A solicitor granted a temporary right of audience to assist a litigant in person in a High Court case has been praised by the judge for his ’care, restraint and courtesy’. Jeffrey Kershaw, who holds a practising certificate but without right of audience in the higher courts, was assisting a surgeon in a libel action against the British Medical Journal (BMJ).
In Onwude v Dyer & Ors the claimant, a gynaecologist, claimed he had been defamed by an online article reporting the decision of the Medical Practitioners Tribunal to remove him from practice. The decision was overturned on appeal, a fact also reported by the journal and indicated on the original article.
The journal argued that its reporting was protected by statutory qualified privilege under the Defamation Act 1996 and that publication was a matter of public interest under the Defamation Act 2013.
In judgment, His Honour Judge Richard Parkes QC noted that Onwude had stated that he lacked funds to employ counsel and that he was unable to persuade a firm to act on a contingency basis. He suggested that Kershaw was 'more rational than he was and much better able to present his case'. The defence raised no objection.
HHJ Parkes said that, after considering the guidance of the Court of Appeal in Clarkson v Gilbert and the practice note McKenzie Friends: Civil and Family Court, he determined that 'having regard in particular to Mr Onwude's plainly fragile state of health and his very nervous state, and Mr Kershaw's standing as a practising solicitor, there was good reason to grant a right of audience to Mr Kershaw for the duration of the trial'. He thanked Kershaw for the help which he was able to give the court.
HHJ Parkes ruled that the defendants, whom he described as 'journalists of high seriousness and principle', were protected by the public interest defence as well as qualified privilege. Dismissing Onwude's claim, he said that the journal had no cause to seek comment from him on a formal judicial proceeding. While sympathising with Onwude for having to endure the consequences of a tribunal decision later found to be flawed, 'it was that decision, and not the actions of the BMJ, which was responsible for the distress that he suffered'.
The claimant was assisted by Jeffrey Kershaw, solicitor; Jacob Dean, instructed by Farrer & Co, appeared for the defendants.