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Annabel Whittaker

Partner and Insolvency Specialist, Excello Law

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"The fact the orders were appealed, in itself, shows a lack of understanding of why the court made those decisions."

“The solution for a dissatisfied litigant is not to threaten the judge”

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“The solution for a dissatisfied litigant is not to threaten the judge”

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Annabel Whittaker explores the multiple lessons from Ferme v Gwinnutt

The recent refusal of an appeal made by a litigant who verbally threatened a judge was entirely unsurprising to all of those involved with the case. As the lawyer for the respondent, I observed exactly what happened during the uncomfortable remote hearing in June last year.

Based on my knowledge of the matter in dispute, it was expected that the appeal judge, The Honourable Mr Justice Richard Smith, would decisively rule both of Irena Ferme's applications for permission to appeal as “wholly without merit."

It was always unlikely that the High Court would overrule the orders of Judge Jones in the Insolvency and Company Courts made in June and August 2023. The fact the orders were appealed, in itself, shows a lack of understanding of why the court made those decisions. It is unfortunate that Ms Ferme has at no time either apologised or shown any remorse for her behaviour.

Of wider importance is the way in which December’s appeal decision - which Mr Justice Smith has ordered Ms Ferme cannot request to be reconsidered - provides a telling lesson for anyone contemplating being a litigant in person without representation.

Ms Ferme, who, at the time of writing this article, refers to herself as a writer and attorney at law, in Slovenia, was involved in a longstanding dispute concerning commission fees for property purchases that never completed. The dispute also included an assigned claim from the individual who intended to purchase two flats, consisting of interest and costs on the returned deposits.

The case, Ferme v Gwinnutt [2023] EWHC 2035 (Ch), centred on an appeal against the refusal to admit a proof of debt within a solvent liquidation of a company. The debt claimed consisted of commission payments that Ms Ferme alleged were due, together with the interest and costs alleged to be due following the return of the deposits.

Instead of instructing a solicitor for advice in relation to her alleged claims and/or choosing to be represented by counsel at the hearing, Ms Ferme, who clearly did have some legal knowledge, opted to represent herself, acting as a litigant in person throughout the proceedings, which involved a number of hearings.

So, when the judgment went against her, her immediate reaction was an emotive threat to the judge, one which surely would have been restrained had a barrister been acting on her behalf. Ms Ferme was not afraid to show her anger at the judge when her appeal against the liquidator’s refusal to admit her debt claim was deemed unsuccessful.

In his earlier ruling, Judge Jones said, “it is of deep concern and should be recorded that Ms Ferme threatened me verbally at the remote hearing as soon as I had delivered judgment”. He explained that, during the hearing, he had given oral judgment on two points and then received threats “delivered in aggressive terms and manner, being implied from the words used when she asked me if I knew what happened to judges in America who made decisions such I had.”

The judge also expanded on what had happened in his ruling, writing that “she stated that personal claims would be made against me because of my decision here and abroad”. He continued that, in the absence of any signs of remorse or apology from Ms Ferme, “I stated at the time my disapproval, my conclusion that this was a contempt of court, and the reasons for my deciding nevertheless to continue to hear the second part of her application ‘without fear or favour’”.

“The ability to do so is, after all, one of the fundamental reasons for judges having immunity from any action brought against them in reliance upon a judgment delivered by them,” he said.

The solution for a dissatisfied litigant “is not to threaten the judge” but to seek to appeal, he explained. He went on to reject Ms Ferme’s claim as an assignee entitled to prove for interest resulting from the delay by the company when it made payment of the returned deposits to the assignor.

What the case also underpins is the way in which someone representing themself as a litigant in person might feel liberated to act in a less controlled fashion because of the distance afforded by a remote hearing. The innately intimidating atmosphere within courtrooms often prompts even the most vociferous individuals to address the judge in a respectful manner. Someone who is outspoken about their case in a more casual environment with friends and family would normally curb their anger when engaging face to face with barristers and judges in a formal court arena.

In this case, Ms Ferme clearly felt that she could talk in a less respectful fashion because she was not in a room with counsel or the judge, attending the virtual hearing on her mobile phone. Virtual hearings are brilliant in terms of the time-cost saving; yet had she been in a court where she would have felt less relaxed, she may not have made those threats. I suspect that we wouldn't have had such a volatile situation if it had actually been heard in person.

This can be seen as one of the key reasons for the judge’s assessment of her behaviour.

Another very obvious drawback in Ms Ferme’s decision to be a litigant in person was that she has not been properly instructed in how to prepare a bundle, as a lawyer would.

Ms Ferme had added pages to bundles that she had prepared for earlier hearings leading to several page numbers being shown on the same page, so it was extremely difficult to locate page references.

There were no bookmarks, as required in hearing bundles produced electronically, which worsened the situation. We had prepared an alternative bundle due to our concerns that, without this, the judge may have struggled to proceed with the hearing.

Ms Ferme lacked the highly specialist legal understanding required in insolvency matters, as opposed to general litigation. Many of her initial arguments related to the fact that we had not done an acknowledgement of service to her application originally, although lawyers do not produce an acknowledgement of service within the context of applications for insolvency.

The Insolvency (England and Wales) Rules 2016 are distinct from the Civil Procedure Rules that govern general litigation (albeit the Civil Procedure Rules may also apply to aspects of insolvency applications).

Discussing the case, the judge acknowledged the difficulties for a litigant in person and noted that opposing counsel “providedas much assistance to the court as he could”. This was indeed true, and I saw for myself how the respondent’s counsel, Simon Jones, of Enterprise Chambers, was extremely attentive in doing his best to help her.

Rather than accept this help, however, Ms Ferme was instead very brusque, and repeatedly insisted that Mr Jones had no right to even be present for the hearing, a position which the judge described as “completely inappropriate”.

Ms Ferme’s ill-considered threat is not the first time such verbal aggression has been made against a judge in litigation.

When an unnamed litigant in the case ofX v The Transcription Agency LLP & Another made baseless allegations about a judge’s honesty, the individual ended up on the receiving end of an indemnity costs order for approximately £80,000.

According to the judgment, ‘X’ made unfounded assaults on the professional competence of solicitors acting against him, embarking on an ‘aggressive pursuit’ about their conduct and accusing them of having a ‘staggering ignorance’ of the Civil Procedure Rules.

The clear lesson from Ms Ferme’s case is that those conducting litigation should focus on proving their case, rather than attacking opponents, as well as the opponent’s legal representatives and the judiciary.

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