Sarayiah v Suren & Anor [2004] EWHC 1981 (QB)

[2004] EWHC 1981 (QB)Case No HQ02X02863
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10 September 2004
Before
THE HONOURABLE MR JUSTICE TUGENDHAT
Between
ISAAC SARAYIAHClaimant(2) CLEMENCY WILLSON – FRASERDefendants(3) ANDREW FOSTERDefendant(4|) DEBORAH ANN SHEWELLDefendant(5) RDF MEDIA LIMITEDDefendant
Isaac Sarayiah Litigant in Person for in personMr Adam Wolanski (instructed by Wedlake Bell) for 4 th and 5 th DefendantsMr James Bailey (instructed by Messrs Nelsons) for 3 rd DefendantHearing Hearing dates: 29 th July 2004
JudgmentMr Justice Tugendhat :
[1]This is a slander action of some complexity which has been before the court on a number of occasions and in respect of which other related proceedings have also been before courts on a number of occasions.[2]Today there are listed before me the following applications. For the most part they arise out of an order of Roderick Evans J. dated 19th December 2003. This was made on an application by the Claimant without notice under CPR part 19. Roderick Evans J ordered the joinder of the fourth and fifth Defendants together with the joinder of the third Defendant.[3]I shall list the applications before me in date order. i) On 9th March 2004 the fourth Defendant, represented by Messrs Wedlake Bell and now by Mr Adam Wolanski of counsel, applied for an order that the order of Roderick Evans J. dated the 19th December 2003 be varied to remove references to the fourth Defendant and that service of the amended claim form and amended particulars of claim on the fourth Defendants be set aside and that judgment be entered for the fourth Defendant. The grounds relied on are that the proceedings against the fourth Defendant were issued against her outside the limitation period and it is not necessary for her to be joined as a party to enable the Claimant to properly continue his claim against the original Defendant. This application also includes an application for an order that time be extended for the fourth Defendants to apply for this variation. ii) On the 15th March 2004 the fifth Defendant represented by Messrs Goodman Derrick and now represented by Mr Wolanski of counsel make applications in terms similar to those made by the fourth Defendant and for the same reasons. Mr Gardner’s witness statement in support, dated 8th March 2004, makes clear that his client’s applications were originally framed under CPR rule 23.10. But the fourth and fifth Defendants have since made it known that they would seek to rely on the other provisions of the CPR referred to in the third Defendant’s application, and the Claimant not objecting to this, I allowed them to do so. iii) On 23rd April 2004 the third Defendant represented by Messrs Nelsons and now by Mr Bailey of counsel gave notice of an application for an order that(1) pursuant to CPR rule 13.3 judgment in default against the third defendant be set aside and(2) pursuant to CPR rule 40.9 and CPR rule 3.1 (2), CPR rule 23.10, CPR rule 52.10 and/or rule CPR rule 52.10 and /or rule 52.17, the order of Roderick Evans J dated 19th December 2003 be varied such that the third Defendant (i) is not made a party to the proceedings and (ii) the Claimant is debarred from issuing a fresh claim in respect of the same matter or (iii) in the alternative to (ii) that the claim against the third Defendant be stayed. The grounds relied on are (1) The third Defendant has a real prospect of successfully defending the claim and has made the application promptly in the light of a recent personal tragedy; (2) it was not “necessary” as defined in CPR rule 19.5(3) for the third Defendant to be joined to the proceedings;(3) the claim has already been stayed as against the first, second, third, fourth and fifth Defendants ‘pending the outcome of criminal proceedings against the Claimant’ (I pause to note that the stay ordered by Master Whittaker on 29th March 2004 is in fact a general stay). It is to be noted that this application refers to a number of specific provisions of the CPR. iv) On 22nd July 2004 the Claimant who appears in person gave notice of an intention to apply for an order that the third Defendant make a payment into court of an amount to be decided by the Court in accordance with the overriding principles, CPR 3.1(5) and/or CPR 3.1(3) within 28 days. The ground that he relies on for this is that the third Defendant failed to comply with the pre-action protocol sent in July 2003, and other procedural requirements detailed below. v) Both the Claimant and the three new Defendants referred in their skeleton arguments to s32A of the Limitation Act 1980 (which provides for discretionary exclusion of time limits for actions in defamation). During the course of the hearing all these parties acceded to my invitation to treat the hearing as including an application by the Claimant under that section. vi) Further, I should mention that on 26th March 2004 the Claimant in the slander proceedings issued separate proceedings by way of a Part 8 claim form in which he applies for an injunction restraining Messrs Goodman Derrick from representing any party in this slander claim or connected claims on the grounds that there is a conflict of interest and they are, so it is said, in possession of confidential information and owe a duty of confidentiality to the Claimant who provided this information relating to him and the defamation proceedings with a view to obtaining representation by them. The Claimant asked me to hear the Part 8 Application first and in private, as it deals with confidential information. However, having read the papers I find that there are conflicts of evidence, which I could not resolve on the papers, and that the matter is not ready to be resolved at the same time as the other applications. In addition it is accepted by all parties that there is nothing in the Part 8 claim which suggests that Goodman Derrick ought not to act for the fifth Defendant in relation to the applications, which I have listed above. Accordingly I have not heard the Part 8 claim.[4]I have not heard argument on the third Defendant’s application that the Claimant be debarred from issuing a fresh claim in respect of the same matter as those other applications. I have indicated that I would hear any application in relation to that after giving my judgment in relation to the other matters.[5]The argument on the applications, which I did hear, lasted a whole day. I first heard the application of the third Defendant to set aside the judgment in default against him. At the end of that argument I indicated that I would make an order setting aside the judgment in default and that I would give my reasons later, which I shall do in this judgment. Next I heard the applications of the third, fourth and fifth Defendants to vary the order of Roderick Evans J. dated 19th December 2003, by which they were joined as parties to the slander action. Having heard those applications and the associated application for an extension of time on behalf of the fourth and fifth Defendants I reserved judgment. Finally I heard the Claimant’s application against the third Defendant for an order that he pay money into court and I reserved judgment on that. The Parties[6]The Claimant in his particulars of claim describes himself as having worked within the media industry in various aspects since January 1999. He says that on the 8th November 2001 he signed a contract with the leading talent and literary agency in Europe The Peters Fraser and Dunlop Group Limited (“PFD”). He says that being represented by this agency was the biggest and most important valuable contract in his career to date and was potentially worth millions of pounds. He says that he had also been in talks with a television production company regarding a show format for several months, and the agency had entered into discussions with them on his behalf in relation to that, as well as discussing other potential work options.[7]The first and second Defendants are young ladies who shared a flat and both of them also worked in the media business. The second Defendant was an employee of the fifth Defendant in a relatively junior capacity and the fourth Defendant was the Head of Drama and an Executive Director of the fifth Defendant. The third Defendant is a friend and a former colleague of the first Defendant.

The Subject of the Slander Proceedings

[8]The slanders complained of essentially relate to the allegations that the Claimant was harassing and stalking the first Defendant. The complaints are made in respect of a number of publications.[9]The first publication complained of is one alleged to have been made on 20th November 2001 at 4 p.m. by the first Defendant to a police constable at Hammersmith Police Station in which she is alleged to have spoken and published the following words and I set them out as they are pleaded in para 3 of the particulars of claim as follows: “We [the Claimant and I] met in a bar in Central London on [1st July 1998] and spent the night together and the next day I left. The Claimant asked for my mobile number, but I refused, as I wanted no more contact with the suspect but [the Claimant] gained my mobile number without my permission and has been contacting me since [1st July 1998] on numerous occasions on my mobile phone in the form of voice messages and texting. This has been happening now for the past three years and there is no set pattern and on occasion there has been a break of up to two weeks, but I am contacted about four times a day. On one call he [the Claimant] stated that he was determined to marry me on 10th December 2001. He also requests to meet me and says he loves me. The content of the calls are upsetting and on occasions I have spoken to him [the Claimant] asking him to leave me alone, but he appears not to hear me and continues to talk. He has also attended my workplace and posed as a member of my family to see me and has sent me flowers via my work address and a love contract and a love flow chart which always ends in him marrying me. I work in the Film Industry and he has been attempting to gain entry to parties that I will attend. Also when talking to him [the Claimant] he appears to believe that he is now involved in the Film Industry and one day we will work together. I have had to move address three times in the last three years”.[10]There follows paragraph 4, in which each of a number of extracts from the words set out above is commented upon by the Claimant. In general terms he states that he and the first Defendant did meet in a bar or pub in Central London in 1998. He says she gave him her mobile number voluntarily. He says that she promised:
“at least five or six times during the time that they were together prior to leaving to go to a hotel to spend the night together that she would see him again.”
He says:
“this was a stipulation made by the Claimant for them spending the night together otherwise the Claimant would have walked away. ”
The Claimant alleges that the first Defendant gave her consent for him to call her, and to accompany him to a party. He says that there is no dispute that he has contacted her via text messages and phone calls although he denies that it amounts to harassment. He claims that he never said anything about marrying her, but on the contrary it was the first Defendant who was thinking and talking about marriage on the morning after, as, so he says, “her emotions and feelings got the better of her - much to the shock (and amusement) of the Claimant!” He says that he has never knowingly done or said anything to cause the first Defendant harm or distress, with the possible exclusion of this litigation, which, he says:
“is necessary to prevent the first Defendant and her friends from continuing to destroy his life even though the Claimant has tried every avenue to resolve this problem with [the first Defendant] before finally having to resort to litigation. ”
The Claimant says that he and the first Defendant have spoken happily on a number of occasions and he goes on to say:
“However, on some intermittent occasions, the nature of Miss Suren`s personality lends her to deny everything she has said to the Claimant in the past, take great pleasure in telling the Claimant how much she “hates” him, hurl abuse, tell him never to call or text her again, slam the phone down – sometimes combining a mix of the above in the same conversation! The Claimant, though, has never once reciprocated in this manner towards her (unlike others) despite the enormous emotional distress this fluctuating behaviour causes him”
. He denies that he has ever attended at the first Defendants work or home address or posed as a member of her family or sent anything to her at her work address or sent her any love charts. He says he has attended parties in the media circuit on his own merits.[11]There then follows in paragraph 5 a pleading of the meaning of the words published on the 19th of November 2001 as follows:
“ a) That the Claimant somehow gained Miss Suren`s mobile number and addresses without her consent or knowledge and then has, in effect, harassed Miss Suren [since July 1998] by bombarding her with phone calls and text messages; b) Miss Suren has never responded to these text messages or phone calls by the Claimant except to ask him to leave her alone c) The Claimant is a threat to Miss Suren and has been following [stalking] Miss Suren at her home addresses causing her to change her residential address three times, and in addition, attended her place of work and sent items to that address posing as a member of her family. d) In consequence the Claimant is a seriously disturbed individual has been Harassing and Stalking Miss Suren since [1998].”
[12]The particulars of Claim at paragraph 6 then plead the case against the second Defendant as follows. It is said that on the morning of the 19th November 2001, the day before the allegations were made to the police, the second Defendant published and spoke the following words to Ms Rosemary Scoular who was working for his then agency PFD. The words complained of are as follows: “Ms Wilson – Fraser said she was a friend of Lucienne Suren. Isaacc had got hold of Lucienne`s mobile number after their one date three years ago and was harassing and stalking her by continually texting and calling her, following her, taking photos etc despite Lucienne asking him to piss off. Isaacc had told her [Lucienne Suren] via text that he had an agent and was pestering Lucienne to be a presenter on his show. Had looked at his [the Claimants] website and got hold of the Agencies details. Also found details which were untrue - SW 9 - they had never heard of him and their was no connection between the actress Michelle Collins and EVA 17. Lucienne has gone to the police and if he [the Claimant] does one more contact he will be arrested”.[13]In relation to the words complained of on the 19th November the pleaded meaning is set out in para 8 as follows: “a) Lacked integrity was a liar and a seriously disturbed individual; b) Was harassing Ms Suren by continually texting and calling her; c) Was stalking Ms Suren by following her and taking pictures etc; d) Was a danger and threat to Ms Suren and potentially the public at large; e) Was committing an offence and had, by the words, “Luciennne has gone to the police and if he [the Claimant] does one more contact he will be arrested”, implied in effect that the Claimant had been given a restraining order or equivalent by the police. f) In consequence the Claimant has been harassing and stalking Ms Suren since they met and could not be trusted and should be deemed a threat. As such the Agency should have nothing to do with him”. “Luciennne has gone to the police and if he [the Claimant] does one more contact he will be arrested”, implied in effect that the Claimant had been given a restraining order or equivalent by the police.[14]By amendment there is then introduced the claim against the third Defendant as follows. In paragraph 9 it is pleaded:
“On or around 24th January 2001 the third Defendant had a telephone conversation with the first Defendant in which the first Defendant said words to the effect that the Claimant was a stalker and had been stalking her. Within the context of that conversation the third Defendant had said that a photograph of the first Defendant which had been posted upon a notice board at premises in Derby from which a company called Carlton Television operated (for which company the third Defendant then worked and for which company the first Defendant had worked some six months previously) had been removed whilst the Claimant was on the said premises.”
[15]In relation to these words said to have been spoken by the third Defendant, although their publication is not relied on as founding a cause of action, there is a meaning pleaded in paragraph 10 as follows: “a) The Claimant was dishonest as he took things which did not belong to him and which he should not have (and knew so); and b) His alleged act of appropriation of the said photograph was a further act which compounded the allegation that the Claimant was a stalker by reason of the fact that it revealed a propensity on the part of the Claimant to have things which were redolent of the first Defendant”.[16]By reason of that publication in January 2001 it is, as the Claimant pleads in paragraph 17, his case that the third Defendant:
“ was the cause of and liable for that part of the allegations made by the first Defendant to the second Defendant and thereafter to the fourth Defendant, the fifth Defendant and to the said Miss Scouler (of PFD) as are pleaded in paragraph 9 above”
. In other, words the cause of action against the third Defendant is against him as a person who caused and is therefore liable in law for a re-publication, that is of the words complained of which were spoken on the 19th November 2001 by the second Defendant to Ms Rosemary Scouler, which I have set out above. He says that the words complained of were meant and calculated to disparage the Claimant in his profession and business and also that they imputed to him the criminal offences of harassment stalking and theft. He says that on a time and at a date of which he is uncertain but after 24th January and before the 19th November the first Defendant repeated the allegations concerning the appropriation of the photograph to the second Defendant.[17]The case as against the fourth and fifth Defendant is pleaded as follows in paragraph 13. It is said that:
“On the morning of 19th November 2001 before the second Defendant published the allegations (as set out in para 6 above) to PFD she first published them or the substance of them orally to the fifth Defendant, through the fourth Defendant in her capacity as the director of the fifth Defendant. Upon hearing of the allegations against the Claimant the fifth Defendant (through the fourth Defendant) authorised the second Defendant to inform PFD of the allegations as set out in para 6 above (the individual at PFD being one Ms Scoular - the Claimant’s agent). ”
[18]In paragraph 15 it is alleged that all but the third Defendant acted together pursuant to a common design and as such are jointly liable for the matters in respect of which complaint is made in paragraph 6 of the particulars of claim namely the publication on the morning of 19th November 2001. It is said that the fifth Defendant is liable for the acts of the second Defendant by reason of the authority given to her through the fourth Defendant and that the fourth Defendant is liable jointly with the fifth Defendant as a principal director thereof with executive authority. It is said that in furtherance of the common design the fourth Defendant acting with the authority of the fifth Defendant telephoned PFD on 19th November 2001, but before the allegations set out in paragraph 6 above were made to PFD, in order to assure it that the second Defendant was about to make an allegation in that she the second Defendant was credible and ought to be believed.[19]The Claimant alleges in paragraph 19 that the allegations resulted in the immediate termination of the Claimant`s highly valuable and important contract with PFD. He says his career was destroyed. He claims aggravated and exemplary damages. He claims as consequences of the publication damage in the form of his having to endure investigation by the police and, following more recent allegations by the first Defendant to the police, his arrest and charge by the police. He says that he has suffered hurt and embarrassment being placed in an impossible position within the industry finding doors now firmly shut to him due to the taint and suspicion raised by these allegations. As a consequence he says that his exciting and potentially highly lucrative projects have been stalled and he has been unable to earn a living. “ His focus has had to be diverted into clearing his name and reputation.” He says that this process has included litigation against PFD and against the Metropolitan Police, both in order to try and get information necessary to commence proceedings against the Defendants. In addition to special aggravated and exemplary damages he also claims an injunction. Procedural Background[20]The action has a long history. The proceedings were initially instituted in the West London County Court on 9th May 2002. On 19th May the proceedings were stayed on the ground that that court had no jurisdiction to hear defamation claims and on 29th August the claim was transferred to the High Court. On 1st November 2002 it was ordered that time for the service of the claim form be extended to the 30th December 2002 and on 9th December 2002 a further extension of time for service was granted until 29th March 2003. On 20th March the Claimant applied for the second Defendant to be added as a Defendant which order was made on the 21st March by Master Whittaker. There is an outstanding application for disclosure by way of a Norwich Pharmacal Order initially made on 1st July 2003 the hearing for which has not yet been fixed.[21]By an application notice dated 12th August 2003 the Claimant applied to join the fourth Defendant pursuant to CPR 19.5 and other provisions. And at a date which has not been identified but prior to 14th October 2003 the Claimant also made an application to join the third Defendant and the fifth Defendant. These applications were heard by Master Hoffman on 14th October 2003 and he dismissed them.[22]Although he dismissed the applications, in the order which he drew up, the Master granted Permission to Appeal. There has been some investigation as to whether this was intentional and it appears that it may not have been. But the fact is that that is what the order said. No point is taken on this now by the Defendants, although at one point they were minded to take a point. The matter thus came before Roderick Evans J on 19th December. He allowed the appeal and ordered the third to fifth Defendants to be added as Defendants, ordered the Claimant to serve the amended claim form on the three Defendants and the existing Defendants within 28 days and directed a case management conference. On 26th January Master Whittaker extended time for service on the new Defendants to the 13th February. The claim form is endorsed as having been amended on 10th February pursuant to the order of Roderick Evans J and so I understand it was served on the 11th February 2004.

The Application to set aside Judgment in Default

[23]On 4th March 2004 the Claimant obtained judgment in default against the third Defendant, no acknowledgement of service having been filed. The Master further ordered any necessary directions as to assessment of damages to be given at the case management conference on the 30th April. On the 18th of March by consent it was ordered that the time for service of the fourth and fifth Defendants` Defence be extended until the hearing of their applications to vary the order of Roderick Evans J. On 29th March 2004 Master Whittaker ordered that the case management conference listed 30th April be vacated until the hearing before the judge had taken place and that the claim be stayed against the fourth and fifth Defendants in the meantime. Meanwhile, out of time, the third Defendant had filed a defence, which is dated 14th March and stamped as received on 24th March 2004. The document is drafted by the third Defendant. It is in informal language. The third Defendant says amongst other things that, as a friend of the first Defendant, he felt that it was natural for him to relate the coincidence of the photograph disappearing at a time around which the Claimant had been on the premises, especially as the third Defendant had been with the first Defendant when she had received telephone calls and text messages from the Claimant which had caused her much distress.[24]Having obtained his judgment in default on 30th March 2004, the Claimant made an application for an order that a final injunction be granted against the third Defendant with final damages to be assessed by a jury. The grounds for the application were that the order was necessary for the protection of his interests and livelihood. That application came before Gray J. On 7th April, having heard the Claimant in person and having heard counsel for the third Defendant, Gray J ordered that the application be dismissed and that the Claimant pay the third Defendant`s costs. These were summarily assessed in the sum of £2,500 but such a payment was not to be made until the determination of the proceedings against the third Defendant. Gray J refused permission to appeal giving as the reason:
“No real prospect of success for an appeal against the finding that no reasonable apprehension of repetition so as to entitle the Claimant to an injunction”
. On 22nd July 2004 Brooke LJ made an order that the Claimant`s application for permission to appeal from the order of Gray J be adjourned to the first open day on or after 1st October, reserved to himself. A date has been fixed for the Civil Appeals Office for 4th October.[25]On the assumption that service was effected on the third Defendant on, at the latest 12th February, the deadline for acknowledgement of service would have been 26th February. That for service of the Defence would have been 11th March.[26]The provision of the CPR relating to setting aside judgments such as that obtained by the Claimant are set out in CPR 13.3 which reads as follows and I quote: “(1) … the court may set aside or vary a judgment under Part 12 if:(a) the Defendant has a real prospect of successfully defending the claim; or(b) it appears to the court that there is some other good reason why (i) the judgment should be set aside or varied; or (ii) the defendant should be allowed to defend the claim. (2) In considering whether to set aside a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly”. (a) the Defendant has a real prospect of successfully defending the claim; or (b) it appears to the court that there is some other good reason why (i) the judgment should be set aside or varied; or (ii) the defendant should be allowed to defend the claim.[27]In his witness statement in support of his application to set aside judgment, which is dated 26th April 2004, the third Defendant gives an explanation for the delay. He says that at this time his wife was 20 weeks pregnant and she and he were very busy working towards finishing their respective jobs that had kept them away from home and each other. Tragically on 22nd February the third Defendant’s wife suffered pains, was taken to hospital and lost her baby. They were both naturally devastated by this, and the third Defendant was not in a mental state to deal with the claim again for some weeks. He said that he hoped that the hand written defence and acknowledgment of service (which I have referred to above) would be sufficient for the court, and give him time to deal with his personal loss before he had to do anything else. He said that he then received the paper work from the Claimant on Friday 2nd April, referring to the application for the injunction, and then realised that his defence had been filed too late and he would need legal advice. He then approached a couple of firms of solicitors to help, but unfortunately the first one could not help. Ultimately he contacted his present solicitors Messrs Nelsons on 5th April and arranged an appointment to see them that day because of his concern at the hearing listed for 7th April.[28]On 8th April the Claimant wrote to the third Defendant’s solicitors, saying amongst other things that he would expect evidence to be attached to any application made by the third Defendant: “including external medical evidence in accordance with what you are claiming”.[29]The letter then went on to point out that the third Defendant was being sued for the re-publication of his comments and not on the original publication, which was pleaded for background only. The letter went on: “thirdly I would advise your client from filing a false witness in any event in order to try and justify his actions or lack of them and it is my intention to have Pamela Foster summoned to testify in these proceeding should I deem it necessary”.[30]In the hearing before me the Claimant expressed his sympathy to Mr and Mrs Foster for the loss they had suffered. However, he went on to point out that the loss of her baby could only explain the delay after 22nd February. The Claimant also pointed out to me a number of letters and other documents, which he said, showed that the third Defendant either knew or must be presumed to have known from the first Defendant, his friend, about his (the Claimant’s) intention to join the third Defendant, and that over very many months the third Defendant had done nothing to address the Claimant`s concerns. It seems to me that I must confine myself, for the purposes of this part of the application, for the most part to focusing on the period of delay after service of the proceedings on or about the 11th or12th February.[31]Clearly there is some lack of promptness up to and including Friday 20th February, but time had not by then expired. Thereafter, clearly no criticism can be made of the third Defendant. I do not refuse to set aside judgment on the ground of any delay on behalf of the third Defendant. So I turn to consider the question whether the third Defendant has any real prospect of successfully defending the claim or whether there is any other good reason why judgment should be set aside.[32]It has to be noted that, whether or not I set aside judgement against the third Defendant, the action remains alive (subject to the stay) against at least the first and second Defendants, and, subject to my decision on the joinder point, possibly against the fourth and fifth Defendants. It would clearly be unfortunate that a possibility should arise that there might be a judgment for any of the remaining Defendants in the Claimant’s claim against any of them, in circumstances which might appear inconsistent with the judgment in default against the third Defendant. That would be a good reason why the judgment should be set aside, if those other Defendants have a reasonable prospect of success. But this is not relied on by Mr Bailey as a separate point, because it is linked to the third Defendant’s prospects of success to which I now turn.[33]Mr Bailey on behalf of the third defendant submits that the third defendant has a good prospect of success on three grounds. First he says that there is an argument on limitation. The limitation period for a claim in defamation is 12 months, under the Limitation Act 1980 s4A. The statement allegedly made by the third defendant is pleaded as having been made on about 24th of January 2001, and the alleged repetition, which is the basis of the cause of action, took place on the 19th of November 2001.[34]The claim was issued against the first Defendant on the 9th of May 2002 but by the time of the application to join the third Defendant and the ruling of Roderick Evans J more than one year had passed. Mr. Bailey accepts that unless I set aside the order of Roderick Evans J that Mr. Foster be joined as the third Defendant, this argument will be concluded against him. By s.35 (1)(b) of the Limitation Act 1980 a claim involving the addition of a new party pursuant to that section is deemed to have been commenced on the same date as the original action. So this point really arises in relation to his application to set aside the joinder. I shall consider it in that context.[35]The second point made by Mr. Bailey is that, the claimant having made clear (as I have cited from his letter of the 8th of April) that he relies on the republication on the 19th November 2001, it is a matter of fact whether the third defendant is liable for the republication, that being a matter which would normally be decided by a jury. Mr. Bailey submits that the third defendant can only be liable for a republication of a defamatory matter where there was a legal or moral obligation on the part of the first defendant to repeat what he had said to her or alternatively that repetition was a natural consequence of the original publication. Mr. Bailey submits there was certainly no legal or moral obligation on the part of the first defendant to repeat that and he says that it cannot be said that the repetition was a natural consequence of the original statement.[36]The claimant on the other hand relies on McManus v Beckham [2002] EWCA Civ 939. As a matter of fact, of course, statements made by Mrs Beckham in a shop are made in a somewhat different context from statements made by the third defendant in private to a personal friend. But the principles of law are of general application.[37]At paragraph 34 of the judgment Waller LJ says as follows:
“What the law is trying to achieve in this area is a just and reasonable result by reference to the position of a reasonable person in the position of the defendant. If a defendant is actually aware (1) that what she says or does is likely to be reported, and (2) that if she slanders someone that slander is likely to be repeated in whole or in part, there is no injustice in her being held responsible for the damage that the slander causes via that publication. I would suggest further that if a jury were to conclude that a reasonable person in the position of the defendant should have appreciated that there was a significant risk that what she said would be repeated in whole or in part in the press and that that would increase the damage caused by the slander, it is not unjust that the defendant should be liable for it. Thus I would suggest a direction along the above lines rather than by reference to ‘foreseeability’.”
[38]Clarke LJ agreed both with Waller LJ and with Laws LJ. Laws LJ concluded as follows: “43. It will not however in my judgment be enough to show that D’s slander is a cause of X’s further publication: for such a cause might exist although D could have no reason to know of it; and then to hold D responsible would not be just. This is why the old formulae, “natural and probable cause,” is inapt even as a figurative description of the relationship that needs to be shown between D’s slander and the further publication D is to be held liable for the latter. It must rather be demonstrated that D foresaw that further publication would probably take place, or that D (or a reasonable person in D’s position) should have so foreseen and that in consequence increased damage to C ‘would ensue’.[44]Such an approach, I hope, may go some modest distance to demythologise the law of defamation. I make it clear that I intend what I had said to be in conformity with Waller LJ’s suggestion at the end of his judgment as to how a jury might be directed, though with difference to him I think that any avoidance of the term “foreseeability” is commended by the need for clarity rather than adherence to principle, for in principle the approach he proposes, and for what its worth my own reasoning, require that the damage in question flowing from X’s act be foreseen or foreseeable by D or the reasonable person in D’s position”[39]Turning back to the pleading, as I noted above, the way in which the case is put against the third defendant in paragraph 17, as explained in the letter of the 8th of April, is:
“…the third Defendant was the cause of and liable for that part of the allegations made by the first Defendant to the second Defendant and thereafter to the fourth Defendant the fifth Defendant and to the said Miss Scoular (of PFD) as are pleaded in paragraph 9 above.”
[40]There is no reference there to the test prescribed in McManus. In the circumstances it seems to me both as a matter of pleading and on my assessment of the facts, the least I can say is that the third defendant has a real prospect of successfully defeating the claim that is made against him in relation to responsibility for republication.[41]There is a further ground on which Mr. Bailey submits that the third Defendant has a real prospect of success. The handwritten draft defence, (for that is what it must be regarded as), in the passage which I quoted, raises a defence of qualified privilege. An occasion of qualified privilege arises where the person who makes the communication complained of has an interest or a duty, legal social or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. Given the circumstances that the third Defendant was a friend of the first Defendant, and that he had the information which he did have about the photograph, and knew of the allegations that the first Defendant was making about the Claimant, it seems to me clear that the third defendant has a real prospect of successfully defending the claim on that head as well. I must make clear that this is simply an assessment of the matter as it now stands. I am making no judgment one way or the other in this interlocutory application.[42]The third Defendant has a further and new argument as to the reality of his prospects of successfully defending the claim. There is before the court now a memorandum of an entry entered in the court register for 28th June 2004 relating to the complaint of harassment, which was ultimately the subject of criminal proceedings against the claimant. The memorandum records that the information was proved that between 1st September 2002 and 13th February 2003, within the commission area of the Ealing Magistrates Court, the claimant pursued a course of conduct which amounted to harassment of the first Defendant and which he knew or ought to have known amounted to the harassment of her contrary to section 2(1) and (2) of the Protection from Harassment Act 1997. It is recorded that the claimant, as defendant in those proceedings, was present and represented, and that he was committed to prison for three months suspended for 2 years, that a restraining order was made against him, and that he was ordered to pay £3,000 by the 8th of December 2004, £1,000 to the Crown Prosecution Service (which I take to be in respect of costs) and £2,000 to the first Defendant (which I take to be by way of compensation).[43]As to that conviction, the claimant says that he has appealed to the Isleworth Crown Court and that that appeal is pending. He also submits that a conviction for harassing the first Defendant in a period between 1st September 2002 and 13th February 2003 does not prove that he harassed her at or before the dates of any of the publications complained of in this action, all of which were considerably earlier.[44]In response to this, Mr. Bailey on behalf of the third defendant points to section 5 of the Defamation Act 1952 and section 13 of the Civil Evidence Act 1968. Section 5 of the 1952 Act provides as follows:
“In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges.”
[45]It is submitted that if the words complained of against the third Defendant do bear the meanings alleged by the claimant namely the distinct charges of theft and stalking then the third defendant will be entitled to rely on section 5 and submit that even if he cannot prove the truth of the allegation of theft he has a real prospect of succeeding in the plea of justification in relation to the meaning of stalking. Mr. Bailey submits that the fact that the conviction relates to a period of a year or more later than the publication of the words complained of can hardly assist the claimant. He points to section 13 of the 1968 Act which reads as follows:
“(1) In an action for libel or slander law in which the question whether the plaintiff did or did not commit a criminal offence is relevant to an issue arising in the action, proof that, at the time when that issue falls to be determined, he stands convicted of that offence shall be conclusive evidence that he committed that offence; and his conviction thereof shall be admissible in evidence accordingly”
. The time at which the issue falls to be determined for the purposes of the application I am adjudicating upon is today. Notwithstanding that an appeal is pending, it is the case that the claimant stands convicted of the offence the details of which I have recited. Again it seems to me that the third Defendant has a real prospect of succeeding in this defence of justification and without deciding, of course, that the defence is good or bad it is sufficient for the purposes of the application to set aside judgment that I have made the finding that I have.[46]There is, moreover, a further difficulty in the way of the Claimant. Mr Bailey submits that it is not clear how the case in repetition is put. The words alleged to have been republished (upon which the cause of action against the third Defendant is founded) are not the same words as those alleged to have been spoken by the Third Defendant. In paragraph 10 of the Particulars of Claim it is alleged that the Third Defendant said that “a photograph … had been removed whilst the Claimant was on the premises. ” The pleaded meaning of these words is that the Claimant took things that did not belong to him, that is that he is guilty of theft of a piece of paper. The republication complained of (such as it is) is pleaded in paragraph 6 of the Amended Particulars of Claim, i.e. that the Claimant was:
“ … harassing and stalking [the First Defendant] by continually texting and calling her, following her, taking photos etc…”
(emphasis added). The meanings of these words, which are pleaded in paragraph 8, do not include the meaning that the Claimant took things that did not belong to him. So the republication on which the cause of action rests does not include an allegation of theft, and there is no separate or distinct charge. So there is no allegation of theft complained of as a slander, and the third Defendant does not need to rely on s.5 of the Defamation Act.[47]It is accordingly for these reasons that I indicated that (as already mentioned) I would allow the application to set aside judgment against the third defendant.[48]I turn now to consider the question of whether the applications to vary the order of Roderick Evans J joining the three new defendants can be or should be varied. Joinder[49]The order of Roderick Evans J of 19th December 2003 records that the documents read were an Appellant’s notice date 28th October 2003 and that the Claimant, then the Appellant, was heard in person, with the Respondents (that is the First and Second Defendants) being neither present or represented. The First and Second Defendants are the only Respondents named in the Appellant’s Notice. Roderick Evans J. ordered that: “(1) the appeal be allowed,(2) three prospective Defendants be added as Defendants(3) the Claimant is to serve the amended Claim upon the three new Defendants and the existing Defendants within 28 days(4) all further directions to be considered by Master Whittaker at the Case Management Conference on 30th January 2004”. (2) three prospective Defendants be added as Defendants (3) the Claimant is to serve the amended Claim upon the three new Defendants and the existing Defendants within 28 days (4) all further directions to be considered by Master Whittaker at the Case Management Conference on 30th January 2004”.[50]In the transcript of the judgment Roderick Evans J recites the background. He then goes on to consider CPR 19. First he notes that “10. On a careful reading of 19.4, and in particular 19.4(4) and 19.4.5 it does not appear necessary that the people whom it is intended to add need be given notice of the application although the order adding them to the action must be served upon Defendants who are, in fact, added.”[51]These references appear to have become corrupted in the transcribing of the judgment. The intended reference may include CPR 19.4, which provides: “(5) An order for the … addition …. of a party must be served on(a) all parties to the proceedings;(b) any other person affected by the order. (6) When the court makes an order …. for the addition … of a party… it may give consequential directions about (a) filing and serving a claim form on the Defendant; (b) serving relevant documents on the new party;(c) the management of the proceedings”.[52]None of the new Defendants challenged the conclusion of Roderick Evans J to the effect that the application may be made without notice to the intended new Defendants. Mr Bailey’s Skeleton argument submits that it would have been sensible to make Mr Foster a party to the joinder application, and refers to the approach that appears to have been taken in Rowan Companies v Lambert Eggink Offshore Transport [1999] 2 Lloyds Rep 443, at 445 col 1.[53]Roderick Evans J continued in paragraph 12 of his judgment as follows:
“One then has to go on to consider 19.4(5). I will read 19.4.5.(2) and (3) [there is again a transcription error, and what is cited is in fact is CPR 19.5(2) and (3)]: ‘ (2) The court may add or substitute a party only if: (a) the relevant limitation period was current when the proceedings were started; (b) the addition or substitution is necessary…. (3) The addition or substitution of the party is necessary only if the court is satisfied that … (b) the claim cannot properly be carried on by or against the original party unless the new party is added or substituted as Claimant or Defendant…” (a) the relevant limitation period was current when the proceedings were started; (b) the addition or substitution is necessary…. (3) The addition or substitution of the party is necessary only if the court is satisfied that … (b) the claim cannot properly be carried on by or against the original party unless the new party is added or substituted as Claimant or Defendant…”
[54]It is not in dispute that the relevant limitation period was current when the proceedings were started against the first defendant. Condition 19.5(2)(a) is satisfied.[55]The issue is whether the addition of the three proposed new Defendants was necessary.[56]I note in passing that the Limitation Act 1980 Section 35 (4) provides: “(4) Rules of court may provide for allowing a new claim to which subsection (3) above applies [this includes the addition of a new party] to be made as there mentioned, but only if the conditions specified in sub-section (5) below are satisfied, and subject to any further restrictions the rules may impose. (5) The conditions referred to in subsection (4) above are the following… (b) In the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action (6) The addition … of a new party shall not be regarded for the purposes of sub-section (5)(b) above as necessary for the determination for the original action unless … (b) any claim already made in the original action cannot be maintained by or against an existing party unless the new party is joined … as … defendant in that action.” (b) In the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action[57]It is to be noted that the word “properly” does not appear in the statute. It is not clear what effect the inclusion of the word ‘properly’ has in CPR rule 19.5(3)(b). No argument was addressed to me on this. Whatever it may mean, it is clear that the one thing it cannot do is to reduce the test of necessity (in the statute and in CPR 19.5) to the test of desirability (which is to be found in CPR 19.2(2)). CPR19.2(2) applies where rule 19.5 does not apply, that is to say where the relevant limitation period has not expired. It reads as follows; “ (2) The court may order a person to be added as a new party if -(a) It is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or(b) There is an issue involving a new party and the existing party which is connected to the matter in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve the issue”.[58]In this connection it is also to be noted that there is a general power in CPR19 as follows:
“(3) the court may order any person to cease to be a party if it is not desirable for that person to be a party to the proceedings”
. While no one suggested that that applied in this case, it does indicate that issues of joinder are not decided finally, and may be reviewed by the Court in appropriate cases.[59]In considering whether the test of necessity is satisfied Roderick Evans J reviewed the case proposed to be advanced against each of the new Defendants. He then went on as follows: “21. He [the Claimant] says that the case cannot proceed properly without the addition of these Defendants because all five of them are jointly and severally liable and if he is to recover effectively he has more chance of doing so against five rather than against two.[22]More importantly, he says, is a fundamental right of somebody who is defamed is to obtain an injunction against those who have published the defamation. Without joining these three Defendants he will be unable to properly conduct the case and obtain an injunction against these three proposed Defendants[23]Thirdly, he says that to refuse to join them would, in effect be tantamount to rewarding their guile and cunning in avoiding disclosure of their names and their part in the defamation or publication of defamation for so long. I have to say that the third reason does not seem to me to impinge directly on the ability to properly carry on the case.[24]It is the first two matters which I think are most relevant and I see force in the Claimant’s arguments and with deference to the conclusions of the Master I am going to allow the appeal and allow Mr Sarayiah to join these three further Defendants to the case”.[60]The three new Defendants wish to attack that reasoning and conclusion on a number of grounds which I shall consider below. But before I do so it is necessary to consider whether it is open to me to hear the attack at all, and if so on what jurisdictional basis.[61]The three new Defendants, each of who adopted the stance and submissions of the others, now rely on the following jurisdictional bases for the application. They are: CPR 3.1 (7), which reads as follows “A power of the court under these Rules to make an order includes a power to vary or revoke the order” CPR 23.9 and 23.10 which read as follows “23.9(1) This rule applies where the court has disposed of an application which it permitted to be made without service of a copy of the application notice. (2) Where the court makes an order, whether granting or dismissing the application, a copy of the application notice and any evidence in support must, unless the court orders otherwise, be served with the order on any party or other person-(a) against whom the order was made; and(b) against whom the order was sought. (3) The order must contain a statement of the right to make an application to set aside or varied 23.10(1) A person who was not served with a copy of the application notice before an order was made under rule 23.9 may apply to have the order set aside or varied. (2) An application under this rule must be made within 7 days after the date on which the order was served on the person making the application.”. (a) against whom the order was made; and (b) against whom the order was sought. CPR 40.9, which reads as follows:
“A person who is not a party but is directly affected by a judgment or order may apply to have the judgment or order set aside or varied ”
CPR 52.17, which reads as follows:
“(1) The Court of Appeal or the High Court will not reopen a final determination of any appeal unless – (a) it is necessary to do so in order to avoid real injustice; (b) the circumstances are exceptional and make it appropriate to reopen the appeal; and (c) there is no alternative effective remedy. ….. (4) Permission is needed to make an application under this rule to reopen a final determination of an appeal even in cases where under rule 52.3 (1) permission was not needed for the original appeal. (5) There is no right to an oral hearing of an application for permission unless, exceptionally, the judge so directs. (6) The judge will not grant permission without directing the application to be served on the other party to the original appeal and giving him an opportunity to make representations. (7) There is no right of appeal or review from the decision of the judge on the application for permission, which is final. (8) The procedure for making an application for permission is set out in the practice direction.”
[62]On their wording taken in isolation it may well be that each of the rules CPR3.1(7) and 40.9 may be understood as creating the jurisdiction relied upon by the new Defendants. It seems to me that the provisions of Part 52 cannot be so read. The new Defendants were not parties to the appeal before Roderick Evans J. There is no need to reopen an appeal if there are other provisions of the rules, which enable the matter to be dealt with.[63]Since as already noted, the order was made without notice I propose to start with consideration of CPR23.9 and 10. Before doing so I note that the practice direction to Part 19 includes the following: “1.5 An order giving permission to amend will, unless the court orders otherwise, be drawn up. It will be served by the court unless the parties wish to serve it or the court orders them to do so ”.[64]In this instance it is not clear who drew the order up but it appears it was served by the Claimant by letters dated 10th January 2004 upon the fifth Defendant and by similar letters about the same time to the third and fourth Defendants.[65]The practice direction to Part 19 provides further as follows:
“3.2 Where the court has made an order adding … a Defendant … the court may direct: (1) the Claimant to file with the court within 14 days (or as ordered) an amended claim form and particulars of claim for the court file, (2) a copy of the order to be served on all parts to the proceedings and all other person affected by it, (3) the amended claim form and particulars of claim, forms for admitting, defending and acknowledging the claim and copies of the statements of case and any other documents referred to in any statement of case to be served on the new defendant. (4) Unless the court orders otherwise, the amended claim form and particulars of claim to be served on any other Defendants. 3.3 A new Defendant does not become a party to the proceedings until the amended claim form has been served on him ”. (1) the Claimant to file with the court within 14 days (or as ordered) an amended claim form and particulars of claim for the court file, (2) a copy of the order to be served on all parts to the proceedings and all other person affected by it, (3) the amended claim form and particulars of claim, forms for admitting, defending and acknowledging the claim and copies of the statements of case and any other documents referred to in any statement of case to be served on the new defendant. (4) Unless the court orders otherwise, the amended claim form and particulars of claim to be served on any other Defendants. 3.3 A new Defendant does not become a party to the proceedings until the amended claim form has been served on him ”
. As noted above the amended claim forms were not served on the new Defendants until nearly two months after the order was made, that is to say about the 10th or 12th February 2004.[66]The consequence of these matters is that, at the time when the three new Defendants became parties to the proceedings the limitation period of one year was very long since past. Unless he is able to uphold the joinder order and so obtain the benefit of s.35(1)(b) of the Limitation Act 1980, the Claimant can only succeed in the claims that are now made against the new Defendants if he can rely on Section 32A of the Limitation Act 1980 (which provides for a discretionary exclusion of the time limit in certain circumstances and which I shall consider below). Without the joinder, or an order under s32A, the new claims would be bound to fail by reason of the limitation period.[67]Turning now to CPR23.9, the following matters are to be noted. First, the provisions of sub-paragraph (2) were not complied with, in that no copy of the application notice or evidence in support were served on any of the new Defendants with the order, and the court did not order that that requirement should not be fulfilled. Secondly the order as drawn up and served did not contain the statement required by sub-rule (3) to the effect that the Defendants had a right to make an application to set aside or vary the order under rule 23.10.[68]But for these failures to comply with CPR23.9, I see no reason why the provisions of CPR 23.10 should not apply to this case. CPR23.9 and 23.10 provide a clear set of obligations and timetables which are of obvious advantage to the management of any case and apt to cover the circumstances of this case. CPR40.9 is less apt partly because it is in such general terms, and partly because the Defendants are now parties to the proceedings, having become such on service of the amended claim form upon them in the middle of February. It is true that they were not parties at the time the order was made, but they were parties by the time they issued their Application Notices. The CPR3.1(7), and the similar and more specific provision in CPR19.2(3), cited above are certainly capable of applying to the circumstances of this case. But it seems to me that the more specific provisions of CPR 23.9 and 23.10 ought to be applied, unless there is good reason for not doing so. I see no good reasons.[69]The Claimant submits that there is no rule at all that applies to permit a challenge to the joinder, that CPR19 alone applies, and that is the end of the matter. I reject his submissions. In WEA Records Ltd v Visions Channel 4 Ltd [1983] 1 WLR 721, 727 Sir John Donaldson MR explained the position as follows:
“In terms of jurisdiction, there can be no doubt that this court can hear an appeal from an order made by the High Court upon an ex parte application. This jurisdiction is conferred by section 16 (1) of the Supreme Court Act 1981. Equally there is no doubt that the High Court has power to review and to discharge or vary any order, which has been made ex parte. This jurisdiction is inherent in the provisional nature of any order made ex parte and is reflected in R.S.C., Ord. 32, r. 6…. As I have said, ex parte orders are essentially provisional in nature. They are made by the judge on the basis of evidence and submissions emanating from one side only. Despite the fact that the applicant is under a duty to make full disclosure of all relevant information in his possession, whether or not it assists his application, this is no basis for making a definitive order and every judge knows this. He expects at a later stage to be given an opportunity to review his provisional order in the light of evidence and argument adduced by the other side and, in so doing, he is not hearing an appeal from himself and in no way feels inhibited from discharging or varying his original order. This being the case it is difficult, if not impossible, to think of circumstances in which it would be proper to appeal to this court against an ex parte order without first giving the judge who made it or, if he was not available, another High Court judge an opportunity of reviewing it in the light of argument from the defendant and reaching a decision. This is the appropriate procedure even when an order is not provisional, but is made at the trial in the absence of one party: see R.S.C., Ord. 35, r. 2 (1), and Vint v. Hudspith (1885) 29 Ch.D. 322 to which Mr. Tager very helpfully referred us this morning.”
[70]It seems to me, for the reasons I have given, that the CPR do make provision for an application to challenge the joinder. The law as summarised in the White Book (2004) Vol 1 at 17.4.2 also relates to CPR19.5. It is as follows. Where it appears reasonably arguable that the defendant has a limitation defence in respect of a new claim, the court should not permit the claimant to raise that new claim by amendment since to do so could defeat the arguable defence. Instead the claimant should be left to bring fresh proceedings on the new claim. See Goode v Martin [2001] 3 All ER 562 (reversed on other grounds [2001] EWCA Civ 1899; [2002] 1 All ER 620), following Welsh Development Agency v Redpath Dorman Long [1994] 1 WLR 1409, 1425.[71]Since permission to amend to add a new defendant should not be given where it appears reasonably arguable that that defendant has a limitation defence, it is not surprising that there is little guidance as to the proper procedure for applying to correct such a wrongful joinder, where it is has occurred. As appears in the Welsh case, in Leicester Market Ltd. v. Grundy [1990] 1 WLR 112 the application was made under RSC Ord. 15, r. 6(2) which, so far as material, provided:
“Subject to the provisions of this rule, at any stage of the proceedings in any cause or matter the court may on such terms as it thinks just . . . on application - (a) order any person who has been improperly or unnecessarily made a party . . . to cease to be a party; . . .”
[72]The nearest equivalent to that rule is now CPR19.2(3). The nearest equivalent to what is now CPR23.10 was RSCO32 r.6 which simply provided:
"The Court may set aside an Order made ex parte"
. There was therefore no material difference between those two provisions of the RSC, such as now appears (in the form of the 7 day time limit in CPR23.10) between CPR23.10 and CPR19.2(3).[73]Accordingly I find that I do have jurisdiction to entertain the applications made by the three Defendants, and that arises under CPR23.[74]The next question is, should I do so, having regard to the passage of time and in particular to the fact that the application was not made within seven days after the date on which the order was served on the Defendants. This was, in each case, not later than about 10th January.[75]I have noted above that the provisions of CPR23.9 were not complied with in two respects. It seems to me that it would be unjust and inequitable to tie the new Defendants to the seven day time limit in CPR 23.10, given that they have not been told that the right to make an application is subject to compliance with that time limit, as CPR 23.9(3) requires that they should be told. That, in itself, seems to be a sufficient reason for not requiring them to be tied to the seven day limit.[76]But it seems to me that the matter goes further. The fact that they were not provided with a copy of the application notice and evidence in support is a further material non-compliance with CPR23.9. It meant that when they did turn their minds to this upon service of the claim form in February, steps had to be taken to obtain the information. As I understand it the application notice was made available to Wedlake Bell, but late, after Mr Gardner had requested it.[77]I also note that there was a period of nearly two months between the making of the order on 19th December and the service of the claim form in mid February. In these circumstances it does not seem to me to be just and equitable that the three new Defendants should be required to act more promptly in relation to this matter than the Claimant has done himself. The Claimant’s explanation for that delay of nearly two months is that the barrister to whom he was referred by the Bar Pro Bono unit could not assist within the time set by the order of Roderick Evans J. I note that Mr Foster was himself attempting to act in person when he was served. It would not be just and equitable for the courts to be more indulgent to the Claimant in this respect than to the new Defendants. The action is in any event stayed as against the first and second Defendants for the time being. The interests of the administration of justice therefore do not require that the action proceed rapidly against the new Defendants.[78]That said, it is the case that the application made by each of the new Defendants has not been made as promptly as it might have been. But the delay is not substantial in the context of the long history of this case, and there has been no intentional failure of a kind that deserves sanctions. The non-compliance by the Claimant with the requirements of CPR23.9 is a substantial and a good reason, as far as it goes, for the failure of the Defendants to apply more promptly. There are the more particular circumstances of the third Defendant mentioned above, which provide a further good explanation on his part. The trial date is unlikely to be affected. There are no other matters, which seem to me to impact materially on the decision, which I have to make. Accordingly I grant the extension of time necessary under CPR3.1(2)(a) to enable the application under CPR23.10 to be made outside the seven-day period specified in that rule. The Merits of the Application to Vary the Order of Roderick Evans J.[79]Before turning to consider the arguments addressed to me on this I pause to note a further feature of CPR19.5. After the passages already cited, there appears the following sub-paragraph: “(4) In addition in a claim for personal injuries the court may add or substitute a party where it directs that(a) (i) Section 11 (special time limits for claims for personal injuries); or (ii) Section 12 (special time limits for claims under fatal accidents legislation), of the Limitation Act 1980 shall not apply to the claim by or against the new parties; or(b) the issue of whether those sections apply shall be determined at trial”. (i) Section 11 (special time limits for claims for personal injuries); or (ii) Section 12 (special time limits for claims under fatal accidents legislation), of the Limitation Act 1980 shall not apply to the claim by or against the new parties; or (b) the issue of whether those sections apply shall be determined at trial”.[80]A direction by the court that ss.11 or 12 of the Limitation Act shall not apply is a direction that the court has power to make under s.33 of that Act. The court has power to make such an order if it appears to the court that it would be equitable to allow an action to proceed, having regard to the degree to which the provisions of those sections prejudice the claimant or any person whom he represents, and any decision of the court under this subsection would prejudice the defendant or any person whom he represents. There are substantive provisions in the rest of the Section as to matters to which the court shall have regard.[81]Section 32A of the Limitation Act 1980 gives the court a similar power in relation to defamation proceedings. I shall have to consider that section in more detail below. The reason I shall have to consider it in more detail below is because both parties have referred to it in the course of the hearing, and at my invitation both parties have specifically consented to my exercising the courts power under Section 32A as if an application by the Claimant had been before me. This is a sensible agreement, because if the new Defendants were otherwise to succeed in their Applications, their success might still be empty, because there would be nothing to prevent the Claimant issuing new proceedings, and then seeking an order under s.32A. It is in the interest of the administration of justice, and of all the parties, that the decision I make shall be as comprehensive as possible on the issues that arise.[82]The reason that I refer to Section 32A at this point is that the presence of sub-paragraph (4) in Part 19.5, which in terms gives the court an additional power to add a Defendant, emphasises the restrictiveness of the test in sub-paragraph (3), which is the test of necessity, and suggests that no corresponding order should be made in cases to which s32A applies. It may or may not be the case, that subparagraph (4) should be amended to include a reference to the power under Section 32A of the Limitation Act which corresponds with s33. That is a matter for the rules committee. I cannot comment upon this, but must interpret the rule as it is now.[83]I have set out above the two reasons, which found favour with Roderick Evans J in his decision to allow the Claimant’s appeal. The new Defendants challenge these reasons as follows.[84]As to joint and several liability, it is submitted that the fact that the Claimant might increase his prospects of a recovery by joining additional parties does not mean that his claim cannot be maintained against (or cannot properly be carried on against) the original parties. At most it is submitted that the joinder may be desirable from the point of view of the Claimant. Defamation proceedings can be generally carried on against only one of a number of possible Defendants.[85]One reason for this absence of necessity is that the main purpose of defamation proceedings is vindication of a claimant’s reputation. Adding multiple Defendants does not normally assist in achieving this purpose. Another reason is that adding Defendants greatly increases the complexity and cost of litigation, and defamation is litigation of a kind which (as is well known) is difficult to carry on economically having regard to the fact that the maximum award of compensatory damages that a court may make is limited.[86]As a matter of evidence, so far as this case is concerned, I am aware that the first and second Defendants are acting in person, and that they are young women. But there is no evidence of their means. Nor is there any evidence of the means of the two new Defendants or for that matter the new corporate Defendant. There is simply no evidential basis put before me by the Claimant to support the submission that he has more chance of recovering effectively against multiple Defendants than against the existing two.[87]Moreover, before I could consider such a question, I would need to have regard to the likely or possible award of damages in this case. There is no doubt that the defamatory meanings are very serious indeed. And I note the claims for special damages and aggravated and exemplary damages made in the prayer to the amended claim form. I also note that the amount originally inserted in the box for “amount claimed” in the claim form was £2 million. However, there is no evidence before me as to any special damage, or the amount that might be recovered.[88]Nor is there any evidence to support the claims for aggravated and exemplary damages. If there were such evidence, it would not suffice that it related to only one defendant. An award of exemplary damages where a number of defendants is sued in respect of the same publication should reflect only the lowest figure for which any of them can be held liable, and the same may also be true in relation to claims for aggravated damages (Gatley on Libel and Slander 10th ed para 9.24). So, so far from it being necessary for a claimant to join multiple defendants, it may be counter-productive for him to do so.[89]So far as the obtaining of an injunction is concerned, it is submitted for the new Defendants that if a defamatory statement is repeated, or if there is a threat of repetition that gives rise to a fresh cause of action there then arises a right to bring proceedings on a quia timet basis. Accordingly if there is evidence of a risk of repetition of any defamatory allegation, it is submitted that the defendant in question does not need to be joined to the existing proceedings. A fresh action could be brought. But on the evidence in this case, all that is academic. When the matter came before Gray J on 7th April 2004 he found that there was no sufficient case on there being a risk of repetition in order to justify an injunction. On the evidence before me, the position is the same, in that there is no real prospect of the claimant persuading a court that such relief would be necessary or proportionate.[90]Since the hearing before Gray J, the position as far as the Claimant is concerned has in fact substantially deteriorated. He has been convicted, in relation to a subsequent period, of harassment of the first Defendant. As long as he stands convicted of having harassed the first Defendant in the period to which the conviction relates, it seems to me extremely unlikely that any court could be persuaded to grant an injunction restraining the repetition of the words complained of in this action. I have in mind that the words complained of in this action are alleged to bear the quite general meanings, which are pleaded in the amended particulars of claim. By general meanings, I mean meanings which are not related to a specific period. But even if they were related to a specific period, the fact that the conviction related to the subsequent period seems to me to make it improbable in the extreme that any injunction could ever be granted to restrain a Defendant, or anyone else, from stating that the Claimant had harassed the first Defendant, or words to that effect.[91]However it is not necessary for me to base my decision on the recent conviction of the Claimant. It seems to me that as matters stood before that conviction, and indeed as they stood before the hearing before Gray J on 7th April, it could not be said that the fact that the Claimant was seeking an injunction against the three new Defendants made it necessary that he should be joined to these proceedings. The proceedings against the first and second Defendants could perfectly well be carried on as they were, without the joinder of new defendants. If the Claimant were to succeed, and to obtain an injunction, then on that assumption it is also unlikely that an injunction would be needed against anyone other than the first Defendant. The question whether the Defendant has invented false allegations of harassment, as the Claimant alleges, or whether he has in fact harassed her, as she alleges, is a question on which the first Defendant and the Claimant are in the best position to give evidence. The second Defendant, as her flat mate, may also be in a very good position to give evidence. It seems to me most unlikely that the three new Defendants would be likely to assert harassment by the Claimant of the first Defendant, if the Claimant were to succeed in his action against the first or second Defendant.[92]As to the third matter relied upon by the Claimant before Roderick Evans J and rejected by him, I would also reject it. Refusal to join the new Defendants would not be tantamount to rewarding their guile and cunning in avoiding disclosure of their names (even if it were accepted, which I do not accept, that is how their conduct is to be characterised). The point does not impinge on the question whether it necessary to join them at all.[93]In addition there is a point taken by the Claimant that the claims against the new Defendant are not even prima facie time barred at all, so that the test of necessity is inapplicable, and CPR 19.2, with its test of desirability, applies. He submits that he does not have to rely on s32A of the Limitation Act.[94]The basis for this proposition is said to be a decision in the Court of Appeal in Rowan Companies Inc v. Lambert Eggink Offshore Transport Consultants [1998] EWCA Civ 1354. That was a commercial case. The Plaintiffs in the action had entered into a towage contract with Lambert Eggink Offshore Transport Consultants. Those Defendants are a body known as a VOF under Dutch Law, being a form of partnership under that law. It is a body that has no separate legal personality, but a suit will lie against it in its own name. Under a provision referred to as clause 24 of the contract there was a time limit. At a later stage the Plaintiffs sought to join as individual Defendants the partners VOF. The issue was whether they were too late to do so because of the time bar in clause 24, which required notification of a claim within six months of delivery of the ‘Tow’. Article 18 (1) of the Dutch Commercial Code provides that: “ In the case of a Commercial Partnership i.e. a VOF each of the partners is jointly and severally bound in respect of the obligations of a partnership”.[95]The majority of the Court of Appeal concluded that Clause 24 of the contract did not provide the individual partners with a Defence, because they were not contracting parties, and because the cause of action did not arise out of the agreement and it was not connected with the agreement. It arose out of Article 18 of the Dutch Commercial Code. I can find nothing in this decision which assists in persuading me that the case against joint tortfeasors in an alleged slander gives rise to a corresponding situation where, so it is said, the limitation has not expired against the new Defendants because the action had been brought in time against the first Defendants. Section 32A of the Limitation Act 1980[96]As already noted, the time limit for bringing proceedings for slander is one year (Limitation Act 1980 s4A). And for the reasons given above, the parties have asked to treat the present hearing as if it included an application by the Claimant that I direct that that section shall not apply to the causes of action against the third to fifth Defendants.[97]S.32A of the Limitation Act 1980 provides as follows:
“32A(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which – a) the operation of section 4A of this Act prejudices the plaintiff or any person whom he represents, and b) any decision of the court under this sub-section would prejudice the defendant or any person whom he represents, the court may direct that that section shall not apply to the action or shall not apply to any specific specified cause of action to which the action relates. (2) In acting under this section the court shall have regard to all the circumstances of the case and in particular to – a) the length of, and the reasons for, the delay on the part of the plaintiff; b) where the reason, or one of the reasons, for the delay was that all or any of the facts relevant to the cause of action did not become known to the plaintiff until after the end of the period mentioned in section 4A – (i) the date on which any such facts did become known to him, and (ii) the extent to which he acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action; and c) the extent to which, having regard to the delay, relevant evidence is likely, (i) to be unavailable, or (ii) to be less cogent than if the action had been brought within the period mentioned in section 4A.” a) the operation of section 4A of this Act prejudices the plaintiff or any person whom he represents, and b) any decision of the court under this sub-section would prejudice the defendant or any person whom he represents, a) the length of, and the reasons for, the delay on the part of the plaintiff; b) where the reason, or one of the reasons, for the delay was that all or any of the facts relevant to the cause of action did not become known to the plaintiff until after the end of the period mentioned in section 4A – (i) the date on which any such facts did become known to him, and (ii) the extent to which he acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action; and c) the extent to which, having regard to the delay, relevant evidence is likely, (i) to be unavailable, or (ii) to be less cogent than if the action had been brought within the period mentioned in section 4A.”
[98]The Court of Appeal has given guidance as the exercise of this discretions in Steedman v British Broadcasting Corporation [2001] EWCA Civ 1534.[99]The following passages from the judgment of David Steel J are relevant: ‘15. The discretion afforded by this section is largely unfettered. It requires the court to balance any prejudice to the claimant on the one hand and the defendant on the other in allowing the action to proceed or otherwise. All the circumstances of the case must be had regard to in assessing the justice of the matter with particular reference to the length of, and reasons for, the delay and the extent to which the passage of time since the expiration of the limitation period has had an impact on the availability or cogency of relevant evidence… The appropriate use of the power to disapply such limitation provisions had already been considered by the House of Lords in Thompson v Brown [1981] 1 WLR 744. At p.977, Parker LJ summarised the conclusions of Lord Diplock as follows:- ’ “1. A direction under the section is always highly prejudicial to the defendant.[2]The expiry of the period….is always in some degree prejudicial to the plaintiff.[3]The extent of the prejudice would depend on the strength or otherwise of the claim and/or defence.[4]Even where the plaintiff has, if the action was not allowed to proceed, a cast iron case against his solicitor, some prejudice, albeit it may be minor, will be suffered by the plaintiff.[5]In exercising its discretion the court has not only to consider the respective degrees of prejudice to the plaintiff and the defendant, but also the specific circumstances set out in Section 33(3) and all other circumstances.[6]It must then consider whether it is equitable to allow the action to proceed….”[18]I treat these as principles of general application.[100]Also to be noted are the remarks of Hale LJ at [32] and Brooke LJ at [37] in giving concurring judgments: “32. … a major, if not the major, objective of a defamation action is the vindication of the claimant's reputation, an objective which in most cases can only be attained by swift remedial action….[37]David Steel J has quoted in paragraphs 20 and 21 some extracts from the Report of Practice and Procedure in Defamation which was issued by the Supreme Court Procedure Committee in July 1991 and from the recent Pre-action Protocol for Defamation. The need to regard time as “of the essence” in defamation claims was further explained by Glidewell LJ in Grovit v Doctor (unreported, 28th October 1993) when he said (at p 15A):
“The purpose of a libel action is to enable the Plaintiff to clear his name of the libel, to vindicate his character. In an action for defamation in which the Plaintiff wishes to achieve this end, he will also wish the action to be heard as soon as possible.” ” “The purpose of a libel action is to enable the Plaintiff to clear his name of the libel, to vindicate his character. In an action for defamation in which the Plaintiff wishes to achieve this end, he will also wish the action to be heard as soon as possible.” ”
[101]While a direction under the section is always highly prejudicial to the defendant, and the expiry of the period is always in some degree prejudicial to the claimant, in the present case the prejudice to the claimant is not clear. So far as vindication is concerned, since the issue is essentially whether the claimant has harassed the First Defendant, or whether she (and others) have falsely alleged that he has harassed her, the main vindication must arise from a judgment of the court in the action as originally constituted against the First Defendant.[102]If the Claimant were to obtain a judgment against the three new Defendants that would add little to his vindication. It is therefore not surprising to find that the prejudice that the Claimant relies on is the alleged need for additional defendants to meet the claim for damages, which he makes, and for the relief against them by way of injunction. As I have said above, the prejudice from not having further defendants to share the burden of paying the damages claimed is not supported by evidence. And I am not persuaded that the Claimant would suffer any prejudice by not being granted a permanent injunction against the three new Defendants. If he were granted such an injunction against the First Defendant, then, on the evidence before me, the case that there would be any reason to fear any further publication of the words complained of by these Defendants seems to me to be very weak.[103]I would decline to make the order sought under s.32A on this ground alone. But there are further reasons for declining to make it.[104]The strength of the claim against the Third Defendant seems to me to be particularly weak. i) As already noted, I consider that the prospect of the Claimant satisfying the test required to make the Third Defendant liable for republication is weak. ii) Moreover, as noted above, it is not apparent that he has pleaded a case of republication at all. iii) The Defence of qualified privilege appears particularly strong. A person who is told that a woman is being stalked and harassed has a good prospect of being able to persuade a jury that he owes a moral or social duty to her inform her of information, including hearsay information, that relates to that matter.[105]Mr Wolanski sought to persuade me that the case on publication against the fourth Defendant, and the fifth Defendant as the employer of the fourth Defendant, was also weak. He said that what the fourth Defendant had allegedly done preceded in time the publication by the second Defendant which the fourth Defendant allegedly authorised. I did not find that this argument was sufficiently persuasive to require consideration at this hearing.[106]In addition, and since the conviction of the Claimant, all the Defendants have a good prospect (to say the least) of succeeding in a defence of justification.[107]The new Defendants also rely, as showing prejudice to themselves, on the fact that the Claimant admits to owing at least £3,500 to PFD in respect of a costs orders made against him in favour of PFD on 13 February and 20 March 2003 by HH Judge Collins CBE. Insolvency proceedings are presently underway against the Claimant. The Claimant also now faces the financial orders made in the criminal proceedings. His response is that bankrupts are entitled to access to justice, as indeed they are. But it is a matter which the Defendants are entitled to invite me to have regard to. They have been joined in proceedings where the Claimant does not appear to be under the inhibitions, which a potential liability for costs is intended to place upon litigants. Any prejudice to them cannot be remedied by an order for costs in their favour.[108]This is a case where there has been substantial delay on the part of the Claimant. On the other hand, the Claimant alleges that the reason, or one of the reasons, for the delay was that all or some of the facts relevant to the cause of action (namely the identities of the three new Defendants) did not become known to him until after the end of the one year period. Consideration of the Claimant’s explanation for the delay would require a detailed review of the correspondence, and other interlocutory proceedings that have taken place both in this action and in a related application for access under the Data Protection Act 1998. Having formed the views that I have formed on the matters which I have addressed above, I do not think that it would be useful to prolong this already long judgment to reach conclusions on this aspect of the matter. It was understandably not the main point relied on in the submissions of counsel.[109]It follows that in deciding, as I do, I have not taken into consideration as a factor weighing against him the delay on the part of the Claimant. Making all assumptions about the explanation for his delay in his favour, the Claimant still cannot persuade me that it would be equitable to allow any of these claims against the new Defendants to proceed.[110]As I have already noted, the objective of a defamation action is vindication of a claimant’s reputation. The joinder of the new Defendants is at the price of great costs and delay which have already been incurred. But that appears directed to objectives entirely different from vindication. At the most favourable to the Claimant, the joinder is directed to meeting what I have held to be unnecessary and unsupported concerns about the adequacy of the relief available against the existing defendants. On the other hand, if the First Defendant is correct, as she was found to be in the criminal proceedings, then the joinder is to be seen as an attempt to cause further trouble and expense, and harassment, for the First Defendant and those who have assisted her - none of which can be remedied by an award of costs or in any other way.[111]For these reasons, I decline to give the direction the Claimant seeks under s32A. The application for an order that the Third Defendant pay money into court[112]The grounds for this application made by the Claimant in his Notice of 22 July are that the Third Defendant “failed to comply with the pre-action protocols sent in July 2003, ignored the claim form and particulars, which were served on him on 11th February 2004 and all attempts by the Claimant to resolve this with him. He subsequently breached CPR15.2 and 15.4 and the Claimant obtained judgement in default on 4th March 2004. Mr Foster only took legal advice on or around 5th April 2004 regarding this claim – 9 months after the pre-action letter – and only recently has decided to attempt to overturn Judgment. Thus, the defendant should make a payment into Court due to the clear prejudice to the Claimant’.”[113]Rule 3.1(3) provides:
“When the court makes an order, it may (a) make it subject to conditions, including a condition to pay a sum of money into court; and (b) specify the consequence of failure to comply with the order or a condition.”
[114]In Olatawura v Abiloye [2002] EWCA Civ 998 (17 July 2002) Simon Brown LJ said this:
“25. That, however, is by no means to say that the court should ordinarily penalise breaches of the rules and the like by making orders for payment into court under rule 3.1(5). Quite the contrary. The one case drawn to our attention in which this question has been considered - Buckley J’s judgment in Mealey Horgan plc -v- Horgan (transcript 24 May 1999, briefly reported in The Times, 6 July 1999), to which reference is made in paragraph 3.1.5 of the Annual Practice - held that it would be inappropriate to order a defendant to give security as a penalty for failure to serve witness statements in time when that had prejudiced neither the trial nor the claimant. Buckley J suggested, however, that such an order might be appropriate if “there is a history of repeated breach of timetables or of court orders or if there is something in the conduct of the party which gives rise to suspicion that they may not be bona fide and the court thinks the other side should have some financial security or protection”
. That seems to me to point the way admirably: a party only becomes amenable to an adverse order for security under rule 3.1(5) (or perhaps 3.1(2)(m)) once he can be seen either to be regularly flouting proper court procedures (which must inevitably inflate the costs of the proceedings) or otherwise to be demonstrating a want of good faith - good faith for this purpose consisting of a will to litigate a genuine claim or defence as economically and expeditiously as reasonably possible in according with the over-riding objective.”[115]For the reasons I have given above, I consider that the Third Defendant has a good prospect of defending this claim, if it were to be pursued against him. I see nothing to demonstrate a want of good faith on his part. Nor would the failings alleged by the Claimant, even if they were made good, amount to the repeated breaches required before the court will exercise this jurisdiction.[116]Given the decisions I have already come to, this application is academic, but even if I had decided the other issues in favour of the Claimant, I would decline to make the order sought.

Cited in 1 later judgment