Carpenter v Associated Newspapers Ltd

The Claimant sued the Mail on Sunday in libel over allegations that she had made sexual advances towards builders working on her house, particularly towards the foreman Mr Clarke. Mr Clarke had previously signed an affidavit refuting the allegations as part of the settlement of a libel action brought by the Claimant against his employer over similar charges. The Mail on Sunday article was based on the Statement of Claim in the former action which had been indorsed on the Writ and was therefore open to public inspection.

Whether a fair trial of the action against the Mail on Sunday was possible. The newspaper wished to justify the allegations of sexual harassment against the Claimant, and wanted to rely on Mr Clarke’s evidence in the previous action. This evidence was inconsistent with the statement he had given by affidavit retracting the allegations on settlement of that action. If Mr Clarke gave evidence in accordance with his original statement he potentially faced prosecution for perjury for his subsequent affidavit. The newspaper suggested that one of the Claimant’s reasons for requiring the affidavit was to prevent Clarke from assisting the Mail on Sunday in the libel action and as such, amounted to an abuse of the process of the court.

The action would be struck out as an abuse of process. The newspaper had been effectively disabled from calling Mr Clarke as a witness and the Defence would be denied the opportunity to present its case under conditions which would not place it at a substantial disadvantage. It was the Claimant’s intentional conduct which brought about the inequality of arms between the parties and rendered a fair trial impossible, and this amounted to an abuse of the process of the court.

This was a robust decision, but gives an example of the Court being willing to dismiss proceedings as an abuse where one of the parties has taken steps to effectively “disable” a crucial witness.