In January 2020, Jennie Barber booked two return flights via British Airways to Japan departing that May, but the flights were later withdrawn due to Covid restrictions. BA offered a refund in the form of travel vouchers but Ms Barber wanted her money back and when the airline refused Ms Barber, representing herself took BA to court and won a full refund, writes David Little, a partner in our Corporate and Commercial Law team.
As reported here by the BBC she said, “If you’re an ordinary person, who is not a legal professional, going up against someone like British Airways is scary – and it is intimidating.”
Ms Barber, who had studied A-level law, beat the airline in court using the Law Reform (Frustrated Contracts) Act 1943. The legislation states that because the sale involved, through no fault of their own, something that was subsequently impossible to deliver, the plaintiff was legally entitled to her money back.
Something BA’s legal team might have reasonably anticipated.
However there is another dimension to this. Ms Barber strove for over a year to seek legal redress and whilst she won in court any decent lawyer would have been able to assist her to recover the funds owed, plus their fee for doing so.
Folarin Oyebola was another who defended himself from his cell in Pentonville, via videolink. He lost. According to Buzzfeed Folarin Oyebola had represented himself on a videolink without a lawyer seven times while trying to fight the fallout from his conviction for mortgage fraud from prison. He lost every time.
A court transcript shows Folarin Oyebola was inaudible 71 times in his hearing, as new research suggests people representing themselves via videolink are disadvantaged in court.
Research by the charity Transform Justice, based on interviews and a survey of people across the legal world, has suggested the use of video seriously impacts on the chance of a fair hearing. The situation is particularly difficult for the rising number of defendants who cannot afford a lawyer to be in the courtroom for them. Almost three-quarters of the lawyers, magistrates, and legal experts surveyed said people who had no lawyer were disadvantaged by appearing via video.
Oyebola told BuzzFeed News his worst experience was in the Court of Appeal in January 2016 when he was appealing a confiscation order of a property. He had to present his case via video from Pentonville prison, where he was serving his sentence.
“It was horrible,” he recalled. “[The judge] didn’t understand what I was saying at all. It was like speaking into a hollow chamber. I was shouting and it kept echoing back.”
BuzzFeed News has seen a transcript of the hearing and there were moments where what he said was inaudible to the transcriber. In nine of these, several words were missing.
The judge appeared to be struggling to hear and at one point Lady Justice Macur said “just let us turn that up”. Before reading out the judgment, she asked for Oyebola’s sound to be turned off, saying: “I would like to say for the purpose of the record, there is a considerable amount of background noise which causes me to require that the volume is turned off so as to mute the sounds coming from Pentonville prison, please.”
Oyebola said: “She didn’t feel comfortable and that’s why she had to tell me to turn off the microphone so she could hear properly. If she’s telling me that, you can imagine then [what it’s like for] me presenting my case in such a forum. If [the sound was good enough] then they wouldn’t be turning off my microphone.”
He said the sound quality was bad for him too. “The Court of Appeal is such a big hall. People sitting in the court can hear themselves very well but when you’re listening on video there’s an echo.”
He added: “In videolink there’s that delay which is not live and therefore you don’t want to interrupt the judge. It’s better when you’re in court and it’s live because you don’t have that delay and you can watch the judge’s reaction.”
Don’t do it
My advice would be don’t try to defend yourself in court. But if you have to, the barrister Rupert Myers wrote this brilliant article for the Guardian in 2016 with some tips on how best to prepare: “You may think that if you’re innocent you don’t need a lawyer, but that’s the kind of naivety that could see you ending up wrongly convicted while the one-armed man responsible goes free. “I have prosecuted trials against unrepresented defendants,” one lawyer said. “It is a complete sham and a pale imitation of justice.” But if you are unlucky enough to have to fight your case yourself, or if you’re confident enough in your presentational and analytical abilities, here’s some of what you’ll need to do.
“Don’t start citing Magna Carta unless you want to be laughed out of the witness stand.
“Learn the lingo. Sounding as if you know what you’re talking about is at least 20% of a real lawyer’s job. As a “litigant in person” (LIP) you’re already likely to annoy everyone by not knowing anything, arguing about all the wrong things, and wasting everyone’s time. You may be the exception, and you can show that really easily. Use the correct forms of address (“sir/madam, you and your colleagues” is preferable in the magistrates to the exceedingly naff “your worships” but if you want to grovel, use the latter). Don’t, as one LIP did in court against me once, refer to your opponent as “my gentleman friend” but simply “counsel for the prosecution” or “the prosecution”.
Representing yourself in court is extraordinarily hard for an amateur to follow. You probably don’t have the time or resources to understand things as complex as the rules of evidence and procedure, and you will probably have more than enough to worry about during your trial just as a witness and as a defendant.
As Rupert Myers concludes, “It’s near-idiotic to represent yourself in court, and if you can avoid it, you should.”
David Little is a Partner at Bishop & Sewell in our expert Corporate & Commercial team. If you would like to contact him, please quote Ref CB384 on either 020 7631 4141 or email email@example.com.
The above is accurate as at 1 March 2023. The information above may be subject to change during these ever-changing times. The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.