Alsaifi v Trinity Mirror Plc & Board of Directors & Anor [2017] EWHC 2873 (QB)

‘I am satisfied that there is no substance in any of the grounds of appeal raised by the appellant apart from the legal point he has taken objecting to the power of the National College for Teaching and Leadership (NCTL) to carry out the investigation and to the power of the Secretary of State to make the order. [12] ‘He only needs to succeed on one ground in order to succeed in his appeal. As the Secretary of State had no power to investigate the matter, the fact that process adopted was conspicuously fair and the fact that if the NCTL had been empowered to refer the matter to the panel, its findings would have been unimpeachable, are of no consequence. [13] ‘The proceedings were a nullity; the panel had no power make any findings about the appellant's conduct, or to recommend a Prohibition Order in this case, and the Secretary of State had no power to make one.’ [14] Justice Andrews reserved particular criticism for the Secretary of State who she said had behaved in a ‘cavalier’ way. [15] Justice Andrews said: ‘The court's disapprobation of the Secretary of State's cavalier attitude to the rules of civil procedure, particularly in a case where the opposing party is representing himself, needs to be marked in a way that will discourage repetition. I will therefore direct that the Secretary of State shall bear her own costs of the appeal to this Court in any event, irrespective of the outcome of any further appeal’ [16] An NCTL spokesperson said: ‘We are disappointed with the High Court's judgment. Nothing is more important than the safety and welfare of children and that is why we insist on the highest possible standards of personal and professional conduct from all teachers and school staff. [17] ‘We are confident that the policy and procedures in place to regulate the teaching profession are robust and ensure the just and efficient handling of all cases of teacher misconduct. Each case referred to a Professional Conduct Panel is considered in line with the legislation and supporting advice and the circumstances surrounding each individual case.’

“… that in the Claimant’s capacity as a teacher of a teenage girl/a pupil he behaved inappropriately towards her by making sexual advances; that these involved holding and rubbing her hand, inviting her to lunch, and sending her several emails from his personal account; his conduct and actions made the teenage girl upset within the classroom and feeling uncomfortable at being in the same room; he thereby conducted himself in a way that merited his indefinite prohibition from teaching; the Claimant’s inappropriate actions towards the teenage girl/pupil made her a victim; the Claimant’s success in his appeal is a disappointing one because he might not meet the required standards by NCTL toward the safety and welfare of children.”

‘4. On 5 August 2013, the appellant was engaged on an hourly paid fixed term contract as a lecturer in accountancy and finance by Newcastle College (‘the College’) in its School of Health and Enterprise (‘SHE’). … In the advertisement for the job for which the appellant successfully applied, the College described itself as ‘one of Britain's largest and most successful further education institutions’. …. 5. By all accounts the appellant was a particularly well qualified, lively and popular lecturer in subjects that it was difficult for the College to find suitable candidates to teach. However, on 4 November 2013, an allegation was made of inappropriate behaviour by the appellant, then aged 38, towards one of the 12 learners in his Tuesday class on the Sage Accounting course on the College's level 2 Associate Accountancy Technician (‘AAT’) programme, to whom I shall refer as Ms A. She was 17 years old at the time, and was attending the class on a part-time basis under an apprenticeship arrangement with her employer. 6. The initial allegation centred on a series of emails which the appellant had sent to Ms A between 15 and 25 October 2013 … 7. Ms Catherine Hassan was the assessor for both Ms A and her best friend Ms B, who was also an apprentice studying in the same class, and a witness before the panel … on 1 November 2013 Ms Hassan had a conversation with Ms B, and it was she who told Ms Hassan about the emails from the appellant to Ms A, their content, and Ms A's concern about them. Ms B also said that the appellant spent a lot of time around Ms A in class… 8. Later that day, Ms Hassan spoke directly to Ms A for about an hour, and Ms A expressed her concerns about the emails and about certain aspects of the appellant's behaviour towards her in class. Ms Hassan notified her superiors. … Ms Jackie Rankin, the operations manager to whom Ms Hassan reported these concerns, then spoke to Ms A herself. Ms A told her that she did not feel comfortable at all being in the class with this tutor. On 4 November, Ms Rankin reported the allegations to Ms Barbara King, the Director of Health and Enterprise at the College… 9. The appellant was suspended from work on the same day, pending the outcome of an internal investigation … 10. The appellant was interviewed on 13 November 2013 by Mr Mark Bolton, then the College's Business Development senior manager, in the presence of the head of HR at the College, Mr Ron Smith. … 15. On 15 November 2013, Ms A and Ms Hassan were each interviewed by Mr Bolton … 16. On 15 November 2013, Mr Bolton made an investigation report to Ms King. That report and its attachments, including the emails and the contemporaneous notes of the interviews, formed part of the materials that were relied on before the panel in due course… 18. At the internal disciplinary hearing, which was attended by the appellant, Ms King, Mr Smith and Mr Bolton… Mr Bolton presented the outcome of his investigation, and… Ms King asked the appellant whether he knew the learner's real age, and he said he had thought that she was 19. He was asked if he would like to present his case, and he again said that he would not wish to comment … 19. After a short adjournment to consider the matter, Ms King stated that she believed the appellant's actions to be gross misconduct and that she was going to recommend the termination of his employment. That recommendation would be considered by a senior post-holder and that he would have the opportunity to make representations to that post-holder before any final decision was taken. This never happened, because on the following day, 29 November 2013, the appellant tendered his resignation. In the College's letter of acceptance, sent by Mr Smith on 3 December 2013, the appellant was advised that in accordance with its Safeguarding duties, the College would be referring his case to the Disclosure and Barring Service (‘DBS’). 20. On 28 April 2015 the DBS wrote to the appellant and said it had decided that it was not appropriate to include him in the Children's Barred List or the Adults Barred List. It explained that this meant that he would not be prevented from carrying out regulated activity with vulnerable children or adults, but ‘other bodies may place other restrictions upon you and our decision does not overrule these’. 21. Having made that decision, the DBS passed on the College's referral to the NCTL, which received the papers on 11 May 2015. That is the date on which, for the purposes of s.141B of the 2002 Act, the allegations of unacceptable professional conduct were formally referred to the Secretary of State, or rather, to the NCTL acting on her behalf. There is no evidence that the appellant was teaching anywhere, or engaged to teach anywhere, on that date. … 23. The NCTL wrote to the appellant on 1 June 2015 informing him that it had considered the referral and decided that a formal investigation should be started … … 32. On 16 December 2015 a letter was sent by the NCTL to the appellant to notify him that his case would be heard by a professional conduct panel on 22 to 25 February 2016. The letter set out the allegations that the panel would hear. They had been amended … Allegation 1 now asserted that whilst employed at the College the appellant failed to maintain professional boundaries towards Ms A in that he: (a) made comments as to the way she looked; (b) sent her one or more emails from his personal email address; (c) sent her one or more emails containing ‘kisses’; (d) gave his personal telephone number to her; (e) sent her several follow up emails in an attempt to encourage a response; (f) invited her to lunch; (g) put his arm around the back of her chair; (h) made inappropriate physical contact with her by touching her hand; (i) asked Ms B whether a fellow learner, C, was the boyfriend of Ms A. Allegation 2, which in the event the panel found unproved, was that on one or more occasions the appellant unbuttoned his shirt in a teaching environment to such an extent that he was left in ‘an inappropriate state of undress’

‘42. … The panel dismissed allegation 1(g) (the arm round the back of the chair) and allegation 2, (the inappropriately unbuttoned shirt) but, after directing itself appropriately with the assistance of advice from its legal adviser, it found all others proved to the requisite standard (the balance of probabilities). It then carefully considered whether this was an appropriate case for a Prohibition Order, taking into account the positive references relied upon by the appellant, and reached a conclusion that it was.’ [20] A decision maker acting on behalf of the Secretary of State accepted that recommendation, and a Prohibition Order was made. The Appeal Judgment [21] Andrews J began her judgment by explaining the nature of the proceedings before her: ‘1. This is a statutory appeal against the decision of the authorised decision-maker for the Secretary of State for Education (‘the Secretary of State’) dated 29 February 2016, to make an indefinite Prohibition Order (with a review period set for three years from 7 March 2016) prohibiting the appellant from teaching in any school, sixth form college, relevant youth accommodation or children's home in England. The Prohibition Order was made on the recommendation of a professional conduct panel (‘the panel’) of the National College for Teaching and Leadership (‘NCTL’) … dated 25 February 2016, finding the appellant guilty of unacceptable professional conduct.’ [22] The Judge then summarised the main issues and her conclusions upon them: ‘2. The appeal raises important questions concerning the interpretation and effect of s.141A and s.141B of the Education Act 2002 (‘the 2002 Act’) read in conjunction with the Teachers' Disciplinary (England) Regulations, 2012 SI No.560 (‘the Regulations’). 3. The key issue for determination is whether the Secretary of State (or the NCTL acting on her behalf) has any power to investigate an allegation of unacceptable professional conduct, or to take any consequential action, including making a Prohibition Order, where the person under investigation was not a person employed or engaged to carry out teaching work at any of the types of institution defined in s.141A either at the time of the alleged unprofessional conduct, or at the time of the referral of the allegation to the NCTL, but serendipitously happened to be so engaged at the time of the hearing before the panel, and at the time when the Prohibition Order was actually made. For reasons that I shall explain, I have reached the conclusion that the Secretary of State had no such power, and consequently the Order made in the present case is a nullity and must be set aside.’ [23] Those conclusions turned on the judge's interpretation of the key provisions of the 2002 Act, and its application to the facts of the case before her, as she made clear in the section of her judgment headed ‘Jurisdiction’ at paragraph [43]: ‘43. Logically, the first issue that arises is whether the NCTL had any power to investigate the matter, refer the matter to a professional conduct panel, and make the recommendation upon which the Secretary of State acted. This turns on the proper interpretation of sections 141A and 141B of the 2002 Act, which only apply to certain types of teacher…’ [24] The Judge then set out the relevant provisions, pointing out the following: (1) The regime applies to ‘a person who is employed or engaged to carry out teaching work’ at one or other of certain specified institutions; (2) ‘teaching work’ is defined in the statute as various specified activities relating to pupils, including delivering lessons to pupils, and assessing the development, progress and attainment of pupils; (3) By s 3(1) of the 2002 Act ‘a pupil’ is defined to mean: ‘…. a person for whom education is being provided at a school, other than – A person who has attained the age of 19 for whom further education is being provided, or A person for whom part-time education suitable to the requirements of persons of any age over compulsory school age is being provided.’ [25] The Judge explained her conclusion on the jurisdiction issue in paragraph [47]: ‘47. Ms A was excluded from the statutory definition of ‘pupil’ because, despite being only 17, she was undergoing part-time education suitable to the requirements of persons of any age over compulsory school age. On that basis alone, the appellant was not engaged in ‘teaching work’ for the purposes of the Act or the Regulations when he was lecturing on the AAT course that she attended which was open to adults aged up to 60. In any event, Ms A was not being provided with education at a ‘school’ as defined in the 2002 Act. Newcastle College does not fall within the ambit of the descriptions of any of the educational institutions referred to in s.141A. It was, as it described itself to be, a further education establishment. Therefore, at the time of the conduct complained of, (and when it came to light) the appellant was not a teacher to whom sections 141B to 141E of the 2002 Act applied.’ [26] Andrews J indicated that she considered this to be an unsatisfactory situation, but not one she could alter by judicial decision: ‘48. There may be some different regulator responsible for the conduct of those engaged as lecturers by further education establishments such as Newcastle College, or by Universities; however, at the hearing, neither counsel nor the appellant was able to identify any such body, if indeed it exists. It is possible that such conduct is solely a matter for internal regulation by the individual establishment that engages the teacher. In any event Parliament, in deliberately restricting the categories of educational establishment whose teachers are subject to regulation by the NCTL, plainly did not intend that someone doing the job that the appellant was doing at the relevant time would be subject to regulation by that body, regardless of the age of the people he was teaching, and however desirable such regulation might objectively appear to be. It is not the function of this Court to widen the ambit of the statutory restrictions on the Secretary of State's powers. … 66. What makes this case particularly troublesome is that the appellant's behaviour, and his failure to observe the appropriate boundaries between himself and a learner in his class (even if, as he says, he believed the learner to be an adult) is undoubtedly conduct of a type that would trigger alarms in the minds of those who were concerned to protect sixth-formers or teenagers that he might be teaching in future. On the other hand, the conduct occurred at a time when the responsibility for regulation of his conduct was not a matter for the Secretary of State and he was not engaged to teach such pupils. Why should his subsequent engagement as a teacher suddenly bring that matter within the remit of s.141A and s.141B? It is plain from the way that the charges against the appellant were framed that the case presenter and the NCTL panel were all proceeding under the misapprehension that he was a ‘teacher’ within the definition of s.141A at the time of the behaviour complained of and that Ms A was a ‘pupil’ by reason of her age (which she was not). … 71. That leaves the vexed question of whether an investigation which the NCTL had no power to carry out, and a referral of professional conduct charges for hearing before a professional conduct panel which had no jurisdiction to hear them at the time, somehow became legitimate by reason of the happenstance that, at the time when the hearing took place, unbeknown to the case presenter and the panel, the appellant did fulfil the criteria in s.141A. There is an obvious attraction in Ms Walker's submission that it would be pointless to require the Secretary of State to initiate the whole process over again once the appellant fulfilled the criteria for referral, … [but] 72. I cannot accept that line of reasoning…’ [27] The references at [66] to the appellant's ‘behaviour, and his failure to observe the appropriate boundaries’ reflect the conclusions that Andrews J reached on the substantive merits of the case, when considering the other grounds that Mr Alsaifi had pursued by way of appeal. He had complained that the process before the NCTL was procedurally unfair, that the panel had reached conclusions that were not open to them, and that their findings were wholly wrong. Andrews J decided, in case the matter went further, that she should state her conclusions on those grounds. She dismissed them all. I have already cited her record of the panel's conclusions. She went on to say this:- ‘42. … As an unrepresented party he was allowed considerable latitude in terms of the questioning. At the hearing of this appeal he very frankly accepted that he was able to ask Ms A all the questions that he wished, albeit that they were put to her by the panel rather than by him directly. The panel … carefully considered whether this was an appropriate case for a Prohibition Order, taking into account the positive references relied upon by the appellant, and reached a conclusion that it was. That conclusion was reasonably open to it given the factual findings it had made, especially in the light of what it described as the appellant's total lack of insight into his behaviour. The appellant challenges the findings as being clearly wrong. …. PROCEDURAL UNFAIRNESS 78. The appellant complained of the following matters: i) The late change in the allegations that he had to face; ii) The decision to treat Ms A as a vulnerable witness and afford her special measures; iii) The fact that he did not have an opportunity to actively participate in the Case Management Hearing despite telling the NCTL that he wished to do so and giving them a range of dates and times on which he could make himself available for a telephone hearing; iv) The failure by the NCTL to call the witnesses he wanted to call. v) The fact that the NCTL's decision to investigate and put the matter before a panel was made on the basis of an incomplete version of Mr Bolton's internal report and the annexures to it. vi) Being afforded insufficient time to make his final submissions at the end of the hearing. The appellant did not actively pursue this final complaint at the hearing of the appeal: this is not surprising because, having read the transcripts it is plain that he was perfectly able to put his case about the alleged inconsistencies in Ms A's and Ms B's evidence in order to demonstrate that they were making things up. He also had a fair opportunity to criticise the evidence given by Mr Bolton. 79. I am also satisfied that the appellant suffered no procedural unfairness in any other respect. … 82. Regardless of how the allegations were particularised, the key question for the panel to determine was why the appellant sent those emails, particularly those on 22, 23 and 25 October. His defence was that he was acting out of pastoral concern and nothing more. His alleged behaviour towards Ms A in the course of the lessons, particularly in the lesson on 22 October 2013, was something that would potentially assist in answering the question, and that was going to depend on an assessment of the credibility of Ms A's and Ms B's account. Much was also going to depend on the panel's assessment of the appellant himself as a witness. … I find that there was no procedural unfairness to the appellant as he alleges on any of the grounds that he has raised. … CREDIBILITY OF THE WITNESSES 92. The appellant submitted that it was not open to the panel to find that the evidence of Ms A and Ms B (and, to the extent that he disputed it, that of Mr Bolton) was credible. That is not an easy allegation to make good on appeal, even an appeal by way of rehearing, as this appeal is: especially where the tribunal of first instance has had the advantage of seeing and hearing the witnesses over three days of evidence… A mere disagreement by the appellant with the panel's assessment of credibility will not suffice. 93. The appellant essentially made the same points to this Court as he made to the panel; … 94. …the fact that this panel conscientiously considered the evidence and weighed it carefully is demonstrated by the fact that it rejected two of the allegations against the appellant, one on the basis of its inconsistencies. … 95. I have carefully considered all the points raised by the appellant in his skeleton argument and drawn to my attention in his oral submissions, and read and re-read all the parts of the transcript that he relied on…other matters that might adversely affect the credibility of the witnesses. However, this is not a case in which there is anything obvious to indicate that any of these witnesses must be lying; on the contrary, the two learners readily agreed to points that might be helpful to the defence … 96. My overall impression is that the evidence did not support a picture of two young women making up a story to get a lecturer into trouble, or support the appellant's suggestion that Ms B put Ms A up to making a false complaint against him –…conduct panel. If anything, the inconsistencies in the two young women's evidence support its truthfulness, because someone making up a story would tend to exaggerate and would not be willing to admit that she might be mistaken about something. In any event, the panel was in the best position to judge their credibility. 97. The panel was entitled to prefer Mr Bolton's evidence regarding the accuracy of his notes of the interview with the appellant… ‘hypothetical’ exchange. In any event, even if the panel had accepted the appellant's version of the ‘hypothetical’ question Mr Bolton asked him, it is unlikely to have improved his position; his own account of the question and answer he gave to it indicated that he would have been quite comfortable with the idea of the relationship between himself and Ms A developing into a romantic one, and that in itself is indicative of the lack of insight into his behaviour which the panel unsurprisingly found. MISCELLANEOUS GROUNDS 99. I have also considered the complaints made in the appellant's written grounds of an alleged lack of impartiality and discrimination, although the appellant did not address them in his oral argument at the hearing of the appeal. I am satisfied that there is no merit in any of the complaints made by the appellant in this regard, which are answered comprehensively in paragraphs 68 to 73 of Ms Walker's skeleton argument. ‘ [28] Andrews J summed up her overall conclusions on the merits of the appeal in paragraph [100] of the Appeal Judgment, in this way: ‘For these reasons I am satisfied that there is no substance in any of the grounds of appeal raised by the appellant apart from the legal point he has taken objecting to the power of the NCTL to carry out the investigation and to the power of the Secretary of State to make the Order. However, he only needs to succeed on one ground in order to succeed in his appeal … Therefore this appeal is allowed and the Prohibition Order will be set aside.’ [29] The Judge was critical of the way the NCTL had dealt with the matter. She said this of the ‘prosecution’ before the panel: ‘The panel and the case presenter should have been aware of the ambit of the NCTL's jurisdiction but it appears that no-one, not even the panel's legal advisor, was alive to the fact that there was a serious issue about the legitimacy of the proceedings. What the appellant said was enough to have put them on notice of the issue.’

“…that in his capacity as teacher of a teenage girl, the Claimant had been found by the Secretary of State for Education, as his regulator, to have behaved inappropriately towards the girl by making sexual advances; that these involved holding and rubbing her hand, inviting her to lunch, and sending her several emails from his personal account; the Secretary of State had found his conduct to be sexually motivated; he had thereby conducted himself in a way that merited his indefinite prohibition from teaching; the Secretary of State’s decision was subsequently struck down by the courts on the technical ground of law that the girl could not be classed as a pupil because she studied only part-time and therefore that the Secretary of State had no power to investigate, find, against or act against the Claimant; the Secretary of State was disappointed at the court’s decision [because she believed her decision to have been right and just and because the procedures she adopts are sound in law and practice].”

“Nothing is more important than the safety and welfare of children”

“… that in the Claimant’s capacity as a teacher of a teenage girl/a pupil he behaved inappropriately towards he by making sexual advances; that these involved holding and rubbing her hand, inviting her to lunch, and sending her several emails from his personal account; his conduct was so serious that it merited his indefinite prohibition from teaching, a decision that was subsequently quashed as a result of a legal technicality.”

“… that in the Claimant’s capacity as a teacher of a teenage girl/a pupil he behaved inappropriately towards her by making sexual advances; that these involved holding and rubbing her hand, inviting her to lunch, and sending her several emails from his personal account; his conduct and actions made the teenage girl upset within the classroom and feeling uncomfortable at being in the same room; his conduct was so serious that it merited his indefinite prohibition from teaching; the Claimant’s success in his appeal was disappointing because the original decision to ban the Claimant from teaching was the right one; by his conduct the Claimant had demonstrated he posed a risk to the safety and welfare of the [school] children he taught”

“… that in the Claimant’s capacity as a teacher of a teenage girl/a pupil he behaved inappropriately towards her by making sexual advances; that these involved holding and rubbing her hand, inviting her to lunch, and sending her several emails from his personal account; his conduct was so serious that it merited his indefinite prohibition from teaching, a decision that was subsequently quashed as a result of a legal technicality.”

“… Henderson –v- Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.”

“It is one thing to refuse to allow a party to relitigate a question which has already been decided; it is quite another to deny him the opportunity of litigating for the first time a question which has not previously been adjudicated upon. This latter (though not the former) is prima facie a denial of the citizen's right of access to the court conferred by the common law and guaranteed by article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953). While, therefore, the doctrine of res judicata in all its branches may properly be regarded as a rule of substantive law, applicable in all save exceptional circumstances, the doctrine now under consideration can be no more than a procedural rule based on the need to protect the process of the court from abuse and the defendant from oppression. In Brisbane City Council –v- Attorney General for Queensland [1979] AC 411, 425 Lord Wilberforce, giving the advice of the Judicial Committee of the Privy Council, explained that the true basis of the rule in Henderson –v- Henderson 3 Hare 100 is abuse of process and observed that it "ought only to be applied when the facts are such as to amount to an abuse: otherwise there is a danger of a party being shut out from bringing forward a genuine subject of litigation". There is, therefore, only one question to be considered in the present case: whether it was oppressive or otherwise an abuse of the process of the court for Mr Johnson to bring his own proceedings against the firm when he could have brought them as part of or at the same time as the company's action. This question must be determined as at the time when Mr Johnson brought the present proceedings and in the light of everything that had then happened. There is, of course, no doubt that Mr Johnson could have brought his action as part of or at the same time as the company's action. But it does not at all follow that he should have done so or that his failure to do so renders the present action oppressive to the firm or an abuse of the process of the court. As May LJ observed in Manson –v- Vooght [1999] BPIR 376, 387, it may in a particular case be sensible to advance claims separately. In so far as the so-called rule in Henderson v Henderson suggests that there is a presumption against the bringing of successive actions, I consider that it is a distortion of the true position. The burden should always rest upon the defendant to establish that it is oppressive or an abuse of process for him to be subjected to the second action. The rule in Henderson –v- Henderson 3 Hare 100 cannot sensibly be extended to the case where the defendants are different. There is then no question of double vexation. It may be reasonable and sensible for a plaintiff to proceed against A first, if that is a relatively simple claim, in order to use the proceeds to finance a more complex claim against B. On the other hand, it would I think normally be regarded as oppressive or an abuse of process for a plaintiff to pursue his claims against a single defendant separately in order to use the proceeds of the first action to finance the second, at least where the issues largely overlap so as to form, in Sir James Wigram V-C's words, at p. 115, "the same subject of litigation". Particular care, however, needs to be taken where the plaintiff in the second action is not the same as the plaintiff in the first, but his privy. Such situations are many and various, and it would be unwise to lay down any general rule. The principle is, no doubt, capable in theory of applying to a privy; but it is likely in practice to be easier for him to rebut the charge that his proceedings are oppressive or constitute an abuse of process than it would be for the original plaintiff to do so.”

“A report has also been held to have been published contemporaneously when published three days after the proceedings even though that was not the next available issue [of the newspaper] (Crossley –v- Newsquest (Midlands South) Ltd [2008] EWHC 3053 (QB)). However, if a daily paper delayed its report for 10 or 12 days, it would be difficult to say that the report was “published contemporaneously” with the proceedings.”

“If there is an issue as to meaning (or any related issue as to reference) that can be resolved at a meaning hearing, applying the usual objective approach in the usual way. If there is a further issue as to serious harm, then there may be cases where such issue can also appropriately be dealt with at the meaning hearing. If the meaning so assessed is evaluated as seriously defamatory it will ordinarily then be proper to draw an inference of serious reputational harm. Once that threshold is reached further evidence will then be likely to be more relevant to quantum and any continuing dispute should ordinarily be left to trial.”

“Whether in any given case the imputation is of sufficient gravity as of itself to connote serious reputational harm (quite apart from the question of consequential or special damage) should therefore normally be capable – where the question of serious harm is in issue and is not appropriately to be left to trial – of being relatively speedily assessed at the meaning hearing. If it is, nevertheless, desired by a defendant to put in evidence at an interlocutory stage designed to show that there is no viable claim of serious harm the summary judgment procedure under CPR Part 24 is available if the circumstances so justify. There may, for instance, be cases where the evidence shows that no serious reputational harm has been caused or is likely for reasons unrelated to the meaning conveyed by the defamatory statement complained of. One example could, for instance, perhaps be where the defendant considers that he has irrefutable evidence that the number of publishees was very limited, that there has been no grapevine percolation and that there is firm evidence that no-one thought any the less of the claimant by reason of the publication. Whether such evidence is in truth unanswerable and whether such matters are best resolved on a summary judgment application or best left to trial is then for the court to determine. Alternatively, if subsequent events or evidence show that there has ceased to be a "real and substantial tort" then a strike out application, in accordance with the principles of Jameel, may also be available…”

‘29. … The mere fact that a claim is small should not automatically result in a court refusing to hear it at all. If I am entitled to recover a debt of £50 I should, in principle, have access to justice to enable me to recover it if my debtor does not pay. It would be an affront to justice if my claim were simply struck out. The real question, to my mind, is whether in any particular case there is a proportionate procedure by which the merits of a claim can be investigated. In my judgment it is only if there is no proportionate procedure by which a claim can be adjudicated that it would be right to strike it out as an abuse of process… 32. … When in future a judge is confronted by an application to strike out a claim on the ground that the game is not worth the candle he or she should consider carefully whether there is a means by which the claim can be adjudicated without disproportionate expenditure.’ [35] In the Jameel case [2005] QB 946, para 70 and the Sullivan case [2012] EMLR 656, para 29 two features of defamation claims were identified as making them (in Lewison LJ’s words) ‘to some extent . . . a special case’