Khader v Aziz & Anor [2009] EWHC 2027 (QB)

[2009] EWHC 2027 (QB)Case No HQ08X01338
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31 July 2009
Before
THE HONOURABLE MR JUSTICE EADY
Between
LEILA EMILE KHADERClaimant(1) MARIAM AZIZDefendants(2) MATTHEW DOWDDefendantLEILA EMILE KHADERClaimant(1) DAVENPORT LYONSDefendants(2) MARK BATEMANDefendant
Andrew Veen (instructed by Public Access) for ClaimantHeather Rogers QC (instructed by Davenport Lyons) for First Defendant in the First ActionAidan Eardley (instructed by Davenport Lyons) for Second Defendant in the First Action and for the First and Second Defendants in the Second ActionHearing Hearing date: 24 July 2009
Judgment
[1]There are two actions before the court which have been brought by the Claimant in respect of events said to have taken place in April 2007. The first action was begun on 8 April 2008 (HQ08X01338) against Mariam Aziz, the First Defendant, and Matthew Dowd, an associate solicitor with the firm Davenport Lyons which acted on her behalf. He is the Second Defendant in the first action, which was begun a few days prior to the expiry of the 12-month limitation period. The second action (HQ09X01023) was brought against the firm Davenport Lyons, as the First Defendants, and a partner, Mark Bateman, who handled the Claimant’s affairs and had supervisory responsibility for Mr Dowd. This action was issued as late as 11 March 2009 and thus one of the applications now before the court is that the proceedings should be struck out as time barred under s.4A of the Limitation Act 1980, as amended by the Defamation Act 1996. Mr Andrew Veen has acted on behalf of the Claimant in both actions. Ms Heather Rogers QC has represented the interests of Ms Aziz in the first action and Mr Aidan Eardley those of Mr Dowd, in the first action, and both Defendants in the second action.[2]Both actions, as they presently stand, are founded upon claims for defamation and injurious falsehood, although there is an application before me on the Claimant’s behalf to serve a much expanded pleading which would include other alleged publications and also a claim based in conspiracy.[3]It is necessary to set out the background circumstances giving rise to these claims, which appear to be somewhat inconsequential.[4]On 12 April 2007 there was published in the Daily Mail newspaper an article under the heading “How Queen Mariam spent a penny and lost a fortune”. This referred to the First Defendant (who is the former wife of the Sultan of Brunei, hence the appellation “Queen”). Although it is not itself sued upon, I should set it out so that the issues in this litigation can be understood:
“As the former wife of the Sultan of Brunei, one-time richest man in the world, former air hostess Mariam Bell is a woman who has become used to the finer things in life – a 1,788-room palace, a fleet of Rolls-Royces and the pick of a fleet of Gulfstream jets in which to travel the globe. Even so, when a £1 million diamond bracelet slips from such a woman’s wrist, you would still expect her to realise it. And in these grasping times, what are the odds of such a bauble being returned? Since her 22-year marriage ended in 2003 with what was then believed to be the world’s biggest divorce settlement, the former queen has divided her time between Brunei and a mansion in Kensington. She likes to relax at the roulette tables, and her favourite club is Mayfair’s Les Ambassadeurs, where fellow players include retail billionaire Sir Philip Green and theatre impresario Bill Kenwright. In such glamorous company, Mariam, 50, who has four children with the Sultan, never goes unnoticed because she is always bedecked with precious jewels. So it was perhaps no surprise that when she returned to the roulette table after answering a call of nature the other evening, no one noticed she was missing the diamond bracelet. Even her permanent retinue of five bodyguards – of whom two are women – failed to spot that she had lost the valuable gems. Fortunately, not everyone in Les Ambassadeurs was engrossed solely in the gaming tables. Some time later, former Knightsbridge dress shop owner Leila Khader – one-time friend of the late King Hussein of Jordan – also visited the ladies’ lavatory. And there, in a cubicle, she spotted the bracelet, sparkling on the floor. When I tracked down Mrs Khader, she told me: ‘I got quite a shock. It’s a bit embarrassing because you don’t expect to find a priceless diamond bracelet at your feet in the loo. ‘I realised straight away that it probably belonged to the queen, as she is famous for her wonderful jewellery. I picked it up and went over to her and asked “Is this yours?” ’ Mariam’s eyes lit up. ‘It’s worth £1 million’, she was heard to remark. And the generous reward offered by a woman whose former husband’s fortune reached £65 billion at its peak? ‘The queen gave her a hug and a kiss’, I am told.”
[5]Ms Aziz thought the article put her in a bad light, as supposedly having behaved in a way that was ungenerous towards the Claimant. The article gave the impression of having been instigated by the Claimant, not least because it contained a quotation attributed to her. The evidence shows that the Davenport Lyons retainer, to act on Ms Aziz’ behalf in respect of her legal affairs, included general instructions to monitor media coverage about her and to take such steps as may be appropriate to protect her interests. This matter is addressed in the witness statements of Ms Aziz herself and of Mr Dowd. Accordingly, acting in his capacity as a solicitor representing Ms Aziz, Mr Dowd made contact with the publishers of the newspaper and, having been directed to the appropriate person, had a short conversation with a journalist called Helen Minsky who was apparently the author of the article. It is in respect of his activities in this connection that Mr Dowd finds himself the Second Defendant in the first action and Davenport Lyons and Mr Bateman have, more recently, been brought in as Defendants in the second action.[6]The first action concerns three alleged publications, for which primary responsibility is attributed to Mr Dowd. First, reliance is placed on words allegedly spoken by him in his telephone conversation with Ms Minsky (although it is not accepted that he actually spoke them).[7]The second publication relates to words allegedly spoken by Mr Dowd (or possibly others said to be acting on behalf of Ms Aziz) during another telephone conversation on the same day with a Mr Barry Hayes (or possibly others) at the Les Ambassadeurs club. In this instance, it is denied both by Mr Dowd and by Mr Hayes in evidence that any such conversation took place.[8]The third publication is said to be contained in a letter sent by Mr Dowd to Ms Minsky on or shortly after 13 April 2007. Mr Dowd denies sending any such letter and a third party disclosure order against Associated Newspapers Ltd has failed to yield any evidence that such a letter was received. The pleading fails to set out the words complained of in respect of this alleged publication and, argues Mr Eardley, this particular claim should be struck out for that reason alone. All that is said is that there was a letter “repeating or confirming by necessary implication the words complained of and reproaching Ms Minsky for repeating the said words to the Claimant”.[9]By applications dated 24 November 2008, both Defendants in the first action apply for summary judgment and/or for the claim to be struck out. It is said, in summary, that the Claimant has no reasonable grounds for seeking relief and/or that the claims are bound to fail and/or that the proceedings represent an abuse of the process. Similar relief is sought by the Defendants in the second action, although their primary case is that the claims are statute-barred.[10]As I have mentioned, there is also before me an application on the Claimant’s behalf for permission to amend her particulars of claim. That is dated 5 May 2009.[11]The Claimant moreover applies for summary judgment, in certain respects, by an application notice of 12 May 2009. In particular, she wishes to argue that the defence of qualified privilege advanced on behalf of all Defendants is bound to fail and that the court should rule, at this stage, that the words complained of are false (for the purposes of the injurious falsehood claim).[12]The draft amended particulars of claim include seven causes of action founded upon defamation and injurious falsehood, together with the new claim for conspiracy. I shall return to these later, when addressing the Claimant’s application for permission.[13]Meanwhile, I shall consider Mr Eardley’s submissions on the original pleading in the first action. The submissions made on behalf of Mr Dowd and Ms Aziz largely overlap, although there are some different considerations which apply when one comes to the issues of qualified privilege and malice. It does not seem, however, that there is any conflict between Mr Dowd and Ms Aziz.[14]Mr Eardley argues that the Claimant has no realistic prospect of overcoming the defence of qualified privilege in respect of the first publication (i.e. the conversation between Mr Dowd and Ms Minsky) and no such prospect of establishing that he had any responsibility for the second and third publications alleged. As to injurious falsehood, it is further submitted that the Claimant’s pleading discloses no basis for alleging malice. Alternatively, it is said that there is no prospect in the light of the evidence of ever establishing malice. Reliance is also placed on the proposition that the proceedings represent an abuse of process, in the sense explained by the Court of Appeal in Jameel (Yousef) v Dow Jones Inc [2005] QB 946.[15]I now turn to the first of the Claimant’s causes of action. Although there is a dispute as to what Mr Dowd may have said to Ms Minsky on 12 April 2007, for the purposes of the present application it is necessary to assume that the words pleaded were indeed spoken in these terms:
“Leila Khader is a disreputable person and a liar. You should not rely on her words because they are false and she has acted in cahoots with some other persons to pretend that a diamond bracelet had been found and was being returned to Mariam Aziz in order to embezzle money from Mariam Aziz.”
[16]The first submission is to the effect that the occasion of publication of whatever was said to Ms Minsky fell within the scope of qualified privilege. Both counsel have reminded me of the well known legal principles relevant in this context. It has long been established that publication by a solicitor is protected by qualified privilege if his client would have been similarly protected in making the same publication – provided the solicitor is acting within the scope of his authority: see e.g. Baker v Carrick [1894] QB 838. More recently, this principle was applied by the Court of Appeal in Regan v Taylor [2000] EMLR 549, where it was confirmed that it would not be necessary for the solicitor to show that the client specifically instructed him to make a communication or that he should adopt any particular form of words. It was also recognised in that case that the scope of a solicitor’s authority will always be a question of fact to be determined in the particular circumstances, from which authority may be inferred, where appropriate, as a matter of implication.[17]In this case, it is necessary also to address another well known principle of defamation law; namely, that an individual such as Ms Aziz would be entitled to speak out in her own defence against defamatory attacks in the media or, even if the words used are not defamatory, to complain about alleged inaccuracies. It is recognised that a defendant is to be given a considerable degree of latitude when assessing what is relevant and/or reasonably necessary for the purposes of such a response: see e.g. Watts v Times Newspapers Ltd [1997] QB 650, 671, and the discussion in Gatley on Libel and Slander (11th ed) at paras 14.48 and 14.64.[18]Counsel submit that, even at this relatively early stage, it is possible to see that these principles will afford both Defendants an unanswerable defence in the first action – notwithstanding that assumptions of fact should be made in the Claimant’s favour. Mr Eardley broke down his submissions in this context by reference to four considerations: i) Did the Daily Mail article amount to an attack or criticism of Ms Aziz’ character or conduct? ii) Did Mr Dowd have authority to reply to such criticism on her behalf? iii) Were the words assumed to have been spoken by Mr Dowd reasonably necessary for defending his client’s reputation (taking into account the “generous ambit” allowed for in Regan v Taylor at [52] )? iv) Was his reply on her behalf appropriately addressed to Ms Minsky?[19]As to the first question, the rather snide implication of the article is that Ms Aziz behaved in a mean and ungenerous manner towards the Claimant.[20]As to the second, Mr Dowd’s authority may not be admitted by the Claimant in her Reply, but the evidence of Mr Dowd and his client in this respect cannot really be gainsaid.[21]On the third question, there may be some dispute as to the precise extent of the Claimant’s responsibility for the content of the article, but it is accepted that she told Ms Minsky that Ms Aziz had lost a bracelet, which was likely to have been extremely valuable, and that it was found and recognised by the Claimant and returned by her in good faith to the First Defendant. At the least, therefore, it would appear to Mr Dowd that the Claimant had been the source of a story on the basis of which Ms Minsky had chosen to belittle or criticise his client. He would thus be entitled to set the record straight and, in defence of his client’s interests, to seek to undermine the credibility of the Claimant if and in so far as she had been, or was likely to have been, the origin of the embarrassing references to Ms Aziz in the newspaper article. He would be entitled to guard against the possibility that this story would gain currency and be repeated in other newspaper articles.[22]Finally, it is clear from the evidence that Ms Minsky was the appropriate person to whom Mr Dowd should address his remarks, since she had written the story and apparently spoken with the Claimant beforehand. Moreover, he was pointed in her direction by the legal department of Associated Newspapers Ltd when he telephoned to make his complaint. He was told that she was the appropriate person to speak to. That emerges from his witness statement.[23]For these reasons, there is in my judgment a plain defence of qualified privilege in respect of Mr Dowd’s conversation with Ms Minsky, since there was a legitimate common and corresponding interest in the subject-matter. That prima facie defence applies both so far as Ms Aziz is concerned, as the person actually referred to in disparaging terms in the article, and to Mr Dowd also, as her duly authorised agent acting within the scope of his authority.[24]As to whether or not there is any realistic possibility of the defence being defeated by proof of malice, I shall return to this topic when I come to consider the submissions made in relation to the claim in injurious falsehood.[25]I must address next the second publication pleaded in the original particulars of claim in the first action:
“Further or alternatively, on or about 12th April 2007, the Second Defendant, and/or, alternatively, persons unknown acting on behalf of and/or alternatively caused or authorised by the First Defendant, spoke and published the words complained of, set out in paragraph herein above to Barry Hayes, further or alternatively, to other persons employed by or in control of ‘Les Ambassadeurs Club’.”
[26]As counsel have pointed out, the vagueness of the pleading is obvious. It is submitted that the formula “to other persons employed by or in control of …” is not sufficient to satisfy the requirements of CPR 53 PD 2.4 and should be struck out on that ground alone. That is in my judgment clearly correct.[27]It is no doubt inherently unlikely that Mr Dowd, or indeed anyone else, would speak exactly the same words to other persons, such as Mr Hayes, as he was said to have spoken earlier to Ms Minsky. The matter does not rest there, however, since Mr Dowd’s evidence is that he made no such statement to Mr Hayes or anyone else at the club, either on 12 April 2007 or later. Mr Hayes’ evidence is also before the court, in which he makes clear that no one made any such statement to him nor, within his knowledge, to any other member of the staff at the club. Since the Claimant has served no evidence in response, it is reasonable to conclude that she has no real prospect of overcoming this evidence. Her claim in this respect is based on bare assertion and cannot withstand scrutiny on an application under CPR Part 24.[28]As to the third publication relied upon, the pleading is in these terms:
“Further or alternatively, on or about 13th April 2007, the Second Defendant wrote and published or caused to be written and published to the said Helen Minsky her letter repeating or confirming by necessary implication the words complained of and reproaching Ms Minsky for repeating the said words to the Claimant.”
[29]The pleading would thus appear to be in breach of the requirement that the words complained of in a libel action need to be set out expressly. In an attempt to plug the gap, an order was obtained for third party disclosure against Associated Newspapers Ltd on 12 March 2009. Nothing emerged. Mr Dowd has expressly denied writing any such letter or, for that matter, communicating by any other means such as email or fax, along the lines alleged in the particulars of claim. Thus, the claim should be struck out for non-compliance with the rule that the words complained of need to be set out. It remains a bare assertion in the teeth of the evidence.[30]I now need to consider the question of malice, both in respect of the application to strike out the claim based on injurious falsehood and for the purpose of considering whether the defence of qualified privilege could be defeated in respect of either Defendant. It was recognised by the Court of Appeal in Spring v Guardian Assurance [1993] 2 All ER 273 that the test for malice is the same whether it arises in the context of libel or injurious falsehood.[31]The modern leading authority as to the meaning of malice is Horrocks v Lowe [1975] AC 135, 149-151. As to its pleading, there are stringent requirements imposed because malice is recognised as being tantamount to an accusation of fraud or dishonesty and must not be made on a merely formulaic basis. It is necessary to plead and to prove the facts from which malice is to be inferred, and it will not suffice to plead only facts which are equally consistent with the absence of malice as with its presence. This was established in the middle of the 19th century in Somerville v Hawkins (1851) 10 CB 583 and has been confirmed in modern times by the Court of Appeal in Telnikoff v Matusevich [1991] 1 QB 102 and in Alexander v Arts Council of Wales [2001] 1 WLR 1840. It is recognised that mere assertion will not do (see generally Gatley on Libel and Slander (11th ed) at para 30.5). A claimant may not proceed simply in the hope that something will turn up if the defendant chooses to go into the witness box, or that he or she will make an admission in cross-examination.[32]The particulars pleaded in this case are insufficient to satisfy the stringent test applied. In particular, it is made clear in the speech of Lord Diplock in Horrocks v Lowe, cited above, that malice is to be firmly distinguished from being emotional, misguided or uncritical. Nor is it sufficient to plead that a defendant “ought to have known” certain facts or failed to make enquiries about them. Negligence is quite different from malice.[33]In the circumstances, there is no basis for pleading malice against either of the Defendants in the first action and no reason to suppose, in the light of the evidence, that it is going to be possible to prove malice if the matter is allowed to proceed to trial.[34]There is one possibility, at least in theory, of setting up a case in malice limited to Ms Aziz. If it is assumed that Mr Dowd spoke the words to Ms Minsky, as originally attributed to him, it could be inferred that he only did so on the basis of express instructions from Ms Aziz. They are sufficiently specific for it to be assumed that they would not fall within a general retainer. He would need information about the incident in the club to be able to make such allegations. If she passed on to him those allegations about the Claimant, and she knew them to be false, that might be sufficient to defeat a defence of qualified privilege advanced on her behalf. Unless Mr Dowd had reason to believe that she was lying, of course, it would not defeat the defence of qualified privilege open to him.[35]Nevertheless, there are certain difficulties about this scenario. First, it would not be consistent with an allegation made in the Claimant’s original pleading at paragraph 11(c), which positively asserts that Ms Aziz had been misled by “persons unknown”. That would be entirely consistent with her passing on whatever she said to Mr Dowd quite honestly. I note, however, that in the proposed amended particulars of claim the allegation of her being misled by others no longer appears. But it must be assumed that it was based on some evidence. As yet, no explanation has been forthcoming (i.e. in support of the application for permission to amend) as to why this has been dropped. At all events, what matters is that, as things stand at the moment, there is no pleading or evidence which points unequivocally to dishonesty on Ms Aziz’ part.[36]Second, the case now put forward on the Claimant’s part by Mr Veen in argument posits various hypothetical scenarios, some of which are consistent with no one at all being malicious. Indeed, in paragraph 31 of her witness statement of 14 May 2009, the Claimant highlights the possible explanation that “Mr Dowd concocted the lies and lied to Ms Aziz …” and, in paragraph 71, she contemplates the possibility that “he had a rush of blood to the head either when he read the article or during any conversation he may have had subsequently with Ms Aziz” (emphasis added). If pleaded, this line of argument would fall foul of the principle identified in Somerville v Hawkins, cited above, to the effect that it will not do to plead in support of malice allegations which are equally consistent with its absence as with its presence.[37]Thirdly, in any event, reliance is placed by Ms Rogers on the approach taken to minimal publication in Jameel (Yousef), cited above. It was there held to be appropriate to strike out, as an abuse of process, a claim not based on a publication amounting to a real and substantial tort. Here the publication is alleged to have taken place simply to one person (Ms Minsky) who, the evidence shows, did not attach weight to it and is, effectively, in the Claimant’s “camp”. She reported back to the Claimant, whether accurately or otherwise, what Mr Dowd was supposed to have said to her on 12 April 2007. There is no reason to suppose that the Claimant was in any way at all adversely affected in her estimation.[38]Furthermore, in so far as it is argued that there were potentially serious financial consequences for the Claimant, the case appears to be shifting and inconsistent. Originally, there was a plea to the effect that the Claimant lost a potentially valuable contract for the design of uniforms for the club, but that seems to have been replaced by a new case founded upon supposed damage to the publishing prospects of the Claimant’s proposed autobiography. It makes no difference for present purposes, since there is no evidence to suggest either that Ms Minsky was affected by any adverse remarks made by Mr Dowd or that she would have had any role in assigning contracts for the design of uniforms for the club or in awarding contracts for the serialisation of a book in any of the Associated Newspapers titles. At the moment, of course, I am only contemplating possible damage flowing from a publication by Mr Dowd to Ms Minsky, since the other two causes of action relied upon in the first action, as originally pleaded, cannot be shown to stand up in the light of the uncontested evidence.[39]As I have already made clear, Mr Eardley too relies upon this ground of abuse of process quite independently of his other submissions. As it happens, it is superfluous in view of the conclusions I have reached on the arguments discussed above. Were it necessary to do so, however, I should uphold it on its own merits.[40]The proposed amended particulars of claim, which run to some 30 pages, are prolix and confusing. I could not give permission for them in their present form in any event. But the Defendants in the first action raise a more fundamental objection, submitting that they do nothing to cure the defects in the original pleading. Moreover, the application for permission, dated 12 May 2009, was not supported by evidence, as is required: see e.g. Civil Procedure, Vol 1, at 17.3.6. It is true that there is a very long witness statement from the Claimant dated 14 May 2009 which is alleged to be in support of the application, but it seems primarily directed to responding to criticisms of the draft made by the Defendants after it was served rather than explaining clearly why it was appropriate to amend in the first place. In any event, it is sought to add new causes of action (both as to other alleged publications and in conspiracy) and must therefore comply with the provisions of CPR 17.4(2). They must arise out of the same or substantially the same facts as those already pleaded.[41]Again, Mr Eardley breaks down his submissions by reference to four issues: i) Do the proposed amendments to the original causes of action correct the defects in the original case? ii) Do the new causes of action have any real prospect of success? iii) Do the amendments provide any basis for resisting a finding of qualified privilege? iv) Do the amendments provide a case on malice against Mr Dowd which has a real prospect of success?[42]At the outset, I should focus upon the nature of the proposed amendments to the causes of action already pleaded.[43]There are new versions set out of the words alleged to have been published by Mr Dowd to Ms Minsky. Mr Eardley argues that they have no bearing on the merits of his application to strike out. They are based on new material having come into the possession of the Claimant since the original pleading was served. She now has available a note of Ms Minsky and a (redacted) email sent by Mr Dowd to Mr Bateman within Davenport Lyons. What is immediately apparent is that neither of these new items lends any support to the originally pleaded case as to what Mr Dowd is alleged to have said. Nevertheless, despite being pressed in correspondence, no indication has been forthcoming that the Claimant intends to abandon that version of events.[44]There are also proposed amendments relating to the second and third publications originally sought to be pleaded. As to the alleged communication with Mr Hayes or other staff members at Les Ambassadeurs Club, there are some alternative versions of the words now introduced, but this does nothing to overcome the fundamental problem that the evidence adduced on behalf of the Defendants has not been contradicted. Even now, when permission is sought to amend, no evidence has been served to explain why there has been a change or to suggest that any evidence will be forthcoming at trial to support either the original or the new versions of the publications relied upon.[45]As to the third publication relied upon, consisting of some written communication to Associated Newspapers Ltd, there is at paragraph 45 a rather vaguer version of the publication. This is speculative. Nothing was revealed following the order for third party disclosure and it has been made clear that from 19 April 2007 any correspondence that passed between Davenport Lyons and Associated Newspapers was subject to legal professional privilege.[46]It follows that there is nothing in the proposed amendments which would serve to resurrect the second and third publications originally pleaded.[47]There are some further allegations which would appear to be founded on defamation and/or injurious falsehood but which, in Mr Eardley’s words, “are not allegations of publication at all”. They are bare assertions that the words forming the subject of the complaint were written down and stored by Ms Minsky and/or Associated Newspapers Ltd. There is no suggestion that there was publication onwards to third parties. Even if words spoken by Mr Dowd to Ms Minsky were recorded in writing, this would add nothing to the claim already made against him in slander.[48]I have referred already to the additional claim now put forward in conspiracy. It appears in the draft amended particulars at paragraph 33. Not only is there nothing in the evidence served in support of the proposed amendment, to explain its nature or why it comes so late, but there is no claim for pecuniary loss, which would be an essential element: see e.g. Lonrho Plc v Al-Fayed (No 5) [1993] 1 WLR 1489. Nor is there a pleading to support an inference that Ms Aziz and Mr Dowd agreed or combined to do anything.[49]In these circumstances, it is tolerably clear that there is nothing to justify the court’s granting permission to add any new cause of action.[50]Some of the proposed amendments would appear to be directed to undermining the defence of qualified privilege. This is based on an argument to the effect that Mr Dowd was acting without supervision by a partner at Davenport Lyons or that he was acting outside the scope of the lay client’s instructions.[51]There is nothing in the point about lack of supervision. Mr Dowd is a qualified and practising solicitor. It was expressly made clear in the original retainer letter that he would be the person responsible for the day-to-day handling of the matter. There is no professional reason why Mr Dowd should not have communicated with his client directly or to suppose that he required micro-management, in the sense of obtaining permission or approval from Mr Bateman before taking any particular step to protect the client’s interests. There is nothing in these points. The essential question is whether the solicitor has made communications within the broad scope of his retainer. I have already explained that the evidence from Mr Dowd and Ms Aziz covers this point and has not been answered. Accordingly, there is nothing in the new pleading which has any prospect of undermining the strength of the defence of qualified privilege already considered.[52]There is an attempt also to cure the defects in the pleaded case of malice. Critically, there is no allegation to support the proposition that Mr Dowd either knew that the words he spoke were false or that he was reckless in the sense of being indifferent to their truth or falsity. There is a suggestion at paragraph 19 of the amended pleading that Ms Aziz “would have told the Second Defendant” about the return of the bracelet to her. That is purely speculative and there is no real prospect that the Claimant can obtain evidence of what passed between Ms Aziz and Mr Dowd, since any such communication would be subject to legal professional privilege. Moreover, as I have pointed out above at paragraph 35, there is no unequivocal plea of dishonesty against Ms Aziz or explanation as to why the allegation has been abandoned of her being misled by “persons unknown”.[53]There is also an attempt, potentially “scandalous” in itself, to the effect that Mr Dowd was in some way motivated to “gratify” Ms Aziz in making false allegations to Ms Minsky by reason of what is coyly described as a “historic relationship” with her. This appears to be suggesting some emotional or sexual relationship between them which clouded his judgment as a solicitor and led him to make up or repeat false allegations in his conversation with Ms Minsky. This is a serious allegation to make and it is obvious that counsel would need the clearest evidence before him when placing such an allegation before the court. None has been provided. Even if there had been such a relationship, which is certainly denied, it would not justify the introduction of an allegation of dishonesty.[54]I am satisfied that for these reasons the questions posed by Mr Eardley must all be answered in the negative and that the proposed amendments should be rejected on their merits – quite apart from the lack of evidence in support and the prolixity of the proposed pleading in its current form.[55]It remains to consider the Claimant’s recent application for summary judgment on the issues of qualified privilege and falsity. This would obviously only arise if the claim survives. Since I have already determined that it should not, it is strictly unnecessary to address the application for summary judgment. Nevertheless, it is perhaps appropriate to make the following limited observations. First, as to falsity, it is elementary that in a claim for injurious falsehood the burden of proof lies upon the claimant. Since she has introduced in this case no substantive evidence on the subject, the Claimant cannot possibly succeed in demonstrating that any communication by Mr Dowd (as to which there is fundamental dispute in any event) was in itself false. Secondly, for the reasons already discussed, the Claimant is not in a position to undermine the defence of qualified privilege put forward on behalf of the Defendants, let alone obtain summary judgment in respect of it.[56]It follows that the claims in the first action will be struck out and the Claimant’s applications for permission to amend and for summary judgment are both rejected.[57]So far as the second action is concerned, bringing in Mr Bateman and Davenport Lyons & Co, this would be flawed in any event for the same reasons as the claims which I have so far been considering against Mr Dowd and Ms Aziz.[58]Additionally, there is the argument based on the Limitation Act 1980.[59]The second action has been commenced almost two years after the events of April 2007. The Claimant is therefore obliged to circumvent the statutory bar by some means and places reliance upon the terms of s.32(1)(b). It is provided that a period of limitation shall not begin to run, in circumstances where the right of action has been deliberately concealed by the relevant defendant, until such time as the claimant discovers the fraud or could, with reasonable diligence, have discovered it.[60]There is here no evidence of any material concealment. What is said to have been deliberately concealed by Davenport Lyons and Mr Bateman is that they had not acted at all material times pursuant to the scope of their authority and/or the client’s instructions. It is difficult to see how the Claimant could establish the supposed “fact” in any event, since the evidence of Ms Aziz is that Mr Bateman and Mr Dowd had her instructions to monitor all media coverage so that, where appropriate, they could take steps to protect her rights, including as to reputation and privacy. Mr Dowd’s evidence also established, on an uncontradicted basis, that they indeed had such authorisation. It is obvious that such steps might, depending upon the circumstances, include making an approach to a journalist who had written or published an article adversely reflecting on Ms Aziz.[61]In any event, the Claimant has known from the outset that Mr Dowd is employed by Davenport Lyons. Furthermore, she could easily have established, with reasonable diligence, that the partner responsible was Mr Bateman. What is more, it is possible to see his initials appearing on some of the correspondence.[62]It is necessary also to take into account the effect of the Court of Appeal decision in C v MGN Ltd [1996] 4 All ER 511. It is clear that in the context of defamation proceedings (or, for that matter, proceedings for injurious falsehood) a fact relevant to the Claimant’s cause of action (for the purposes of s.32(1)(b) of the 1980 Act) must be one which the Claimant is required to plead in the particulars of claim. It would not be necessary for the Claimant to set out in support of a claim for libel, slander or injurious falsehood that either of the relevant solicitors lacked the authority of Ms Aziz for what they published.[63]The limitation point is thus insurmountable.

Cited in 5 later judgments