Pedder & Anor v Associated Newspapers Ltd [2003] EWHC 1219 (QB)

Case No HQ02X01141

[2003] EWHC 1219 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

Venue Royal Courts of Justice

Date Thursday, 15 th May 2003

Between

SARAH PEDDERClaimant

ALLAN DUMMERClaimant

The Strand

London WCA 2LL

B e f o r e:

MR JUSTICE GRAY

__________

-v-

Between

ASSOCIATED NEWSPAPERS LTDDefendant

__________

Tape transcription by Smith Bernal Wordwave Limited

190 Fleet Street, London EC4A 2AG

Telephone 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

__________

MR J MACKENZIE appeared for Claimants.

MISS A PAGE appeared for Defendant.

__________

J U D G M E N T

[1]MR JUSTICE GRAY: This is an application by the defendants in this libel action, Associated Newspapers Limited, to strike out the claim of the claimants, who are Miss Sarah Pedder, formerly an Army Captain (I am using her maiden name), and Sergeant Allan Dummer, who is still serving in the Army. The grounds of the application are that the claimants’ statement of case discloses no reasonable grounds for bringing the claim and/or is an abuse of the process of the court within the meaning of CPR 3.4, or, in the alternative, that the claimants have no real prospect of success so that summary judgment should be entered for the defendants under CPR 24.2. If the claimants survive both applications, there is an alternative submission by the defendants that the trial of this action should be stayed until after the trial of another libel action brought by the claimants against the Sun, which had published broadly similar allegations about them.

[2]There are two publications sued on in this action. The first appeared in the issue of the Evening Standard for 21st February 2002. It is relatively short, so I will read it in full. It is headed, “Army Captain faces sack over her ‘affair.’” The text of the article is as follows:

“A woman who is a captain in the Army faces the sack amid claims that she had an affair with a married sergeant during a desert training exercise. Recently married Captain Sarah Pedder, 25, and married Sergeant Al Dummer, 38, who has two children, were among thousands of servicemen and women in Oman as part of a military exercise codenamed Operation Swift Sword. Colleagues claimed they immediately fell for one another and during their eleven weeks in the desert spent an increasing amount of time together. They paid frequent visits to each other’s tents, and drove off on motorbikes to ‘check transport arrangements’, it is claimed. One Army source told the Sun, ‘Al was always finding reasons to slip into her tent. It was the talk of the unit. It was perfectly obvious that they fancied each other.’ When Captain Pedder, who won an Army scholarship at 16, returned to Aldershot last December, she admitted the affair to her commanding officer, before telling her husband that their six months’ marriage was over. Captain Pedder, who could lose her £40,000 a year job, was immediately sent to a base in Corsham, Wiltshire, while Sergeant Dummer was posted to another base. Both are being investigated for breaking the Army’s code of social conduct, which forbids relationships between officers and subordinates in the same unit. Captain Pedder and Sergeant Dummer claimed their relationship started after they had returned from Oman, despite contrary reports from colleagues. Sergeant Dummer’s wife, Clare, 34, said she was seeking a divorce. She said, ‘I have already changed my name. You wouldn’t want to be called Dummer if you didn’t have to.’ Captain Pedder is the second female officer serving with the Royal Corps of Signals to have reportedly had an affair with a colleague. Two months ago Lieutenant Cat Astley, 24, who starred in the BBC documentary Guns and Roses, was also facing the sack after an affair with her sergeant.”

That is the article which appeared in the Evening Standard. It will be noted that there are frequent references within it to “an affair” between the two claimants. That is the article which appeared in the Evening Standard. It will be noted that there are frequent references within it to “an affair” between the two claimants.

[3]The second article complained of was published by the same defendants in the issue of the Daily Mail for 22nd February 2002, the next day. It is rather longer and so I will not lengthen this judgment by quoting it in full. Suffice it to say that it is headed, “Desert manoeuvres.” The subheading reads, “Woman captain admits affair with married junior on war exercise.” It is in broadly similar terms to the article in the Evening Standard. There are, however, two sections which I should read. The article commences as follows:

“A newly married female Army captain faces being thrown out over an affair with a junior soldier during a major desert exercise. Sarah Pedder, 25, began a relationship with 38-year old Sergeant Al Dummer whilst serving together in the Royal Corps of Signals during Exercise Swift Sword in Oman.”

So the reader is being told at the outset that this alleged affair took place whilst the two claimants were on exercise in Oman. Later the article contains the following two paragraphs, linked to a cross heading, “They are in very hot water.” The paragraphs read:

“It is understood Captain Pedder and Sergeant Dummer told senior officers that their physical relationship only began after they returned to Britain, but insiders said the affair blossomed in the desert, where the squadron camped for eleven weeks.”

[4]A letter of complaint about the Daily Mail article was written to the defendants by the solicitor acting for the claimants on 4th March 2002. It identified the defamatory imputations as being(1) that the claimants had an illicit and improper sexual relationship during an important Army exercise;

(2) that the claimants made improper use of military transport to further an illicit and improper sexual relationship and

(3) that the claimants lied about their relationship.

[5]According to the letter, the correct account of the claimants’ relationship was this:(1) Sarah Pedder joined 261 Signals Squadron in May 2000. Allan Dummer was already with the squadron as staff sergeant in charge of transport and movements.

(2) Between May and November 2000 the claimants were on exercise with their unit in Oman. Each returned to the UK at times during this period.

(3) The friendship between Sarah Pedder and Allan Dummer only became an emotional one on or around 26th November 2001. At this stage there was no sexual relationship between them.

(4) On 29th November 2001 Sarah Pedder and Allan Dummer returned to the United Kingdom from exercises in Oman.

(5) On 3rd, 4th and 5th December 2001 Sarah Pedder and Allan Dummer discussed their future at length and came to the decision that they would each leave their spouses and enter into a relationship together.

(6) On 6th December 2001 the claimants informed their unit authorities of this decision.

(7) On the weekend of 15th/16th December 2001 the relationship became a sexual one for the first time. Since then the claimants have continued their relationship.

(8) The claimants quite deliberately did not allow their relationship to become sexual until after they had informed the unit authorities.

[6]Proceedings were commenced. The defamatory meanings alleged to have been conveyed to readers of the Evening Standard were(1) that the claimants during an important Army exercise in Oman indulged in an illicit and improper sexual relationship, during which they had sexual intercourse;

(2) that the claimants had made improper use of military transport in furtherance of their illicit and improper sexual relationship during the exercise in Oman and

(3) that the claimants lied as to when their sexual relationship had started.

[7]As regards the Daily Mail article, the pleaded meanings are(1) that the claimants during an important Army exercise in Oman indulged in an illicit and improper sexual relationship during which they had sexual intercourse;

(2) that they failed to carry out their duties during the exercise in Oman as they were distracted by their sexual relationship;

(3) that the claimants’ behaviour was particularly reprehensible because the claimants’ unit could have been sent into action in Afghanistan and

(4) that the claimants had lied to their unit authorities in claiming that there was no sexual relationship between them while they were on exercise in Oman.

[8]Whether the articles did in fact convey those meaning to the readers of the newspapers will, subject to the outcome of the present application, of course be a matter for the jury to determine at trial. The point is made on behalf of the claimants that the defendants have not hitherto sought a ruling from the court pursuant to CPR 53 PD paragraph 15 that the words are not capable of bearing the meanings alleged. The Defence does, however, deny that the words bore the meanings for which the claimants contend.

[9]In the alternative, the defendants plead justification, asserting that the Evening Standard article was true in the meaning that:

“There were reasonable grounds for believing that the claimants had (a) broken the Army’s code of conduct whilst serving together on a training exercise in Oman by having an affair, and the Army was therefore conducting an investigation into the claimants’ conduct; and (b) claimed that their relationship had started only after they had returned from Oman, deliberately failing to provide a full account of what had happened between them in Oman.”

There follow particulars, which make numerous references to the claimants having been “in love” whilst in Oman and to their having had a “love affair” or “love relationship” in that country, with no explicit allegation that their relationship was a sexual one or that they had sexual intercourse together. Paragraph 4.4.9 of the Particulars is, however, worth quoting. It reads:

“On or around 18th December 2001 the first claimant and her husband discussed their marriage. Her husband expressed disbelief at her suggestion that her affair with the second claimant had only started two days before they returned to Oman. She refused to say when she had started sleeping with the second claimant and did not deny that she had had a sexual relationship with the second claimant while in Oman. At no point during this three-hour conversation did she insist that their sexual relationship had started after the return to Britain, as she would have done had this been the case.”

The particulars of justification also contained references to the obligations imposed on the claimants as serving soldiers by the Army Code.

[10]The same particulars are relied on in support of the defence of justification advanced in relation to the Daily Mail article. In the case of that article, the meaning sought to be justified is somewhat different, namely(a) that the claimants had, alternatively there were reasonable grounds for believing that they had, broken the Army’s code of conduct whilst serving together on a training exercise in Oman by having an affair, had thereby acted in an unacceptable manner and the Army was therefore conducting an investigation into the claimants’ conduct; and

(b) claimed that their relationship had only started after they returned from Oman, deliberately failing to provide a full account of what had happened between them in Oman. So in the case of the Daily Mail article, but not the Evening Standard article, the defendants are maintaining that the claimants had had an affair in Oman, i.e. they seek to justify a higher meaning than in the case of the Evening Standard article.

[11]Miss Adrienne Page QC, who appears for the defendants, tells me that the defendants rely, for the purposes of the present application, on matters and on documents which were disclosed in the action but which have not yet found their way into the defendants’ statement of case. (I will refer to them in due course.) There is also pleaded a defence of Reynolds-type qualified privilege, but for present purposes nothing turns on that.

[12]The Reply served on behalf of the claimants sets out, at paragraph 2, what they say was their relationship at the material time, it being accepted that they now cohabit as partners in a sexual relationship and are intending to get married. It will suffice if I paraphrase what is set out in the Reply. It is pleaded that during a beach party on 24th November 2001 the claimants spent most of the time in each other’s company, but there was no sexual contact between them. It is then said that the friendship between the claimants became an emotional one on or around 26th November, but again at this stage there was no sexual relationship between them. Following the claimants’ return to the UK, it is pleaded that at a meeting with Major Fenson, the Commanding Officer, he enquired about a rumour that the claimants had had sexual relations together, but the first claimant, Miss Pedder, said that such a rumour was untrue. On 3rd, 4th and 5th December 2001 the claimants discussed their future and decided to leave their spouses and enter into a relationship together. Sexual intercourse took place for the first time over the weekend of 15th/16th December 2001.

[13]Such are the statements of cases in the action. The trial is due to take place at the end of June 2003. The present application comes very late in the day, but if the ground of either limb of the application is made out the action must be struck out, notwithstanding the lateness of the application.

[14]Miss Page referred me to the notes in the White Book to CPR 3.4 and 24. She places reliance, in particular, on two authorities, Wallis v Valentine [2003] EMLR 175, and Schellenberg v BBC [2000] EMLR 296, to which authorities I will return. The defendants’ primary contention is that even if this case is taken at its highest from the point of view of the claimants, the claim should be struck out, either on the basis that there is no real prospect that the action will succeed as to liability, or because the claimants have no real prospect of obtaining either an injunction or anything more than nominal damages. It is submitted that the game is not worth the candle.

[15]In the alternative, the defendants contend that they can satisfy the limited burden of proof which lies on them under CPR Part 24, but that the claimants cannot discharge the burden which, according to the notes in the White Book at page 493, lies upon them to show that their case carries some degree of conviction. The court can and should dismiss the claim on the ground that no reasonable jury, considering the claimants’ evidence, would accept it.

[16]Finally, the defendants argue that even if, contrary to their primary contention, the claim is not otherwise doomed to failure on its merits, it should nevertheless be struck out as an abuse of the process, as happened in the case of Schellenberg. In this connection, the defendants rely strongly on the findings of the Army Board of Enquiry about which it is suggested the jury would be bound to learn in the course of any trial.

[17]Miss Page’s skeleton argument runs to 19 pages and deals with the facts of the case in considerable detail. I hope I do no injustice to the defendants’ argument if I summarise the points made as follows. First, it is said that it is apparent from the documents which have subsequently come to light and from statements subsequently made that Miss Pedder was lacking in candour in her answers to questions asked of her by her commanding officer on 30th November 2001 about rumours of her relationship with Sergeant Dummer. Next, the defendants draw attention to the letter which Miss Pedder wrote to her commanding officer on 5th December 2000, the opening paragraph of which reads:

“I regret to inform you that I must offer the resignation of my commission. The reason for this is that I have fallen short of the standards of behaviour required of me as an officer, in that I have conducted a brief affair with a soldier inside my chain of command. My marriage is effectively over, and I will deal with this in my own way.”

Reliance is also placed on a similar admission of a brief affair made in a letter drafted by Miss Pedder but signed by Sergeant Dummer, also dated 5th December 2000. Those letters are said to be tantamount to admissions of the truth of the sting of the newspaper articles. Reliance is also placed on the answers given by the claimants about those letters when they were cross-examined in the course of the Army Board enquiry, when the claimants are said to have sought to resile from the admissions which they had made. Finally, the defendants point out that the claimants accept that having returned to the United Kingdom, they had sexual intercourse whilst both of them were still married. In those circumstances, it is submitted that the prospect of the jury awarding any significant damages is non-existent. Reliance is also placed on a similar admission of a brief affair made in a letter drafted by Miss Pedder but signed by Sergeant Dummer, also dated 5th December 2000. Those letters are said to be tantamount to admissions of the truth of the sting of the newspaper articles. Reliance is also placed on the answers given by the claimants about those letters when they were cross-examined in the course of the Army Board enquiry, when the claimants are said to have sought to resile from the admissions which they had made. Finally, the defendants point out that the claimants accept that having returned to the United Kingdom, they had sexual intercourse whilst both of them were still married. In those circumstances, it is submitted that the prospect of the jury awarding any significant damages is non-existent.

[18]In relation to the Evening Standard article, the defendants say that the statements in the article were true, in that Miss Pedder was facing the sack amid claims that she had an affair with Sergeant Dummer during a desert training exercise; Miss Pedder and Sergeant Dummer admitted to an affair to their superiors; and Miss Pedder and Sergeant Dummer told their respective spouses that their marriages were over. The defendants further say that it is correct that both the claimants claim that their relationship began after their return to Britain, but there were contrary claims from colleagues.

[19]As to the Daily Mail article, the defendants point out that the sub-headline, “Woman Captain admits affair with married junior on war exercise” was correct. The defendants say they reported correctly the confession made by Miss Pedder to her commanding officer on her return to Britain. The Daily Mail article is correct also in saying that the claimants told senior officers that their physical relationship only began after they returned to Britain, but that there were contradictory accounts from others about when the physical relationship began. The article was also correct, say the defendants, in stating that Miss Pedder faced being thrown out of the Army and that both claimants could lose their jobs.

[20]Reliance is also placed by the defendants on the proceedings brought against the claimants before the Army Board of Enquiry. The outcome of that enquiry was that it was determined by the Board that:

“On the balance of probabilities our conclusions are as follows. (a) An inappropriate relationship had developed between Captain Pedder, the 2IC of her unit, and a staff sergeant directly under her command, while on exercise in Oman commencing on or around 24th November 2001. (b) This relationship included acts of intimacy. An example is afforded by the evidence given by Signalman Choudray, which also demonstrated in our view that the relationship was not entirely conducted discretely.”

In a paragraph dealing with operational effectiveness, the Board expressed disappointment at what were considered to be the attempts to resile from the original clear admissions made by both claimants. The Board stated that the attempts to dissemble and camouflage the truth reflect greatly to the claimants’ discredit. In a paragraph dealing with operational effectiveness, the Board expressed disappointment at what were considered to be the attempts to resile from the original clear admissions made by both claimants. The Board stated that the attempts to dissemble and camouflage the truth reflect greatly to the claimants’ discredit.

[21]Miss Page accepts that the defendants cannot rely on those findings in support of the defendants’ plea of justification, although she contends that the findings would be admissible and damaging to the claimants on the issue of damages if it were to arise.

[22]For the claimants, Mr Mackenzie submits that if the Galbraith test of asking whether a jury, properly directed, could properly conclude the issue of liability in favour of the claimants, the answer would be affirmative. The same, he submits, applies to the issue whether the claimants were entitled to more than nominal damages. As to the articles themselves, the claimants’ case is that the references in that context to an “affair” can only mean that there was a sexual relationship between them whilst they were in Oman. The claimants underline the numerous references in both articles to the fact that the alleged affair took place whilst the two of them were participating in a major Army exercise. An important aspect of the defamatory sting alleged by the claimants is that to embark on such an affair in such circumstances is particularly irresponsible. The articles, it is said, are an attack on the claimants’ professional integrity.

[23]As to the Army Board of Enquiry, it is submitted that its findings would not be admissible at all at the trial. Use could, it is conceded, be made in cross-examination of the answers given by the claimants, but those answers must be considered in the light of what are said by Mr Mackenzie to be the deficiencies and unfairness in the way in which the enquiry was conducted.

[24]I am now in a position to state my conclusions, starting with the law which is applicable on applications on this kind. As regards the application to strike out on the ground that the claim has no real prospect of success and the alternative submission that there should be summary judgment for the defendants, it was at one time thought that such powers would not ordinarily be available in cases such as the present, where the trial will be with a jury -- see Safeway Stores plc v. Tate [2001] EMLR 13. This notion was effectively scotched by the Court of Appeal in Alexander v. Arts Council of Wales [2001] EMLR 27, in which case May LJ said at paragraph 37:

“There is of course a variety of possible circumstances in libel cases in which issues of law may arise for decision by the judge. In so far as questions of this kind properly depend on an evaluation of evidence so as to determine material questions of disputed fact, these are matters for the jury. But, as Mr Milmo accepted in the present appeal, it is open to the judge in a libel case to come to the conclusion that the evidence, taken at its highest, is such that a jury properly directed could not properly reach a necessary factual conclusion. In those circumstance, it is the judge’s duty, upon a submission being made to him, to withdraw that issue from the jury. This is the test applied in criminal jury trials (see R v. Galbraith [1981] 1WLR 1039 at 1042C). In my view, it applies equally in libel actions. It is in substance the test which the judge set himself to apply in the present case.”

[25]That the power to give summary judgment or to strike out in a libel case to be heard with a jury should be sparingly exercised is, to my mind, illustrated by Wallis v. Valentine. That was a claim where there was an issue as to the extent of the publication of the libel. The evidence on that issue for the defendants was overwhelming. The Court of Appeal upheld the decision of the judge to rule that such publication had not taken place, stressing that in a defamation case, where the claimant had a right to trial by jury, the court could only give summary judgment under Rule 24 if there was no evidence fit to be left to a jury on the essential issue. If there was some evidence which the jury might properly accept, then the court ought not to give summary judgment. In other words, the test to be applied is the Galbraith test.

[26]In this connection I note that in Spencer v. Sillitoe, to which Miss Page made passing reference in the course of her submissions, the Court of Appeal underlined the limited entitlement of the judge to encroach upon areas which fall for decision by the jury. At paragraph 26 of his judgment in that case Buxton LJ said:

“I should add as a footnote that we were shown the decision of this court in Wallis v Valentine…which cited, with approval, some observations of Eady J in Schellenberg v BBC…set out in paragraph 32 of Wallis v Valentine, which I do not need to read. Those observations were, however, addressed to a case of abuse of process, which is not alleged in this case. What is, if I may say so, those statements’ robust approach to issues that properly fall to the judge do not give the judge licence, whether before or after the Civil Procedure Rules, to enter into areas which are properly those of a jury: as indeed Sir Murray Stuart Smith, who gave the judgment in that case, emphasised in the next paragraph of it, paragraph 33.”

I note that in the same case Simon Brown LJ agreed that the case should go to the jury, although he considered the claimant’s case to be “singularly unconvincing”. He thought that the claimant should have the chance of persuading a jury, albeit against all the odds, of the truth of his case. I note that in the same case Simon Brown LJ agreed that the case should go to the jury, although he considered the claimant’s case to be “singularly unconvincing”. He thought that the claimant should have the chance of persuading a jury, albeit against all the odds, of the truth of his case.

[27]A further point which appears to me to emerge from Spencer v Sillitoe is this. In the passage already cited from the judgment of Buxton LJ, he endorses the approach adopted by Eady J in Schellenberg to the defendant’s argument that the claim should be struck out as an abuse of the process. But as I read his judgment he cautions against the adoption of so robust an approach on an application in a jury action either to strike out on the ground that the claimant has no real prospect of success or for summary judgment.

[28]In these circumstances, it seems to me that in actions which are due to be tried with a jury, the notes to CPR 3.4 and 24.2, to which Miss Page referred me in the course of argument, have to be read with it well in mind that the scope for interlocutory judicial intervention is markedly more limited in cases due to be heard with a jury. The notes which appear at 24.4.4 under the rubric “No other compelling reason for a trial” are very much in point.

[29]As to the defendants’ alternative ground of application, namely that the action should be struck out as an abuse of the process, they rely heavily, as I have already indicated, on the case of Schellenberg. Eady J said in that case at pages 321 to 322:

“Counsel for the defendant submits that I should not look at the earlier proceedings and the outcome in too technical a fashion. He says that although there was no determination, the situation is now, to all intents and purposes, as though there had been. Mr Schellenberg was doing no more than graciously conceding defeat and saving everyone time and money. In paragraph 9 of his witness statement he recognised in effect that he was likely to lose on the plea of justification and fair comment given the judge’s various interventions, but particularly that of May 14th, which I have already read. It is necessary to look at the claimant’s own meaning (d) in the Times action, which I also read, relating to the cars. As I have indicated, it seems to me to be clear that that is one of the matters which Mr Schellenberg abandoned when he settled the proceedings effectively against both the Guardian and the Times. That is the reality of the situation. The principle is that all disputes should be brought into one piece of litigation so far as they can, and not be left to be dealt with in serial court hearings.”

That approach was, as has appeared, commended in Wallis v. Valentine.

[30]It is a trite observation that the question of whether or not a particular case can be regarded as an abuse of process is acutely fact-sensitive. Abuse may take many forms. In cases such as the present, where it cannot be said that the doctrine of res judicata or even issue estoppel applies, the words of Sir David Cairns in Bragg v. Oceanus Mutual [1982] 2LlR 132 at 138 are in point:

“I consider that it is for him who contends that the retrial of the issue is an abuse of process to show some special reason why it is so. Since the cases in which the retrial of an issue in the absence of an estoppel has been disallowed as an abuse of process are so few in number, it would be dangerous to attempt to define fully what are the circumstances which should lead to a finding of abuse of process. Features tending that way clearly include the fact that the first trial was before the most appropriate tribunal or between the most appropriate parties for the determination of the issue, or that the purpose of the attempt to have it retried is not the genuine purpose of obtaining the relief sought in the second action, but some collateral purpose. It would, in my judgment, be a most exceptional course to strike out the whole or part of a defence in a commercial action, or to refuse leave to amend a defence in such an action simply because the issue raised or sought to be raised had been decided in another commercial action brought against the same defendant by a different plaintiff.”

[31]The defendants invite me to follow the course taken by Eady J in Schellenberg. In considering that invitation I have to bear in mind the special circumstances which obtained in that case. The claimant had previously brought another libel action against different defendants, but in relation to broadly the same subject matter. After that action had proceeded at trial for three weeks, and the trial judge had made clear in the absence of the jury his unfavourable view of the merits of the claim, the claimant settled the action on terms which were highly unfavourable. The defendants sought to dismiss the second action as an abuse of process. As Eady J put it:

“Against that background, the pursuit of the present action in the hope of salvaging something from the disastrous outcome of the previous action can, in my judgment, be characterised as a desperate exercise in damage limitation.”

It was in those circumstances that the learned judge made the remarks earlier quoted, to the effect that he felt justified in striking out that action as an abuse of process. I say no more about the law. It was in those circumstances that the learned judge made the remarks earlier quoted, to the effect that he felt justified in striking out that action as an abuse of process. I say no more about the law.

[32]It is convenient to consider, first, the overlapping questions whether the statement of the claimants’ case discloses reasonable grounds for bringing the claim and whether the claimants have a real prospect of succeeding in the action.

[33]The first issue which would arise at trial is whether the claimants have a real, as opposed to a fanciful, prospect of establishing the meanings on which they rely, as set out earlier in this judgment. That depends largely in relation to both articles on what the jury might consider to be the connotation of the word “affair” when used in articles such as those published in the Evening Standard and the Daily Mail. As to this, I will say no more than that I am satisfied that the claimants do have a real prospect of establishing the meanings for which they contend.

[34]Before passing from the issue of meaning, I should add that I also accept that the claimants have a real prospect of establishing at trial the meaning that the illicit and improper sexual relationship took place in circumstances where both claimants were engaged upon an important Army exercise in Oman. The timing of the relationship might not unreasonably appear to the jury to be a material part of the sting of what was published about them by the defendants. I further take the view that the claimants have a reasonable prospect of establishing that both articles bore the further meaning that they had lied to senior officers about the time when the sexual relationship started -- see paragraph 8 of the Evening Standard article, and paragraphs 8 and 9 of the Daily Mail article.

[35]The next live issue for the jury if the matter were to go to trial would be whether the claimants have a real prospect of defeating the plea of justification. I have set out at some length earlier in this judgment the various matters relied on by the defendants in support of their contention that the claimants’ claims to have been libelled are wholly lacking in merit. Given the possible imminence of the trial of this or another related action, it would not be right for me to engage in an elaborate analysis of the merits or otherwise of the plea of justification. Suffice it to say that it appears to me, applying the Galbraith test, that a properly directed jury could, not unreasonably, reject the defence of justification. I accept that the defendants do have some formidable points to make on the facts, such as the evidence of Signalman Choudray, the terms of the claimants’ letters of 5th May to Major Fenson, the answers given by the claimants in the course of their evidence to the Army Board of Enquiry, and so on. But I cannot say that a jury would be unreasonable to accept the claimants’ explanations of those and other points. The jury might, not unreasonably, take the view that there is a material difference between an affair between soldiers in the same chain of command during a serious military exercise and an affair after their return to the United Kingdom, when they had been transferred to separate units and when one of the claimants appears to have accepted that her career in the Army was effectively over. Moreover, if the jury accept that the sexual relationship did not start until after the claimants’ return to the United Kingdom, there would appear to be no answer to the complaint that the articles accused the claimants of mendacity on that point.

[36]I come finally to the issue of damages. I accept the proposition that if I were to take the view that no jury, properly directed, could award more than nominal damages, it might well be appropriate to strike out the claim and/or to enter summary judgment for the defendants. But that is not my view in the circumstances of this case. If the jury were to find in favour of the claimants on meaning and justification, as I consider a jury reasonably might find, then it appears to me to be open to a reasonable jury, properly directed, to award more than nominal damages against the newspaper. I cannot accept the defendants’ contention that the finding of the Army Board effectively rules out any significant award of damages. It is a moot point whether the Board’s findings would be admissible on the issue of damages. I put it this way, because Miss Page has urged me not to make any finding on the point and I do not do so. Even if the findings were to be held to be admissible, it has to be borne in mind that the hearing took place in private and in circumstances of confidentiality, and the findings have received virtually no publicity. Moreover, the jury might be impressed with the criticisms which Mr Mackenzie has had to make of the procedures adopted by the Board and the matters to which the Board paid regard in arriving at its conclusions

[37]For these reasons, I do not accept that this is a case where I should strike out the claim on the ground that the statement of case discloses no real prospect of success for the claim, nor is it in my judgment a case where I should enter summary judgment for the defendants.

[38]There remains to be considered the defendants’ contention that the claim should be struck out as an abuse of the process. The cornerstone of that contention is the conclusion of the Army Board of Enquiry, which I have already quoted. It is not of course suggested that it gives rise to any form of estoppel. Nor is it claimed that there is any collateral objective or motive underlying the bringing of these proceedings. Reliance is, as I have said, placed on Schellenberg. But it will be readily apparent from my earlier summary of the facts of that case how far removed it is from the facts of the present case. There has here been no prior litigation. It cannot be said of these claimants that they are engaged in an exercise of damage limitation. As I have found, there is a real prospect of the recovery of more than nominal damages. In those circumstances, I am not satisfied that the prosecution of this claim amounts to an abuse of the process. I decline to strike out the claim on that ground.