“The court may strike out a statement of case if it appears to the court – (a) that the statement of case discloses no reasonable grounds for bringing... the claim; (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or (c) that there has been a failure to comply with a rule, practice direction or court order”
“The court may give summary judgment against a claimant...on the whole of a claim or on a particular issue if –(a) it considers that –(i) that claimant has no real prospect of succeeding on the claim or issue... and (b) there is no other compelling reason why the case or issue should be disposed of at a trial”
“The court may strike out a statement of case if it appears to the court- (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court’s process or otherwise likely to obstruct the just disposal of the proceedings; or (c) that there has been a failure to comply with a rule, practice direction or order.”
“The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if – (a) it considers that – (i). that claimant has no real prospect of succeeding on the claim or issue; or (ii). that defendant has no real prospect of successfully defending the claim or issue; and (b). there is no other compelling reason why the case or issue should be disposed of at a trial.”
“23. The applicable principles set out in and flowing fromCPR 3.4 and 24 are also extremely well known. The summary by Lewison J in Easyair Ltd v Opal telecom Ltd[2009] EWHC 339 (Ch) at [15] was relied upon by all parties as a convenient summary: “The correct approach on applications by defendants is, in my judgment, as follows: i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman[2001] 2 All ER 91 ; ii) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel[2003] EWCA Civ 472 at [8] iii) In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10] v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5)[2001] EWCA Civ 550 ; vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd[2007] FSR 63 ; vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd[2007] EWCA Civ 7252 ”. 24. I adopt and will apply those principles in the present case. I would only add that, where a claim is defective and therefore susceptible to be struck out or subject to summary judgment, the Court should consider whether the defect in question might be cured by amendment and, if it might, should consider whether it is right to give the party in default an opportunity to make the defect good: see Hockin and Ors v RBS[2016] EWHC 92 (Ch) per Asplin J. This is another facet of the Royal Brompton Hospital principle that the Court should not merely look at the materials before it but should take account of what can reasonably be expected to be available at trial. I have borne this approach in mind in reaching my conclusions in the present case. Proof of fraud and the approach to striking out allegations of fraud 25. Where, as here, a Claimant wishes to amend to plead fraud and the application is opposed, it is material to bear in mind the approach that the Court routinely takes to proving fraud in civil litigation. A sufficient summary for present purposes is provided by Fiona Trust & Holding Corp v Privalov[2010] EWHC 3199 (Comm) at [1438]-[1439] per Andrew Smith J: It is well established that “cogent evidence is required to justify a finding of fraud or other discreditable conduct”: per Moore-Bick LJ in Jafari-Fini v Skillglass Ltd.,[2007] EWCA Civ 261 at para.73. This principle reflects the court's conventional perception that it is generally not likely that people will engage in such conduct: “where a claimant seeks to prove a case of dishonesty, its inherent improbability means that, even on the civil burden of proof, the evidence needed to prove it must be all the stronger”, per Rix LJ in Markel v Higgins,[2009] EWCA 790 at para 50. The question remains one of the balance of probability, although typically, as Ungoed-Thomas J put it in In re Dellow's Will Trusts,[1964] 1 WLR 415 ,455 (cited by Lord Nicholls in In re H,[1996] AC 563 at p.586H), “The more serious the allegation the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it”… …Thus in the Jafari-Fini case at para 49, Carnwath LJ recognised an obvious qualification to the application of the principle, and said, “Unless it is dealing with known fraudsters, the court should start from a strong presumption that the innocent explanation is more likely to be correct.” 26. This summary is consistent with many other decisions of high authority which establish that pleadings of fraud should be subjected to close scrutiny and that it is not possible to infer dishonesty from facts that are equally consistent with honesty: see, for example, Mukhtar v Saleem[2018] EWHC 1729 (QB) ; Elite Property Holdings Ltd v Barclays Bank[2017] EWHC 2030 (QB) ; Three Rivers DC v The Governor and Company of Barclays of England (No 3)[2003] 2 AC 1 at [186] per Lord Millett – see below. 27. One of the features of claims involving fraud or deceit is the prospect that the Defendant will, if the underlying allegation is true, have tried to shroud his conduct in secrecy. This has routinely been addressed in cases involving allegations that a defendant has engaged in anti-competitive arrangements. In such cases, the Court adopts what is called a generous approach to pleadings. The approach was summarised by Flaux J in Bord Na Mona Horticultural Ltd & Anr v British Polythene Industries Plc[2012] EWHC 3346 (Comm) at [29] ff. Flaux J set out the principles in play as described by Sales J in Nokia Corporation v AU Optronics Corporation[2012] EWHC 731 (Ch) at [62]-[67], which included the existence of a tension between (a) the impulse to ensure that claims are fully and clearly pleaded, and (b) the impulse to ensure that justice is done and a claimant is not prevented by overly strict and demanding rules of pleading from introducing a claim which may prove to be properly made out at trial but may be shut out by the law of limitation if the claimant is to be forced to wait until he has full particulars before launching a claim. Sales J indicated that this tension was to be resolved by “allowing a measure of generosity in favour of a claimant.”
“[31] This generous approach to the pleadings in cartel claims has been endorsed by the Court of Appeal, not only in Cooper Tire & Rubber Company Europe Ltd v Dow Deutschland[2010] EWCA Civ 864 but most recently by Etherton LJ in KME Yorkshire Ltd v Toshiba Carrier UK Ltd[2012] EWCA Civ 1190 at [32]: "As was stated by the Court of Appeal in Cooper Tire & Rubber Company Europe Ltd v Dow Deutschland Inc[2010] EWCA Civ 864 at paragraph [43], however, it is in the nature of anti-competitive arrangements that they are shrouded in secrecy and so it is difficult until after disclosure of documents fairly to assess the strength or otherwise of an allegation that a defendant was a party to, or aware of, the proven anti-competitive conduct of members of the same group of companies. That same generous approach was for the same reason taken by Sales J in Nokia Corporation v AU Optronics Corporation[2012] EWHC 731 in dismissing an application to strike out or to grant summary judgment against the claimant in proceedings for damages for infringement of Article 101. That approach is appropriate in the present case prior to disclosure of documents." [32] In the case of applications for summary judgment, it is well established that the court should not engage in a mini-trial where there is any conflict of evidence. The dangers of too wide a use of the summary judgment procedure were emphasised by Mummery LJ at [4-18] of his judgment in Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical[2006] EWCA Civ 661 . [5] and [18] of that judgment seem to me particularly apposite to the present case: "5. Although the test [whether the claim has a real prospect of success] can be stated simply, its application in practice can be difficult. In my experience there can be more difficulties in applying the "no real prospect of success" test on an application for summary judgment (or on an application for permission to appeal, where a similar test is applicable) than in trying the case in its entirety (or, in the case of an appeal, hearing the substantive appeal). The decision-maker at trial will usually have a better grasp of the case as a whole, because of the added benefits of hearing the evidence tested, of receiving more developed submissions and of having more time in which to digest and reflect on the materials.… 18. In my judgment, the court should also hesitate about making a final decision without a trial where, even though there is no obvious conflict of fact at the time of the application, reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case." [33] The same point was made by Lewison J (as he then was) in Federal Republic of Nigeria v Santolina Investment Corporation[2007] EWHC 437 (Ch) , at [4(vi)] citing the Doncaster Pharmaceuticals case: "Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case."" 28. These are salutary warnings and necessary protections for the Claimants, which I bear in mind. It is, however, to be remembered that the Court’s concern in these passages was in large measure based upon a lack of knowledge on the part of the Claimant before disclosure had been given. In the present case, the Defendants have given disclosure based upon wide-ranging search terms relating to multiple custodians. Although the Claimants submit that the Defendants’ disclosure is not complete, they have not identified any specific omissions or areas of default that would justify the Court in treating the Claimants as if they were still materially excluded from access to relevant disclosure for present purposes. 29. In any event, if a case alleging fraud or deceit (or other intention) rests upon the drawing of inferences about a Defendant’s state of mind from other facts, those other facts must be clearly pleaded and must be such as could support the finding for which the Claimant contends. This is clear from numerous authorities: see Three Rivers District Council v The Governor and Company of Barclays of England (No 3)[2003] 2 AC 1 at [55] per Lord Hope and [186] per Lord Millett. I endorse and adopt the statement of Flaux J in JSC Bank of Moscow v Kekhman[2015] EWHC 3073 (Comm) at [20] that: “The Claimant does not have to plead primary facts which are only consistent with dishonesty. The correct test is whether or not, on the basis of the primary facts pleaded, an inference of dishonesty is more likely than one of innocence or negligence. As Lord Millett put it, there must be some fact “which tilts the balance and justifies an inference of dishonesty.”
“The Managing Agent shall manage and operate the Property on behalf of the Company and shall take all reasonable steps to ensure that the obligations of the Company under the Leases are implemented fully and effectively and shall carry out their duties under this Agreement with all due care and attention and to the reasonable satisfaction of the Company and shall at all times comply with all relevant professional standards” (c) By the rest of clause 3 that such obligations on the Managing Agent would include collecting rent, calculating and collecting Service Charges, and i. “3.4.1 To advise on and effect day to day items of repair and maintenance and cleaning including repairs decorations maintenance improvements and alterations of all areas other than individual apartments or Commercial Units together with, wherever appropriate, routine maintenance and testing of the lighting ventilation plant, lifting equipment, abseiling points, building management systems and items of plant and machinery.”
“6.6(i) The Management Company [i.e. Avantgarde] will do or cause to be done all such works installations acts matters and things as may in compliance with the principles of good estate management and in the Management Company’s reasonable discretion be necessary or advisable for the proper maintenance safety and administration of the Estate including in particular (but without prejudice to the generality of the foregoing) the borrowing of funds the employment of gardeners cleaners caretakers concierge and hall porters and the appointment of managing or other agents a manager or warden surveyors accountants and solicitors and the payment of their reasonable and proper salaries and fees in connection with the supervision and performance of the Management Company's covenants and the enforcement of the Tenant's covenants and the employment and payment of such employees contractors or agents as the Management Company shall think necessary in and about the performance of the covenants and provisions of this Lease PROVIDED ALWAYS that the Management Company shall not be liable for any act or omission of any such employees contractors or agents in and about the performance of the said covenants and provisions or for failure to perform all or any of the said covenants if the Management Company shall forthwith have taken and shall continue to take all reasonable steps to secure the performance of the same” performance of the covenants and provisions of this Lease (g) By clause 7(1) it was provided that: “7 THE Landlord covenants with the Tenant:- (I) That the Tenant observing and performing the covenants conditions and agreements contained in this Lease and on his part to be observed and performed the Tenant shall and may quietly enjoy the Property during the Term without any interruption by the Landlord or any person claiming through or in trust for the Landlord”
“If a contract contains a term which would exclude or restrict— (a) any liability to which a party to a contract may be subject by reason of any misrepresentation made by him before the contract was made; or (b) any remedy available to another party to the contract by reason of such a misrepresentation, that term shall be of no effect except in so far as it satisfies the requirement of reasonableness as stated insection 11(1) of the Unfair Contract Terms Act 1977 ; and it is for those claiming that the term satisfies that requirement to show that it does.”
“67. I would hold, therefore, that a clause which simply states (as clause 12.1 of the agreement for lease and clause 5.8 of the lease do) “that this lease has not been entered into in reliance wholly or partly on any statement or representation made by or on behalf of the landlord” is a contract term which would have the effect of excluding liability for misrepresentation; and consequently is subject to the test of reasonableness. Accordingly, in my judgment the judge in our case was right to conclude as he did. I do not consider that a conclusion to this effect should cause consternation. It will always be open to a contracting party seeking to rely on such a clause to establish that it was reasonable; and in cases involving the sale of complex financial products to sophisticated investors it may well be.”
“68. That leads on to the next question: were the clauses in this case reasonable? The test of reasonableness is contained insection 11(1) of the Unfair Contract Terms Act 1977 : “In relation to a contract term, the requirement of reasonableness for the purposes of this Part of this Act,section 3 of the Misrepresentation Act 1967 … is that the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.”
“69. In FoodCo UK llp (trading as Muffin Break) v Henry Boot Developments Ltd[2010] EWHC 358 (Ch) I had to consider a clause in the form of clause 12.1 of the agreement for lease in the present case. I held that such a clause was reasonable. I gave my reasons at para 177: “(i) The aspiration of certainty is a reasonable one for the parties to adopt. In most cases it will have the effect of avoiding a 12-day trial such as this one. “(ii) There was no substantial imbalance of bargaining power between the parties. Each of the tenants was a commercial and substantial concern … “(iii) Each of the tenants was advised by solicitors … “(iv) The term itself was open to negotiation … “(v) Perhaps most importantly, the clause expressly permitted reliance on any reply given by the Henry Boot's solicitors to the tenant's solicitors. If, therefore, something of importance had been stated in the course of negotiations upon which the intending tenant wished to rely, its solicitors had only to ask Henry Boot's solicitors for an answer to a question. That would have revealed whether Henry Boot was prepared to formalise the statement so that the tenant could rely on it or whether the tenant would have to undertake its own due diligence.” 70. That approach was expressly approved by this court in Lloyd v Browning[2014] 1 P & CR 11 . In the course of his judgment Davis LJ said, at para 34: “There are, as I see it, other matters also strongly indicating that this condition was a reasonable and fair one to be introduced into this particular contract: (1) First, each side had, and as they each knew, legal advisers. That was, as the judge duly found, plainly material as to the reasonableness of including this particular condition into the contract. Moreover, it was the case, as was known to all concerned, that the claimants had in addition instructed architects and planning consultants. That was a relevant factor, too. (2) Second, the contract was one for the sale of land. It is generally well known that such contracts do indeed, as the judge put it, have a status of ‘formality’ about them. Contracts relating to the disposition of property are designed by law to require that all the agreed terms are set out in one contractual document signed by each party. (3) Third, this condition was not a ‘take it or leave it’ condition of the kind sometimes imposed in small print on consumers, acting without legal advice, in consumer transactions. It was a special condition agreed by the parties’ lawyers in circumstances where the parties had equal and corresponding negotiating positions. Moreover, such condition had the general imprimatur of the Eastbourne Law Society and was, it is to be inferred, in common use. That, too, is a further factor indicating reasonableness. (4) Fourth, and I think this is a particular striking feature in the present case, the condition, expressly by its terms, permitted the claimants to rely on written statements made by the defendants’ solicitors in replying to pre-contract enquiries or otherwise in correspondence. Thus, if the claimants wished to rely on what had been said to them orally the means for giving legal effect to that were readily available: that is, by an appropriate written pre-contract enquiry or solicitor's letter. Such a request would reveal just what the defendant vendors were prepared formally to commit themselves to.” 71. In Hardy v Griffiths[2015] Ch 417 Ms Amanda Tipples QC, sitting as a deputy judge of the Chancery Division, took the same approach. In each of these cases the court stressed the fact that the clause in question expressly preserved liability for misrepresentations contained in formal enquiries before contract.”
“75. Whether a clause passes the test of reasonableness is an evaluative judgment for the trial judge. An appeal court should be slow to interfere: George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd[1983] 2 AC 803 . The judge recognised the four factors on which the landlords relied (and set them out at para 34). He directed himself by reference to the three cases to which I have referred. It cannot be said either that he misdirected himself in law, or that he took into account irrelevant factors or ignored relevant ones. Although there is some force in the landlords’ argument, I do not consider that there is any ground in this case for interfering with the judge's overall assessment of the application of the test of reasonableness. Indeed, in my judgment, he was right to stress the importance of precontract enquiries in the field of conveyancing; and right in the conclusion to which he came. As the judge said, if clause 5.8 governs the landlords’ liability the important function of replies to enquiries before contract becomes worthless. Although there might be a case where, on exceptional facts, a clause which precludes reliance on replies to enquiries before contract might be held to satisfy the test of reasonableness even where those replies have in fact been relied on, I find it very hard to imagine what those facts might be. Of course, the existence of the non-reliance clause may itself be evidence of non-reliance; as was indeed the case in one of the claims that I considered in the FoodCo UK llp case[2010] EWHC 358 : see paras 116– 118.”
“32(1) … where in the case of any action for which a period of limitation is prescribed by this Act, either- a. The action is based upon the fraud of the defendant; or b. Any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant… the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment… (as the case may be) or could with reasonable diligence have discovered it. References in this subsection to the defendant include references to the defendant’s agent or to any person through whom the defendant claims and his agent. (2) For the purposes of subsection (1) above, deliberate concealment of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.” a. The action is based upon the fraud of the defendant; or b. Any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant… the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment… (as the case may be) or could with reasonable diligence have discovered it. References in this subsection to the defendant include references to the defendant’s agent or to any person through whom the defendant claims and his agent. (2) For the purposes of subsection (1) above, deliberate concealment of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.” 146. I have been taken to Sheldon v RHM Outhwaite 1995 2 AER 558 and to RG Securities v Allianz 191 ConLR 1, and (in Ms Proferes’ closing written submissions) to Hussain v Mukhtar2016 EWHC 424 , from which (and also from the cases noted in the White Book at 8-85.1) I draw the following principles (which I do not think were really in contest) being: a. The fraud or the deliberately concealed facts must be part of the basis of the relevant claim i.e. unless they were pleaded the relevant cause of action which was the subject-matter of the Claim would not be held to exist b. The effect of deliberate concealment is to reset the limitation clock to start again with a new 6 year period (as opposed to a suspension of an existing running period), and even if the limitation period had already expired or the concealment took place after the events constituting the relevant tort or other wrong c. The “deliberate” element of the concealment is a subjective requirement of the concealer actually appreciating that there is something, which may be a breach of duty, which is being concealed, and which involves both an appreciation of the existence of the fact(s) (in the case of a breach of duty, an appreciation of the fact that there is such a breach) and of the concealing of such fact(s) d. “concealment” can take the form of non-disclosure (at least where disclosure had been sought or would have been expected) rather than a positive act e. The question of what amounts to reasonable diligence is fact sensitive, with the burden of proof being on the Claimant and with an objective test as to whether the relevant facts “could” have been discovered “with the exercise of reasonable diligent”
“… Equally in my judgment if, as in my judgment it does, the Agreement… creates two distinct obligations, one in relation to carrying out the work properly as it is being done and another in relation to completing a building which has been constructed in accordance with the contractual requirements, the mere fact that any defects may have been suable upon prior to the delivery up or completion of the 106 houses will not in my judgment be fatal to a claim by the plaintiff that time only began to run from practical completion of the works. In my judgment a distinct and separate cause of action will arise upon failure to complete the houses properly. A breach of the express obligation in the Agreement… to complete the works in conformity with the contract documents will thereupon for the first time occur and it cannot be said in my judgment that time begins to run against the plaintiff before that point has been reached. The obligation to complete the works in accordance with the contract is in my judgment the fundamental obligation of the contractor and it is a distinct obligations from any obligation upon the contractor to carry out the work properly as it is being performed. It is the performance of the obligation to complete the works in accordance with the contract which entitles the contractor to the agreed price for the works and this lies at the basis of the view that a building contract constitutes an entire contract… … The textwriters to which I have been referred are consistent in stating that time begins to run from practical completion in relation to defects in the work and this can only be on the footing it seems to me that the cause of action arises at that stage. That view is in my judgment correct in principle. The existence of a separate obligation on the contractor in relation to the performance of the work as it is carried out the effect of which is to exclude the notion of temporary disconformity does not in my judgment alter the essential obligation of the contractor to provide a building or works which when completed or finished are in conformity with the contract documents or mean that time has already begun to run against the employer...”
“… In the ordinary case, the contractor is entitled to retain possession of the site until practical completion when it is handed over and it would in my judgment be contrary to principle to hold that time had begun to run against the employer in respect of that obligation before the works had bene completed and released to him.”
“44…. the judge gave as his reason: “… the factual position is that the houses… had been completed and possession given to the plaintiff. Significantly, separate certificates of practical completion had been issued. In these circumstances, it seems to me that it should be inferred that the parties had treated those parts of the work as being practically complete for all purposes, and I consider that it would have been open to the plaintiff, if it had discovered defects in the houses which had been released to it, to have brought an action for failing to complete the houses properly and it would not have had to have waited until the last of the works had been completed before suing. Time will have begun to run in respect of any defects… from the dates of practical completion. The defects will have been suable upon from that time.” 45. With that conclusion and analysis we agree. The crucial factor is the delivery of possession. Once they had possession, [the employer] could claim. The [employer’s] appeal is therefore dismissed…”
“57. It is well-established law that a cause of action for breach of a construction contract accrues when the contractor is in breach of its express or implied obligation under the contract. Where, as in this case, there is an obligation to carry out and complete the works, the cause of action for a failure to complete the works in accordance with the contract accrues at the date of practical complete, Tameside v Barlows….”
“64. Robinson did not lay down any new principle of law, but three matters in particular were clarified. First, the decision explained, as Michael had previously done, that Caparo[1990] 2 AC 605 did not impose a universal tripartite test for the existence of a duty of care, but recommended an incremental approach to novel situations, based on the use of established categories of liability as guides, by analogy, to the existence and scope of a duty of care in cases which fall outside them. The question whether the imposition of a duty of care would be fair, just and reasonable forms part of the assessment of whether such an incremental step ought to be taken. It follows that, in the ordinary run of cases, courts should apply established principles of law, rather than basing their decisions on their assessment of the requirements of public policy. Secondly, the decision reaffirmed the significance of the distinction between harming the claimant and failing to protect the claimant from harm (including harm caused by third parties), which was also emphasised in Mitchell and Michael . Thirdly, the decision confirmed, following Michael and numerous older authorities, that public authorities are generally subject to the same general principles of the law of negligence as private individuals and bodies, except to the extent that legislation requires a departure from those principles. That is the basic premise of the consequent framework for determining the existence or nonexistence of a duty of care on the part of a public authority.”
“A statement may be defamatory in relation to the claimant’s personal character, office or vocation. In the former case the test usually applied was whether the matter complained of was calculated to hold the claimant up to “hatred, contempt, or ridicule”
“Slander consists of a defamatory imputation in some non-permanent form by spoken words, or other sounds,253 or by gestures.254 The law recognises a distinction between libel and slander for historical reasons though not resting on any satisfactory principle.255 In Barkhuysen v Hamilton 256 Warby J summarised the common law of defamation thus: “the tort of slander is committed by a person who (1) speaks to at least one person other than the claimant, words that (2) refer to the claimant, (3) bear a meaning or meanings defamatory of the claimant, and (4) cause the claimant special damage, or fall within one of the exceptions to the general rule that slander is not actionable without proof of special damage. The onus of proving all these matters lies on the claimant.”
“If the defamatory words spoken are not actionable per se they are actionable if they cause “special damage”
“5. The discretion to disapply is a wide one, and is largely unfettered: see Steedman v British Broadcasting Corpn [2002] EMLR 318 , para 15. However it is clear that special considerations apply to libel actions which are relevant to the exercise of this discretion. In particular, the purpose of a libel action is vindication of a claimant's reputation. A claimant who wishes to achieve this end by swift remedial action will want his action to be heard as soon as possible. Such claims ought therefore to be pursued with vigour, especially in view of the ephemeral nature of most media publications. These considerations have led to the uniquely short limitation period of one year which applies to such claims and explain why the disapplication of the limitation period in libel actions is often described as exceptional.”
“(1) A person must not pursue a course of conduct— (a)which amounts to harassment of another, and (b)which he knows or ought to know amounts to harassment of the other… (2) For the purposes of this section [F2or section 2A(2)(c)], the person whose course of conduct is in question ought to know that it amounts to [F3 or involves] harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.”
“(1) An actual or apprehended breach of section 1(1) may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question. (2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment….”
“(1) This section applies for the interpretation of sections 1 to 5A (2) References to harassing a person include alarming the person or causing the person distress. (3) A “course of conduct” must involve— (a) in the case of conduct in relation to a single person (see section 1(1)), conduct on at least two occasions in relation to that person… (4) “Conduct” includes speech. (5) References to a person, in the context of the harassment of a person, are references to a person who is an individual.”
“42. In sum, in my judgment, each of these letters does, when considered side by side, arguably evidence a campaign of harassment against Mr Iqbal. They are arguably capable of causing alarm or distress. They are arguably unreasonable, or oppressive and unreasonable, or oppressive and unacceptable, or genuinely offensive and unacceptable. Arguably, they go beyond annoyances or irritations, and beyond the ordinary banter and badinage of life. Arguably, the conduct alleged is of a gravity which could be characterised as criminal. A professional man's integrity is the lifeblood of his vocation. If it is deliberately and wrongly attacked, whether out of personal self-interest or malice, a potential claim lies under the Act.” ii. At paragraphs 45 and 46 that: “45. In my judgment, the Act is concerned with courses of conduct which amount to harassment, rather than with individual instances of harassment. Of course, it is the individual instances which will make up the course of conduct, but it still remains the position that it is the course of conduct which has to have the quality of amounting to harassment, rather than individual instances of conduct. That is so both as a matter of the language of the statute, and as a matter of common sense. The Act is written in terms of a course of conduct: see sections 1(1), 1(2), 1(3), 2(1), 3(1), 7(3) . That course of conduct has to amount to harassment, both objectively and in terms of the required mens rea (see section 1(1)(b) ). In the case of a single person victim, there have to be “at least two occasions in relation to that person” ( section 7(3)(a) ), but it is not said that that those two occasions must individually, ie standing each by itself, amount to harassment. The reason why the statute is drafted in this way is not hard to understand. Take the typical case of stalking, or of malicious phone calls. When a defendant, D, walks past a claimant C's door, or calls C's telephone but puts the phone down without speaking, the single act by itself is neutral, or may be. But if that act is repeated on a number of occasions, the course of conduct may well amount to harassment. That conclusion can only be arrived at by looking at the individual acts complained of as a whole. The course of conduct cannot be reduced to or deconstructed into the individual acts, taken solely one by one. So it is with a course of communications such as letters. A first letter, by itself, may appear innocent and may even cause no alarm, or at most a slight unease. However, in the light of subsequent letters, that first letter may be seen as part of a campaign of harassment. 46. That, however, was not how the judge looked at the matter. Having found the third letter to be arguably capable of amounting to harassment, he never went back to ask himself how the three letters were to be looked at together as a possible course of conduct. Of course, it is always feasible that a number of disparate instances are not capable of being aggregated into a course of conduct, because, for instance, they are too separated in time or subject-matter. However, that does not apply in this case (although it could have applied to the 2006 letters if Mr Iqbal had persisted in relying upon them). The three letters were close in time, all headed by reference to the Butt litigation, and at any rate arguably, connected with one another.” d. Levi v Bates 2016 QB 91, where at paragraph 28 the importance of the conduct being “targeted” at someone (although it did not need to be the victim) was stressed. Mr Toner contends that the various conduct was aimed at him (with the intent of the High Court applying Defendants to seek to persuade him to give up his claims; and the intent of Mr Prodromou to cause him harm); but the relevant Defendants say that much of what he claims is simply usual and really an assertion that the Building was not being kept in repair (and assertion which might give rise to breaches of Clause 6 of the Lease but where no claim is being made against Avantgarde in relation to such e. Gerrard v ENRC2020 EWHC 3241 where, again, a strike-out was refused and where it was said that the defendant had caused alarm and distress to the claimant by a surveillance operation. As to this recent authority (and which reviewed the previous case-law; and which postdated the oral hearing but upon which I sought and obtained written submissions): i. In paragraph 24 reference was made to a dictum from Benyatov v Credit Suisse2020 EWHC 85 that “it is not appropriate to strike out a claim in an area of developing jurisprudence, since, in such areas, decisions as to novel points of law should be based on actual findings of fact” ii. At paragraphs 78 onwards held that the relevant claim was not suitable for summary determination; and including because the law was unclear as to the extent that the test for whether a person had been “targeted” in the sense that it had been “calculated” that the conduct would affect them was subjective (i.e. the perpetrator intended to cause alarm and distress to that person) or objective (i.e. a reasonable person would regard the likely effect of what was being done would be such as to cause alarm and distress) or as to the extent to which the “target” had to be the claimant or could have been another person iii. The judge summed up his view as to the law in paragraphs 85 to 87 as being: “85. In accordance with that analysis, harassment is a type of conduct. It is not defined in the PHA, but it constitutes genuinely offensive and unacceptable behaviour of an order of gravity which would sustain criminal liability, and it includes, but is not limited to, alarming or causing distress to another person. The action element of the crime (or tort) consists of carrying out that type of conduct. The mental element of the crime (or tort) is made out if the perpetrator knows that the perpetrator's course of conduct amounts to harassment, or if a reasonable person in possession of the same information as the perpetrator would think that it amounted to harassment. There is no requirement that harm, or even alarm or distress, be actually foreseeable, although in most cases it will be. 86. That seems to me in any event to be the correct analysis of section 1 of the PHA. I am unable to see how the requirements for there to be a course of conduct which (1) amounts to harassment of another, and (2) the defendant knows or ought to know amounts to harassment of the other can be given sensible effect if there is contained within the concept of "harassment" a further mental element. Giving the word "calculated" the primary meaning advocated on behalf of ENRC and Diligence (a) would involve requiring the defendant to know that the conduct in question is conduct which the defendant intends to alarm the complainant or cause the claimant distress (or, perhaps, in respect of which the defendant is reckless as to the consequences) and (b) even more problematically, in circumstances where the defendant for some reason lacked that knowledge, would involve requiring that a reasonable person in possession of the same information as the defendant would think that the conduct in question is conduct which the defendant (subjectively) intends to alarm the complainant or cause the claimant distress (or, perhaps, in respect of which the defendant is reckless as to the consequences). This seems to me infelicitous, convoluted and unworkable. It also seems to me unnecessary. In my view, section 1 works perfectly well as I consider it to have been explained by Lord Nicholls and Lady Hale, without adding to the statutory words. 87. If, as I consider right, "calculated" should be understood in the cases where it has been mentioned in the context of discussing harassment not in the subjective sense of "intended to bring about a certain result" but in the objective sense of "likely to produce a result", that gives rise to an issue as to the meaning of the word "likely" in that context. That is an issue which I am reluctant to decide on the applications which are at present before me. However, I am not persuaded that the correct meaning is "more likely than not" as opposed to a lesser or more flexible meaning such as "sufficiently likely in all the circumstances". I say this for the following principal reasons: (1) although in the defamation context it is always necessary to have regard to Article 10 considerations, much of the conduct with which section 1 is concerned will not engage ECHR rights either at all or to any serious extent; (2) accordingly, the same considerations as apply in cases such as Cruddas do not apply in the context of many and indeed in all probability the great majority of cases involving section 1; (3) my provisional view is not affected by the consideration that ENRC and Diligence may be able to argue that, in this particular case, the conduct complained of was carried out in pursuit of the Legitimate Aim and accordingly engages, as they say, Article 6 and/or Article 8(2) considerations; (4) nor is it affected by the consideration that section 1 creates a criminal offence; (5) on the contrary, the necessary protections are provided by section 1(3), which includes protection where the defendant can show that the defendant's pursuit of the course of conduct was reasonable, and by the burden and standard of proof which apply in the criminal context.”