of doing so. The poorer party (usually the leaseholder) doesn’t. The results are, shall we say, unsurprising. There is a huge inequality of arms.

      Exactly the same thing will happen with the online court. Exactly the same thing would happen with any such system.

      So I think what you mean is ‘why aren’t lawyers cheaper?’. There is a simple answer to that. It is expensive being a lawyer. Professional indemnity insurance premiums (which are huge), office space, support staff, IT and equipment, salaries (and believe me, those aren’t ridiculous outside the City Magic Circle firms). All these cost a lot. I’m not going to give you an example breakdown, obviously, but I can tell you that even my private hourly rate as a Grade A partner does not contain a lot of profit (pre tax, of course, and we are even taxed on ‘work in progress’).

      If I do a matter on legal aid, as I do, legal aid rates mean it is at something of a loss to my firm. (We do it because it is important, but legal aid pay rates have not increased at all since 1997, in fact they have been cut, twice. Now think what that means in real terms – not just no inflation increases but actual cuts).

      Back in 1979, 79% of the UK population could get legal aid, for a wide range of issues. By 2007 it was 29% eligible. It has fallen since then and the issues are very limited. No win no fee was supposed to fill the gap, but that only works in situations where it works…

      So there we are.

      Of course an underlying problem is that successive governments of all stripes have introduced large quantities of complex, unwieldy and unclear legislation.

    • “Fergus lost this case so dramatically because he could not, or would not, employ legal advice no doubt on cost grounds.”

      I would respectfully suggest that Mr Wilson lost so dramatically because the case was entirely without merit. It was hopeless and, as far as I can see, vexatious in intent. I don’t think Mr Wilson failed to seek appropriate advice because he couldn’t afford it, but rather because such advice would not have advanced his cause (that of intimidating Mr Hyde) one inch. Appropriate advice could have saved Mr Wilson £3000, but only by telling him not to bring such a damn silly claim. As far as I can tell, that was not something that Mr Wilson had any interest in hearing.

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  7. Daniel,

    We can only speculate, but my speculation was that legal advice would have resulted in his either not bringing a case, or bringing a case which could be argued, but definitely not bringing a case and then not turning up.

    There is also an assumption that Mr. Wilson is fabulously wealthy, I have no idea whether this is true or not, but back in 2009ish there was speculation that he had gone bankrupt, and complaints that he was “too big to fail” and so was being supported by his lenders in a way that the rest of us wouldn’t be.

    Your suggestion is that he didn’t employ a lawyer because he didn’t like the advice he was getting, mine that he chose not to spend the money because of the cost of the legal system. Neither sound sensible to me.

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