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Dave2019

a question about the legality of recording

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I would be extremely grateful if anyone here could offer their opinion on a problem that has been making me feel very depressed for months now.

It is a long story - it began back in 2014 - but I will be as brief as I possibly can.

 

In a nutshell, a barrister pressured me into going into mediation with my landlord (a housing association) rather than defending myself in Court, very much against my better judgment.

 

I believe he was acting dishonestly in this.

During the one-day mediation session, the other party behaved dishonestly and my barrister did nothing about it.

I believe my barrister behaved dishonestly as well.

Then, at the end of the session, I found myself in a position where I signed an agreement that I would never have normally signed, because I could see no alternative.

I have regretted this decision every day since then, but cannot think what to do about it.

 

Here is the background.

I am a man in his sixties who lives in a two-storey housing association property consisting of 45 flats under one roof.

I am gay and I suffer from severe clinical depression, anxiety and obsessive compulsive disorder (OCD).

 

Last August, my HA applied for an injunction against me under the 2014 Antisocial Behaviour, Crime and Policing Act, because I had sent it a series of complaints.

I was shocked, because all my complaints could be substantiated, they were couched in polite language, and though I sometimes sent several letters about the same subject, this was only because the HA's replies were totally unsatisfactory - just flat denials. I have always valued my good name, and the thought of being in Court accused of antisocial behaviour horrified me.

 

I engaged a direct access barrister, who after examining my letters of complaint emailed me to say that I had done nothing to breach the 2014 Act.

So it seemed my HA had no case.  

 

However, he said that my problems with my HA were something that might be better dealt with by mediation.

I rejected this, saying I was determined to defend myself in Court, as I had done nothing wrong.

I could not have been clearer about not wanting mediation.

He then said he'd talk to me on the phone, and this is where the trouble began, and where I began to believe my barrister might have had an ulterior motive for persuading me into mediation.

 

During the first part of the phone call, he amplified what he'd written about my not having breached the Act that the HA was relying upon.

He said that writing letters of complaint was not antisocial behaviour, nor was complaining to the Housing Ombudsman, which I had also done.

 

He said my HA's complaint that my letters were taking up too much of its time were irrelevant.

He said that at any time, my HA could just have stopped reading them.

 

While he never said the actual words, he more or less told me the HA had no case at all.

But then things got a bit suspicious.

 

When I repeated that I wanted to defend the case in Court, he said, "What would be the point of that?"

I thought the point was obvious: if you're innocent, you automatically want to defend yourself.

I then told him that if I defended the case and won, I might be able to make a counterclaim for malicious prosecution.

He said that would never work, adding,

"Your HA is entitled to bring this action. It won't succeed, but it is entitled to bring it".

So yet again, he was in effect saying my HA had no case.

 

But then, when he saw I was determined to defend the case rather than going for mediation, he changed his story.

Just minutes after saying the HA had no case, he told me that if the HA won, it would probably be awarded costs and it would put the costs onto my rent.

He knew I was a pensioner with very little money, and he knew from listening to me that I had a horror of being in debt and in rent arrears, so I am certain he was saying this to try to frighten me into agreeing to mediation.

 

He then told me that one reason I should go for mediation is that if mediation failed and the HA then took me to Court, it would not get its costs if it won - this just a few minutes after he said it wouldn't win.

 

Then I told him that the one thing I wanted most of all was to get a property with a different provider, because my experiences with this HA had been so traumatic.

It seemed to me that he latched onto this, telling me that one reason I should go for mediation was that even if I won the case in Court, the very fact that things had got to the litigation stage would go on my file and deter any future landlord from taking me on.

 

He said a future landlord would say to itself, "You know what? He's trouble. We're not having anything to do with him. He's been dropped on the floor".

 

I suspected (and still suspect) that the barrister was being disingenuous here in order to pressure me, because surely, if a HA takes you to Court for antisocial behaviour and the Court is satisfied that you have committed no antisocial acts, there should be a way of avoiding this prejudicing your chances of being taken on by another landlord.

 

By the time the phone call ended, I felt he had been doing everything he could to pressure me into mediation, and I felt sure he had some sort of ulterior motive for doing so, but what he'd said about not being able to get a new landlord to take me on really worried me, and I was so frightened of the prospect of appearing in Court as a defendant in an antisocial behaviour case - it was so shaming - that I thought of just giving in.

 

He'd also said that mediation was a chance to 'get everything out in the open', and as these problems had been going on since 2014, I liked the idea of that.

I had very little savings, but a friend who'd seen what all this had done to me over the years had offered to fund my defence, partly because he felt sure I would win, would have costs awarded, and he would thus get his money back. But when I told him I was thinking of mediation, he said he was washing his hands of me - he was disgusted that, in his words, I had 'bottled it'. So now I'd lost a friend (to this day, he will not speak to me).

 

I emailed my barrister saying I would go for mediation.

Most of the complaints I had made to my HA arose from a situation that began in 2014, when two tenants had begun a series of malicious complaints about me, and had roped in their circle of friends to back them up, with the result that my good name had been severely damaged, I'd been arrested (for which I'd successfully sued the police) and my HA had been made to believe I was a man of thoroughly bad character.

 

I told my barrister that the one thing I wanted more than anything from mediation was to get all these allegations out in the open and establish, once and for all, that I was a respectable person who had just fallen foul of malicious people. However, that was the one thing that did not happen in the mediation session when it finally took place, because to my dismay, the two housing officers present repeated all these false allegations as if they were fact, despite my having given them copious evidence, over a long period, to show they had been malicious, and my barrister never challenged them once.

 

My barrister had said that mediation would be 'inexpensive', but several days after I had agreed to it, he emailed me with the actual cost: I wound up paying over £2,000, almost all my life savings, for that one-day session.

 

I am sure he had misled me here: he knew I was a pensioner who had been on benefits before reaching retiring age, so he must have known that there was no way I would consider £2,000 to be 'inexpensive'. Again, I felt he'd misled me just to get me into mediation.

 

I emailed him to protest about the cost, and he could see I was considering defending the case after all, so he told me it might last two days, and would be far more expensive than mediation, adding "unless you can get legal aid (good luck with that!')".

 

I would have tried for legal aid at that point, but his phrase 'good luck with that!' made me abandon the idea immediately: he seemed to be saying there was no use even trying to find any. Again, I think he misled me, because a few months after the mediation, I phoned around and quickly found two solicitors' practices that defend antisocial behaviour injunctions on legal aid. Furthermore, my HA's case against me was so weak that I feel sure I would have been a good candidate for legal aid. So I think this was just one more way my barrister had pressured me into mediation.

 

There was only one thing that the HA had wanted from the injunction: it wanted the Court to limit my correspondence to one letter every two months.

I thought that if we went to mediation, this would be the only demand on the HA's side, and it was one I was fully prepared to accede to.

I'm sure any reasonable person would, like me, think that if mediation is in place of an injunction application, the applicant's demands at mediation would be limited to the demands in the application.

 

I'm sure the barrister thought I had assumed that, but he did nothing to inform me otherwise.

I was dismayed, then, to get an email just 48 hours before the mediation date containing something called a 'position statement' from the HA which contained all sorts of demands, none of which I would normally have dreamed of considering. I cannot help but think my barrister deliberately kept me in the dark about this.

 

Upset and confused (by then my mental health was in a terrible state), I emailed him to say that I had never agreed to this, and that I wanted to back out of mediation. But after I had sent that email, I had a look at the rules I'd been sent, and it appeared that if I cancelled the meeting, I would still have to pay. Worse, the rules said that if I failed to pay, the HA would have to pay my share, which probably meant that my HA would pay the fee and put it onto my rent. I immediately emailed my barrister about this, and told him I felt I had been trapped. He ignored both emails.

 

He visited my home the next evening (which was the evening before the mediation) and again seemed to be pressuring me. He briefly mentioned reading those emails, and did not say anything about my being able to back out of mediation without having to pay the fee anyway, so I assume I'd got that right. He knew I had gone to Court in the past as a Litigant In Person and I think he sensed I might try to defend myself, now that I thought I could not get legal aid, because he said, 'If you try to defend yourself, it will go very badly for you'. In other words, he was saying that if I defended myself I would be bound to lose. He had said the case might go for two days, and now he said it might stretch to three, and it was obvious that he was frightening me with the prospect of all those costs against me.

 

The mediation itself was really dismaying. A barrister acted as mediator, and he spoke to me and the HA's two housing officers separately. I hated the idea of the mediator speaking to these men without me being present, because ever since I had become involved with them, I had witnessed nothing but dishonesty from them, but there was nothing I could do about this. Then we all met together and were invited to state our case in turn.

 

I went first, and did everything I could to show that I was just a respectable man who had got onto the wrong side of a couple of malicious tenants and their friends, and how all I wanted from this mediation was to clear the air and restore my good name. I was totally honest and open. Then it was the two housing officers' turn, and as soon as the first one began to speak, he began to lie. I waited a while but then broke in, saying, 'I'm sorry, but this didn't happen'. I was told I had to keep quiet until he had finished. And then he went on, and every single thing he said seriously misrepresented me.

 

The worst thing was the way he again repeated the horrible malicious allegations that those two women had made, thus portraying me to the mediator as a very disreputable character, and a man who delights in harassing defenceless women. This was in spite of the fact that, over a period of four years, I had sent to HA a stack of evidence showing that these women's accusations were false. He then said the HA had done everything in its power to answer my complaints fully, when he knew all my complaints had just met with flat denials.

 

He said the the HA had been very careful to safeguard my tenancy, when in fact it had, as a result of those malicious accusations, issued a Notice Of Seeking Possession, without even asking me if those accusations were true, and the only reason I kept my home was because I refused to leave when the period of notice ended: if I had meekly left my home on that date, my HA would have welcomed repossessing the property.

 

The really dismaying thing was that my barrister knew that every single thing these two housing officers were saying contradicted what I'd told him, and that they were totally misrepresenting me and the situation. But in spite of this, he never challenged them once. 

 

Then it was my barrister's turn to speak, and once again, I was dismayed at what happened. When he had been persuading me to go for mediation, he told me the chief reason he was keen to take this path was because he 'sensed the smell, though perhaps not the stench, of homophobia' in the way I was being treated by my HA. He had said to me, "I detect the sense of, ‘oh, here’s a single homosexual man, he’s a nuisance, he’s a nancy, and we don’t want to be bothered'. And if we were at mediation, those are the exact words I’d be using".

 

Those were almost his exact words to me. But what he said at the mediation was exactly the opposite: he blamed everything on my mental illness.  He said that housing officers are limited in how much they can do to respond to complaints and then said, "My client has a form of OCD, which means he's incapable of understanding when things don't go his way". I felt completely betrayed. When he was persuading me into mediation, he told me he thought the HA hadn't responded to my complaints adequately because I was gay, and that he'd say exactly that at the meeting, but now we were at the meeting, he was saying the opposite: that the HA had responded adequately to my complaints but my mental illness had prevented me from seeing this fact. The worst thing about this was that he'd seen my complaints and the HA's replies, and had seen how the HA was fobbing me off and flatly denying there was even a problem. It was then that I became certain that my barrister had been dishonest with me right from the beginning. 

 

I should point out here that the mediator had said that everything spoken at the meeting was 'without prejudice', so I presume it could not have been used against me if the HA decided to pursue its injunction application, but I wonder, does this also mean that the HA's housing officer and my barrister can behave dishonestly and just get away with it?

 

Shortly after 5pm, the agreement was given to me, and it was not the sort of thing I would have signed in a million years. For instance, I had to agree to withdraw the complaints I had made about the HA to the Housing Ombudsman and to the police, even though they were well founded complaints. I also had to agree to having renovation work done on my flat which would entail 5 days of disruption - normally, I would have a right to refuse it, as other tenants in the complex have done, but this agreement bound me to it. The only things the HA were agreeing to had been watered down in the agreement until they were useless to me. 

 

But I could see I would get no help from my barrister if I objected to anything in the agreement, I knew the HA would go ahead and take me to Court if I refused to sign, and having spent £2,000 on the mediation, I had nothing left to pay for my defence, and I knew that if I wanted to argue about the agreement, it would mean meeting again another day, as we were already running over time, and I hated to think of how much more that would cost. So, hating myself as I did it, I signed. I felt that from the beginning, this barrister had 'suckered me in', and manoeuvred me into a position where I would have to do what he wanted.

 

I know I've rattled on for long enough, but I will just mention an email he sent me a month or so later that convinced me that he had treated me dishonestly. There were two things he'd said in it that made me think this. I had complained to the HA about how those two officers had lied about me in the mediation, and the HA's solicitors had passed on a copy of my complaint to the barrister. In his email he actually pretended my claim was news to him, writing, "Apparently you are claiming these officers 'lied' during the mediation".

 

He had been there himself, and had actually heard me protesting about the officer lying, as soon as it had happened, but now he was pretending this was news to him. He went on to imply that I was the one who was lying. I just could not believe how dishonest he was being. He then wrote that mediation had been greatly to my advantage, finishing with the biggest lie of all: "I must remind you that if this had gone to trial, it is highly likely the HA would have won, and you would have had costs awarded against you".

 

I just couldn't believe I was reading that: in his very first email, he had said I had done nothing to breach the Act the HA was relying upon, and in his phone call a few days later he said that though the HA was entitled to take out this action, it would not be successful. Those were his exact words: 'It will not be successful'. Now he was saying in this email that it was 'highly likely' that the HA would have won and would have been awarded costs. This was just so dishonest.

 

I sent him a formal complaint consisting of a series of numbered points. He replied stating he was refusing to answer this complaint. In that letter he accused me of having a severe personality disorder - a ridiculous claim, but one that really hurt me. He said I was at liberty to refer the matter to the Legal Ombudsman, but I have looked up this organisation on Trustpilot and from what I saw there, it would be a pointless exercise: almost every review says they are useless.

 

Months after that mediation, I still suffer emotionally. I feel utterly cheated and I just don't know what I can do. I feel helpless.

 

I suppose that ideally, I'd like to go to Court and say, 'Look, the only reason I signed that agreement was because I was misled and pressured right from the beginning. Plus, the other side showed extreme bad faith during the mediation. This agreement was not fairly obtained'. If there was any way I could make such an application, I'd do it, and I'd be prepared to do it as a Litigant In Person.  And if the agreement was set aside but as a consequence, my HA was allowed to restore its injunction application, I'd be fine with that - I'd be prepared to defend it without representation if I had to, because since I became a tenant here I have not committed one antisocial act. It is not the sort of person I am.

 

I also believe this barrister has behaved negligently, and if I had bags of money, I would be prepared to sue for negligence, because if I had defended the case, the HA's case was so weak that I think it probable that I would be been awarded costs, and would have saved over £2,000.

 

So, if anyone can offer their opinion on what has happened here, I'd be very grateful. Once again, sorry for the length of this post.


 

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you signed so doesnt matter what we think or whether it was fair or unfair. we cnat undo what has bee done.

I would precis this and write to your MP in regard to the HA conduct but forget about the barrister unless you recorded every meeting with them.

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Thank you for that reply. It so happens that I have recordings of everything my barrister said. This however raises a problem, and perhaps you or someone else could give an opinion here.

 

Two days before the mediation meeting I was sent an email containing the rules governing the meeting, but I was so stressed that I did not read them very closely. I suspected dishonesty might take place at the meeting, but I could not back out of it without having to pay the fee, which was a huge sum. So I went to the meeting and I recorded everything. It was only several weeks after the meeting that I looked again at the rules and discovered that recording the meeting was forbidden.

 

So I am in a dilemma. I believe the recording proves conclusively that my barrister did the exact opposite of what he told me he would do at the meeting, and it also shows housing officers lying extensively and my barrister not attempting to challenge them. I think the recording is very strong evidence indeed. However, I am very afraid that if I reveal the fact that I made the recording, I might be in a lot of trouble.

 

I have no idea where I could go for advice on this.

 

 

 

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Hi.

 

We have people here who know about recording meetings, please bear with us and hopefully they will drop in later.

 

HB


Illegitimi non carborundum

 

 

 

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If the recording definitely proves an offence, I would disclose it to the relevant authority.

Then if the offender wants to sue me for exposing them, they'll have to face a judge and be shamed again which is extremely unlikely. 

The problem is: does the recording DEFINITELY proves guilt?

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I don't know which forum is the most appropriate for this topic, so I'm putting it here in the hope that an administrator will assign it to where it should be.

 

A few weeks ago I posted a topic titled 'misled by barrister' and it included a question about making a recording of a meeting. One member answered saying that there were people in these forums who knew quite a lot about the law relating to making recordings, and that one might soon come along and post a reply to my topic, but unfortunately, no one did. This is why I'm posting this new topic.

 

I'll begin with a brief description of the situation. I'm a gay man with serious mental health issues (clinical depression and obsessive compulsive disorder). I'm a housing association tenant, and my HA's behaviour towards me caused me to write a series of complaints to it over a period of two years. Rather than trying to engage with me properly, the HA ignored me, sending replies that just fobbed me off. Finally, last year it applied for an injunction under the 2014 Antisocial Behaviour, Crime and Policing Act solely because of these letters, even though none of them could by any stretch of the imagination be seen as antisocial behaviour - they were all worded in polite and unthreatening terms and everything I wrote in them could be substantiated.

 

I engaged a barrister via direct access, and in a phone call he told me that, having read the letters in question, in his opinion I had done nothing that breached the 2014 Act, and that if my HA took me to Court, its case would not succeed. But then he tried to persuade me to go into mediation instead of defending the case, and when I insisted I wanted to defend the case, he suddenly changed his story, saying that the HA could win, that I could have costs awarded against me, and that the HA would add the costs to my rent. He also said that even if I won, the fact that this had gone to Court would cause any future landlord to think I had, in his words, 'been dropped on the floor', and would refuse to offer me housing. He seemed to be doing everything he could to twist my arm and get me to agree to mediation.

 

There was one thing that happened that has caused me to post this topic: he stated his reason for recommending mediation, then during the mediation meeting, his behaviour showed that he had misled me.

 

This is what happened. During the telephone conversation, he said that the reason he was keen to go for mediation was because he 'detected the smell of homophobia' in what my HA was doing to me. He said that he believed my HA had taken the attitude of 'he's gay, he's a nancy, so we won't bother to help him'. He said that in his opinion, the two housing officers involved in the injunction application showed definite signs of homophobia, and that if we went to mediation, he would put that to them directly, in no uncertain terms. This was what finally persuaded me to agree to mediation, because I thought he was right, since a lot of the HA's behaviour had made me suspect homophobia myself. However, when the barrister spoke to these two housing officers at the mediation meeting, his behaviour was totally different: he said that he was satisfied that the HA was doing everything it could to help me, given its limited means, but that because I was mentally ill, I 'could not understand it when I wasn't getting what I wanted'. And during the entire meeting, which lasted from 10am to 5pm, he never mentioned homophobia once, or even the fact that I was gay. He also poured scorn on my letters of complaint in the presence of those housing officers, calling them 'bloody annoying'. I thought it was a complete betrayal.

 

So this brings me to my question. I want to bring an action for professional negligence against this barrister, and if I quoted exactly what he said in his phone call about his reason for wanting mediation, then followed it with an exact quote of what he said during the meeting, I am sure anyone would see that his behaviour towards me was inexcusable. The problem, however, is that the mediation rules stated that recordings were prohibited.

 

My own view is that this barrister's behaviour was so dishonest that it justifies the fact that I recorded the meeting, but that's just my view. So I suppose what I'm asking is, what is the worst that can happen to me if I reveal that I recorded this meeting?

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Posted (edited)

Do you have BOTH the phone call (where he said his reasons for wanting mediation), and the mediation meeting (where he acted differently) recorded?.

If not, what is to stop him claiming (if you are already alleging he isn't honest) that he never said that during the phone call?.

 

The barrister is supposed to warn you of any risks in going to court, so saying that you might not win,. and if you didn't you could have costs awarded against you, and highlighting the possible problems with  having gone to court even if you won! (the HA writing as part of any reference : "we lost a court case with Mr Bloggs, but given the court case we felt our relationship had broken down, and we would no longer consider him as a tenant" would be truthful, and permissible!).

 

What was the outcome of the mediation? Are they still trying for an injunction?. If not, surely the barrister can claim success.

To claim negligence, you'll have to show you have suffered harm / loss......

 

What is the worst that can happen?. If you aren't a business covered by GDPR, and you haven't breached RIPA, the likely worst case scenario is not being allowed to rely on the recordings in any court case or (complaint to a ombudsman or professional body), and finding it hard to find a legal professional willing to work with you in future .....

 

 

Edited by BazzaS

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Thank you for your reply, Bazza.

 

Yes, I do have both recordings.

 

I get your point about a barrister having to tell their client they might not win, but if you heard the phone call, I think you'd suspect that something else was going on here. First he more or less said that the HA had no case against me at all, but it was only when I insisted on not opting for mediation (for the third time, as I'd already rejected mediation twice in emails to him) that he began to say the HA might win.

 

He also emphasised how long the case might go on for: at first he said two days, then after I showed signs of wanting to defend the case a few days later, he changed that to three days. I'm suspicious about this, because the case was about just one thing: whether a series of letters I'd sent the HA constituted antisocial behaviour. I'd have thought that all the defence counsel needed to do was challenge the HA to point to one letter that could be termed antisocial, and they would not have been able to do this, because all my letters were polite and unthreatening, and all of my complaints were founded on fact. So I'm pretty sure the case would not have taken more than one day.

 

As for what the HA was permitted to say about me, I take your point, but if my HA wasn't actually required to say that it went to Court and lost, I think it would have kept quiet, because I think  it sees me as such a thorn in its side that it would be glad to get rid of me.

 

I never said this in my first message, but I'll say it now, just for the sake of clarity: I'm absolutely convinced that, right from the start, this barrister was working behind the scenes to get the best result for the HA, not me, and that the reason he persuaded me to opt for mediation was because he knew it would enable him to put me in a position where I had to sign an agreement that gave the HA far more than it would have got even if it had won the case. And that is exactly what happened: I wound up being confronted with an agreement that deprived me of very important rights, and required me to do a number of things I would ordinarily never have dreamed of agreeing to, but by then I'd paid over £2,000, almost all my savings, and signed because I just couldn't see any alternative.

 

Sorry if this sounds a bit far-fetched, but it's what I sincerely believe.

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Threads merged ...please keep to one thread per same issue.

 

Thread move dto general legal issues forum.

 

Regards

 

Andy


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