“Johanna Kaschke – recent defector from New Labour to Respect – was in the 1970s held in custody in her native Germany, charged with support for the ultraleftist Baader-Meinhof terrorist group. “Ms Kaschke – pictured left – denies any wrongdoing, although she admits to having organised some sort of benefit gig: 'All I ever did was organise a music concert in the University of Würzburg Mensa. This got me sacked from my job in the University bookshop Schöningh and I also then lost my home.' She has recently launched a complaint against leading German news magazine Der Spiegel for an article it wrote three decades ago, naming her in this connection. Rather than trying to hide any of this, Ms Kaschke has commendably chosen instead to post a copy of the story on her own website. She goes on to write: 'I can safely say I never met any of the other persons mentioned in the article and got released after three months of prison on remand and was paid compensation for wrongful arrest and imprisonment two years later.' If we take this account at face value – and I have no reason not to – the worst she stands accused of is youthful folly. After all, many young people attracted to far left politics in the 1970s were passively sympathetic to groups such as the Baader-Meinhof gang. Most have subsequently been rehabilitated. Former Angry Brigade suspect Angela Mason these days boasts an Order of the British Empire gong and sits on quangos. Even I used to wear a Brigate Rosse T-shirt, as modelled by Joe Strummer. Ms Kaschke appears to have come to political terms with all this: 'Frankly I cannot understand how such educated university graduates like the Baader Meinhof people fell for this illusion that the state is only a paper tiger and they can win an urban guerrilla war against them. 'Now with al Qaeda again we have people believing they go to paradise after they blow themselves up and that they are good Muslims if they cause a lot of destruction. 'Terrorism is the enemy of all Socialism as it creates exactly the opposite reaction, it makes the state more right wing and is likely to destroy all Socialist advances made by peaceful negotiation. 'If I knew of someone planning a terrorist atrocity I would definitely report them to the authorities because it's not right. I believe that people being put up to those guerrilla activities are being used by some people for exactly the purpose to create a right-wing movement.' The thing is, she may find that not all of her new colleagues in Respect share her stance. Respect MP George Galloway, for instance, believes it would be morally justified for a suicide bomber to kill Tony Blair. Posted at 23:58,7 April 2007 .”
“The fact is for the avoidance of doubt that the claimant was arrested in 1975 under suspicion to be part of a criminal gang that could use material for terrorist activities but no proof was provided for those charges. The fact is that the claimant received damages three years later.”
“…I had been wrongly arrested in 1975 and gotten compensation for it…neither did the arrest warrant mention the word Baader-Meinhof, it mentioned criminal association. I was accused of being ‘near’ a storage area, which contained one toy pistol and other legal items…I have contacted each and every publication I know of who exploits this gutter press reporting and asked them to remove all mention of Baader-Meinhof with my name…”
“You can write Johanna had been arrested within the national hysteria whereby the state arrested everyone meeting their suspicious criteria and threw them into jail. Johanna was one of them. In her case she was accused to be a member in a criminal gang with the aim to commit terrorist offences. However her release and subsequently compensation paid to her for wrongful arrest cleared all suspicion.”
“…My brush with the law was over 30 years ago now…during the hysteria that broke out in Germany over the Baader-Meinhof activities the press tried to bunch every antifascist person into the town guerilla movement and when I was arrested in 1975 I was thrown into jail at first without as much as a warrant and then released and given compensation for wrongful arrest two years later. Incidentally the press in Germany at the time wanted to connect everyone to Baader-Meinhof who was only remotely under suspicion, a communist, unionist or socialist, lawyer etcetera…it actually took 40,000 police at the time to locate the real Baader-Meinhof terrorists but everyone moving around frequently because they had to find work or had been asked to leave by the landlord became suspicious. I didn’t have a good time then like everyone undergoes good and bad times and as in Germany at the time there was still quite an atmosphere with many old fascists still being sat in local authority positions businesses and so forth I didn’t have it easy to cope with the result of having organised a music concert which featured progressive American/UK style music. I had to move to find work and they threw that back into my face.”
“I moved around a bit, got to know people involved in the then student protests, got myself arrested under the terrorism law because Baader-Meinhof caused a lot of destruction at that time and my lifestyle was highly suspicious to German authorities, held in jail for 3 months, to be released without charge.”
“I have recently been aware that some old web pages from my personal website have become visible on the Wayback Machine those pages were written around 2003/04 and were for a book I was planning to write. …I was arrested under a generic charge under the then Criminal Justice Act using terrorist legislation.”
“Further to my letter from30 May 2008 I would now like to amend the contents and turn this into an official letter of claim. Unfortunately this content was not in the previous one and a lot of correspondence about ideologies has been passed between ourselves that was not even present in my mind at the time my arrest happened or all incidences occurred and your paper reported about in a libellous manner. Also unfortunately my previous representatives Employment Lawyers did not provide a full picture in their letter of claim to represent a full picture of what led to my arrest and why I got into such circumstances, which could make the German authorities suspicious of me…therefore I would like to ask you to provide a substantial reply to this letter within 21 days as I am engaging a top barrister to represent me on8 July 2008 in regard to the case issued under claim HQ08X00922 in order to enable an out of court settlement to avoid further costs for either side. I shall also send a copy of this letter to the court…I left the job in Cologne voluntarily and got to the home of another friend when I was surrounded by police who took me into custody without any kind of warrant and then the next day they produced one. But I was so upset of being accused under the (what is now called the Terrorism Act here in the UK, then it was called suspicion being a member of a criminal gang) that I decided not to speak to the police who asked whether I wanted to answer questions. I was held in isolation and was not allowed to see a solicitor for 6 weeks and was then suddenly released without reasons or bail conditions in September… I shall compile a statement to submit to the court for the hearing on8 July 2008 and shall provide you with a copy in good time for the hearing, this letter shall be included. So in summing up the proceedings, I could either have the content of this letter included as evidence as soon as you file eventually your defence or have it used in new proceedings against you depending on the outcome of the hearing on8 July 2008 .”
“Johanna is quite open about this (and other things) on her website. It would appear that she was released without charge and that she was given compensation by the German government for wrongful imprisonment.”
“As I am working through your folder I am getting to know the discrepancies between what you are showing to the judge and between what really happened. You are leaving out vital pieces of evidence to turn the judge in your favour and so far Mr Justice Eady was easily impressed by you. However I enclose the Right of Reply I sent to your client on9 August 2007 , which he said he lost. …All in all it cannot work in your favour that you do not attempt to give the judge a full picture but only enclose the bits that suit you. …”
“I shall also bring along the print out of the Right of Reply I asked Mr Hilton to print on 2007.”
“It would appear that she was released without charge and that she was given compensation by the German government for wrongful imprisonment.”
“However she does give the impression that she was involved in fund-raising activities for the terrorists although this is unclear. To be fair, she is now firmly and openly against terrorism.”
“Permitting the defendants to rely on the directly relevant background contents in the way in which I have described would not offend anything said in Scott v Samsung 8 QBD 491 or Speidel v Plato Films Limited[1961] AC 1090 . The material to which I have referred as directly relevant background context was, as I have indicated, recognised in Speidel v Plato Films Limited as being admissible as the circumstances in which the publication came to be made. In the present case, those circumstances are not sensibly limited to the concert in memory of John Smith and the fact that the claimant’s music was played at it. For practical purposes, every publication has a contextual background, even if the publication is substantially untrue. In addition, the evidence which Scott v Samsung excludes is particular evidence of general reputation, character or disposition which is not directly connected with the subject matter of the defamatory publication. It does not exclude evidence of directly relevant background context. To the extent that evidence of this kind may also be characterised as evidence of the claimant’s reputation, it is admissible because it is directly relevant to the damage which he claims has been caused by the defamatory publication.” (Para 42). May LJ also cited the following dictum by Parker LJ in Atkinson v Fitzwalter[1987] 1 WLR 201 at 214: “A defendant is entitled to rely in mitigation of damages on any evidence which is properly before the jury and this can include evidence in support of an unsuccessful plea of justification: see the judgment of Neill LJ in Pamplin v Express Newspapers Limited”
“I have seen nothing to suggest that the CPR are to be applied any less rigorously, or that judges are to be less interventionist, in litigation of the kind where there is a right to trial by jury. That important right is sometimes described as a ‘constitutional right’ although the meaning of that emotive phrase is a little hazy. Nevertheless I see no reason why such cases require to be subjected to a different pre-trial regime. It is necessary to apply the overriding objective even in those categories of litigation and in particular to have regard to proportionality. Here there are tens of thousands of pounds of costs at stake and several weeks of court time. I must therefore have regard to the possible benefits that might accrue to the claimant as rendering such a significant expenditure potentially worthwhile. It is in this context that, it seems to me, Mr Stadlen’s submissions come into play about the damage done to the claimant by the outcome of the previous litigation and the adverse publicity following in its wake. Mr Milmo is quite right of course in saying that a defendant cannot pray in aid damage done to reputation after the date of publication for the purposes of mitigating damages; see Gatley on Libel and Slander (9th ed.), at paragraphs 33.31 and 33.33 . For present purposes, on the other hand, those principles are beside the point. I am here taking those matters into account not in the context of damages but for the purposes of applying at a pre-trial stage the overriding objective at Part 1 of the C.P.R. I am therefore not only entitled, but indeed bound, to ask whether, in the old colloquial phrase, the game is worth the candle. Mr Stadlen has emphasised several times the particular objectives that libel actions are intended to achieve, including the restoration of reputation or character and, where an injunction is sought, the prevention of similar allegations in the future. Here, he submits, it would be wholly unrealistic to ignore what happened following the collapse of the Guardian action. The Guardian and other newspapers have been free since this time to repeat the allegations originally complained of and they have apparently taken full advantage of it. I need not refer to the articles which have been put in evidence; it is the principle that matters. Moreover, the earlier case was abandoned even though the claimants’ meanings put upon the words complained of could only be described as seriously defamatory … Those meanings are, as will be apparent from a comparison, very close to the one complained of in this action. Against that background, the pursuit of the present action in the hope of salvaging something from the disastrous outcome of the previous action can only, in my judgment, be characterised as a desperate exercise in damage limitation. It represents one last throw of the dice. In all the circumstances I am afraid I cannot accept that there is any realistic prospect of a trial yielding any tangible or legitimate advantage such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources. I should say a few words about the separate very closely related subject of abuse of process I indicated I have been referred by the parties to the recent decision of the Court of Appeal in Bradford & Bingley Building Society v Seddon[1999] 1 WLR 1482 . I can cite certain helpful passages from the judgment of Auld LJ in that case. He said at an early stage: “The broad question is whether the second claim falls foul of the well established principle in Henderson v Henderson [1843] 3 Hare 100 that a party should, save in special circumstances, not bring forward his whole case in one go and not subsequently seek to reopen the same subject matter by reference to claims against different persons and/or in respect of different issues…”
‘In my judgment it is important to distinguish clearly between res judicata and abuse of process not qualifying as res judicata, a distinction delayed by the blurring of the two in the court’s subsequent application of the above dictum. The former in its cause of action estoppel form, is an absolute bar to re-litigation, and in its issue estoppel form save in the ‘special cases’ or ‘special circumstances’: see Thoday v Thoday[1964] P191 CA per Diplock LJ at 197G to 198G and Arnold v Natwest Bank Plc[1991] 2 AC 93 HL. The latter which may arise where there is no cause of action or issue estoppel is not subject to the same test, the task of the court being to draw the balance between the competing claims of one party to put his case before the court and of the other not to be unjustly hounded given the earlier history of the matter.’
‘Thus, abuse of process may arise where there has been no earlier decision capable of amounting to res judicata either or both because the parties or the issues are different for example where liability between new parties and/or determination of new issues should have been resolved in the earlier proceedings, or where there is such an inconsistency between the two that it would be unjust to permit the later proceedings to continue. The first of these examples is an adaptation of Sir James Wigram V-C’s inclusion in the principle of res judicata of a requirement that a party should be bound by what he and the court has not done before as well as what they have done.’
“I consider that it is for him who contends that the retrial of the issue is an abuse of process to show some special reason why it is so. Since the cases in which the retrial of an issue (in the absence of an estoppel) has been disallowed as an abuse of process are so few in number it would be dangerous to attempt to define fully what are the circumstances which should lead to a finding of an abuse of process. Features tending that way clearly include the fact that the first trial was before the most appropriate tribunal or between the most appropriate parties for the determination of the issue or that the purpose of the attempt to have it retried is not the genuine purpose of obtaining the relief sought in the second action, but some collateral purpose. It would in my judgment be a most exceptional course to strike out the whole or part of a defence in a commercial action or to refuse leave to amend defence in such an action simply because the issue raised or sought to be raised had been decided in another commercial action brought against the same defendant by a different plaintiff. The facts that the first action had been fairly conducted and that the issue had been the subject of lengthy evidence and argument could not, in my view, be sufficient in themselves to deprive the defendant of his normal right to raise any issue which he is not estopped from raising…”
“In Schellenberg v British Broadcasting Corpn [2000] EMLR 296 the claimant had settled defamation actions against the “Guardian” and the “Sunday Times” on disadvantageous terms, when it seemed likely that he was about to lose. He then pressed on with this almost identical action against the BBC. Eady J struck this out as an abuse of process. He rejected the submission that he should not do so as this would deprive the claimant of his “constitutional right” to trial by jury. He said, at p 318: “I see no reason why such cases require to be subjected to a different pre-trial regime. It is necessary to apply the overriding objective even in those categories of litigation and in particular to have regard to proportionality. Here there are tens of thousands of pounds of costs at stake and several weeks of court time. I must therefore have regard to the possible benefits that might accrue to the claimant as rendering such a significant expenditure potentially worthwhile.”
“I am afraid I cannot accept that there is any realistic prospect of a trial yielding any tangible or legitimate advantage such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources.”” “I see no reason why such cases require to be subjected to a different pre-trial regime. It is necessary to apply the overriding objective even in those categories of litigation and in particular to have regard to proportionality. Here there are tens of thousands of pounds of costs at stake and several weeks of court time. I must therefore have regard to the possible benefits that might accrue to the claimant as rendering such a significant expenditure potentially worthwhile.” “I am afraid I cannot accept that there is any realistic prospect of a trial yielding any tangible or legitimate advantage such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources.””