The Vicious Litigation Circle

Picture of road sign showing man falling off cliffThe utterly brilliant Eddie Izzard does a riff about looking ‘cool’ which starts with a description of the fashion circle. The proposition is that most people are in the ‘normal’ area of the circle but some look increasingly cool until they reach a point, the top of the circle, at which they look utterly ridiculous. His version is a tad ruder and a lot funnier.

Reading the sad case of Nowak v Nursing and Midwifery Council and another [2013] EWHC 1932 (QB) it occurred to me that there is a similar phenomenon in harassment cases.

Targets of harassment become increasingly convinced that every event is part of a course of conduct of harassment and, perfectly understandably, increasingly upset and eventually desperate to obtain redress.

Just as the fashionista can unwittingly become absurd, so may an aggrieved target of harassment lose all sense of perspective and suddenly find themselves accused of harassment. Such was the case with Mr Nowak.

Mr Nowak is a nurse who felt that he had suffered bullying and harassment at work, originally from two individuals who were his line managers. This, he said, caused him to fall sick and take sick leave.

He said he had raised complaints and grievances about his treatment which his employer, an NHS Trust, failed to investigate. He was then dismissed from his employment ostensibly on account of incapability due to his poor health but, he believed, in reality because he had raised grievances and made a whistle blowing report against senior members of staff.

To add insult to injury, he was then made the subject of disciplinary proceedings by the NMC following allegations he had fraudulently claimed sick pay and, while on sick leave, had participated in a training programme without permission from the Trust. He claimed these allegations were based on deliberately false allegations.

Pausing there, it goes without saying that we don’t know whether he was right or not. These allegations have never been tested in court and were undoubtedly strenuously denied. But they could have been true. These things do happen and however tall the tale, just because you’re paranoid it doesn’t always mean they’re not out to get you.

Unfortunately however, Mr Nowak seems to have lost all sense of proportion and rationality in trying to advance his cause. He made 5 Data Protection and Freedom of Information requests which generated 11 lever arch files of papers.

When issuing proceedings he named 21 individuals as being responsible for the bullying etc. including the Chair and Chief Executive of the Trust. After issuing, and in spite of the extensive disclosure obtained, he applied for an order for pre-action disclosure.

When that application was dismissed (as it had to be; the clue is in the name: pre-action disclosure cannot be ordered after the action has started) he appealed the order and failed to comply with other orders made including a requirement to serve Particulars of Claim.

Through all this he made extensive allegations that everyone was lying about everything. These were not made just in the court proceedings but were repeated in complaints to the Attorney General and the Solicitors Regulation Authority.

Noting the continuing lack of the ordered Particulars of Claim, an order was made requiring its service in default of which the claim would be struck out. Instead of complying, Mr Nowak reacted with a host of fresh applications.

He applied for a stay of the proceedings along with applications for permission to bring contempt of court proceedings, for relief from sanctions, for the recusal of a judge, for the preservation of documents and electronic records and for an unspecified “unless” order.

When the application for a stay was heard by Mrs Justice Sharp, she said:

“I find the conduct of this litigation alarming. In my view it bears all the hallmarks of litigation in which no regard is paid to merit, proportionality or cost by a litigant in person and where applications are issued without any apparent regard to those three factors.”

The application was dismissed and the Particulars demanded. When they were not served, the claim was struck out.

Nevertheless, there were further applications, Mr Nowak was unable to attend one hearing due to illness but failed to provide medical evidence to verify this. Instead he issued further applications including for urgent injunctive relief.

I could go on. Unfortunately the full judgment does just that and lays out in painful detail the sorry saga of Mr Nowak’s increasingly desperate but misconceived attempts to pursue his claims. All to no avail.

Following at least 8 applications in the space of 5 months which were found to be totally without merit and in the face of adverse costs orders running to tens of thousands of pounds, predictably to any lawyers reading this, the court finally imposed an Extended Civil Restraint Order. This means he is not allowed to issue any proceedings or applications without prior permission from a Judge.

Perhaps this was all deliberate vengeance but I prefer to see it as a very sad case of a man who, rightly or wrongly, genuinely believed he had been wronged but found his efforts to get what he perceived as justice thwarted at every turn.

Each time he asked for something and was refused was just another turn of the screw of injustice. As his anger and frustration increased, his applications became increasingly ill-judged and so failed. A terrible vicious circle from which there emerge no winners.

Mr Nowak presumably spent some money on legal advice at some point but, one suspects, too late to heed it. The Trust and the NMC have incurred thousands of pounds of legal fees. Vast amounts of court time have been wasted dealing, with commendable care and patience, with hopeless applications.

And none of that time and money has actually served to deal with one jot of Mr Nowak’s original complaint.

It is true that there are some people who can never be convinced they are wrong or that their case is undeserving. Where that is so, nothing can prevent these sorry outcomes. However, a sympathetic, independent intervention at the start geared not to apportioning blame but to finding a way to work together might well prevent complaints of this nature escalating to all out war.

And in any case, the most important message from cases like this is the importance of taking stock and maintaining perspective. Where there is a grievance, instead of lashing out and blaming everyone, focus on what it is that was wrong, how to demonstrate that and what remedy is appropriate.

Oh, and don’t forget to comply with court orders. Failing to do so is the quickest way to get your case thrown out without anyone being able to look at it.

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1 Comment

Filed under Cases, Harassment

One response to “The Vicious Litigation Circle

  1. Jim C

    Polish born Mr Nowak, whose first language is clearly not English, has fought an uphill battle against a legal system of which he had no previous knowledge. I don’t know this man, I have never met him but I have great sympathy for his case.

    The NMC and his employers have an almost bottomless pit of funds to provide them the legal and administrative support which they have wilfully mobilised against him.

    I have looked on Mr Nowak’s website ( http://www.thecitizendefence.com ) which gives great detail – albeit in rather a jumbled and disordered way – of the wrongs he claims have been done to him.

    My real concern here is that having read through his allegations why has nobody stepped in and offered an overview? Why have his allegations never been properly and independently investigated.

    The extracts from documents and the findings of the Information Commissioners Office appear to strongly support his allegations against his former employers. Mr Nowak makes very specific allegations against nurses and lawyers but these are brushed aside on the basis that he has made so many allegations that there are too many to investigate.

    Mr Nowak is evidently frustrated that nobody is doing anything in respect of his allegations but everyone is doing everything in respect of the allegations against him.

    I share his sense of frustration. I share his sense of injustice. I share his sense of being made to be a victim because he cannot afford legal representation. I share his sense of anger that the RCN will not fund an investigation. I also feel that so much money and effort has been expended by the NMC and the Trust concerned and that this could have been prevented with a thorough and impartial investigation from the outset with all parties represented in the progression of the investigation.

    The NMC are not angels nor do they represent angels. They are a statutory body whose main function is to protect the public. In the view on many thousands of people – both Registered Nurses and members of the public as well as the Regulators of the NMC themselves – they have repeatedly failed to do this.

    It is time for an independent investigation into this whole sad case.

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