Social media has been alight recently following both the Johnny Depp / Amber Heard defamation action as well as the more snappily titled Wagatha Christie libel trial brought by Rebekah Vardy and Coleen Rooney. I have been drawn in by the fantastic combination of interest as to how fellow professionals go about their job and the soap opera of the gossip pages of a tabloid newspaper.
Though outwith my jurisdiction, I have done some reading into the background and it seems that both Depp and Vardy have a difficult job in order to win their cases. For Johnny Depp this is the strong right of freedom to speech in the States and for Rebekah Vardy the particulars of the evidence, including some of the evidence “lost at sea”.
All this has led me to start thinking about why each of these pursuers have raised these proceedings and have been determined to see it through to an evidential hearing. When advising clients before raising court proceedings we always discuss the reasons for raising an action and what the benefits could be. This is crucial advice that is more practical than legal. To paraphrase Tina Turner, What’s Law Got To Do With It?
Both pursuers have a significant risk that they will not be successful and could end with them having to pay significant costs to both their own lawyers but also towards their opponent’s legal costs. Given the acrimony between the parties in both cases, having to pay towards the other side’s legal expenses would no doubt stick in the craw.
Typically, the cost/benefit analysis starts with an estimate of costs to litigate against the sum that might be awarded. You also have to price in the risk that you will obtain an order but the defender will not actually pay.
The litigants in the high profile cases here do have more money than most people and perhaps they can afford to roll the dice and lose but there are also non-financial considerations or indirect financial considerations when deciding whether to raise proceedings.
For Depp and Vardy, it seems very much that it is the court of public opinion that they are trying to influence. Or it may be that the reason for pressing ahead is a search for a cathartic validation from a court that you are not a bad person.
Stepping away from Court TV, there are plenty real world examples where on a purely economic basis you would not proceed but it remains worthwhile. These include:
- Defending the wording of a widely used pro forma contract to ensure that it is not challenged by others as well;
- A creditor enforcing a debt to its fullest extent to deter others from defaulting on agreed payments arrangements;
- A charity seeking to prevent third parties defrauding members of the public;
- To ensure that you protect your reputation so that you do not lose out on future lucrative work;
- Setting the tone for the culture within your organisation as to what is important.
Where two sides cannot resolve a dispute they may ultimately choose to exercise their right to have it resolved by the courts. After all, as was said in one famous case, courts exist to resolve such disputes, which are the “life blood of the common law”.
Mike Kemp is a Legal Director in our commercial litigation team and can be contacted on 01382 723171 or mkemp@thorntons-law.co.uk .
