The film screening and discussion of the Woman in Gold* was part of the Welcome Week package organized by the Kent Law School for the Postgraduate Taught Students. Dr. Simone Wong, a Co -Director of Graduate Studies had earlier informed the LLM students that attendance to the film screening was as important as attendance to the compulsory Legal Research and Writing Skills Training Module – LW919 which will appear as pass or fail in our final transcript. Dr. Emily Haslam and Dr. José Bellido were there to moderate the discussion on the film screening. As expected, almost everybody attended the session.
The film centres on the recovery of a 1907 painting of Adele Bloch-Bauer (later renamed Woman in Gold) from the Austrian Government by Maria Altmann. The theme of the movie cuts across various aspects of law which include law and justice; law and cultural heritage, property law, wills law, restitution, the jurisdiction of courts, the lawyer-client relationship, international law, etc. However, of interest in this short discourse is the cost of litigation in various jurisdictions as the other areas were duly discussed in class.
It can be observed in the film that the Restitution Committee set up by the Austrian government denied the claims of Maria Altmann. Upon the denial of the claim of the paintings which included that of Bloch- Bauer (Woman in Gold), Maria and her attorney returned back to the US as the option available to them in Austria was elusive. Maria and her attorney are informed that they can approach the Austrian Court for redress if they are disgruntled or dissatisfied with the decision of the Committee. However, the bad news is that the sum of $1,800,000 was required to be deposited in order to pursue the case in court based on the estimated worth of the property. Maria’s cause was then abandoned as she cannot afford such huge sums of money. At this juncture, it is worthy to note that litigation is not free in any jurisdiction. However, the amount payable by a prospective litigant or claimant varies from one jurisdiction to another. As the writer of this post is a Nigerian, it is apt that the happenings in that jurisdiction be examined in line with our reflection.
Basically, the hierarchy of courts can be found in section 6(5) of the Constitution of Federal Republic of Nigeria 1999 (as amended). In the said provision, we have amongst other courts the Federal High Court and the High Court of the State. These two courts are courts of coordinate jurisdiction but do not exercise the same jurisdiction except in certain matters. In essence, whereas the jurisdiction of the Federal High Court can be found in section 251 of the Constitution, that of the High Court of the States can be found in section 272 of the Constitution. The cost of filing an action in both courts differs. The amount claimed by a litigant determines the fee payable by that litigant. However, it is relatively cheaper to pursue a claim at the State High Court than to pursue the same claim at the Federal High Court. Some litigants even abandon their claims when the matter falls within the jurisdiction of the Federal High Court due to attendant cost just like our Maria in the Woman of Gold lost hope and went back to the US when she was informed of the cost of pursuing the claim in Austrian Court. Little wonder the US court recognised that the Austrian Court provided inadequate means for the resolution of the dispute due to the prohibitive cost to file the action.
As a matter of fact, in matters where the Federal High Court and State High Court can exercise jurisdiction, litigants avoid the Federal High Court and opt for the State High Court in a bid to avoid payment of heavy fees. For instance, the Federal and the State High Court in Nigeria can entertain fundamental right matters as it affects a person whose right is being, has been or likely to be infringed on. Since both courts can exercise jurisdiction in matters of fundamental rights, the question now is; can a person approach any of the courts in a bid to enforce his or her fundamental rights? The answer appears to be in the negative. Some judicial authorities are of the view that any fundamental right action sought to be enforced by a person at the Federal High Court must relate to actions of a federal agency. In other words, if the wrong complained of was done by a federal agency or body then the State High Court cannot exercise jurisdiction in such matters and vice versa. Despite this position of various judicial authorities and at the risk of an action being struck out for want of jurisdiction, fundamental right actions against federal bodies or agencies are still being filed at the State High Court due to the cost attendant with filing the action at the Federal High Court. In the alternative, litigants are known to grudgingly reduce the amount claimed in a bid to pay a lesser sum. A person who ordinarily would have claimed over a million dollar would reduce the claim so as to afford the fee payable.
Interestingly, some litigants after the release of National Human Right Commission Standing Order 2015 now approach the Nigerian National Human Rights Commission to claim trillions of Naira as no filing fees or deposit are made at the Commission. This is opposed to what is obtainable in regular courts where fees are paid. Although it is doubtful whether such claims will succeed in view of so many factors ranging from the powers and jurisdiction of the Commission, the status of the Commission as an inferior tribunal etc. Clearly, the outrageous claims at the Commission reveal that many persons are relinquishing their rights due to the cost of litigation. This post is not a call for drastic measures or actions to be taken in various jurisdictions to review the admissibility of claims in terms of cost. This is because removal of fees payable by prospective litigants will not only promote the filing of frivolous suits but will encourage litigation which amongst other things is time-consuming, filled with procedural hitches and less friendly.
Although the Woman in Gold celebrates arbitration over the traditional litigation, it must be pointed out that sometimes litigation or the possibility of litigation brings the parties to the arbitration table. In essence, potential defendants usually show nonchalant attitude towards alternative dispute resolution except there is an ongoing litigation or one is threatened. This is evident in the Woman in Gold when the Austrian government approached Maria Altmann for settlement after the US Supreme Court ruled in favour of Maria Altmann that she can maintain the action against Austria in a US court.
The Woman in Gold and the stimulating discussion that followed was indeed golden. Most of the LLM students with their diverse backgrounds shared their views about the legal issues that arose from the film screening. The analysis by the students was awesome and we look forward to similar discussions throughout our LLM programme.
*Woman in Gold is a film written by Alexi Kaye Campbell and directed by Simon Curtis. The film was released in 2015. Studio: The Weinstein Company.
Photo credit: Portrait of Adele Bloch-Bauer I (The Woman in Gold) is a 1907 painting by Gustav Klimt available at https://en.wikipedia.org/wiki/Portrait_of_Adele_Bloch-Bauer_I