Full case report
Weston v Bates & Leeds United Football Club
Reference  EWHC 3070 (QB)
Court High Court (Queen's Bench Division)
Judge Sir Michael Tugendhat
Date of Judgment 11 Nov 2015
Libel – delay – abuse of process – appeal – striking out – civil procedure
This was an appeal by D1 from a Master’s decision not to strike out C’s libel action against D1 and D2 under CPR 1.3 and 3.4(2)(b) and (c).
C had operated a company providing credit card processing services to D2’s predecessor company. After D1 had become Chairman of the club in 2005, the club issued proceedings in Jersey against C’s company for money owed. That action remained on foot when in 2009 D1 made three publications, all directed to Leeds United supporters, about C which included allegedly libellous statements relating to the Jersey proceedings, including alleged breach of trust by C. C’s company had judgment entered against it by the Jersey court in 2011, but allied litigation was subsequently brought by D2 in the Chancery Division. The Chancery Division proceedings came to an end in March 2014.
C had issued the libel proceedings in 2010 on the last day of the limitation period for the earliest of the publications and served them on D2 on the last day of validity of the claim form. An application to add a further publication to the claim form was made in September 2011 but was not heard until March 2015, when it was refused.
In respect of delay, and corresponding inferences as to C’s true purpose, D1 relied on the delays caused by (1) C’s last minute issue and service of the proceedings and (2) C’s allowing a period of two years to pass without progressing an application to amend the claim form, during which the Chancery Division proceedings were active. D1 also objected that the value remaining in the claim was disproportionate to the expense of trying it.
In March 2015 the Master refused D1’s application to strike out.
Whether the Master had been wrong to refuse to strike out the claim on the grounds that:
- the claim did not pursue the proper purpose of vindication of the W’s reputation; and/or
- the claim was being prosecuted for the impermissible collateral purpose of providing another front in the wider dispute between the Ds and C; and/or
- any value in the claim was disproportionate to the costs of trying it; and/or
- inordinate and inexcusable delay had rendered a fair trial impossible; and/or
- C seriously breached the CPR by not furthering the Overriding Objective in respect of saving expense, expedition and appropriate allotment of the court’s resources.
The court considered first the questions of what was at stake in the action and the delay in the proceedings.
Below, the Master had held that the allegations were “in really quite strong terms”. In the absence of evidence that the publishees would have forgotten the alleged libels, a vindication of C were he to succeed therefore remained a solid and substantial reason to proceed. Sir Michael Tugendhat, however, found no basis in authority, whether at trial or as part of an application to strike out, for a requirement that such evidence be provided. On the contrary, the courts have repeatedly placed emphasis on the need for libel claimants to pursue claims expeditiously, printed publications, as here, being ephemeral. Further on this point the judge found the Master to have erred by failing to consider what would have fallen to be taken into account were damages to have needed to be assessed: these included C’s loss of connection with Leeds, and football, the facts of C’s convictions, and the Jersey courts’ conclusions both that C had disposed of money claimed by D2 and in respect of C’s conduct of the litigation brought against his company.
As to the delay in proceedings, the Master had considered the second of the two periods of delay to be the more relevant, but that it had been reasonable for C to have considered the Chancery Division to be the right forum to deal with issues concerning breach of trust which formed the basis of certain of the libel pleadings. “With some hesitation”, because the rules have tightened since the authority relied on by the Master, the judge held the Master entitled to take this view in respect of the second period of delay. But he found her to have erred in not giving the first period of delay due weight. That delay, and the absence of explanation for it, gave rise to a strong inference that C was abusing the process of the court, whether or not C might also have had reputational vindication in mind. The facts of C’s conduct of his defence to the Jersey proceedings was consistent with that inference.
Given these findings, the appeal was successful. No findings were made about the other grounds of appeal, therefore.
This judgment highlights the need for expedition in the issue and service of defamation claims. Where no good reasons are available for last minute issuing and/or serving, a claimant is left at significant risk of adverse inferences being drawn as to the extent to which vindication of reputation is actually being pursued and, as a consequence, having the claim struck out as an abuse of process.
Weightmans for C, Carter-Ruck for D1 and Chadwick Lawrence Solicitors LLP for D2
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