Robins v Kordowski & Anor [2011] EWHC 1912 (QB)

[2011] EWHC 1912 (QB)

Case No HQ11X00917

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 22/07/2011

Before

THE HONOURABLE MR JUSTICE TUGENDHAT

Between

(1) STEPHEN ROBINSClaimants

(2) GABBITAS ROBINS (a firm)Claimant

(1) RICK KORDOWSKIDefendants

(2) TIM SMEEDefendant

Mr Nikki Singla (instructed by Gabbitas Robins) for Claimants

Mr Jonathan Crystal (Pro Bono) for First Defendant

Hearing Hearing dates: 14 July 2011

Judgment

[1]The First Claimant, Mr Robins, is a solicitor who has been in practice for over 30 years and is now a partner of the Second Claimant. The First Defendant, Mr Kordowski, publishes material on a website called Solicitors from Hell.

[2]On or about 4 March 2011 Mr Kordowski published the words complained of. They are allegations by the Second Defendant, Mr Smee, against the Claimants. Mr Smee had sued Mr Bonwick in proceedings in which the Claimants had acted for Mr Bonwick. On 4 March 2011 Mr Smee caused to be published on the website the following words (amongst others) referring to the Claimants:

“This man is the most dishonourable unscrupulous “professional”

I have ever met. He consistently lied and bullied his client into pursuing a ludicrous, fictitious claim racking up extortionate costs in the process. There was never any attempt to provide proper advice. He acted in his own best interests – totally disregarding those of his client…”.

[3]The dispute between Mr Smee and Mr Bonwick had been settled shortly before the 4 March publication.

[4]On 6 March 2011 there appeared on the website a longer and more detailed complaint by Mr Smee, but it was substantially to the same effect as the first publication on 4 March. It included two passages from the 4 March text, varied to read as follows: “It is my honest opinion that this man is the most dishonourable, unscrupulous ‘professional’ I have ever met…. 5 days before the case was due to be tried, Stephen Robins called a meeting at which he offered to accept a lower figure. He went on to say that if the case went to court and I won, his client would not have a penny with which to pay me anyway. The very next day his client verbally offered me what I was owed in settlement of my claim plus part of my costs. I accepted. The defendant then spoke to Stephen Robins and came back to me to say ‘all offers are withdrawn’. We met in court two days later (incurring further costs each) and I then accepted an out of court settlement. Stephen Robins clearly lied to me about the clients ability to pay. It seem that Robins then talked his client into withdrawing his offer. The net result was costs for both parties (and of course more fees for Stephen Robins). He acted in his own best interests – totally disregarding those of his own client”.

[5]There are now before the court two application notices. By an application notice dated 7 June 2011 Mr Kordowski applies to set aside a judgment for damages to be assessed. It was dated 12 April 2011 and entered against him in default of Defence in the libel proceedings brought against him by the Claimants.

[6]By an application notice dated 27 June 2011 the Claimants ask for summary disposal of their libel claim against Mr Kordowski, in accordance with Section 8 of the Defamation Act 1996 (“the Act”). Although they have already obtained judgment in default of Defence, the draft order includes an application for judgment to be entered against Mr Kordowski under section 8 of the Act. The Claimants also ask for relief in the forms of: a declaration that the words published or caused to be published by the Defendants were false and defamatory of the Claimants; publication of a suitable correction and apology; damages and an injunction. These are the forms of relief provided for by section 9(1) of the Act.

[7]Sections 8 and 9 of the Act provide as follows: “8 Summary disposal of claim.(1) In defamation proceedings the court may dispose summarily of the plaintiff’s claim in accordance with the following provisions.

(2) The court may dismiss the plaintiff’s claim if it appears to the court that it has no realistic prospect of success and there is no reason why it should be tried.

(3) The court may give judgment for the plaintiff and grant him summary relief (see section 9) if it appears to the court that there is no defence to the claim which has a realistic prospect of success, and that there is no other reason why the claim should be tried. Unless the plaintiff asks for summary relief, the court shall not act under this subsection unless it is satisfied that summary relief will adequately compensate him for the wrong he has suffered.

(4) In considering whether a claim should be tried the court shall have regard to— (a) whether all the persons who are or might be defendants in respect of the publication complained of are before the court; (b) whether summary disposal of the claim against another defendant would be inappropriate; (c) the extent to which there is a conflict of evidence; (d) the seriousness of the alleged wrong (as regards the content of the statement and the extent of publication); and (e) whether it is justifiable in the circumstances to proceed to a full trial.

(5) Proceedings under this section shall be heard and determined without a jury. 9 Meaning of summary relief.E+W+N.I. (1) For the purposes of section 8 (summary disposal of claim) “summary relief” means such of the following as may be appropriate— (a) a declaration that the statement was false and defamatory of the plaintiff; (b) an order that the defendant publish or cause to be published a suitable correction and apology; (c) damages not exceeding £10,000 or such other amount as may be prescribed by order of the Lord Chancellor; (d) an order restraining the defendant from publishing or further publishing the matter complained of. (2) The content of any correction and apology, and the time, manner, form and place of publication, shall be for the parties to agree. If they cannot agree on the content, the court may direct the defendant to publish or cause to be published a summary of the court’s judgment agreed by the parties or settled by the court in accordance with rules of court. If they cannot agree on the time, manner, form or place of publication, the court may direct the defendant to take such reasonable and practicable steps as the court considers appropriate. (3) Any order under subsection (1)(c) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament”. (a) whether all the persons who are or might be defendants in respect of the publication complained of are before the court; (b) whether summary disposal of the claim against another defendant would be inappropriate; (c) the extent to which there is a conflict of evidence; (d) the seriousness of the alleged wrong (as regards the content of the statement and the extent of publication); and (e) whether it is justifiable in the circumstances to proceed to a full trial. (a) a declaration that the statement was false and defamatory of the plaintiff; (b) an order that the defendant publish or cause to be published a suitable correction and apology; (c) damages not exceeding £10,000 or such other amount as may be prescribed by order of the Lord Chancellor; (d) an order restraining the defendant from publishing or further publishing the matter complained of.

[8]The Claimants sent their letter before action on 4 March. On the same day Mr Kordowski responded claiming that he and Mr Smee had a moral and social duty to expose wrongdoing and stated that “I can assure you this will happen if the author can substantiate their claim to me”.

[9]On 11 March 2011 the Claimants commenced proceedings against Mr Kordowski and Mr Smee claiming damages and an injunction. On 14 March the proceedings were served, and on 17 March there was an acknowledgement of service. The Particulars of Claim are dated 11 March. The Claimant sought an interim injunction. On 30 March 2011 that application came before Henriques J. Following a hearing which I am told lasted a day, he granted an injunction restraining publication of the words complained of or any similar words defamatory of the Claimants until trial or further order.

[10]On 30 March 2011 Mr Kordowski was advancing a number of defences: justification (that is, truth), honest comment, qualified privilege, and a denial that he was a publisher within the meaning of section 1 of the Act. Henriques J addressed each of these defences. But first he considered whether it was clear beyond argument that the words complained of were defamatory of the Claimants. He concluded that it was clear. Next he concluded, for reasons he stated, that there were no grounds for concluding that the statement published were true. He remarked on the difficulty of a person in Mr Smee’s position, that is the opponent of the Claimant’s client, in knowing what had passed between the Claimants and their client Mr Bonwick. Mr Bonwick has advanced no complaint about the Claimants. As to the defence of fair comment, Henriques J was satisfied that the statements published were statements of fact and not comment. Accordingly he was satisfied that there could be no defence of fair comment that might succeed. He also rejected the other defences, and they have not been persisted in by Mr Kordowski.

[11]On 11 April 2011 the Claimants requested that judgment be entered in default of defence pursuant to CPR 12.4(1). That involved a procedural error: they should have made an application under CPR 12.4(2).

[12]CPR 12.4(1) to (3) reads as follows: “(1) Subject to paragraph (2), a claimant may obtain a default judgment by filing a request in the relevant practice form where the claim is for –(a) a specified amount of money;

(b) an amount of money to be decided by the court;

(d) any combination of these remedies. (2) The claimant must make an application in accordance with Part 23 if he wishes to obtain a default judgment – (a) on a claim which consists of or includes a claim for any other remedy; …. (3) Where a claimant – (a) claims any other remedy in his claim form in addition to those specified in paragraph (1); but (b) abandons that claim in his request for judgment, he may still obtain a default judgment by filing a request under paragraph (1)”.

[13]The error was that a request for judgment in default under CPR12.4(1) is the procedure applicable where the claim is for a money judgment only. Where, as here, the claim includes a claim for an injunction, an application for judgment in default should be made in accordance with Part 23 and Part 12.4(2).

[14]A judgment pursuant to that request was entered on 12 April 2011. The effect, submits Mr Crystal, is that the Claimants have abandoned their claim for an injunction and cannot now pursue it.

[15]On 14 April Mr Kordowski purported to serve a Defence. On 18 April he applied for trial by jury.

[16]On 20 April the proceedings against Mr Smee were settled by a Tomlin order. That was an order, made by consent, that all further proceedings against Mr Smee be stayed upon the terms set out in the Schedule to the order. It was agreed that upon Mr Smee giving undertakings to the Claimants not to publish or cause to be published the words complained of, or any similar words defamatory of the Claimants, the order of Henriques J of 30 March would be discharged as against him. Mr Smee agreed to pay the Claimants costs in the sum of £17,417 in full and final settlement of his involvement in this matter. He also wrote letters of apology in which he stated:

“I now accept that the above imputations and implications thereof were unjustified and I apologise to the First and Second Claimants for having made them as author of them and I withdraw unreservedly all such imputations upon the First and Second Claimants ….”

[17]CPR 13.3 provides that the court may set aside a judgment entered 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 (1) the judgment should be set aside or varied; or (2) the defendant should be allowed to defend the claim. The test is thus very similar to the test under section 8 (3) of the Act.

[18]I therefore invited the parties to address first the question of whether the draft Defence had any real prospect of success.

MEANING

[19]The first issue is as to meaning. In the Particulars of Claim it is pleaded that the words published on 4 and 6 March meant or were understood to mean that: “(1) In respect of the First Claimant that: (i) he had perpetrated a fraud on Mr Bonwick… in respect of the litigation between [Mr Smee] and Mr Bonwick, and had acted fraudulently and dishonestly in litigation. ii) he had lied to and bullied Mr Bonwick against his voluntary will into pursuing his counterclaim in the proceedings. iii) He had deliberately and fraudulently omitted to advise Mr Bonwick and instead acted only in his own best interests at the expense of his own client. iv) He had acted corruptly and dishonestly in the litigation and is to be shunned and avoided by any potential future client or any existing clients. (2) In respect of the Second Claimant that; i) It is connected to or complicit with and otherwise involved with the fraudulent and dishonest instances pleaded aforesaid in relation to the First Claimant ii) By virtue of the dishonesty of fraud and corruption of one of its founding partners in the litigation between [Mr Smee] and Mr Bonwick, it should be shunned and avoided by any potential future client or any existing clients ”. (i) he had perpetrated a fraud on Mr Bonwick… in respect of the litigation between [Mr Smee] and Mr Bonwick, and had acted fraudulently and dishonestly in litigation. ii) he had lied to and bullied Mr Bonwick against his voluntary will into pursuing his counterclaim in the proceedings. iii) He had deliberately and fraudulently omitted to advise Mr Bonwick and instead acted only in his own best interests at the expense of his own client. iv) He had acted corruptly and dishonestly in the litigation and is to be shunned and avoided by any potential future client or any existing clients. i) It is connected to or complicit with and otherwise involved with the fraudulent and dishonest instances pleaded aforesaid in relation to the First Claimant ii) By virtue of the dishonesty of fraud and corruption of one of its founding partners in the litigation between [Mr Smee] and Mr Bonwick, it should be shunned and avoided by any potential future client or any existing clients ”.

[20]Mr Kordowski has pleaded meanings, as required by Practice Direction 53 para 2.5. Where a defendant alleges that the words complained of are true, that paragraph requires him to specify the defamatory meanings he seeks to justify, and to give meanings of the matters on which he relies in support of that allegation. Mr Kordowski denies that the words complained of bear the meanings pleaded by the Claimants. He pleaded the meaning he seeks to justify as follows: “The said words meant and were understood to mean: In relation to [the words published on 4 March](i) that the Claimants had pursued a hopeless claim on behalf of their client thereby incurring unnecessary costs for such client and

(ii) that the Claimants put their own interests ahead of their client in relation to the words [published on 6 March 2011] (i) That the Claimants had advanced a spurious counterclaim on behalf of a client which had no reasonable prospect of success. (ii) That the Claimants had demanded a settlement figure for their client when he was indebted to [Mr Smee] and falsely informed [Mr Smee] that his claim was worthless as their client could not pay anyway.

(iii) That the Claimants rejected a settlement agreement between their client and [Mr Smee] causing the parties to incur unnecessary costs”. (i) that the Claimants had pursued a hopeless claim on behalf of their client thereby incurring unnecessary costs for such client and (ii) that the Claimants put their own interests ahead of their client (i) That the Claimants had advanced a spurious counterclaim on behalf of a client which had no reasonable prospect of success. (ii) That the Claimants had demanded a settlement figure for their client when he was indebted to [Mr Smee] and falsely informed [Mr Smee] that his claim was worthless as their client could not pay anyway. (iii) That the Claimants rejected a settlement agreement between their client and [Mr Smee] causing the parties to incur unnecessary costs”.

[21]In my judgment it is beyond argument that both sets of words complained of convey the meanings, as the Claimants allege, that Mr Robins lied, and that he had acted in his own best interests while totally disregarding those of his client. Those words appear in each publication. The words mean what they say.

[22]Mr Kordowski has no prospect of success whatever in his attempt to persuade a court that the words complained of do not bear those meanings.

[23]Mr Kordowski does not plead the meaning that Mr Robins had lied is a meaning which he seeks to prove true. What he seeks to prove to be true is a different meaning, namely that Mr Robins had made a statement which was false. The false statement alleged by Mr Kordowski is the statement to Mr Smee that Mr Bonwick could not pay and so Mr Smee’s claim was worthless. That is not a plea that Mr Robins lied.

[24]But Mr Kordowski does plead that he seeks to prove true the meaning that the Claimants put their own interests ahead of their client’s. So it is necessary to look at the particulars given in support of the plea of truth to see if they show a real prospect of Mr Kordowski succeeding in this plea.

[25]The particulars of truth or justification set out in paragraph 16 of the draft Defence are as follows:

“(i) [Mr Smee] commenced a debt action against Simon Bonwick. There was no reasonable defence to such claim. (ii) Mr Bonwick retained the Claimants in respect of such claim and a groundless counterclaim was served claiming monies substantially in excess of the claim. It is to be inferred that this was done to deter [Mr Smee] from proceeding with his debt claim. (iii) Five days before the listing of the trial of [Mr Smee]’s claim the First Claimant attended a meeting at which he offered to accept the claim on the basis of a payment by [Mr Smee] to Mr Bonwick. [Mr Robins] falsely claimed that if the case went to trial and [Mr Smee] won, Mr Bonwick would not have a penny with which to pay [Mr Smee]. (iv) The following day Mr Bonwick contacted [Mr Smee] and offered to repay the debt and part of [Mr Smee]’s costs. This was accepted by [Mr Smee]. [Mr Smee] then spoke with the First Claimant who informed him that: “All offers are withdrawn”

. It will be contended that no solicitor acting reasonably in respect of the debt claim by [Mr Smee] against Mr Bonwick would have terminated negotiations in this way or withdrawn offers made by their client which had been accepted. (v) The parties attended Court two days later when a compromise was reached involving Mr Bonwich paying [Mr Smee] £15,000. The costs incurred by Mr Bonwich and [Mr Smee] on this occasion were unnecessary as the Claimants knew or would have appreciated. By Mr Bonwick entering into an agreement to pay [Mr Smee], [Mr Robins]’s statement that Mr Bonwick would not have a penny with which to pay [Mr Smee] was demonstrably false. (vi) A prudent and competent solicitor would have advised Mr Bonwick to negotiate terms of settlement prior to incurring substantial legal fees which would cause a creditor in turn to incur unnecessary legal fees. [Mr Kordowski] reserves the right to plead further hereto after disclosure by the Claimants of their file and accounting records relating to the claim.”

[26]The only allegation that the Claimants “knew” anything material is that in particular (v) where it is alleged that the Claimants “knew or would have appreciated” that the costs incurred by Mr Bonwick were unnecessary. No particulars are given in support of that allegation of knowledge.

[27]Nor are there any particulars in support of the meaning that Mr Robins acted in his own interests and totally disregarded those of his own client. It may be that the reference in para (vi) to pleading further after disclosure is inserted in an attempt to keep this point open. If so, it does not achieve that purpose. Mr Bonwick has said that he does not waive his right to legal professional privilege in respect of his instructions to, and advice from, the Claimants. It follows that the Claimants will not be entitled or bound to give any such disclosure.

[28]There then follows, in paragraph 17 of the Draft Defence, an alternative defence, namely that “the words complained of are honest comment on a matter of public interest, namely that the Claimants had unscrupulously pursued hopeless litigation incurring unnecessary costs and in the course of which lied to [Mr Smee] …”

[29]I take this to be a plea (as required by Practice Direction to Part 53 para 2.6) the meaning which Mr Kordowski seeks to defend as comment is that Mr Robins had unscrupulously pursued hopeless litigation incurring unnecessary costs, and in the course of this had lied to Mr Smee. I accept that the words complained of are capable of bearing these meanings. The particulars in support of the plea of comment (as required by the Practice Direction para 2.6(2)) are the same particulars as pleaded in support of the defence of truth.

[30]What a defendant has to prove in order to succeed in a defence of comment has recently been restated by the Supreme Court as follows in Spiller v Joseph

, [2011] EMLR 11,

. At paras 3 and 105 the Supreme Court approved an earlier statement of the law by Lord Nicholls and corrected it to read as follows:

“16. … First, the comment must be on a matter of public interest. Public interest is not to be confined within narrow limits today: see Lord Denning in London Artists Ltd v Littler [1969] 2 QB 375, 391. 17. Second, the comment must be recognisable as comment, as distinct from an imputation of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere, for example, justification or privilege. Much learning has grown up around the distinction between fact and comment. For present purposes it is sufficient to note that a statement may be one or the other, depending on the context. Ferguson J gave a simple example in the New South Wales case of Myerson v. Smith's Weekly (1923) 24 SR (NSW) 20, 26: 'To say that a man's conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things and that his conduct was dishonourable is a statement of fact coupled with a comment.' 18. Third, the comment must be based on facts which are true or protected by privilege: see, for instance, London Artists Ltd v Littler [1969] 2 QB 375, 395. If the facts on which the comment purports to be founded are not proved to be true or published on a privilege occasion, the defence of fair comment is not available. 19. [Fourth, the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based]. 20. Finally, the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views: see Lord Porter in Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, 461, commenting on an observation of Lord Esher MR in Merivale v Carson (1888) 20 QBD 275, 281. It must be germane to the subject-matter criticised. Dislike of an artist's style would not justify an attack upon his morals or manners. But a critic need not be mealy-mouthed in denouncing what he disagrees with. He is entitled to dip his pen in gall for the purposes of legitimate criticism: see Jordan CJ in Gardiner v Fairfax (1942) 42 SR (NSW) 171, 174. 21. These are the outer limits of the defence. The burden of establishing that a comment falls within these limits, and hence within the scope of the defence, lies upon the defendant who wishes to rely upon the defence.”

'To say that a man's conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things and that his conduct was dishonourable is a statement of fact coupled with a comment.'

[31]There can be no question but that Mr Kordowski fails at the second stage. The allegation that Mr Robins lied is plainly a statement of fact, not comment or opinion. So too is the allegation that he acted “unscrupulously” in pursuing hopeless litigation. Both are allegations of dishonesty. It follows that a defence of comment cannot arguably succeed in relation to these meanings, and so has no real prospect of success. It is only by a defence of justification or truth that that meaning could be successfully defended.

[32]If Mr Kordowski cannot succeed in defending these two meanings, he cannot succeed at all. The Claimants do not complain of any meanings which do not involve fraud or dishonesty. A defendant is not entitled to defend allegations or meanings of which a claimant does not complain (Duncan & Neill on Defamation 3rd ed para 12.30).

THE EVIDENCE RELIED ON BY MR KORDOWSKI

[33]Mr Kordowski has no knowledge of the dispute between Mr Bonwick and Mr Smee, and so no direct evidence to give on any of the particulars.

[34]Mr Bonwick has not given a statement in support of Mr Kordowski’s Defence. On 17 March 2011 he made a statement at the request of the Claimants. In it he stated that he was not waiving any legal privilege in respect of the proceedings between himself and Mr Smee. The statement included the following:

“(1) I never found Mr Robins to be “dishonourable” or “unscrupulous”

. I found Mr Robins and his firm at all times to act properly and professionally. (2) It is untrue that my claim was spurious and had no possible chance of being upheld in Court. My Counsel settled all the pleadings in relation to the dispute. (3) The meeting to which Mr Smee refers was held “without prejudice” between the parties and their legal representatives. (4) Mr Robins and my Counsel advised me properly in relation to all offers and negotiations during the dispute and for Mr Smee to say that Mr Robins “talked [me] into withdrawing” any offers is untrue. (5) Mr Robins never bullied me nor at any time did he mislead about my ability to make any settlements. (6) Mr Smee makes a serious allegation that Mr Robins lied to him about my ability to pay sums of money. I now state that the statement made by Mr Smee that Mr Robins lied about my ability to pay is untrue.”

[35]It follows that Mr Kordowski neither has, nor has any real prospect of having, any of the privileged to documents or information relating to the instructions given by Mr Bonwick to Mr Robins, or to the advice Mr Robins gave to Mr Bonwick.

[36]Accordingly, Mr Kordowski relies solely on the evidence of Mr Smee. The earliest document produced in these proceedings by Mr Smee is one dated 28 February 2011. It is an email to Mr Robins. It is referred to in the judgment of Henriques J also. It includes the following:

“We hadall but agreed settlement when Simon [Bonwick] suddenly announced (having spoken to you) that he was “withdrawing all offers”

. He thereby committed us both to the further expense (approx £7,000 each) of proceeding to court. Immediately before the hearing was due to commence Simon, of course, agreed to pay me £15,000. I do not understand how you can tell me in the meeting that your client had no money but he was then able to offer to pay me £10,000 immediately with a further £5,000 in stage payments. I am shocked and saddened that such untruths could be told to me at such an advanced stage in proceedings. Apart from being dishonest, this is, at best unethical and immoral”. (emphasis added)

[37]On 27 March 2011 Mr Smee made a statement. Up to the point at which he addresses the allegation of lying, Mr Smee states that the words complained of express his honest opinion. In relation to the allegation of lying he states: “Stephen Robins clearly lied to me about the clients ability to pay This is witnessed in the letter dated 24th January 2011 from Chebsey and Co to Gabbitas Robins”.

[38]Chebsey and Co were the solicitors acting for Mr Smee. On 24 January 2011 they wrote a letter headed “without prejudice save as to costs” addressed to the Claimants in relation to the litigation between their respective clients. The letter includes the following:

“Indeed we are driven to hypothesise that rather than taking your client’s instructions, and rendering appropriate advice about cost and risk, you are driving the matter to trial for your own benefit. We can only conclude that you must be very sure that the counter-claim will succeed. That is not our view, nor apparently that of your client. We are disappointed to note that you client’s offer of settlement of £17,000 inclusive of costs has been withdrawn, we assume, following your firm becoming aware of the progress of this morning’s negotiations. We are aware that your client claims not to have funds or assets to satisfy any judgment that our client may obtain against him. We note your view that your client will succeed in his counter-claim and do not agree. …”

[39]That letter does not include an allegation that Mr Robins lied, and it gives no support to Mr Kordowski and Mr Smee seeking to prove that Mr Robins lied.

[40]Mr Smee’s statement continued as follows:

“It seems that Robins then talked his client into withdrawing his offer. This is as confirmed to me by Simon Bonwick on the telephone and as witnessed in the letter dated 24th January from my solicitors to Gabbitas Robins. .. The net result was increased costs for both parties (and of course more fees for Stephen Robins). This is clearly true… He acted in his own best interest – totally disregarding those of his own client. This is true. In the end the costs of his client were greatly increased…”

This is clearly true… This is true. In the end the costs of his client were greatly increased…”

This is clearly true…

[41]These passages in Mr Smee’s witness statement again obviously go nowhere to prove the truth of the allegations that Mr Robins lied, or that he put his own interests before those of his client.

[42]Notwithstanding the clear terms of the apology set out in the Schedule to the Tomlin order, on 7 June 2011 Mr Smee made a second witness statement. On 22nd June he made a third witness statement.

[43]In so far as the meanings pleaded by Mr Kordowski are concerned, I cannot see any material difference between them, although there are some differences.

[44]In the statement of 22nd of June, Mr Smee states:

“We went to mediation and eventually the case was to be heard in Slough Court. Prior to that hearing Mr Robins called a meeting at which he proposed that I pay his client £25,000 to settle the matter. I declined. At that meeting Mr Robins spoke and prevented his client from speaking. Mr Robins told me that if I were to win in court the judgment would be “unsatisfied”, indicating that his client would not be able to pay me, as he had no money. He further stated that “they had taken appropriate steps to protect Mr Bonwick’s interests”

. The very next day Simon Bonwick telephoned me to make a verbal offer to pay me £10,000. After further telephone calls Simon increased his offer to £17,000, which I accepted. Simon then spoke to Mr Robins and I was surprised when he then came back to me to say that all offers were withdrawn”.

[45]As Henriques J pointed out, that statement is not consistent with what Mr Smee wrote on the 28th February 2011 when he said “we had all but agreed settlement when Simon suddenly announced (having spoken to you) that he was “withdrawing all offers”.

[46]However, it is not necessary for me to decide this matter on the basis of Mr Smee’s credibility, and I do not do so. The terms of his witness statements simply do not provide any evidence that Mr Robins had lied or put his firm’s interest before those of his client.

[47]Statements made by lawyers on behalf of their clients, are (or at least ought to be) based on the instructions that the lawyers receive from their clients, and are not made from the lawyers’ own knowledge. That is well understood by litigants. It follows that if such a statement turns out to be false, that raises no inference that the lawyer has lied.

[48]In any case in which it is alleged that the lawyer has made a statement which is not based on the instructions from his client, the evidence for that must come from a witness to the facts, most probably the client, or from the documents passing between the client and the solicitor. It will be impossible to infer that that is the case simply from facts such as those relied on by Mr Kordowski. If a client acts inconsistently, or the facts are ultimately proved to be different from the facts as stated by the lawyer, no inference adverse to the lawyer can be drawn unless there is evidence from the client or the papers that the lawyer did not act on instructions, or gave advice to the client to act in the inconsistent manner described. Without such evidence, any adverse inference would be equally applicable to the client as to the solicitor, and it would be impossible to conclude that it was more likely to be a lie or breach of duty by the solicitor rather than incorrect instructions, or a change in instructions, or some other conduct of the client.

[49]Of course, lawyers are capable of lying. But an allegation of lying or any dishonesty is very serious, whether it is made against a lawyer or anyone else. Lawyers are entitled to no greater protection from the law for their reputations than anyone else. But they are entitled to no less protection than anyone else.

[50]The court requires an allegation of dishonesty against anyone to be set out with particularity and proved by evidence.

[51]Mr Smee produces no evidence at all that Mr Robins knew that his instructions were false (even if they were false, and even that is not supported by evidence). For the reasons explained above, it is impossible to argue as Mr Kordowski does in sub-para (iv) of the Particulars of Justification: “It will be contended that no solicitor acting reasonably in respect of the debt claimed by [Mr Smee] against Mr Bonwick would have terminated negotiations in this way or withdrawn offers made by their client which had been accepted”.

[52]This line of argument assumes that it is the solicitor who decides what offers to make and what to withdraw, and not the client. There is no evidence that Mr Robins exceeded his authority or acted otherwise than on the instructions of Mr Bonwick.

CONCLUSION ON REAL PROSPECT OF SUCCESS

[53]I informed the parties during the proceedings that I had concluded that Mr Kordowski has no real prospect of successfully defending the claim. I also took the view that there was no other good reason why Mr Kordowski should be allowed to defend the claim on the issue of liability. I therefore informed the parties that I would not set aside the judgment pursuant to CPR 13.3(1).

[54]Logically that conclusion also meant that I also took the view that there was no defence to the claim which has a realistic prospect of success within the meaning of section 8(3) of the Act. THE ISSUE OF JURISDICTION.

[55]Mr Crystal submits that, by using the procedure in part 12.4(1) instead of 12.4(2), the Claimants have irrevocably abandoned their claims for any relief other than the relief by way of a money claim. He submits that there is, accordingly, no jurisdiction to grant relief by way of summary disposal under section 8.

[56]I reject this contention. In Loutchansky v Times Newspapers Limited

[2001] EWCA Civ 1805

;

[2002] QB 783

, the court considered the application of section 8 of the Act in circumstances where the judge at first instance had given judgment for the Claimant with damages to be assessed. It was argued that, following that judgment, the court had no jurisdiction to make an order under section 8 of the Act. In paras 93 to 99 the Court of Appeal rejected that submission. The court, at para 93, accepted and indorsed the reasoning of Gray J, that a judgment for damages to be assessed is not a disposal of the claim within the meaning of section 8. The court held: “The statute does not expressly limit the jurisdiction in this way. In giving its language a purposive construction we do not think it was intended to do so. After all, as the judge said, the claim is not disposed of by the court until both liability and quantum have been decided”.

[57]The same reasoning must apply where the judgment on liability is one that has been entered in default of defence.

[58]Moreover, I would reject Mr Crystal’s interpretation of CPR Part 12 on the ground that it leads to an unnecessary and unjust result. The overriding objective in part 1.1 provides “these rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly”. It goes to say: “1.2. The court must seek to give effect to overriding objective when it … (b) interprets any rules …”.

[59]It would be plainly unjust to interpret Part 12.4 to the effect that by making the application by request, instead of by application under Part 23, the Claimant must be held to have irrevocably abandoned their claim for relief other than money damages. In my judgment the effect of the Claimants having made a request under Part 12.4(1) is that, if they wished to pursue their other claims for relief, they had to make an application to the Court. That is what they have done, pursuant to section 8 of the Act.

[60]In any event, as Mr Singla submits, where there has been an error of procedure, Part 3.10 gives the court power to make an order to remedy the error. If I were wrong on the interpretation of Part 12, I would make an order setting aside the judgment in default, and substituting an order under section 8 of the Act (also on the ground that the defence has no realistic prospect of success). It is to be recalled that there has since 30 March been in force the injunction granted by Henriques J, and until Mr Crystal thought of this point last night (it is not in his Skeleton argument) it had not occurred to anyone that the Claimants had abandoned their claim for an injunction.

SECTION 8(4)

[61]I therefore turn to consider whether there is any other reason why the claim should be tried and, in particular, to consider the matters set out in section 8(4). The Court is required to consider the matters set out in s8(4)(a) to (e).

[62]As to (a), all the persons who are or might be Defendants in respect of the publication complained of are before the Court. This is plainly not a case where summary disposal of the claim against Mr Smee would be inappropriate. The claim against him has been settled.

[63]The next consideration, (b), is whether there is a conflict of evidence. I find no material conflict of evidence. The evidence of Mr Smee is set out above, so far as relevant.

[64]Mr Robins set out his account of events in a witness statement dated 29 March 2011. He states that the pleadings were at all times drafted by counsel who was satisfied with the merits of the Defence and Counterclaim, as he was himself. Mr Smee does not contradict the statement that the pleadings were at all times drafted by counsel.

[65]Although Mr Smee states that the counterclaim was spurious and had no possible chance of being upheld in court, he gives no ground for saying that, other than that it was more than five times the amount of the claim and was subsequently abandoned by Mr Bonwick. That gives no basis whatever for suggesting that the solicitor and counsel who drafted it were dishonest or put their own interests before those of their clients.

[66]Mr Robins goes on to state as follows: “[Mr Smee] says that five days before the case was to be tried I called a meeting and offered to accept a lower figure from [Mr Smee] in settlement. I did call a meeting where legal representatives and the parties were present, as I was anxious to ascertain whether or not a settlement could be achieved without proceeding to trial. An offer to settle was made in a without prejudice meeting. No settlement was reached at that meeting. [Mr Smee] says that I went on to say that, if the case went to court and he won, my client would not have a penny with which to pay him anyway. I told all parties at the meeting that, if [Mr Smee] won, Mr Bonwick would be unable to satisfy any judgment and would be forced to file for his own bankruptcy. Mr Bonwick and his wife have eight children and live in a rented property. If [Mr Smee] had won at trial and the counterclaim was dismissed, the total liability to Mr Bonwick would have been in the region of £35,000. Mr Bonwick, from the disclosure made to me, could never have satisfied this sum as a judgment. The claim was finally settled for a payment of £10,000 plus two instalments of £2,500; the first instalment was payable on 31 January 2012 and the second instalment was payable on 31 January 2013. Since payment of £10,000, unfortunately, Mr Bonwick’s business has failed”.

[67]There is nothing in Mr Smee’s statement which contradicts any of that paragraph.

[68]In his witness statement dated 7 June 2011 Mr Kordowski states that the letter dated 24 January 2011 from Chebsey & Co, the solicitors to Mr Smee, is highly material in that they “hypothesise” that the Claimants are “driving the matter to trial for their own benefit”. He states that he has sought advice from counsel on a pro bono basis as to the merits of his proposed justification defence. He states that counsel is concerned about the view expressed in the letter of 24 January 2011 and considers such a compelling reason that the Claimant’s actions should be considered at trial.

[69]There was an exchange of correspondence between the Claimants and Chebsey & Co in respect of the letter dated 24 January 2011. On 17 June 2011 the Claimants complained that the letter was unprofessional and that in another letter dated 27 May Chebsey & Co had repeated their stance. The Claimants asked for an apology and confirmation that there was no foundation in respect of the comments made and that they were withdrawn.

[70]On 22 June 2011 Chebsey & Co replied stating that, as requested, they confirmed that there was no foundation in respect of the comments made and that they were unreservedly withdrawn. They apologised to Mr Robins and to the firm.

[71]In his third witness statement dated 27 June 2011, made in support of his claim for damages and other relief, Mr Robins complained that no attempt had been made to verify the facts with him or his firm before publication of the words complained of on 4 March 2011. He complained of the dismissive response he received from Mr Kodrowski when he complained.

[72]None of this evidence is contradicted.

[73]The next consideration to which the Court is required to have regard, under s8(4)(e), is the seriousness of the alleged wrong (as regards the contents of the statement and the extent of publication). In this case the allegation is very serious and the publication has been on the internet. The Claimants accept that the extent of publication has not yet been demonstrated by evidence. But Mr Robins has provided evidence from which publication can be inferred, and Mr Crystal did not submit that there was no evidence of publication. A Google search in the name of the firm Gabbitas Robins on 10 May produced, as the third item on the third page of the search results, a reference to the solicitors from hell website. In another search, in which the word ‘solicitors’ is added to the firm name, the reference to the solicitors from hell website appears on the second page of search results.

[74]Finally the Court is required to consider whether it is justifiable in the circumstances to proceed to a full trial. It is to be noted that there is no dispute that Mr Kordowski claims to have no means with which to satisfy any judgment, whether for damages or costs. Accordingly, if the matter were to proceed to trial the Claimants would have to bear their own costs in any event, whether they won or lost. This is a fate which is familiar to many parties to libel litigation, and it is not a consideration which is conclusive as to the justice of proceeding to trial or otherwise. However in this case it is a factor which I take into account.

[75]Having considered all these matters I am satisfied that there is no reason why the claim should be tried.

WHAT RELIEF SHOULD BE GRANTED?

[76]The first head of relief sought is damages. I have already set out the evidence of Mr Robins, in relation to damages.

[77]Mr Crystal makes four preliminary points. First he submits that he is entitled to rely on the relevant background facts according to the principle set out in Burstein v Times Newspapers Limited

[2001] 1WLR 579

. I accept that proposition. The evidence as to the background is not materially in dispute and it is set out above.

[78]Mr Crystal next submits that Mr Kordowski is entitled to rely in mitigation of damages on matters which he has been unable to prove in support of his defences of justification and honest comment. He relies on Pamplin v Express Newspapers Limited

[1988] 1WLR 116

at 120, from which he cites as follows: “There may be cases however where a Defendant who puts forward a defence of justification will be unable to prove sufficient facts or establish the defence…Nevertheless the Defendant may be able to rely on such acts as he has proved to reduce the damages perhaps, almost to vanishing point”.

[79]The proposition of law cannot be contested. But in this case I have upheld the judgment on liability, and so there can be no facts proved in support of a defence of justification or honest comment. In any event there are no additional facts to those which Mr Crystal relies on as background and which are available to him in accordance with the principle in Burstein.

[80]Next Mr Crystal refers me to the Defamation Act 1952 s12 which reads as follows: “In any action for libel or slander the Defendant may give evidence in mitigation of damages that the plaintiff has recovered damages, or has brought actions for damages, for libel or slander in respect of the publication of words to the same effect as the words on which the action is founded, or has received or agreed to received compensation in respect of any such publication”.

[81]He submits that it is an odd feature of the agreement for settlement made with Mr Smee that no damages or compensation appears to be payable to the Claimants, and the Claimants do not explain why none were obtained. Accordingly it is submitted that it is inappropriate to seek damages from Mr Kordowski.

[82]This argument has no merit. Claimants in libel proceedings very commonly do not seek damages. What they are primarily concerned with is the primary purpose of libel proceedings, namely vindication. Vindication is best achieved by an early retraction, correction and apology. It is true that one of the purposes of damages for libel is to compensate claimants for damage suffered, but the main purpose of damages in libel is to mark the seriousness of the libel and to demonstrate publicly that the claimants’ reputation has been vindicated.

[83]The fact that a claimant settles with one defendant on terms that that defendant provides a retraction and apology and pays costs, but not damages, is no argument at all for another defendant (who offers no retraction, correction or apology) to say that no damages should be sought or ordered against him.

[84]Finally on the law, Mr Crystal submits that the damages, if any, must be proportionate to the legitimate aim to be served by a judgment in a libel action. He refers to Steel and Morris v UK

[2005] 41 EHRR 22

paras 96 and 97. In that case the Strasbourg Court noted that the sums of damages awarded in that case (£36,000 in the case of the first applicant and £40,000 in the case of the second applicant) “although relatively moderate by contemporary standards in defamation cases in England and Wales, were very substantial when compared to the modest incomes and resources of the two applicants”. The Court went on to say that: “whilst its true that no steps to date been taken to enforce the damages award against either applicant, the fact remains that the substantial sums awarded against them have remained enforceable since the decision of the Court of Appeal. In these circumstances the Court finds that the award of damages in the present case was disproportionate to the legitimate aim served”.

[85]The maximum award under the Act is of course £10,000, so the application of the principle in the Steel case to the present facts is limited.

[86]In my judgment an award of less than £10,000 for so serious an allegation as that of lying and dishonesty made against the Claimant solicitors would not adequately reflect the vindication that they have achieved. Mr Crystal submits that, if the case were to go to trial, Mr Kordowski might argue that damages might be reduced by factors which he did not precisely identify. But on any view they could not be reduced below £10,000 in my judgment.

[87]Although they initially asked for relief under s9(1)(b), namely that Mr Kordowski should publish a suitable correction and apology, the Claimants do not pursue this. The reason they have not pursued it is that s9(2) of the Act provides for the parties to reach agreement, and for the matter to come back to the Court if they cannot agree. The conduct of Mr Kordowski in relation to this litigation gives the Claimants concerns that agreement is unlikely to be reached, and the matter will then have to come back to the Court. This will result in further costs which they have no prospect of recovering from Mr Kordowski. Mr Kordowski has not offered any correction or apology either in his witness statement or through Mr Crystal. On the contrary he has been asserting a right to defend the proceedings with the defences of truth and honest comment.

[88]The Claimants do ask for relief under s9(1)(a), namely a declaration that the words published or caused to be published by Mr Kordowski on 4 and 6 March were false and defamatory of the Claimants.

[89]As Mr Crystal submits, that is very wide and does not identify the precise allegations said to be defamatory. Moreover, it is today the practice, as was not the practice in 1996, for a judgment to be posted on the www.bailii.org website. This judgment will appear on that website. Accordingly the terms of the judgment will be publicly available and may be referred to by the Claimants.

[90]I shall limit the declaration as follows: “The allegations that Mr Robins had lied in the course of the litigation between Mr Bonwick and Mr Smee, and that Mr Robins had acted in any way dishonestly or in breach of his duty to his client Mr Bonwick, are false and defamatory of him and the Claimant firm”.

[91]Finally the Claimants ask for an order restraining Mr Kordowski from publishing or further publishing the matter complained of. The material complained of was removed from the website as required by the injunction granted by Henriques J. Mr Crystal submits that there is now no threat to publish and therefore no basis for making any restraining order.

[92]The Claimants however refer to the terms of the email sent by Mr Kordowski when this complaint was first made. On 4 March 2011 Mr Kordowski responded to the complaint from the Claimants as follows: “Until I hear back from the author, I have temporarily suspended the complaint about your firm. Both the author and I have a moral and social duty to expose wrong doing and I can assure you this will happen if the author can substantiate their claims to me”.

[93]He wrote a letter in similar terms on 6 March after expanding the publication as set out above. On 14 March Mr Kordowski sent an email to Mr Smee a copy of which he sent to the Claimants. In it he included the words: “I suggest we take these people on…don’t worry, I will prepare the defence and represent us in the High Court and it will not cost a penny in terms of outlay! (I have done it before)”.

[94]In my judgment, in the absence of any undertaking, or even a statement of intention by Mr Kordowski that, if he were not subject to a restraining order, he would not repeat the words complained of, this is an appropriate case for an injunction restraining Mr Kordowski as follows:

“from further publishing words meaning that, in the course of representing Mr Bonwick in the litigation brought by Mr Smee, Mr Robins had lied, or had acted in any way dishonestly or in breach of his duty to his client Mr Bonwick, or any similar words defamatory of the Claimants or either of them. ”

[95]I will therefore make an order in those terms, and judgment will be entered against Mr Kordowski for damages in the sum of £10,000.