Stocker v Stocker [2015] EWHC 1634 (QB)

Case No HQ13D06031

[2015] EWHC 1634 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

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

Date 10th June 2015

Before

Mr JUSTICE WARBY

Between

Ronald Terance STOCKERClaimant

Nicola STOCKERDefendant

Caroline Addy (instructed by SA Law LLP) for Claimant

David Price QC (of David Price Solicitors and Advocates) for Defendant

Hearing Hearing date: 7 May 2015

Judgment

Mr Justice Warby :

[1]In this unfortunate libel action the Claimant, Terry Stocker, sues his ex-wife Nicky for statements made by her about him i) in the course of a Facebook exchange with the Claimant’s then partner, Debbie Bligh, on 23 December 2012 and ii) in an email sent to Ms Bligh’s former partner, Eric Roche, on 2 January 2013.

[2]It is the Claimant’s case that the Defendant’s statements (“the Posts”) in the course of the Facebook exchange (“the Exchange”) meant that he had tried to kill the Defendant by strangling her, for which he was arrested by police; that he had threatened her and breached a non-molestation order, for which he was also arrested; and that he had been arrested countless times and was accordingly, it was to be inferred, a dangerous and thoroughly disreputable man.

[3]The Claimant alleges that these imputations were published to 21 named individuals who had authorised access to Debbie Bligh’s Facebook page, and that they were in addition visible to all 110 of her Friends, and to many Facebook Friends of her Friends. He contends that the Posts frightened and distressed Ms Bligh and, for a time, caused serious damage to his relationship with her. That relationship has since come to an end. It is not alleged that this was a consequence of the words complained of. It is the Defendant’s case, denied by the Claimant, that the relationship broke down as a result of Debbie Bligh’s conviction for offences of benefit fraud.

[4]The email sent to Eric Roche (“the Email”) is said to have borne six defamatory meanings including(1) that he had tried to kill the Defendant by strangling her,

(2) that he had threatened to kill her and harm her friends and their property,

(3) that he was a vile, angry misogynist who was psychologically unwell and unfit to look after children, and

(4) that he subjected the Defendant to sustained mental, sexual and physical abuse throughout their marriage. It is alleged that the Email was, foreseeably, deployed by Mr Roche against Debbie Bligh in the course of proceedings in France over the custody of their children causing her, and consequently the Claimant, distress.

[5]The Claimant threatened litigation on the evening of 23 December 2012, but it was not until 4 months later that solicitors on his behalf wrote a letter before action. When they did, it complained of the Email and not the Posts. Despite the allegedly significant impacts of the statements complained of, this action was not started until 18 December 2013, nearly a year after the first of the publications complained of, and hence just within the limitation period. The case has not progressed swiftly since then. The Defence was served in September 2014, a Reply in November, and it was not until 7 May 2015 that the case came before me for a Case and Costs Management Conference, having been referred by Master Eastman.

[6]The Defence raises issues as to the extent of publication of the words complained of, meaning, and defamatory impact. It pleads that the claim is an abuse of process because(a) it does not disclose a real and substantial tort and/or

(b) the Claimant has the dominant collateral and/or improper purpose of causing the Defendant “distress, anxiety, embarrassment, hassle and/or expense”. It is alleged that the Claimant consented to the publication of the Exchange. It is said that the publication of the Email is protected by absolute or alternatively qualified privilege, by reason of its connection with the French custody proceedings. Defences of justification and fair comment are advanced in respect of both the Posts and the Email. The majority of the facts relied on to support these various defences are also relied on in mitigation of any damages that may be recoverable. The Reply pleads that the Defendant published the Posts and the Email maliciously. As I shall explain in more detail later, the costs that will have to be incurred if this action goes to trial are said to amount to hundreds of thousands of pounds.

[7]The features of the case that I have outlined above might appear to suggest that the action would be a suitable candidate for the trial of preliminary issues. However, no such application has been made by either party and, after discussion in the course of the hearing, I concluded that I should not force such a trial on the parties, at least at this stage. There is clearly a risk that such a trial might not conclude the claims. There may be, as Mr Price QC suggested on behalf of the Defendant, a risk that this would merely serve to increase the already very substantial costs of the action. It is clearly important, however, for both parties and the court to keep under review the question of whether a full trial of all the issues is avoidable.

The issues

[8]At the hearing on 7 May I decided most of the issues raised, but time did not permit the delivery of a reasoned judgment. Hence this reserved judgment, which gives reasons for the principal decisions. These relate to applications by the Claimant i) to strike out the defence of consent; ii) to strike out part of the plea of justification in respect of the Email; and iii) for disclosure and inspection of the Defendant’s medical records.

[9]This judgment also deals with the Defendant’s costs budget, on which argument was concluded at the hearing but my decision was reserved.

The strike-out applications

[10]The Claimant’s application notice invokes CPR 3.4(2)(a) and (c), alleging that the plea of consent in paragraph 11 of the Defence and paragraph 15.3 of the plea of justification in respect of the Email disclose no reasonable grounds of defence and/or are in breach of a rule.

Consent

[11]Consent was pleaded in paragraph 11 of the Defence served on 23 September 2014, with detailed supporting particulars. Paragraph 11 adopts and relies on the case of abuse of process pleaded in paragraphs 9 and 10. This is lengthy and complex, but its key features may be summarised as follows. The matters complained of are trivial and do not amount to a real and substantial tort; no real or substantial damage has been caused; the Claimant has only brought the action for vindictive motives, in the aftermath of acrimonious divorce proceedings; in October 2012 he texted the Defendant calling on her to say something that would enable him to sue for slander, as he “need[ed] the money”; on the evening of the Exchange he indicated by text to the Defendant that he would sue over it; but he kept the threat of proceedings hanging over the Defendant for as long as the limitation period would allow.

[12]The further facts pleaded in paragraph 11 in support of the consent defence focus on the sequence of events up to and on 23 December 2012. The pre-Christmas period is alleged to have been particularly acrimonious and difficult. The couple’s son Joshua was to spend Christmas with his father, who knew that the Defendant was upset that she would not be with her son for Christmas morning for the first time. In around late November/early December the Defendant sent a Facebook friend request to Debbie Bligh, which was accepted. The inference is invited that Ms Bligh told the Claimant about this, and that this would “inevitably have given rise to discussion between Ms Bligh and the Claimant as to the Defendant’s motive and possible communications between the Defendant and Ms Bligh”.

[13]At 10.50 and 11.33 on the morning of 23 December the Defendant sent two texts to the Claimant which were highly insulting of Ms Bligh, whom she described as a “slag with 6 children with 5 different fathers” and “hag”, who she did not want anywhere near her son that Christmas. The inference is invited that the Claimant made these texts known to Ms Bligh who, at some time before 12.16, posted a status update:

“cant wait to wake up Christmas day with my man and his son xxx missing my children xxx”

. The Defendant’s case is that it should be inferred that this was done by her after discussion with the Claimant, both of them knowing that it was likely to be read by the Defendant and would provoke a response, which it did.

[14]The Exchange began at 12.16 with the Defendant posting “Which one of his sons would that be? May be u should be with your own kids.” Ms Bligh queried what this meant, invited the Defendant to phone her and, when this was twice refused, carried on the conversation, asking “why ask me as a friend on fb?” When the Defendant replied that it was “very enlightening and confirmed a lot of my worse fears”, Ms Bligh asked for details. That was at 12.28. It is over the following 70 minutes that the words complained of were communicated, although the transcript of the entire Exchange which is in the papers before me shows that it continued up to 14.39.

[15]At paragraph 11.10 the Defence pleads that:- “In all the circumstances it is to be inferred that the Claimant procured or authorised Ms Bligh to initiate or continue communication with the Defendant in order to induce the Defendant to publish the allegations complained of (which were a foreseeable and foreseen consequence of the questions asked by Ms Bligh). He thereby consented to their publication.”

[16]Particulars of the facts relied on in support of this inference are given. They include the following: that the Claimant had the motive and desire to obtain material that could be used to threaten or bring a defamation claim; that Ms Bligh continued the conversation even when rebuffed; the close relationship between the Claimant and Ms Bligh; that she was in the Claimant’s home throughout the Exchange, and he was either present or easily contactable by telephone; and that the periods between the Posts gave Ms Blight the opportunity to discuss the Exchange with him which, it is to be inferred, she did.

[17]The Defendant has an alternative case, that “in the absence of an express authorisation or procural” it is enough to prove that the Claimant was aware of the Exchange, and deliberately omitted to ask Ms Bligh to end it or make it inaccessible to Friends, because he wanted material to bring or threaten a defamation claim against the Defendant.

[18]Paragraph 19 of the Defence relies on paragraphs 9 and 11 of the Defence in response to the Claimant’s claim for aggravated damages. Paragraph 20 of the Defence pleads that if necessary the Defendant will rely in mitigation of damages on, among others, the facts pleaded in paragraphs 9, 10 and 11 of the Defence.

[19]The Reply, served on 10 November 2014, contains four pages of detailed response to the pleaded case of consent. Nowhere is it suggested that the pleaded case fails to disclose a reasonable basis for a defence. Paragraph 20 of the Reply relies on the matters pleaded in paragraphs 9, 10 and 11 of the Defence in aggravation of damages. On 28 January 2015 the Claimant served a Part 18 Request for further information about the Defence. This did not seek any further details about the consent defence. The parties gave disclosure of documents on 28 January 2015. There was still no complaint about the consent defence.

[20]On 5 March 2015, the Claimant gave supplemental disclosure of documents consisting of telephone records for his landline. These showed three short calls on 23 December 2015 from his landline to his mobile. On 24 April 2015 the Claimant obtained and gave further supplemental disclosure of his mobile records. These showed a call from his mobile to his landline at 12.35 on 23 December 2012, lasting 2 minutes 35 seconds. It was in the light of this documentation, for which the Defendant had been pressing for some time, that the Claimant’s advisors decided to, and on 30 April 2015 did, issue the application to strike out the consent defence. The principal basis for that application is that the newly disclosed phone records demonstrate that the defence cannot succeed. The application is supported by a witness statement of Nathanael Young of the Claimant’s solicitors, which identifies what are said to be the key points in the telephone records and states that “the available evidence fully undermines the Defendant’s pleaded case, and accordingly the case should be struck out.” In the alternative, or in any event, Mr Young suggests that the pleaded facts do not amount to consent in law.

[21]It might legitimately have been objected that evidence is not admissible in support of an application under CPR 3.4(2)(a) or (c), and that the principal basis on which this application is advanced amounts in substance to an attempt to seek summary judgment, on a limited basis, without adhering to the requirements of Part 24. However, Mr Price was content to address the application on the basis put forward on the Claimant’s behalf. I must nonetheless guard against the risk of procedural error and consequent unfairness to the Defendant. In my judgment I should not strike out the pleaded case unless satisfied either(a) that (i) it fails to state facts that, if proved, would or might be held to establish a defence of consent or (ii) fails to comply with a rule or Practice Direction and (iii) it is just and convenient in all the circumstances to strike it out, or

(b) that the requirements for the grant of summary judgment against a defendant on a particular issue are satisfied.

[22]I deal first with the pleading point, starting with the submission that the pleading fails to comply with a rule. The rule relied on is in fact a Practice Direction: CPR PD16 8.2. This provides:

“The claimant must specifically set out the following matters in his particulars of claim where he wishes to rely on them in support of his claim: (1) any allegation of fraud, (2) the fact of any illegality, (3) details of any misrepresentation, (4) details of all breaches of trust, (5) notice or knowledge of a fact…”

Whilst I accept of course that any serious allegation must be pleaded clearly and distinctly, these requirements are tied to particular kinds of allegation. I cannot accept that the plea of consent in this action engages any of paragraphs (1) to (4) of this paragraph. Paragraph 8.2(5) is engaged, as the Defendant is alleging notice and knowledge. But it cannot be said that she has failed to plead notice and knowledge.

[23]Turning to the contention that the plea of consent discloses no reasonable basis for a defence, the ordinary rule is that the court will not strike out a pleaded claim or defence if the facts alleged, if proved at trial, might be found by a reasonable tribunal to support that claim or defence. Ms Addy submits, however, that I should adopt a higher threshold. She argues that in order for the consent defence to pass muster, the pleaded facts must be more consistent with the presence than with the absence of consent. This approach, which Mr Price has dubbed “the probability test”, is well established in the context of allegations of fraud. As Thesiger LJ famously said in Day v Garrett (1878) 7 ChD 473 at 489, “Fraudulent conduct must be distinctly alleged and distinctly proved, and it [is] not allowable to leave fraud to be inferred from the facts”. If the facts pleaded are consistent with innocence it is not open to the court to find fraud: Paragon Finance plc v D B Thakerar & Co

[1998] EWCA Civ 1249

[1999] 1 All ER 400

(Millett LJ). The rule extends to the tort of misfeasance in public office, an ingredient of which is deliberate or reckless abuse of power: Three Rivers DC v Bank of England (No.3)

[2001] UKHL 16

[2003] 2 AC 1

. In defamation, a similar rule is a long-established requirement of a plea of malice: Yeo v Times Newspapers Ltd

[2015] EWHC 209 (QB)

, [2015] 2 Costs L.O. 243.

[24]Ms Addy advocates a similar approach to the defence of consent in this case. She does not suggest that consent is to be equated with fraud, abuse of power, or malice but she argues that in this case “the consent defence as pleaded is effectively an allegation of a conspiracy to entrap or inveigle the Defendant into making actionable publications so that the Claimant could oppress and impoverish her by bringing defamation proceedings.” This is described as a very serious allegation of misuse of the court process, analogous to a defence of justification alleging fraud or dishonesty, so that the same level of rigour in the pleaded case should be required.

[25]This submission begs the question of whether the “probability test” does apply to a plea of justification which makes an allegation of fraud, or some similar allegation. Both sides refer in this connection to the decision of the Court of Appeal in Ashcroft v Foley

[2012] EWCA Civ 423

, [2012] EMLR 25. It is true that the issue was raised before the court in that case by way of a respondent’s notice. However, whilst Elias LJ indicated at [93] that his “strong preliminary view” was that “a pleading of fraud in the context of justification should be subject to the same stringent requirements as it is in other contexts”, the majority concluded and Elias LJ agreed that it was not necessary to resolve that issue: see [79]-[80], [93]. When the case returned to Eady J following the Court of Appeal decision he ruled that the introduction of the probability test would unduly inhibit the pleading of justification, and that the test to be applied is “whether a juror would be perverse to find the plea of justification established, on the balance of probabilities, if all the pleaded facts were proved at trial”: Ashcroft v Foley (No.2)

[2012] EWHC 2214 (QB)

, [2012] EMLR 32 [14].

[26]This decision of Eady J was not cited at the hearing, but I refer to it only as reinforcing the view that I would have taken in any event on the basis of the Court of Appeal decision: it is not established law that the pleading of fraud or similarly grave allegations by way of justification is subject to the probability test. I do not, therefore, accept the starting point for Ms Addy’s argument by analogy.

[27]I doubt in any event that it would be right to treat the consent defence in the present case as tantamount to a plea justifying fraud or dishonesty. The nub of the plea of consent is that the Claimant procured or authorised Ms Bligh to induce the Defendant to make particular defamatory allegations about the Claimant, or connived at her doing so. It is this aspect of the defence that Ms Addy seeks to attack, arguing that “it rests on a number of arguable (but not probable) sequential inferences.” An allegation that one party procured publication by the other is not in and of itself an allegation of dishonesty. And the case advanced here is not one that involves deception. It is one of provocation. It is true that the particulars relied on in support of the consent defence incorporate by reference allegations of abuse of process which are made in paragraphs 9 and 10, but these paragraphs are not themselves attacked as failing to disclose a reasonable basis for a defence, and they are only a subsidiary part of the case of consent. To treat those paragraphs as amounting to allegations of dishonesty, and on that basis to apply a probability test to the core allegation of procuring publication, would be to let the tail wag the dog.

[28]Assessed by reference to the standard threshold test of perversity, referred to by Eady J in Ashcroft v Foley (No 2) at [14], the plea of consent must in my judgment survive the application to strike out. Ms Addy’s skeleton argument concedes in terms that the inferences of fact that are invited in paragraph 11 are “arguable”, and I agree. As to the requirements of the defence of consent in defamation, there is relatively little authority. In her skeleton argument Ms Addy submitted, referring to Gatley on Libel and Slander 12th edn at para 19.10, that the claimant must be shown to have authorised, expressly or impliedly, “the publication of the words substantially as they were used”. I think this may be too stringent a statement of the law. In oral argument Ms Addy accepted that it was at least arguable that it would be enough to prove the allegation in paragraph 11.10 of the Defence, that the Claimant procured the publication “of the allegations complained of”. In my judgment she was right to make that concession: see Dar Al Arkan Real Estate Development Company v Al Refai

[2013] EWHC 1630 (Comm)

at [32]-[34] where Andrew Smith J, dismissing a defendant’s application for summary judgment, held that it was not fatal to the claim that the claimant could not plead or prove that the defendant caused or authorised publication of “the specific defamatory words of which complaint is made”, as opposed to the imputation(s) arising from them.

[29]I turn now to what seems to me to be the core of this application to strike out: the application for, in substance, summary judgment. CPR 24.2 provides that an applicant for summary judgment on an issue raised by way of defence must satisfy the court that the defendant has no real prospect of success on the issue, and that there is no other compelling reason why the issue should be disposed of at a trial. A “real” prospect is one that is not fanciful. Where the issue is one of fraud, or malice, or some other allegation to which the probability test applies, these requirements are modified. However, for the reasons given above, I do not consider this to be such a case. Applying again the standard test, my conclusion is that it has not been shown that the defendant has no real prospect of success on the issue. Adopting the language of Three Rivers, this is not a case where the Defendant’s pleaded allegations smack of “unreality”.

[30]The case put forward on the Claimant’s behalf is that the telephone records of December 2012 which he obtained in March and April 2015 deal a fatal blow to the inferences relied on in support of the defence of consent. The records demonstrate, it is said, that the Claimant was not at home with Ms Bligh during a crucial period of the Exchange, and therefore cannot have spoken to her when she embarked on the sequence of postings that led to the statements complained of. In addition, there is hearsay evidence from the Claimant’s solicitor that the Claimant “informs me that he has no recollection of speaking to Ms Bligh that day and is confident that she did not tell him of the exchange until that evening, as he is confident he would have remembered such a dramatic event if she had mentioned it.”

[31]A hearsay statement which seeks to prove a negative by establishing that the Claimant does not remember anything is not a promising basis for striking out or summary judgment. Nor, in my opinion, are the telephone records as devastating as the Claimant’s legal team suggest. The 3 calls from his landline were made at 12.21, 12.23 and 12.30. They were of 4, 1 and 15 seconds duration. They are said to undermine the Defendant’s case that her texts of the morning of 23 December 2012 prompted discussion between the Claimant and Debbie Bligh, and Ms Bligh’s “provocative” Status Update about spending Christmas with her man and his son. But the most that the landline calls show in this regard is that the Claimant had left the house by 12.21, when the first of those calls was made. Since the Defendant’s second text was sent to the Claimant at 11.33, the landline calls are not plainly inconsistent with this aspect of the Defendant’s pleaded case. They do not demonstrate that the Claimant and Ms Bligh had not spoken about the Defendant’s text messages and what might be done about them, before his departure. It is by no means fanciful to suggest that texts of that kind would have been the subject of such discussion. A text sent by the Claimant that evening demonstrates that the Defendant’s insulting texts were shown to Ms Bligh.

[32]There is something to be said, indeed, for the argument of Mr Price that the fact that between 12.21 and 12.30 Ms Bligh tried three times in short succession to contact the Claimant by phone is capable of lending some support to the Defendant’s inferential case. The first call was made whilst the Exchange was in progress, immediately after (it would appear) the Defendant had indicated that she had no interest in speaking to Ms Bligh by phone. The third call to the Claimant, at 12.30, was made immediately after the Defendant had told Ms Bligh to “ask Terry”. It appears that Ms Bligh then left a voicemail for the Claimant. He called her five minutes later for over 2 minutes. Mr Price submits that the probability is that the purpose of the calls and the voicemail was to speak to the Claimant about the Exchange. That is not in my judgment at all a fanciful proposition. The Claimant cannot directly gainsay it, and there is no evidence on the point from Ms Bligh.

[33]Next it is said that the call from the Claimant to Ms Bligh that connected at 12.35 came after the first defamatory Post by the Defendant, and that this accordingly cannot be covered by the defence of consent even if it were otherwise made out. It is true that before that call was made the Defendant had already posted a statement alleging that the Claimant had been arrested. However, for the reasons given above, the phone records do not exclude the possibility that there was a plan agreed on between the Claimant and Ms Bligh before Ms Bligh posted the initial Status Update.

[34]The 12.35 conversation can also properly be viewed from a different perspective. Mr Price submits that the existence of a 2 ½ minute conversation between the Claimant and Ms Bligh at this point in the Exchange is strongly supportive of his client’s case. He argues that it is a highly likely, if not inevitable, inference that the conversation was about the Exchange; and that the existence of such a conversation is capable of sustaining the pleaded case of authorisation at the outset and/or authorisation of the continuation of the Exchange. He adds that even if authorisation came part-way through that does not matter, because the defamatory sting was conveyed by the subsequent conversation. In my judgment these are reasonable points, which merit exploration at a trial with oral evidence.

[35]I would in any event have declined to strike out or grant summary judgment on this issue, for reasons of case management and overall fairness. First, even if contrary to my view there were no sustainable case of consent to the initial reference to an arrest, that would not justify striking out the rest of the plea of consent. Secondly, there is force in Mr Price’s submission that the real sting of the allegation that the Claimant was arrested is derived from what was said after the 12.35 conversation. Thirdly, the factual issues raised under the heading of consent are closely interwoven with the factual issues raised by the two-stranded defence of abuse of process, which is not attacked and will go to trial in any event. Further, the facts pleaded in support of the defence of consent are relied on elsewhere in the Defence: in rebuttal of aggravated damages and in mitigation of damages. It would in my judgment serve no really useful purpose to eliminate the plea of consent, when some and perhaps all of the allegations relied on would re-enter the case by other routes. Indeed, to do so would also tend to add confusion to what is already a complex picture. The fact that the boundaries of the defence of consent in defamation are relatively uncharted is an additional reason for declining to strike out or grant summary judgment. As Eady J noted in Howe & Co v Burden

[2004] EWHC 196 (QB)

, the precise ambit of this defence is best established at trial on the basis of the tribunal’s findings of fact.

[36]The Defendant’s alternative consent defence, to which I have referred above, does appear to stretch the boundaries of what is meant by consent, but it has not been the subject of any sustained argument from either side and I see no useful purpose to be gained by striking it out rather than leaving it for consideration, if necessary, after the relevant facts have been determined.

Justification of “sexual abuse”

[37]I can take this more shortly, and in view of the particular sensitivity of the issues raised I shall make no more detailed reference to the allegations in this respect than is necessary to explain my conclusions.

[38]Paragraph 15 of the Defence pleads that the Email is true or substantially true. One of the imputations which the Defendant seeks to justify is that “The Claimant subjected the Defendant to ongoing mental abuse for the majority of their marriage and to a lesser extent sexual and physical abuse.” It is not suggested by the Claimant that this is a meaning which the Email cannot bear. It is said, however, that the particulars relied on in support of the allegation of sexual abuse are incapable of establishing the truth of that allegation.

[39]The particulars initially pleaded are to be found in paragraph 15.13, where it is alleged that the Claimant “insisted that the Defendant engage in sexual activities with him that she found abhorrent, humiliating and/or painful.” Understandably, further information was sought. The Defendant was asked to identify the sexual activities, which she did. She was asked to make clear whether it is her case that the Claimant knew that she found the activities “abhorrent, humiliating and/or painful.” She answered yes. She was asked if it was her case that she did not in fact consent to the sexual activity. She answered:

“No. ‘Insisted’ is a word in ordinary usage which has a different meaning to ‘consented’. The Claimant regarded it to be his right.”

[40]Ms Addy submits that the relevant principles are those identified at paragraph [27] of my judgment in Simpson v MGN Limited

[2015] EWHC 77 (QB)

“i) A defendant does not have to prove the truth of every aspect of the words complained of. It is sufficient for the defence to prove the substantial truth of the defamatory sting of the words. ii) The defence must however meet the whole defamatory sting. If the words contain a defamatory imputation of substance which is not covered by the plea of justification the defence cannot succeed. iii) At the present stage, the question for the court is whether a trial judge could conclude that the pleaded case of justification, if established, proves the substantial truth of the words complained of.”

[41]The argument advanced is simple. It is this: as the Defendant has conceded that the sexual activity of which she now complains was activity to which she consented, there is no 'abuse' case to be tried; that the Defendant agreed to sexual activities she did not enjoy to please the Claimant is not probative of any allegation that she was abused; there are therefore components of the defamatory meaning of the Email which would inevitably be held to contribute very significantly to their defamatory sting, the truth of which could not be established by proof of the Defendant's particular 15.13, which should accordingly be struck out.

[42]It appears that the case for the Claimant relies on the broad proposition that a sexual act which is engaged in by consent cannot by definition involve any form of sexual abuse. I would not accept that proposition. This seems to me to be far too glib and simplistic an approach to an issue which requires a much more subtle assessment. Mr Price has referred me to a “non-statutory definition” of “domestic violence and abuse”, adopted across government, which encompasses “Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality” and “psychological, physical, sexual, financial [and] emotional” coercion. This is of course relied on for illustrative purposes, and not because it in any way binds the court’s conclusions on what does or does not amount to sexual abuse for the purposes of justification in this libel action. For illustrative purposes, the definition is helpful. In its absence however I would in any event have concluded that as a matter of ordinary English usage it is possible for one person to abuse another sexually, even if the second person consents to the act.

[43]Beyond this, it seems to me that the argument for the Claimant interprets the Defendant’s pleaded factual case in a way that is unjustifiably narrow. To say that a man has “insisted” on a woman engaging in sexual acts which he knows she finds “abhorrent, humiliating and/or painful”, and that he has done so on the basis that it is his “right” is significantly different from saying that she agreed to activities she did not enjoy to please him. The answer to the question of whether the truth of this part of the Email is established is likely in my view to depend on the precise detail of the evidence. However unappealing it may be to contemplate these issues being resolved via a defamation trial, it cannot possibly be said in my judgment that paragraph 15.13 discloses no reasonable ground of defence.

The disclosure application

[44]The application notice seeks “further standard disclosure pursuant to CPR 31.10 and/or specific disclosure of [the Defendant’s] medical records from 2001 to 2011 inclusive pursuant to CPR 31.12.” This is an application for blanket disclosure of all such records. The reasoning behind this is that the records are “important evidence in the case” which have not been disclosed. A further witness statement of Mr Young explains the Claimant’s approach. It identifies three issues raised by the Defendant’s case to which medical records are of great importance. The first is an allegation that the Claimant blamed the Defendant for suffering from post-natal depression. Secondly, reliance is placed on the allegations of sexual abuse and acts of violence. Thirdly, Mr Young points to the allegations of mental abuse, which is said to have resulted in psychological symptoms such as the Defendant becoming isolated and losing confidence.

[45]The argument for the Claimant, as presented in the witness statement of Mr Young and in Ms Addy’s submissions, is that all these are matters that one would expect the Defendant to raise with her GP if they occurred. Thus, either the records will contain nothing recording any contemporaneous complaint by the Defendant, in which case they will adversely affect the Defendant’s case; or they will contain some record of contemporaneous complaint and hence adversely affect the case for the Claimant. On either view, the records fall within the scope of standard disclosure in CPR 31.6. Alternatively, there should be specific disclosure of the records and disclosure and inspection of the entire record is necessary and proportionate.

[46]Again, I find the Claimant’s argument unduly simplistic. It is necessary to focus more precisely on what the records are or are not likely to reveal, if anything, that could assist the Claimant, or undermine either party’s case. To take one example, the first allegation is one of attempted strangling. A complaint was made to police. The Claimant was interviewed by the police, and there is a record of the interview. The highest the case is put against him in this regard is that he admitted that he had put his hands around the Defendant’s neck. He denies that. The Defendant alleges that a friend of hers saw red marks on her neck. The defence case is therefore not one of grave injury, and does not involve an allegation that she visited her GP or any other doctor. It is not at all obvious that on either party’s case the episode would have led to a GP visit and I do not see any real basis for an inference that the records will contain anything of relevance.

[47]But there is a prior point. The first step in the disclosure process is of course for each party to search for relevant documents. Any documents located as the result of such a search must then be assessed for relevance (to use this term for the test of standard disclosure under CPR 31.6). Those identified as relevant must then be disclosed. In this case, the Defendant’s medical records had not been obtained at the time that disclosure by list was given. They had not been examined for relevance. Mr Price was prepared to defend that stance, on the grounds that it would be disproportionate to carry out such a search. However, in the light of the Claimant’s application the defence team had in fact sought the records and at the time of the hearing they were expected shortly. In those circumstances it was hard to see much force in the proportionality argument. I would not have found it persuasive in any event. The nature of the allegations in this case suggests to me that there is at least a real possibility that the records, once examined, would contain something falling within the scope of standard disclosure. There are some documents which have been disclosed which support that view.

[48]A letter from a Consultant Gynaecologist and Obstetrician, Mr Reid, to the Defendant’s GP, Dr Durban, dated 20 August 2001 refers to a consultation on that date, attended by the Defendant and the Claimant. The letter refers to a symptom mentioned in the Defendant’s particulars of alleged sexual abuse, and its effects on the couple’s sex life. It also refers to the Claimant’s “attitude” towards the situation. These aspects of the letter seem to me to mean that it was right to disclose it. The passages first mentioned adversely affect the Defendant’s case, and the passages mentioned second adversely affect that of the Claimant. A referral letter from Dr Durban to a Consultant Psychiatrist dated 4 February 2003 refers to the same symptom as the earlier letter, giving details of its duration, and records the Defendant denying any problems between her and the Claimant as at the date of the letter.

[49]I do not consider that a search would involve disproportionate effort or cost. In that context, I have had regard to the costs incurred by the Defendant generally, to which I return below. In those circumstances my conclusion was that the appropriate order was one for specific disclosure and inspection pursuant to CPR 31.12, requiring the Defendant to carry out a search of her medical records to identify any records falling within the scope of standard disclosure, disclose any documents so identified and, subject to one reservation, give inspection of such documents.

[50]The reservation arose from a submission made by Mr Price, who points out that the court may, in an appropriate case, permit a party to withhold disclosure of documents adverse to another party’s case, on which the first party does not wish to rely. CPR 31.5(2) empowers the court to limit standard disclosure and that power may be exercised at or after the time that disclosure is ordered, having regard to the overriding objective, including the saving of expense and the need to not involve unnecessary court resources: Serious Organised Crime Agency v Namli

[2011] EWCA Civ 1411

. Mr Price tells me that his client is concerned at opening up her medical records to her ex-husband and that he foresaw the possibility that his client might, like SOCA in that case, wish to deny herself the opportunity to rely on documents adverse to her opponent, in order to preserve confidentiality. Thus, I have concluded that the order should incorporate a liberty to apply for such an order, if so advised.

[51]It should go without saying, but I add in case of any doubt, that the only part(s) of any medical record(s) that would fall for disclosure and inspection as a result of my order are those which satisfy CPR 31.6. If one disclosed document contains other records, which do not fall within that rule, the irrelevant records may be redacted and inspection given of a redacted copy only.

Costs budgets

[52]The Claimant’s budget, including all contingencies, is agreed in the total sum of £260,624.30. Of that sum, £92,134 represents incurred costs. Provision is made in the Contingencies for two categories of expert: a foreign law expert and a Facebook expert. The former (estimated cost £13,050) will not be required. At one point it was thought that the claim in respect of the Email, which was published in France, might require evidence of French law. The Defendant no longer pursues that objection to the claim. A Facebook expert probably will be required, however, if the parties cannot agree the relevant facts. Thankfully, the anticipated costs are modest at some £4,420. If such an expert is needed my current view is that a single expert would suffice.

[53]The Defendant’s budget amounts in total to £575,441.39, of which £225,536 is incurred and £333,145 estimated. This budget, which is well over double that of the Claimant, is the subject of a number of attacks on his behalf. I have set out at the end of this judgment the Defendant’s budget together with my approved totals.

Submissions

[54]Ms Addy relies on a letter dated 3 March 2015 from her instructing solicitors. Although the budgets now before me are dated 29 April 2015, that does not of itself undermine the points then made. Those points fall under three broad headings. First, it is suggested that there are three errors of principle in the approach to completing the Precedent H form:(a) the form includes the maximum of 3% of the budget for the costs of budgeting, but must also include budgeting costs in the figures for the CMC and PTR;

(b) figures for expert evidence have been included, as well as, separately, a contingent cost for an application to adduce such evidence;

(c) some contingencies have been included which are unlikely to occur and hence, according to my decision in Yeo (above) should not be included. Secondly, the Claimant challenges a number of the assumptions used to arrive at the costs estimates. I shall refer to the relevant points to the extent necessary in explaining my conclusions. Thirdly, whilst accepting the hourly rates used, the Claimant questions the number of hours estimated as required to complete the various stages. In this regard the Claimant has provided counter-offers.

[55]In response, the Defendant relies first of all on a number of general points set out in a witness statement of Ms Varley of Mr Price’s firm (“DPSA”). Ms Varley says:- i) DPSA has been involved in a large number of cases such as this where the defendant is sued over a small scale publication in the context of an existing dispute. Experience suggests there is no correlation between the scale of publication and the cost of a proper defence. Rather the contrary, such cases are often more expensive than those involving large-scale media publications. ii) Such cases involve greater reputational risk and stress for defendants, and the financial consequences of losing are more keenly felt. iii) There are difficulties in resolving such claims by means of striking out applications, which may simply result in greater cost. iv) Until the Defamation Act 2013 came into force Parliament permitted claims to be brought even where there is no harm, thereby sanctioning inherently disproportionate litigation against defendants. v) The law and procedure remain technical and complex, requiring specialist representation. There has never been any attempt to create a defamation small claims court.

[56]For all these reasons, it is suggested on the Defendant’s behalf that the court should be wary of depriving the defendant of the opportunity to defend the claim by the means properly available to her by too strict an approach to costs budgeting. Ms Varley adds that when the court is considering a defendant’s costs budget it must – she submits – do so on the basis that the defendant will succeed at trial on the basis of the matters alleged in her defence, and an order for all her costs will be made. It is said that the Defendant’s costs budget is set at a conventional level for a 10 day High Court defamation trial involving the factual and legal issues arising on the statements of case.

Assessment

[57]The starting point is to consider the global costs, and in that context I should address the Defendant’s general points. I accept that it is not possible to approach the costs budgeting exercise in a case of this kind by assessing a case as relatively modest in scale, and the costs as high, and then simply reducing the costs to match the perceived importance of the case. As I observed in Yeo, many would suggest that the costs of litigation in this category become disproportionate at an early stage. There is no avoiding that, in many cases. So I agree that an approach based purely on financial proportionality would run the risk of disabling litigants from fairly presenting their cases. I accept also that the “small” cases such as this, involving relatively few publishees, are not inherently cheaper and can tend to be more expensive than cases over mass media publication. I readily acknowledge the importance of ensuring that the costs budgeting process does not result in a party being unable to recover the costs necessary to assert their rights.

[58]Nevertheless it is vital, in most cases at least, for the court to control the recoverable costs of such litigation. Excessive costs tend to stifle justice, becoming the main issue between the parties. The overall total of the parties’ incurred and estimated costs in this case is unquestionably far beyond anything that could reasonably be thought proportionate to the importance of the issues at stake. If this case reaches a trial then, in the absence of a reasonable Part 36 offer or other settlement offer, one or the other party is going to have to pay the whole of those costs. I know little of the means of these individuals. I am told the Claimant is “wealthy”, but the description is one the aptness of which depends, often, on the perspective of the person applying it. At any rate, few can afford to lose over £830,000 with anything approaching equanimity. In addition, if costs on this scale are allowed in litigation of this kind, many will be deterred from even attempting to vindicate their rights.

[59]The defence of such cases can indeed be very time-consuming and hence very costly. But in my judgment it is not necessary for such cases to consume as much time, or to cost as much, as the Defendant’s budget assumes. An indication of this is the scale of the costs budget of the Claimant. I recognise that it is not possible to cut radically, at a stroke, the costs of this class of litigation. The process, if it is to be successful, must be gradual. But there does need to be, in my view, a progressive acceptance of the need for greater cost control in this area of litigation. The fact, on which the Defendant relies, that there is as yet no small claims court for defamation is a spur to controlling the costs and procedural complexity of defamation litigation, rather than a justification for allowing higher costs.

[60]In my opinion the Defendant’s global costs figure is clearly considerably out of proportion to what is at stake and the nature of the issues, and should be substantially reduced for that reason, as well as in order to ensure a reasonably level playing field as between the parties. In aiming to reduce it appropriately I shall address some points of detail, but not at undue length.

[61]Dealing first with the Claimant’s points about Precedent H it must, in my judgment, be right to say that a party cannot claim the maximum percentage allowed for the costs of budgeting, and also include budgeting costs in the estimated or incurred figures as well. But I am not persuaded that this is what the Defendant’s team have done here. If it is, then it will be a ground for departing downward from the approved figures. I do consider that the Defendant’s figures for expert evidence are inappropriate. In the light of the argument at the hearing and this judgment it is unlikely there will be any need for a contested application as to expert evidence, so I disallow that element of the budget. In my judgment the provision for expert reports is excessive, having regard to the single topic on which this might be required and my provisional conclusion that if any expert on the workings of Facebook is needed, a single expert would suffice. In the course of the hearing I suggested that a member of the company’s staff could probably provide the necessary information. As to the contingencies, the first has occurred. The others seem to me improbable, and I make no allowance for them. If an unanticipated interim application is made that can be accommodated outside the budget: see Yeo at [71].

[62]Turning to the Defendant’s assumptions, the first and most important issue is whether, as the Defendant’s estimates assume, this case requires a 10 day trial. I do not consider that it does. The case ought to be comfortably capable of trial within a 7 day period, which is what both parties estimated in their Directions Questionnaires in November 2014. Thus, whilst I would accept that the principal or sole advocate at trial is likely to spend 12 hours a day on the case during trial, I consider it necessary to reduce the provision for his trial costs by 30% to £42,000. I do not consider it at all reasonable to devote the time of two additional fee-earners for 12 hours a day throughout the trial. I reduce the claim in that respect to a total of £24,000 yielding trial costs of £68,000 as against the budget figure of £118,700.

[63]I can see little justification for spending further time and money on what are already extensive and very expensive pleadings. In my judgment more than enough time and expense has already been incurred on that. The estimated figure for disclosure is in my judgment excessive for a case which does not involve a large amount of documentation. For the reasons given by the Claimant’s team I have reduced it by approximately half. That reduction reflects a reduction in hours spent rather than the rates which, as I have said, are agreed. A provision of £57,900 on witness statements, when added to substantial trial preparation costs, is in my judgment way beyond what this case could justify. The assumption is that 14 witnesses will be called for the Defendant. It is hard to see who these would be but in any event the number of estimated hours (175) devoted to the exercise is disproportionate, and the proportion spent by the senior fee earner too high. Witness statements are meant to be in the witness’s own words, and an assistant solicitor should be able to do the majority of the work. Bearing in mind the time spent on the issue/statements of case phase I consider that allowing some 40% of the estimate for future work on statements tends to err on the side of generosity. I reduce the claim for expert evidence for the reasons already given.

[64]Trial preparation is an intensive exercise but essentially a task for the principal advocate with, in a case like this, some support from a junior colleague. Again, I note how much work has been and will be done at other stages of the case. In the light of that, my view is that a reasonable allowance is 10 hours a day for 8 days for the principal (£40,000), and a further £23,000 for support from an assistant and trainee. This reduces the trial preparation claim to £63,000, equivalent to £9,000 per trial day.

[65]The overall result of these conclusions is to reduce the estimated future costs from £330,000 to some £197,000. This exceeds the Claimant’s agreed future costs estimate by very nearly £30,000 and thus appropriately reflects the somewhat greater burden on a defendant in a case such as this. It would in my judgment be absurd to suggest that such a sum is insufficient to allow a proper defence of this claim. I note also that the sum I have approved for the future is set against a background of far greater incurred costs on the Defendant’s side, which means that the total approved budget is still in excess of £420,000. Work Incurred Estimated Total Approved Pre-action costs 0.00 N/A Issue/statements of case 148,799.46 4,100 152,899.46 148,799.46 CMC 10,315 6,310 16,625.00 16,625.00 Disclosure 40,216.00 13,100 53,316.00 47,000.00 Witness statements 9,709 57,900 67,609.00 35,000 Expert reports 3,435 9,250 12,685.00 7,000 PTR 0 9,100 9,100 9,100 Trial preparation 0 93,250 93,250 63,000 Trial 0 118,700 118,700 68,000 ADR/Settlement discussions 13,061.50 3,020 16,081.50 16,081.50 Contingent cost A: Claimant’s application for disclosure of medical records 0 4,800 4,800 0 Contingent cost B: Application to rely on expert evidence 0 4,480 4,480 0 Contingent cost C: Applications for third party disclosure: D Bligh 0 6,836 6,836 0 Contingent Cost D: Claimant’s application for redaction of statements of case 2,300 2,300 0 Completing Precedent H at 1% of Budget 5,586.81 4,106 Other costs of budgeting and costs management at 2% of Budget 11,173.62 8,212 Totals 225,535.96 333,145.00 575,441.39 422,924