Barry v Butler & Anor [2015] EWHC 447 (QB)

Case No HQ13D04293[2015] EWHC 447 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 25 th February 2015
Before
MR JUSTICE WARBY
Between
CHRISTOPHER BARRYClaimant(1) ALISON BUTLERDefendants(2) RAPIDGUARD LIMITEDDefendant
Anna Lintner (instructed by GMS Law) for ClaimantRichard Munden (instructed by direct public access) for DefendantsHearing Hearing date: 23 rd February 2015
Judgment
[1]This is the pre-trial review of this action for libel, and the hearing of applications for the defendants by which they seek to cut down the issues for trial by means of orders striking out allegations and/or granting judgment on certain issues, and providing for the trial of preliminary issues.

BACKGROUND

[2]The claimant and the defendants are in the business of environmental microbiology. Between about 2004 and 2007 the claimant, via a company named Achor Limited, had business dealings with the defendants. The claimant was subsequently involved with other Achor companies, including Achor Anaerobic LLC (“Achor LLC”). The claimant now sues the defendants in respect of two e-mails written by the first defendant and published by her on behalf of the second defendant company on 12 October 2011 and 18 January 2012.[3]The first email was sent to the generic “info@” email address of a business named Living-PlanIt. It contained the subject line “Ref. Christopher Barry Achor Anaerobic LLC” and words stating that the defendants were “motivated by our desire to prevent any further innocent parties from being defrauded”. The second email was addressed to a Rupert Fraser and stated that the claimant had been “arrested and charged with theft of a patent, fraudulent trading, obtaining by deception and money laundering”. Both emails are said to have been published to directors and/or managers and/or employees of Living-PlanIt, two of whom are identified by name.[4]General damages, including aggravated damages, are claimed. Matters in aggravation of general damages are alleged in particulars set out in paragraphs 21 to 25 of the Particulars of Claim. Very substantial special damages are also claimed. In a "Special Damages Schedule" attached to the particulars of claim it was alleged that the two e-mails had caused the claimant financial losses amounting to $8,675,000. An “Updated Special Damages Schedule” was served on 2 May 2014, revising this figure to $4,337,500 plus €431,000.[5]The Defence asserts that the emails were published abroad so the claim needs to, but fails to, satisfy the requirement of double-actionability. In addition, substantive defences are pleaded of qualified privilege and justification. These defences overlap, in as much as the particulars of qualified privilege are also relied on in support of the plea of justification. These particulars contain allegations of fraudulent conduct by the claimant in and between 2004 and 2010. The Defence denies that the claimant or his businesses have suffered the alleged or any special damage. A Counter-Schedule of Loss has been served, denying that the claim is adequately pleaded or sustainable.[6]The Reply denies that the first email was published on an occasion of qualified privilege but does not expressly address the particulars alleging privilege in respect of the email of January 2012. Paragraphs 43 and 44 of the Reply allege, further and alternatively, that in publishing the words complained of the defendants acted maliciously.[7]The claimant is represented by solicitors acting under a conditional fee agreement, and has instructed Counsel, Ms Lintner. There is no after-the-event insurance cover. The defendants are not represented by solicitors. They are however represented on this application by Mr Munden of Counsel, who is instructed directly under the Bar’s public access rules.[8]The action is fixed for trial commencing two weeks from today, on 9 March 2015, with a time estimate of eight days. This PTR ought to have taken place over a month ago but the claimant has failed to take the steps necessary to bring it on. It is the defendants who have taken the initiative to bring this matter before the court today.

THE DEFENDANTS’ APPLICATION NOTICE

[9]By an application notice issued on Friday 13 February 2015, and supported by a witness statement of the first defendant dated the same day, the defendants seek the following orders: i) that the plea of malice be struck out; ii) that judgment be entered for the defendants in respect of the e-mail of 18 January 2012; iii) that unless within seven days the claimant discloses documents evidencing his claim for special damages, that claim be struck out.[10]A number of other case management issues need to be considered, but I will first address those raised by the defendants’ application notice.

Malice

[11]A defence of qualified privilege can only be defeated by proof of malice. The law on what amounts to malice for this purpose is well established. The following propositions emerge from the seminal decision of the House of Lords in Horrocks v Lowe [1975] AC 135, HL, 149-153 and from the decision of the Court of Appeal Telnikoff v Matusevitch [1991] 1 QB 102: i) To destroy privilege, the desire to injure must be the dominant motive for the defamatory publication. ii) If it is proved that the person publishing defamatory matter did not believe that it was true, that is generally conclusive evidence of express malice. iii) If a person publishes untrue defamatory matter recklessly, without considering or caring whether it is true or not, he is treated as if he knew it to be false. iv) But indifference to the truth of the publication is not to be equated with carelessness, impulsiveness or irrationality. A defendant who honestly believes in the truth of what was published is not to be found guilty of malice merely because his belief was unreasonable or was arrived at after inadequate research or investigation. v) Judges and juries should be very slow to draw the inference that a defendant was so far actuated by improper motive as to deprive him of the protection of privilege, unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity. vi) Where the only evidence of improper motive is the content of the defamatory material itself or the steps taken by the defendant to verify its accuracy, the plaintiff must show affirmatively that the defendant did not believe it to be true or was indifferent to its truth or falsity. This burden is not lightly satisfied.[12]The principles which apply to the pleading and proof of malice are also clear. An allegation of malice is an allegation of dishonesty, and hence is subject to the general principles which apply to such allegations. As Lord Hobhouse stated in Three Rivers DC v Bank of England (No.3) [2003] 2 AC 1 at [161] those principles include the following:
“Dishonesty is not to be inferred from evidence which is equally consistent with mere negligence. At the pleading stage the party making the allegation of dishonesty has to be prepared to particularise it and, if he is unable to do so, his allegation will be struck out. The allegation must be made upon the basis of evidence which will be admissible at the trial.”
[13]The right approach to the pleading and proof of malice was summarised in this way by Eady J in Henderson v London Borough of Hackney [2010] EWHC 1651 (QB):
“33. It has been confirmed by the Court of Appeal in Telnikoff v Matusevitch [1991] 1 QB 102 and in Alexander v Arts Council of Wales [2001] 1 WLR 1840 that, in order for a claimant to succeed in proving malice, it is necessary both to plead and prove facts which are more consistent with the presence of malice than with its absence. This is one of the reasons why, in practice, findings of malice are extremely rare. 34. It is thus reasonably clear, as a matter of pleading practice, that allegations of malice must go beyond that which is equivocal or merely neutral. There must be something from which a jury, ultimately, could rationally infer malice; in the sense that the relevant person was either dishonest in making the defamatory communication or had a dominant motive to injure the claimant. Mere assertion will not do. A claimant may not proceed simply in the hope that something will turn up if the defendant chooses to go into the witness box, or that he will make an admission in cross-examination: see Duncan and Neill on Defamation at para 18.21. 35. It is not appropriate merely to plead (say) absence of honest belief, recklessness or a dominant motive on the defendant's part to injure the claimant. Unsupported by relevant factual averments, those are merely formulaic assertions. It is certainly not right that a judge should presume such assertions to be provable at trial. Otherwise, every plea of malice, however vague or optimistic, would survive to trial. It would be plainly inappropriate to move towards such an unbalanced regime, since it would tend to undermine the rights of defendants protected under Article 10 of the European Convention on Human Rights. … 40. … As has been said on numerous occasions, such a plea is tantamount to one of fraud or dishonesty and must be pleaded with scrupulous care and specificity. As I have already noted, it is quite inappropriate to proceed on the basis that something may turn up (whether on disclosure of documents or at trial)…”
[14]As I noted in Yeo v Times Newspapers Ltd [2015] EWHC (QB) 209 at [33] it follows from these principles that a plea of malice must focus upon what the defendant did or said or knew, and must allege specific facts from which it is alleged the inference of dishonesty is to be drawn.[15]Malice is pleaded in the claimant’s Reply in the following form:
“43. Further and in the alternative the Claimant avers that in publishing the words complained of, the Defendants acted maliciously, in that: (a) The Defendants acted with the improper dominant purpose of injuring the Claimant in publishing the words complained of; and (b) The Defendants did not have an honest belief that the words complained of were true at the time of publication because they knew that words complained or were not true or were reckless as to the same. 44. In establishing the plea of malice at trial the Claimant will rely on the matters set out at paragraphs 21 to 25 of the Particulars of Claim.”
[16]Paragraph 43 amounts to no more than an assertion that the requirements of a plea of malice are satisfied. It plainly cannot amount of itself to a sufficient plea of malice. As paragraph 44 implicitly acknowledges, the plea requires particularisation. The pleader has sought to particularise the malice plea by incorporating by reference allegations already made elsewhere in the statements of case: the particulars in aggravation of damages. This method of pleading has the merit of avoiding repetition, but it can have pitfalls.[17]One of these is that, as in Yeo, it may be unclear exactly what is to be incorporated. That is not an issue in the present case. Another is that allegations made for a different purpose may be brought in which are on analysis irrelevant or insufficient for the purpose of pleading malice. To avoid such pitfalls it will often, if not usually, be best to plead bespoke particulars of malice. The pleading method is not, however, in itself any reason to strike out. I must examine the incorporated material and assess whether it amounts to a sufficient pleading of malice in accordance with the principles I have identified.[18]When I examine paragraphs 21 to 25 of the Particulars of Claim I find that they do not comply with those principles. They fall well short of pleading specific facts, about what the defendants did or said or knew, which are more consistent with the presence of malice than its absence.[19]Paragraph 21 contains the following allegations:
“The First Defendant intentionally published the defamatory words to email addresses associated with two companies with whom the Claimant was conducting business and did so with the intention and/or purpose of destroying and/or undermining the Claimant's business relationship in his personal capacity or in his capacity as director and majority shareholder of Achor Anaerobic LLC with Living PlanIt and Homeland Renewable Energy. The Claimant believes the First Defendant was motivated to publish the defamatory statements as a result of the breakdown of the Claimant’s business relationship with the Second Defendant.”
[20]The acts attributed to the first defendant in this paragraph are equivocal. They are not more consistent with malice than its absence. They are consistent with an honest belief that the breakdown of the business relationship resulted from fraud on the part of the claimant, and that those with whom the claimant was doing business needed to know what the defendants had to say about the matter. Moreover the allegations of intention, motive, and purpose are bare assertions, of a formulaic character. No facts, other than the breakdown of the business relationship, are stated in support of those allegations.[21]Paragraph 22 states as follows:
“In addressing the email of 12 October 2011 to “Whom It May Concern” and sending it to at general “info@” email address, the First Defendant intended that the words contained therein should be read by any number of unspecified people, not limited to a specific/identified recipient;…”
[22]An email to a generic email address is by definition not aimed at a specific or identified recipient. It is fair to say that sending such an email will – at least normally – lead to it be read by one or more individuals whose identities are unknown to the sender. But that is not the same thing as distributing the email to “any number of” people. Moreover, sending an email to such an address is not in itself conduct more consistent with malice than its absence. It is consistent with a desire to convey information to an appropriate person at the company, without knowing who that person may be. That is a conclusion I had arrived at before reading the defendant’s account, that this is why in fact she chose to address the email in this way.[23]At paragraphs 23 and 24 of the Reply it is pleaded as follows:
“23. The First Defendant made no attempt to contact the Claimant to verify the truth of the allegations prior to publication;… 24. The defamatory statements made by the First Defendant are serious allegations of criminal "behaviour and criminal offences attracting lengthy custodial sentences. Despite this the First Defendant took no steps to verify the truth of these alleged charges before publishing them to persons who had a business relationship with the Claimant;…”
[24]A failure to contact the claimant or to take other steps to verify the truth of a statement might well support a case of irresponsible or careless publication but it does not raise a probability of malice.[25]Paragraph 25 contains the following allegation:
“Further, since at least two of the alleged offences referred to no longer exist under the law of the United Kingdom, the First Defendant did not and could not have reasonably believed in the accuracy of the statements.”
[26]The first defendant is not alleged to be a lawyer, or to have any other source of knowledge of the criminal law. Accordingly, this averment involves a non sequitur; it simply does not follow from the fact that some of the offences alleged do not exist that the first defendant did not, or could not reasonably have believed what she said was accurate. In any event, the highest this paragraph seems to puts the case against the first defendant is that she lacked a reasonable belief in the accuracy of her allegations of criminal offences. That is an allegation of negligence, which is not equivalent to malice.[27]For these reasons, the particulars of malice do not, individually or collectively, raise a probability of malice and the plea of malice falls to be struck out pursuant to CPR 3.4(2), as disclosing no reasonable basis for a claim.

The application for judgment

[28]The argument advanced in Mr Munden’s skeleton argument is simple: judgment should be entered in respect of the claim relating to the second email because qualified privilege is not denied in respect of that publication. I cannot accept that argument. In so far as the argument proceeds on the footing that the Reply impliedly admits the validity of the privilege defence it is mistaken. It has long been the rule that a matter alleged in the Defence which is not specifically dealt with in the Reply is taken to be in issue. That rule is given effect today by CPR 16.7(2) which provides that “A claimant who(a) files a reply to a defence; but(b) fails to deal with a matter raised in the defence shall be taken to require that matter to be proved.”[29]In fact, although the claimant’s Reply does omit to deal specifically with the paragraphs of the Defence that plead privilege in respect of the second email it does not omit to deal with them at all. The Reply begins, as is common, with a general joinder of issue:
“Save as where expressly indicated, no admissions are made as to any of the matters set out in the Joint Amended Defence.”
Ms Lintner’s skeleton argument, filed on the morning of the application, also makes clear that the defendants’ case on privilege is disputed.[30]In principle, the defendants could have sought summary judgment on the defence of privilege. However, although the defendants’ application notice refers to Part 24, it does so in relation to the plea of malice. It does not ask for summary judgment on the defence of qualified privilege, as Mr Munden accepted in oral argument. As he also accepted, the requirements of Part 24 have not been complied with. Most significantly, the minimum period of notice of 14 days prescribed by CPR 24.4(3) has not been given. The application is made on only 9 days notice. In addition, the application notice and evidence fail to comply with PD24 2(3) and 2(5). For those reasons I could not properly grant summary judgment.[31]I would in any event have been hesitant to conclude that it was appropriate to grant summary judgment on one of two qualified privilege defences, just a fortnight before the trial date. If one of the privilege defences is to be tried it seems clearly appropriate that the other should as well. Further, it does appear to me that, as Ms Lintner submits on behalf of the claimant, the court ought to examine the circumstances with care before concluding that the publications were privileged.

The special damages claim

[32]The substance of this claim is pleaded in the Updated Schedule of Loss. Excluding the title of the action and the signature page, the Schedule amounts to a page and a half of figures, with relatively little explanation. From the Updated Schedule of Loss it is possible to deduce the following about the claimant’s case. i) It is alleged that there was an “HRe project” which the claimant lost “following the defamation”. The “HRe project” involved dealings between HRe and Achor LLC and had two elements: the “Northern Wisconsin project” and the “Fresno project”. ii) The Northern Wisconsin project was an existing project under an agreement, monthly payments under which had begun to be made to Achor LLC. It is alleged that the defamation caused these payments to cease; that this caused Achor LLC to suffer lost profit over 5 years of $3.775m; and that the claimant would personally have received 50% of this, that is $1.8875m. iii) The Fresno Project was a “future project”, under which Achor LLC would have received a $1m “development fee” and monthly payments yielding a total profit of $4.9m over 5 years, of which the claimant would personally have received 50%, that is $2.45m. iv) The claimant also alleges that there was or would have been a “LivingPlanIt agreement” which would have yielded gains to him denominated in Euros in the form of shares, share options, and consultancy fees amounting to €431,000, and that “following the defamation” he has lost this agreement and this amount.[33]The Particulars of Claim and Reply contain some further relevant allegations. In paragraph 1 of the Particulars of Claim it is alleged that the claimant “is a founder and shareholder in… [Achor LLC] (a registered company in the State of Missouri, USA)”. In paragraph 4 of the Reply it is alleged that Achor LLC was “set up in 2010” and “registered by Mr Andrew Whiteside…” and that “The claimant was neither a shareholder nor a Director of this company. He was engaged as a Biotechnology Consultant”.[34]The claimant gave disclosure by list on 3 October 2013. The list contained only eight items said to be in the claimant’s control. The emails complained of, the statements of case, and the correspondence between the parties to the action accounted for four of those items. The other four items were documents relating to the claimant’s arrest and bail in January 2012. The only documents listed as having previously been in the claimant’s control were the “originals of correspondence sent by way of post” to the defendants, their insurers, “and/or any third party”. No documents were disclosed relating in any way to the matters the subject of the special damages claim. The Disclosure Statement said that the claimant had not searched for documents pre-dating October 2011.[35]On 24 January 2014 Master Eastman ordered the parties to give standard disclosure by 14 February 2014. No further list of documents was served by the claimant. In correspondence with the claimant’s solicitors the defendants have pressed repeatedly from May 2014 onwards for the disclosure of documents relating to the special damages claim, but until very recently the only response they received was, on two occasions, that the solicitors were taking instructions.[36]Against this background the submission made in Mr Munden’s skeleton argument was that the claimant was plainly in breach of the Master’s order for disclosure. The defendants pointed out that the pleaded case of loss involves five apparently separate agreements or projects, each of which would, they say, necessarily involve documentation. The defendants’ application notice therefore sought an unless order for disclosure of the documents on which the claimant relies in support of his damages claim, within 7 days.[37]It is in my judgment plain and obvious that the claimant’s approach to disclosure up to and beyond the time the defendants’ application was made did not begin to approach compliance. The defendants were justified in the view that they evidently took, that it is inconceivable, if the allegations in the Updated Schedule of Loss are true, that the claimant has never had any documents in his control that relate to the matters pleaded in that Schedule; and that it is highly unlikely that he does not have any such documents in his control now.[38]Late on the afternoon of Friday 20 February 2015, the last working day before the hearing of the defendants’ applications, the claimant provided further disclosure by way of an “updated” disclosure list. This included at least 16 documents that had not been disclosed before. Some of these were, or at least appear to be, documents referred to in the Updated Schedule of Loss. It appears that the claimant has now disclosed a HBe/Achor LLC agreement as mentioned in that Schedule and the Living-PlanIt agreement referred to. It is not at all clear that all the agreements and documents the existence of which is indicated by the Updated Schedule have been disclosed.[39]Ms Lintner, who was instructed only on Friday afternoon and appeared without attendance from her instructing solicitor, was understandably unable to assist greatly on the questions which clearly arose from this belated disclosure, which was apparently provided without prior warning. Those questions included whether the claimant’s disclosure was now complete, or whether he might have or have had other documents relevant to the special damages claim which he had not yet disclosed. (The list provided did not include a statement of what, if any, documents had been in his control but were no longer in his control.)[40]I conclude that it is clearly appropriate to make an unless order for disclosure, but one that is in somewhat different in its terms from that applied for. The order will be for the claimant to carry out a search for documents falling within the scope of CPR 31.6, which relate to the issues raised by the claim for special damages; to disclose any documents identified as a result of that search as being or having been in his control; and to give the defendants inspection of all such documents as are in his control by providing copies, simultaneously with their disclosure. Unless this order is complied with the special damages claim will be struck out, with costs to be assessed if not agreed.[41]The order will require compliance by Friday 27 February 2015. That is not because it is my view that the case on special damages can reasonably be prepared in time for the trial if that is done. Rather, it is because it is right that the claimant should be required to state whether or not he has complied with the rules and orders of the court and, if he has not complied, to do so now, at the risk of having at least the relevant part of his claim dismissed. Whether it is reasonable to expect the defendants to meet the special damages claim at a trial in two weeks time, even if the claimant does now comply with his disclosure duties is a matter to which I shall return.

THE DEFENDANTS’ DISCLOSURE

[42]Ms Lintner has observed in the course of her submissions that the defendants’ disclosure is also deficient, in that the list of March 2014 also did not involve a search for documents ante-dating October 2011, and is very short indeed. Mr Munden tells me that this omission is remedied at least in large part by the provision of copy documents as exhibits to the witness statements served on behalf of the defendants. That may be so but I have concluded that the defendants’ disclosure should be verified by a witness statement to be served by the same deadline as the one that I have required the claimant to meet. The statement must say whether the defendants have or have had any documents falling within the scope of standard disclosure other than those listed in their disclosure list and the exhibits to the witness statements they have served for trial and, if so, to identify the documents and provide copies of those which are in the defendants’ control.

OTHER MATTERS

[43]The defendants raise three further matters: i) Application is made for an order that qualified privilege be tried as a preliminary issue. ii) The defendants express concern at what are said to be repeated failures by the claimant’s solicitors to comply with orders made by the Master and practice directions, and invites me to take action to ensure that this is not persisted in. iii) Permission is sought pursuant to CPR 32.12 to disclose the witness statements exchanged in this claim, and documents recently disclosed.

Trial of preliminary issue(s)

[44]The submission advanced on behalf of the defendants is that the court should try qualified privilege, and not justification, or damages in any form. The arguments in favour of doing so are straightforward. They start, in reality, with the aim of limiting the costs risks to which the defendants are exposed. The defendants submit that the qualified privilege defence (or, as it will be in the light of my conclusions above, defences) raise short issues which are potentially conclusive of the claims, and could be tried within a day if malice is excluded, as I have concluded it must be. A trial which includes the issue of justification would be long and expensive, it is submitted. It would expose the defendants to a larger costs risk, faced as they are by a claimant who may not have the funds to meet an order for costs, and has no ATE insurance. In addition, it is submitted that the recent disclosure makes it unfair to have a trial on all the issues.[45]Limiting costs is an important aspect of the overriding objective and, as the Queen’s Bench Guide states at 7.3.1:
“Costs can sometimes be saved by identifying decisive issues, or potentially decisive issues, and by the court ordering that they be tried first… In such a case, the trial of a preliminary issue may be appropriate.”
The PTR is one stage of an action at which the Guide recognises (at 7.3.2) that this issue will be considered.[46]When considering whether preliminary issues should be tried, the court must be alive to the fact that the trial of preliminary issues can result in additional cost and complexity. Particular points to be borne in mind include the need to ensure that the issues for trial are clearly separate and distinct from others that are not being tried, and the need for the trial to be one that may result in a final judgment one way or the other.[47]Here, I am very much open to the suggestion that the claim for special damages should be excluded from the ambit of the trial that starts in two weeks time. The disclosure given last Friday is so late and its completeness, on its face, so questionable that it seems to me entirely reasonable for the defendants to submit that they should not be compelled to address that disclosure and deal with it at trial within a mere 10 working days of its production. The position can only get worse, if the claimant gives additional disclosure when complying with my order for specific disclosure. In view of his evident disclosure failures the claimant could have no legitimate complaint if his entitlement to recover the very large sums claimed is not tested in March 2015, if at all.[48]In reaching the conclusion that the special damages claim should be eliminated from the trial I recognise that it is sometimes the case that cross-examination as to credit may arise from special damages issues. That does not, however, seem to me to be a good reason to confront the defendants with a trial based on documentation disclosed only 10 working days beforehand.[49]I approach with more caution the notion of a trial which covers only some of the issues as to liability and excludes general damages. Given my conclusion on the defendants’ application for judgment the trial would need to cover qualified privilege in respect of each of the emails complained of. It seems to me that it would clearly be convenient also to determine what defamatory meanings were borne by the words complained of. Although privilege does not depend on meaning, meaning is a short issue and its resolution would no doubt assist if the privilege defences are rejected and it became necessary to try the issue of justification.[50]The next question is whether it would be just and convenient to confine the trial to the issues of meaning and privilege, and to exclude justification and general damages. In this regard the situation has been altered by the fresh disclosure given on Friday afternoon. Mr Munden and his clients have had only a short while to review and assess this material, but Mr Munden submits that it encompasses documents relating to the plea of justification, and that the disclosed documents suggest that an application for further specific disclosure may well be made. There may also, it is submitted, be additional witnesses to be proofed and possibly called. These circumstances are relied on as lending weight to the submission that it would be unfair to the defendants for the trial to include the issue of justification.[51]I was initially reluctant to reach the conclusion that the issues of justification and damages should be excluded from the trial, for two reasons. First, their exclusion will create a risk that the issue of liability cannot be determined at the trial. If the privilege pleas fail the issue of justification will remain to be tried. Secondly, the pleaded cases of privilege and justification overlap, as I have mentioned above. However, Mr Munden has persuaded me that despite the way the defence of privilege is pleaded in respect of the first email it will be possible to confine the factual investigation much more narrowly than that, and to try the issue principally if not exclusively on the basis of the admitted facts and the evidence of the first defendant. The precise ambit of the issues will need to be worked out, but that is not beyond the parties it is suggested. Mr Munden has added that his clients are without legal representation, which makes the case of unfairness the stronger. Further, Ms Lintner is really unable, on the basis of such instructions as she has been provided with, to gainsay Mr Munden’s complaints of unfairness, and she has frankly accepted that in all the circumstances a trial on the issue of meaning and privilege might be a reasonable course of action.[52]It is for these reasons that my conclusion is that the trial due to start on 9 March 2015 should be confined to the issues of meaning and qualified privilege. Directions as to the remaining issues, if any, can be given as required after those issues have been tried.

Compliance

[53]The defendants, through Mr Munden, have expressed concern at the claimant’s conduct of this litigation and invited me to warn him that there will be consequences in the event of any further procedural failings, and in particular any failure to prepare, file and serve the trial bundles in accordance with the Master’s order. The defendants list a series of failures of compliance by the claimant. These are not limited to disclosure defaults but extend to failures to fix the PTR, failure to prepare and provide a chronology and case summary as directed by the Master and, now, a failure to instruct Counsel until shortly before this hearing with the result that Counsel’s Skeleton Argument did not reach me until after the hearing had begun.[54]Again, Ms Lintner was unable to offer any answer to these complaints. It is unacceptable for a party to fail in these ways to comply with the court’s orders. I have made it clear that a very serious view will be taken of any further failures on the claimant’s side. In particular, the trial bundle must be prepared and filed in accordance with the Master’s order by no later than Tuesday 3 March 2015. I also attach considerable importance to compliance with the Master’s order for the service of trial skeleton arguments.

Disclosure of witness statements and documents

[55]CPR 32.12(1) provides that “a witness statement may be used only for the purpose of the proceedings in which it is served.” Rule 32.12(2) provides that paragraph (1) does not apply if and to the extent that “(a) the witness gives consent in writing to some other use of it; (b) the court gives permission for some other use; or (c) the witness statement has been put in evidence at a hearing held in public”.[56]The defendants seek permission to make disclosure to third parties of the witness statements served by the claimant and his wife, as well as their own witness statements. Mr Munden states in his skeleton argument that the CPS investigation into the claimant following the arrest referred to in the second email continues, and that the CPS have shown interest in the witness statements exchanged in this claim. Permission is therefore sought to disclose the statements to East Anglia CPS. To this application the defendants added at the hearing an application for permission pursuant to CPR 31.22 to provide copies of the recently disclosed documents.

Witness statements

[57]I do not understand r 31.12 to place any restriction on the use which a party may make of witness statements prepared by that party itself. Other rules may sometimes have the incidental effect of restricting a party’s freedom in that respect. This would be so if, for instance, the document contained further information subject to a restrictive order under CPR 18.2, or if it exhibited or otherwise used documents disclosed by another party whilst the restrictions on collateral use imposed by CPR 31.22(1) still applied. Absent such an incidental restriction, however, a party does not require the court’s permission to provide a non-party with the same information it provides to its opponent and the court. In any event, as the defendants accepted, they can obtain the consent of the witnesses to the disclosure of those statements.[58]The position is different when it comes to the claimant’s witness statements in this action. They will remain subject to the restriction on collateral use in r 32.12(1) until they are put in evidence at the trial, in two weeks’ time, unless I make an order granting permission now. As Ms Lintner pointed out, there is no evidence in support of the defendants’ application, which is not the subject of any formal application notice. All that she and the court have to go on is what is said in Mr Munden’s skeleton argument about the interest shown by the CPS in the statements in this action.[59]This is a frail and insubstantial basis on which to seek an order for the disclosure to third parties of witness statements, the purpose of which is to facilitate the fair disposal of civil litigation. It is not even said that the documents are necessary for the investigation, as opposed to merely being of interest. Besides the short notice on which this application has been made I do not consider that any adequate case has been made out to justify a departure from the general regime, by which statements are protected against collateral use until they are put in evidence.[60]If the trial proceeds in two weeks time, then it seems that the witness statements in question will cease to be subject to restrictions, at least to some extent. I would not rule out the prospect of the court entertaining a fresh application, if made on proper notice and supported by evidence. But the evidence and information presently available are not sufficient in my view.

Disclosure

[61]The position is similar in my judgment when it comes to the claimant’s recent disclosure. The application is on even shorter notice, made orally without supporting evidence. No sufficient grounds are shown for granting dispensation from the ordinary regime at the present time.

Cited in 1 later judgment