Caborn -Waterfield v Gold & Ors [2013] EWHC 440 (QB)

[2013] EWHC 440 (QB)Case No HQ12D04804
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/03/2013
Before
THE HONOURABLE MR JUSTICE TUGENDHAT
Between
Michael George David Patrick Caborn-WaterfieldClaimant(1) David GoldDefendants(2) Robert Harris (3) Raceform LtdDefendantMichael George David Patrick Caborn-WaterfieldClaimant(1) Jacqueline GoldDefendants(2) Random House Group Ltd (3) Wendy HoldenDefendant
Mr Adam Wolanski (instructed by Henri Brandman & Co) for 1 st and 3 rd Defendant in HQ12D04804Ms Catrin Evans (instructed by Wiggin) for Defendants in HQ12D05066Mr Caborn-Waterfield appeared in person. for in personHearing Hearing dates: 26 February 2013
Judgment
[1]The Claimant has issued two claim forms. He issued the first (HQ12D04804) on 15 November 2012 claiming damages for defamation in respect of the autobiography “Pure Gold” of First Defendant’s (“Mr Gold”) (“the first action”). He issued the second claim form (HQ12D05066) in respect of the autobiography of Mr Gold’s daughter Jacqueline (“Ms Gold”) “Please Let it Stop” (“the second action”). In the first action the Third Defendant (“Raceform Ltd”) is sued as the publisher, and is represented by the same lawyers as Mr Gold. The Second Defendant, Mr Harris, is not represented. In the second action the same lawyers represent both Ms Gold, the Second Defendant (“Random House”), who published her book, and the Third Defendant (“Ms Holden”).[2]There are applications before the court in respect of both actions. The applications are similar. In the first action Mr Gold and Raceform Ltd ask for a ruling pursuant to CPR 53 PD 4.1(1)-(3) that the words complained of are not capable of bearing the meanings attributed to them by the Claimant, or any meaning defamatory of him. They also apply for the claim to be struck out pursuant to CPR r3.4(2) (a) and (b), alternatively for summary judgment under CPR r24, on the grounds that the claim discloses no reasonable grounds, is an abuse of process or has no real prospect of success. The applications by Ms Gold, Random House and Ms Holden are substantially similar.[3]The application on behalf of Ms Holden differs in that she also bases her application on her contention that “no particulars are pleaded in support of any claim against [her] who had no involvement with the publication complained of”.

THE ACTION AGAINST MR GOLD, MR HARRIS AND RACEFORM

[4]The words complained of are published in separate forms, namely a hard copy book and electronic versions, available for free from Mr Gold’s website and at 77 pence from Amazon Kindle.[5]The Claimant is self represented. The words complained of are set out by him in twenty short sub-paragraphs. Some of these paragraphs contain text which is in both the hard copy and the electronic versions. Others are in one or other version alone. This is not as it should be: they should be clearly distinguished. But this has not confused the Defendants. They have been able to locate the relevant pages of the two versions of the autobiography. For present purposes I shall set out the words as they appear in the parts of the two texts from which I understand the pleaded extracts to be derived.[6]The hard copy includes the following: “We [that is Mr Gold and his brother] came upon the Ann Summers Marble Arch shop… in 1970. We were interested not only in what type of shop it was and the kind of customer it attracted, but also because the owner Michael Dandy Kim Waterfield owed us money for some of the magazines we had supplied to him. … The one thing we could not understand is why a shop taking £4000 a week could not settle a £450 invoice on time. We soon discovered that Dandy Kim was a high flyer. He was also a very clever talker… he owned a helicopter, a string of horses, was rumoured to be having a close relationship with Princess Margaret, and dressed and lived in the most extravagant style. He picked the name Ann Summers and then persuaded his beautiful former mistress to change her name from Caroline Teague to Ann Summers in return for a directorship and an annual salary of £10000 to front the entire enterprise… Dandy Kim lived up to his nickname and used to arrive in his helicopter at Hyde Park walk over to his shop at Edgware Road, pick up the day’s takings and then fly off to the races. He was spending it faster than he was making it. …We eventually met Dandy Kim for lunch… where he explained that the long running postal strike was the reason for the company’s big losses, as much of his sales came through mail order. What he failed to tell us is how much he was paying himself. The company eventually went bankrupt with debts of £78000 and the entire Ann Summers business was put up for sale along with the leased for the shop in Marble Arch and another in Bristol. Ralph and I bought the company in 1972… we made a profit on the Marble Arch shop… we sold if for £250000 more than 25 years ago… the Ann Summers shops were a copy of the highly successful Beate Uhse shops in Germany, a mail order and sex shop business which Dandy Kim had ripped off by pretending to be a magazine writer/photographer and going round their factory for four days, picking up and photographing all the information he needed. Dandy Kim Waterfield threatened to expose his relationship with a prominent royal by writing his autobiography, which must have shaken up the palace in those days. There was little about the Royal Family in the public domain… We also discovered that he was looking to blackmail us. Dandy Kim returned to the scene a little more than ten years ago to write the ‘Real History of Ann Summers’ implying that he had a different story to tell and was ready to expose us. We met up with him three or four times and he told us that if we bought the rights for £150000 from him he would never publish the story. The threat went on for months as we tried to find out what he was up to, and to see a manuscript. We were baffled as to what he planned to expose. He made an insinuation that he had been beaten up by us after appearing in public battered and bruised. In truth he was probably mugged while drunk. As for his ‘Real History’, we called Dandy Kim’s bluff and he never published. We have been on the periphery of that sort of thing all our lives. Whether it was George Cornell with his threatening meeting or the Krays coming to visit, we were all close to that dark area – not helped, by our father’s frequent dabble in the criminal world”.[7]The most significant differences between the hard copy and the electronic versions are in the following sections of the electronic versions: i) In relation to Princess Margaret the text is “he was even rumoured to have been linked with Princess Margaret and dressed and lived in the most extravagant lifestyle”. ii) In relation to the German shop the text is “the Ann Summers shops were a copy of the highly successful Beate Uhse shops in Germany; a mail order and sex shop business which Dandy Kim had copied by pretending….” iii) The website version contains no reference to the Krays but instead includes the following:
“some years earlier Ronald Coleman a director of Ann Summers who had been dismissed for embezzling company funds had also blackmailed me. Over the years he had collected company computer printouts of confidential information which would have been usually valuable to her competitors, and promised to return all the documents for £50000… if we failed to meet his demands he threatened that not only would he pass over all his information to our rivals but he would also work for them, passing other information which would be extremely damaging to our business. We decided to pay up and as promised returned all the documentation and moved abroad. For over a year we heard nothing but like all blackmailers he reappeared claiming he had been burgled and wasn’t insured. He now needed a further £10000…”
[8]The Claimant pleads the meanings he attributes to the words complained of as follows:
“In their natural and ordinary and/or inferential meaning and/or by innuendo, the said words meant and were understood to mean that the claimant: (1) Was a blackmailer (2) was no better than named convicted East London criminals (3) was himself a criminal (4) was having an adulterous relationship with Princess Margaret (5) was prepared to kiss and tell about his relationship with members of the Royal Family, and in particular Princess Margaret (6) was prepared to bring the Royal Family into contempt and disrepute (7) illegally landed his helicopter in Hyde Park (8) was in the habit of emptying the till in Edgware Road shop, and using the money for his own purposes (9) was habitually irresponsible in the conduct of his affairs (10) did not honour his personal or business debts (11) was deceitful and unscrupulous concerning the ownership of intellectual property (12) was a liar (13) was a dissolute and profligate dilettante (14) was a drunkard (15) was an object of ridicule following a series of physical assault.” (1) Was a blackmailer (2) was no better than named convicted East London criminals (3) was himself a criminal (4) was having an adulterous relationship with Princess Margaret (5) was prepared to kiss and tell about his relationship with members of the Royal Family, and in particular Princess Margaret (6) was prepared to bring the Royal Family into contempt and disrepute (7) illegally landed his helicopter in Hyde Park (8) was in the habit of emptying the till in Edgware Road shop, and using the money for his own purposes (9) was habitually irresponsible in the conduct of his affairs (10) did not honour his personal or business debts (11) was deceitful and unscrupulous concerning the ownership of intellectual property (12) was a liar (13) was a dissolute and profligate dilettante (14) was a drunkard (15) was an object of ridicule following a series of physical assault.”
[9]As to blackmail, Mr Wolanski submits that it is clear from the context that what is alleged is not blackmail in the sense in which that word is generally understood, but the words mean that the Claimant was asking a high price for the rights to his own book. Since there is no allegation of criminal activity, he submits that the comparison to the Krays is not defamatory either.[10]As to the passages about Princess Margaret, he submits that the words complained of do not give a date, or state that she was married at the time, and so there is no basis for the meaning of adultery. No extrinsic facts are pleaded to support a true innuendo. He submits it is not defamatory to say of a person that they are willing truthfully to reveal information about a relationship such as that alleged with Princess Margaret.[11]As to the reference to the helicopter in Hyde Park, Mr Wolanski submits that the words complained of cannot bear the meaning that landing a helicopter in Hyde Park is illegal, and no extrinsic facts are pleaded.[12]As to the allegation of emptying the till in Edgware Road, Mr Wolanski submits that nothing defamatory can be derived from that. Nor, he submits, do the words imply that the claimant ran its business in a manner which led to his bankruptcy.[13]As to the words about the German shop, he submits that what is alleged is not deceit or unscrupulousness, but merely implies the canny adoption of a new business idea.[14]As to the incident when the Claimant is said to have been mugged, he submits that the words complained of do not imply that the Claimant was lying, or that he was an habitual drunkard, and there is nothing defamatory in any of that.[15]In my judgement there is nothing in the words complained of to support the meaning that the Claimant was having an adulterous relationship. So meaning (4) is not a meaning that the words complained of are capable of bearing.[16]In my judgement meanings (12), (13) and (15), while insulting, are not in the context of this case sufficiently serious to be characterised as defamatory.[17]However, as to the remainder of the meanings pleaded, I have no doubt that the words complained of are capable of bearing the meanings pleaded, and they are defamatory of the Claimant.[18]It is more than arguable that a reasonable reader would be entitled to understand that, for a private individual, landing a helicopter in Hyde Park is illegal. The allegation of blackmail is capable of being an allegation of a criminal offence, in particular in the context of references to the Krays, and to the specific allegation relating to Ronald Coleman.[19]The words complained of make clear that the business carried on at the shop at Marble Arch was a business carried on by a company (“the company’s big losses”). So the words that the Claimant would “pick up the day’s takings and fly off to the races” are capable of meaning that he misappropriated company funds, with the result that the company was unable to pay its creditors.[20]The words “ripped off” in the hard copy, and the description of the deception of the owners of the German business in both versions, are capable of meaning that the Claimant behaved unlawfully.

Jameel Abuse of Process

[21]The Defendants have adduced in evidence, in the form of a witness statement from their solicitor, and the exhibits thereto, a substantial number of pages of print outs from the internet and of copies of newspaper articles concerning the Claimant. A number of these go back over 50 years to the 1950’s and 1960’s. They also adduce a copy of an article by an accountant published in the issue of Accountancy Age dated 1 December 2010. The writer states that he met Ms Ann Summers when, as company secretary, she was recommended to consult his father (who I understand also to have been an accountant). The writer then gives two paragraphs of brief information about the financial affairs of the company in question and its insolvency. However, the Defendants have not chosen to put before the court copies of any financial statements or other first hand or contemporaneous documents relating to the circumstances in which Mr Gold and his brother acquired control of the company or its business from the Claimant.[22]In his submissions the Claimant made clear that he disputed the statements of fact made by the Defendants. He also disputed their account of the negotiations that took place over the book concerning the Ann Summers business which he, at one time, proposed to publish, but ultimately did not publish.[23]This is not the trial of an action. I cannot decide disputed facts on the limited documentary evidence at present before the court. The material put before the court appears to be adduced to support a submission that, if the action proceeds, there will be a plea of justification or truth. But in the light of the submission that the words complained of are not defamatory at all, the Defendants have not put before the court a defamatory meaning which they would seek to justify by reliance on this material put in evidence by them (see 53 PD para 2.5(1)).[24]It may be that some of the material before the court relating to matters 50 or 60 years ago contains some information to his discredit that the Claimant cannot dispute. However, even if he cannot dispute it (and I make no finding whether he can or not), the relevance that that would have to his reputation today is a matter which I cannot decide on this application.[25]A stronger point for the Defendants is that the claim cannot succeed, save in respect of those publications which he can prove to have been made in the twelve months preceding the issue of the claim form, that being the relevant limitation period for the purposes of defamation. Moreover, in a letter dated earlier this week, 21 February 2013, solicitors for the Defendants wrote: “Entirely without admission as to liability, our clients have withdrawn the statements complained of in these proceedings from the online and printed versions of the book and this will remain the position from hereon”.[26]In another letter of the same date they state that the best information that their clients are able to provide is that there were downloaded 13,841 copies of the website in the period 5 December 2011 to 5 December 2012 . For technical reasons they are unable to capture other publication data, at least at this stage.[27]On any view, there has been a substantial publication of the words complained of at least in the electronic form.[28]For these reasons I conclude that the action cannot be struck out, either as abuse of the court, or on the basis that there is no real prospect of the claim succeeding in respect of the meanings which I have held that the words complained of are capable of bearing.

THE ACTION AGAINST Ms GOLD, RANDOM HOUSE AND WENDY HOLDEN

[29]The Claimant again sets out the words complained of in the second action in the form of thirteen small extracts. In their context the words complained of are in the following passage in Ms Gold’s book:
“Dad originally became involved with Ann Summers shops when he supplied them with books and magazines. Ann Summers was launched by a man about town called Kim Caborn-Waterfied who had dated Diana Dors and, rumour has it Princess Margaret. … He came up with the idea of Ann Summers after seeing the success of a chain of sex shops in Germany. He employed a beautiful young woman called Annice Goodwin, who, unsurprisingly, happened to be his lover and who had changed her name to Summers at his suggestion. … Waterfield chose to keep a low profile and let her run the show. Although the shop was taking in around £4000 a week, Waterfield led the lifestyle of someone much richer, with the result that he spent more than he made. It was not unheard of for him to land his helicopter in Hyde Park, grab the takings from the Marble Arch shop, and fly off to the races for the day. He only managed to open one more shop in Bristol, before things went wrong and Ann Summers went into liquidation. Dad and Uncle Ralph were owed money by Waterfield and in November 1970 they decided to go to see him at the Marble Arch shop to see what the problem was. The amount they were owed was £450. But despite the shop turning over good money, Waterfied did not have it. He was a very clever talker and he blamed his difficulties on the recent postal strike since much of his business came through mail order. Predictably Dad and Ralph didn’t see their money but they did see an opportunity. When the shops went into liquidation they bought them and the Ann Summers name for just £10000. It was a very good deal, largely due to the scepticism and hesitation of other potential buyers who thought the business was a bit dodgy and didn’t want to get their hands dirty.”
[30]It is not in dispute that the book “Please Let It Stop” was published in 2008, and that the text of the book is currently available on various electronic media, again including Amazon Kindle. In this case it is available in hard copy from Random House. It is also common ground that “Please Let It Stop” had been published in 2007 under a different title “A Woman’s Courage”.[31]The Claimant pleads the following meanings: “In their natural and ordinary and/or inferential meaning, and/or by innuendo, and with the knowledge of other defamations published by members of the Gold family, the said words meant and were understood to mean that the Claimant: 1) “Had an adulterous relationship with Princess Margaret 2) Was in the habit of illegally landing his helicopter in Hyde Park 3) Was in the habit of emptying the till in the Edgware Road shop and using the money for his own purposes 4) Was habitually irresponsible and incompetent in the conduct of his business and private affairs 5) Did not honour his personal debts 6) Was running a disreputable business 7) Was a dissolute and profligate dilettante 8) Pressurised an employee to change her name”. 1) “Had an adulterous relationship with Princess Margaret 2) Was in the habit of illegally landing his helicopter in Hyde Park 3) Was in the habit of emptying the till in the Edgware Road shop and using the money for his own purposes 4) Was habitually irresponsible and incompetent in the conduct of his business and private affairs 5) Did not honour his personal debts 6) Was running a disreputable business 7) Was a dissolute and profligate dilettante 8) Pressurised an employee to change her name”.[32]Ms Evans submits that the true innuendo must be struck out because no extrinsic facts are pleaded. That is clearly correct.[33]She further submits that the meaning that the Claimant had an adulterous relationship is also without foundation. In my judgment it is clearly without foundation. There is nothing in the words complained of to suggest adultery. Mr Caborn-Waterfield submits that the word “dated” is used in relation to both Diana Dors (with whom he says he did have a relationship) and Princess Margaret (with whom he says he did not have a relationship) and, so he submits, the word takes its meaning from that context. However, there is nothing in the words complained of that could mean Diana Dors was married at the time when the Claimant was in a relationship with her.[34]Ms Evans submits that there is nothing in the words complained of that could bear the meaning that landing in Hyde Park with a helicopter was illegal for a private individual. I disagree. In my judgement that is a defamatory meaning which the words complained of are capable of bearing.[35]Ms Evans makes clear that the words complained of make clear that the business in the Edgware Road shop was a business owned by the Claimant himself, and thus it cannot be defamatory to say that he took his own money from the till of a business of which he himself was the proprietor.[36]On the other hand, the words complained of referred to the business going into liquidation. In my judgment the reasonable reader could understand the words complained of to be alleging that the Claimant was misappropriating money from a business run by a company, and so the money he took was not his own.[37]Miss Evans submits that there is nothing defamatory about the words complained of insofar as they refer to his conduct of the business and the fact that the amount of £450 was not paid. I disagree.[38]However, Miss Evans is on stronger ground when she submits that the words complained of mean that he was running a disreputable business. It is clear that the words complained of do suggest that the business was one which, at the time, many people would have regarded as disreputable. But in my judgment, to say that the Claimant was the proprietor of the shop at Marble Arch, as the business is described in the words complained of, is not today capable of being defamatory of the Claimant, whatever the position may have been 50 or 60 years ago.[39]Likewise, the words complained of are not capable of bearing the meaning that the Claimant was a dissolute and profligate dilettante. In any event, such a meaning would not, in this context, be sufficiently serious to be characterised as defamatory.[40]Finally, in my judgment there is nothing whatever in the words complained of to support the meaning that he “pressurised” Ms Summers to change her name. Accordingly, in my judgement the words complained of are not capable of bearing the meanings attributed to them by the Claimant in his sub-paragraphs (1), (6), (7) and (8), but are capable of bearing the other meanings attributed to them by the Claimant. And those meanings are capable of being defamatory.

Ms Holden

[41]The application by Ms Holden, insofar as it differs from the applications of the other Defendants, depends solely on the statement in the application notice that she had no involvement with the publication complained of. The Claimant on the other hand submits that she did have an involvement in one of the earlier versions of the books, the subject of this action.[42]The position is unsatisfactory on both sides. Obviously it is for the Claimant to prove publication by a defendant. He has not put before the court material which shows even a prima facie case that Ms Holden was responsible for publication of the words complained. On the other hand Ms Holden has not explained whether she denies all involvement, and, if not, what her involvement was. She refers in her application notice to her solicitor’s witness statement made on 21 December 2012. At that date the solicitor had been instructed by Ms Gold, but not yet by Ms Holden. The paragraph Ms Holden refers to includes: “The third defendant, Wendy Holden is not alleged to have played any part whatsoever in publication of the Book and it is not claimed that the book which she is alleged to have assisted in writing contains any material defamatory of the claimant”.[43]I understand that Ms Holden may have had some involvement in the writing of a version of a book. If that were all there was to it, I would strike out the claim against Ms Holden. It is in no one’s interest, least of all the Claimant’s to pursue an action against a person who he cannot show to be a publisher of words complained of.[44]On the other hand I would not strike it out without giving him an opportunity to amend his pleading to make clear on what basis, if at all, he can properly put forward a case that Ms Holden was a publisher of any of the words of which he complains in this action. Whether or not he chooses to avail himself of this opportunity to amend his Particulars of Claim is a matter for him to decide, with the benefit of such legal advice as he may be able to obtain.

Abuse of Process

[45]Ms Evans makes a number of submissions in support of her case that the claim is an abuse of process.[46]First, she submits that if the words complained of are capable of bearing a defamatory meaning which passes the threshold of seriousness, nevertheless it is at the very margin of triviality. In my judgement the meanings which I have held that the words complained of are capable of bearing, and which are defamatory, cannot be regarded as supporting any submission of abuse of process. They are sufficiently serious to pass the threshold of seriousness.[47]Second, Ms Evans submits that the words complained of relate to the Claimant’s character in the early 1960s or the early 1970s, that is at least 40 years ago, and so would have a negligible or insubstantial effect on his reputation today. That is not a submission on which I would wish to decide on an application to strike out. It is a matter for trial.[48]Third, Ms Evans submits what the voluminous documentation exhibited to the solicitor’s witness statement establishes that the claimant was “a bit of a rogue” and “playboy” and someone with a “colourful” past. She submits that the media reports of the activities of the Claimant in the 1950s are generally accessible online today. The most serious of the allegations going back to that date are to be found in the law reports: R v Governor of Brixtonex parte Caborn-Waterfield [1960] 2 QB 498. That is a report of a decision on an application that the Claimant be extradited to France to serve a prison sentence to which he had been sentenced in his absence. The Defendants also rely on an interview published in the issue of the Daily Mail for 25 April 1999 which purports to recount statements made by the Claimant.[49]Ms Evans submits that this material indicates that “there could well be a justification defence” or, alternatively, there could be evidence in mitigation of damage admissible in accordance with the principles set out in Burstein v. Times Newspapers Limited [2001] 1 WLR 579.[50]In my judgment these are not submissions which can found an application to strike out on the material before me.[51]Fourthly, Ms Evans submits that, even if he were successful at trial, he would have no prospect of obtaining an injunction, having regard to the provisions of Article 10 of the Convention (Freedom of Expression) and the Human Rights Act 1998 Section 12 (4)(a)(i). The evidence which the Claimant cannot dispute is that over 60,000 copies of the book have been sold, the vast majority outside the one year limitation period which expired with the date of the issue of the claim form.[52]Again this is not a submission that can succeed on a strike out application. A Claimant who succeeds in a libel action can normally expect an injunction to be granted, if there is sufficient material supporting his case that there is a risk or threat of further publication. The fact that there has been extensive publication in the past is not generally a ground on which an injunction can be refused, at least in those cases where the grant of an injunction would not be futile.[53]Fifthly, Ms Evans submits that the distribution figures for the words complained of within the one year limitation period before the issue of the claim form are:(1) 54 copies of the hard copy version,(2) 208 copies of the E-book version and(3) an uncertain number of a consignment of 3968 copies of the hard copy version which had been the subject of a bulk sale to Tesco in April 2012.[54]The Defendants to this action have not withdrawn the book or undertaken to remove anything from the electronic version.[55]Sixthly, Ms Evans submits that the fact that the Claimant has complained about these words so recently, when they have been published for so many years in the past without any complaint by him, indicates that he is not bringing these proceedings to vindicate his reputation.[56]The Claimant’s submission in response to that is that Ms Summers died as recently as October 2012, and that he respected her wish that the matters the subject of this action not be given publicity. If the Defendants wish to challenge that, they can only do so at trial.[57]Finally, Ms Evans submits that it appears that if the action were to proceed to trial, and if the Claimant were to lose, he would be unable to meet any order for costs that might be made in favour of the Defendants. That, taken with the other submissions, is an injustice to them and an additional justification for the court striking out the claim. She cites passages from my judgment in O’Dwyer v ITV Plc [2012] EWHC 3221(QB) at [53] to [65].[58]However, in those passages I stated that it is not clear what the court can do about such a potential injustice. A Claimant is entitled access to the court to pursue what the court has held to be a claim which is not otherwise an abuse, and that entitlement cannot be defeated merely because of a lack of means to pay the defendant’s costs in the event that such an order is made against him. In any event, in the present case, it is not established that the Claimant would be unable to meet any order for costs that may be made against him.

The Claim in Conspiracy

[59]In the second action the Claimant pleads as follows: “3. The book ‘Please Let it Stop’ is one of five autobiographies published by members of the Gold family, all of which contain some of the same statements defamatory of the Claimant. These five books are part of a 17 year conspiracy of defamation against the Claimant, which is now being exacerbated by its extension into interviews with journalists, newspaper articles, and especially by publication through electronic media and social networks”.[60]In paragraph 7 of the particulars of claim he pleaded that: “Unless restrained, the defendants will further publish, and conspire to publish the said or similar words defamatory of the claimant”.[61]The significance of the claim in conspiracy in the present case may be that the limitation period for conspiracy is six years, not the one year applicable in defamation. So if the claim were to succeed, it would mean that he could obtain damages for publications for the preceding six years, if he were entitled to any damages at all. Whether that would make any practical difference, or sufficient difference to make it worthwhile to face the difficulties and risks that are entailed by pursuing a claim in conspiracy, is a matter for the Claimant to consider.[62]Neither party cited any cases on conspiracy. The only precedent for the use by a claimant of a claim in conspiracy in relation to defamatory words in circumstances where a claim in defamation is not available to him is Gulf Oil (Great Britain) Limited v Page [1987] 1 Ch 327. In that case the Court of Appeal granted an interlocutory injunction to restrain defamatory words, notwithstanding that they were true. The Court acted on the basis that there was a sufficiently strong case in conspiracy. The facts were unusual if not unique. As set out in the headnote, the plaintiff oil company had entered into an exclusive supply agreement with the defendants who owned and operated several petrol filling stations. Following a dispute over outstanding amounts due from the defendants, the company refused to make further deliveries save on cash on delivery direct debit terms. After the defendants obtained supplies from another source the plaintiff served notice terminating the agreement. There then followed proceedings which the defendants lost in court and which were the subject of an appeal. While the appeal was pending the defendant circulated leaflets to several of the plaintiffs customers, giving an account of the litigation and judgment. In the same period, when the plaintiff was entertaining customers at a hospitality tent at the Cheltenham Gold Cup race meeting, the defendant flew a light aircraft over the racecourse, displaying a banner with the words “Gulf Exposed in Fundamental Breach”.[63]The judge at first instance refused to grant an injunction to Gulf Oil Limited on the grounds that the truth of the words was not in issue, and that the rule in Bonnard v Perryman [1981] 2 Ch. 269 precluded the grant of an injunction. The majority of the Court of Appeal set out the law as follows at page 333F: “It is true that there is no wrong done if what is published is true provided it is not published in pursuance of a combination and, even if it is, there is still no wrong unless the sole or dominant purpose of the combination in publication is to injure the plaintiff. If, however, there is both combination and purpose or dominant purpose to injure, there is a wrong done. When a plaintiff sues in conspiracy, there is therefore, a potential wrong, even if it is admitted as it is in the present case, that the publication is true and thus that there is no question of a course of action in defamation. In such a case the court can, and should not proceed on the same principle as it would in the case of any other tort. The prospect that this would open the floodgates and reverse the principle applicable in libel actions is, in my view unreal, a plaintiff against the author and publisher of a newspaper article, for example, might well establish a combination, but it appears to me that it would only be in the rarest case that sufficient evidence of a dominant purpose to injure could be made out to warrant the ground of interlocutory relief, and I have no doubt that the court would scrutinise with the greatest care any case where a course of action in conspiracy was joined to a course of action in defamation and would require to be satisfied that such joinder was not merely an attempt to circumvent the rule in defamation”.[64]In Femis Bank v Lazard [1991] Ch. 391 Nicholas Browne-Wilkinson V-C, who had been a member of the court in the Gulf Oil case, was sitting at first instance. In that case he said this at pages 397 and 398-9. “However, in this case the plaintiffs rely on the decision of the Court of Appeal in Gulf Oil (Great Britain) Ltd v. Page [1987] Ch. 327 which shows that, where the cause of action is founded on conspiracy to injure, the court can grant an injunction restraining publication. It is the plaintiffs’ case here that they have an arguable case that the sole or paramount intention of Mr. Lazar and Cityguide operating in concert is to injure the plaintiffs… However, on the other side I must take account of the fact of the intemperate language such as I have quoted, the element of witchhunt which comes into the matter, the extreme broadcasting of these allegations. The manifest dislike which Mr. Lazar entertains for Mr. Singh may well have come – although of course I cannot tell at this stage – from a position which seems to have emerged towards the end of 1989 in which Mr.Lazar or those associated with him appear to have wished to obtain either a stake in or control of Femis. There are documents showing Mr.Lazar holding himself out as being in that position. Mr Singh in fact obtained control. In addition the unhappy episode in which Mr. Singh covertly joined Femis at a time when he was still ostensibly acting for Cityguide cannot have improved relations. There are therefore substantial grounds on which it can be argued that there was a major malicious motive in Mr. Lazar’s conduct. Though I have substantial doubts whether at trial the plaintiffs will establish that the sole or paramount purpose of what Mr Lazar did was simply to injure without lawful justification, I marginally reach the view that there is an arguable case on the point”.[65]In the present case a criticism is made of the Claimant’s pleadings that they are as weak as in that case, and the judge’s view as to the prospects of success in that case is equally applicable to this Claimant’s claim in this case. I accept that, if the claim in conspiracy in this case is to go forward, it must be amended. But I will not strike it out without giving the Claimant an opportunity to make the necessary amendments. Whether or not he would be well advised to attempt to remedy the defects in his plea of conspiracy is a matter on which he will need to reflect, and on which he would benefit from advice.[66]The words ‘slander’ and ‘malicious falsehood’ appear in the claim form and the words ‘malicious falsehood’ appear in the prayer to the Particulars of Claim. Since there is no mention of either of these causes of action in the body of the pleading, these words should be struck out.

CONCLUSION

[67]For the reasons set out above, the applications to strike out these two claims in their entirety will be dismissed. The applications to strike out some parts of each claim will succeed in relation to the meanings which I have held to be ones the words complained of are incapable of bearing. The remaining parts of the application to strike out, in particular the claims in conspiracy and the claim against Ms Holden, will be struck out unless amended. The form of order to be made as a result of this judgment should be submitted to the court.