IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION Claim No. HQ09X03163 B E T W E E N: HAYS PLC Claimant - and - JONATHAN HARTLEY Defendant DEFENDANT’S WRITTEN SUBMISSIONS FOR HEARING ON 5 MAY 2010 Reading list: Application notices (Bundle 1 tabs 1 & 2), witness statements and exhibits (1/3-7), statements of case (1/8-10), orders (1/12), part 18 responses (2/22 & 23), skeleton arguments and (if necessary) relevant authorities. Estimated length of reading time: 2 – 3 hours Estimated length of hearing: 1 day The Applications 1. There are three applications before the court. First, D applies to strike out the claim as an abuse of process. This is on the basis of the Jameel jurisdiction and/or the existence of a dominant collateral motive. It involves the application of relatively settled principles to the unusual facts of the present case. Second, (and in the alternative) D applies to strike out the parts of the Claim Form and POC which seek to rely on an article in support of C’s claim for damages. This application raises previously undecided points of principle. Third, C applies to strike out D’s qualified privilege defence. This may also raise points of principle. 2. This skeleton argument will address the applications in the manner set out above. If the first succeeds, the second and third become academic. Moreover, the outcome of the first should not be conditional on the outcome of the second or third. Having said that, if C is not entitled to rely on the article in support of its claim for damages, the Jameel abuse of process argument is even stronger. 3. There are two witness statements from D. The first is in relation to qualified privilege. It expands on the plea in the Defence. The second addresses his personal position and the effect of the litigation on him, which, it is submitted, are relevant to abuse of process. The 1 witness statement of Timothy Senior (“TS1”), on D’s behalf, sets out the history of the litigation and identifies the matters relied on in support of the abuse of process application. There are two witness statements from Allan Dunlavy (“AD1 and AD2”) on behalf of C. They consist primarily of argument, not evidence. Significantly, no officer or employee of C has provided a statement. The facts 4. A chronology and dramatis personae is attached. C is a large multi-national recruitment consultancy. In December 2008 Raymond Berkoh, Chiuta Dube and Kevin Snagg, three of C’s former employees (“the Employees”) commenced proceedings in the Employment Tribunal alleging racial discrimination (“the Employment Proceedings”). 5. Mr Snagg made contact with D, a publicity agent, and provided him with form ET1, the initiating process in the employment tribunal. D, in turn, made contact with Nick Owens, a Sunday Mirror journalist, with whom he had an existing relationship, and forwarded the ET1 to him. On 11 January the newspaper published a neutral report of the claims in the Employment Proceedings including a prominent rebuttal by C (“the Article”). The Article has remained accessible on the internet since 11 January on the newspaper’s site and a number of other sites that picked up the story. No complaint has been made to the newspaper’s publishers (“MGN”). C’s solicitors (“Schillings”) have recently stated that this was because there were potential Reynolds and “neutral reportage” defences. 6. Instead, on 31 March C commenced a libel claim (“the Employee libel claim”) against the Employees in relation to the “publication” to MGN for the purposes of publishing the Article. The publication of the Article was not relied on as a free-standing tort, but in support of a claim for damages arising from publication to MGN. At the same time, Schillings obtained an order from Master Fontaine restricting public access to the statements of case and preventing the Employees from disclosing copies of them other than for the purpose of the proceedings (“the non-disclosure order”). It was made following a without notice hearing in private. 7. It is apparent from POC [6(f)] in the Employee libel claim that C was aware of D’s involvement. Nevertheless, no attempt was made to contact him at the time. The 2 Employees’ Defence to the libel claim was served on 5 June and contained substantive defences of justification, qualified privilege and fair comment. It sought to distance the Employees from supply of the ET1 to MGN and the Article. In particular, it was denied that the Employees were aware that the Article was to be published (or that it was a foreseeable consequence of their actions). It suggested that the Employees were unaware that documentation provided by them to D was passed to MGN. It alleged that Mr Snagg first approached D “in or about August 2008”. 8. This prompted Schillings to write to D on 24 June. For reasons that are addressed in greater detail below, it is submitted that C’s dominant purpose in its dealings with D has been to obtain advantage in its dispute with the Employees and in particular, to obtain material to attack the Employees’ credibility. The letter of 24 June sought to interrogate D in relation to the account in the Defence and requested retention of documentation that would be relevant to the Employee libel claim. It was not a pre-action protocol letter. It was principally directed to D’s involvement in the Employee libel claim as a witness with relevant documentation. An undertaking not “to publish any material that is defamatory of our client” [emphasis added] was requested but no other relief was sought. There was no suggestion, nor could there be, that D had “published” any material about C other than in relation to passing the ET1 to Mr Owens. 9. D’s solicitors (“DPSA”) responded on 1 July, stating that D had no intention of publishing anything defamatory of C and would keep safe relevant documents, but was not obliged to respond to the queries raised in relation to the Employees’ Defence. In their response of 7 July, Schillings stated that C intended to hold D responsible for publication of information to MGN unless he was prepared to pay “very substantial damages” costs, apologise in a statement in open court and undertake not to repeat. By letter of 14 July DPSA questioned C’s motive for threatening a claim in light of the limited publication complained of which could not have had any material impact on its corporate reputation. The letter asserted that “we suspect that your primary motivation relates to some perceived tactical advantage in relation to the existing claim”. 10. No response was received. Instead C issued a Claim Form on 20 July. The claim mirrored the Employee libel claim in that the publication complained of was to “the Sunday Mirror” and the Article was relied on solely in relation to damages. C obtained an identical non- 3 disclosure order from Master Fontaine. In the witness statement in support, the following was stated in relation to the Article: “...whilst defamatory of the Claimant, did at least include in part the Claimant’s response to the allegations as a result of the Sunday Mirror having contacted it prior to publication”. The order was subsequently set aside by agreement, with costs, shortly before the hearing. The skeleton argument set out a number of fundamental defects in the procedure giving rise to the order. They have never been challenged by C. In short, it is obvious that there was no jurisdiction to make the order without notice. 11. The Defence was served on 18 September. It raised substantive defences of qualified privilege and abuse of process. The Reply was served on 26 October. It set out C’s rebuttal of the privilege defence, but there was no malice plea. 12. TS1 sets out the various steps taken by C in relation to the present claim, which are relied on to support D’s case on collateral motive. It appears that C’s strategy was successful. C relied on information and documentation provided by D to seek disclosure orders against the Employees’ ISPs. This led to a “walk-away” settlement on or about 8 December in the course of the Tribunal hearing in which the Employees dropped the Employment Proceedings and C dropped the Employee libel claim. 13. As part of the settlement, the parties made a joint public statement in which the Employees accepted that the incidents of which they complained were not motivated by racial discrimination and that there was no evidence to suggest the Claimant was an institutionally racist company. They expressed “regret” that the dispute had entered the public domain through the Article. 14. By letter of 18 December DPSA informed Schillings that, in the light of the settlement with the Employees, D was intending to strike out the present claim as an abuse of process. This led to an exchange of correspondence culminating in D issuing the present application. At no stage, have Schillings provided any convincing explanation of what C legitimately expects to achieve in terms of vindication by continuing with the claim against D. 15. On 17 February C issued a strike out application in relation to qualified privilege. The application could have been issued at any stage after service of the Defence. It is to be inferred that it is a tactical response to D’s statement of intention to strike out the claim. C 4 has not complied with the agreed case management directions, which required it to make an appointment to fix a trial before 29 January to be heard in a window between 13 April and 2 July and has shown no interest in pursuing the claim to trial. Abuse of Process – the relevant legal principles 16. The court has a duty to prevent its processes from abuse. The categories of abuse are not fixed. Nevertheless, in defamation claims two categories of abuse have become well- established. First, where the claim does not amount to a “real and substantial tort”. Second, where the claimant is pursuing a collateral purpose but for which he would not have commenced the claim. They are distinct categories, although, inevitably, there will be cases which involve both – a claimant is more likely to have a collateral purpose for bringing a claim which is not real or substantial.1 The first category is objective and involves a form of cost / benefit analysis by the court. It is underpinned by the recognition that the expense and hassle of a defamation claim can be a severe restriction on freedom of expression and must therefore be justified as necessary to protect the claimant’s reputation. The second category is subjective and depends solely on the intention of the claimant. It is implicit in both categories that the claimant may be pursuing available legal remedies and his claim may have a real prospect of success on an application of the law to the facts. It is therefore accepted that such applications will be relatively rare. Jameel – relevant legal principles 17. The following principles emerge from Jameel and the subsequent cases2:- 17.1. It is an abuse of process to litigate a claim which does not amount to a real and substantial tort. 17.2. This is because the fact of being sued at all is a serious interference with the defendant’s freedom of expression3 and the court has its own interest in ensuring that its resources, including substantial judge and possibly jury time, are not committed to a claim where so little is seen to be at stake.4 1 See for example Lonzim Plc & Ors v Sprague [2009] EWHC 2838 (QB) at [51]. 2 See Jameel v Dow Jones & Co Inc [2005] QB 946, Lonzim Plc & Ors v Sprague [2009] EWHC 2838 (QB), Mardas v New York Times Company & Anor [2008] EWHC 3135 (QB) and Haji-Ioannou v Dixon & Ors [2009] EWHC 178 (QB). 3 Lonzim at [33]. 4 Jameel at [80]. 5 17.3. The proper purpose of the tort of defamation claim is to protect the claimant’s reputation. The determination of whether a defamation claim constitutes a real and substantial tort requires a focus on the particular facts of the case, in order to evaluate what legitimate purpose in terms of vindication can be served by the continuation of the proceedings.5 17.4. The determination must be made on the basis of the prevailing circumstances at the time of the application. They may include factors that have arisen after the proceedings have been issued. In particular, it may be relevant that the claimant has achieved vindication in other proceedings, thereby diminishing or extinguishing the potential of the pending proceedings to provide any vindication.6 The conduct of the defendant is also potentially relevant. For example, where the defendant pleads justification and continues to publish the article complained of, this is relevant in determining whether there is any purpose to be served in the claimant pursuing vindication.7 17.5. The number of publishees and the seriousness of the allegations are also obviously relevant, but ultimately these matters must be judged by reference to the fundamental question of what legitimate purpose is served in terms of vindication by pursuing this claim against this defendant. In Jameel, for example, the allegation was funding al Qaeda. 18. None of the previous Jameel cases have involved a sole corporate claimant. The question of whether a corporation should be entitled to maintain a claim for defamation has given rise to much debate.8 For the moment, we are left with the 3-2 decision of the House of Lords in Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359. However, the fact that a corporation is entitled to maintain a defamation claim without proof of financial loss does not mean that the court will approach such claims in the same way as claims brought by individuals. In Steel and Morris v United Kingdom [2005] EMLR 15 at [95], the ECHR recognised that if a State does decide to provide a remedy to a corporation it needs to ensure that there are proper procedural safeguards to protect freedom of expression. This 5 See for example Haji-Ioannou at [31] 6 In Schellenberg v BBC [2000] EMLR 296, referred to in Jameel at [57] the failure of a libel claim against the Guardian meant that the BBC claim no longer served any purpose. It must follow that a claimant could also be a victim of his own success. 7 See Mardas at [18]. 8 See for example the Culture, Media and Sport Committee Report HC 362 [164-178] 6 was said in the context of the potential “chilling effect” or corporations resorting to defamation claims on the “free circulation of information and ideas”. 19. The Jameel jurisdiction should play an important role in ensuring that the concerns expressed in Steel (and by all their Lordships in Jameel v Wall Street Journal notwithstanding the overall conclusion) are properly recognised in domestic procedure. In determining whether the claim discloses a “real and substantial” tort, a relevant factor must be whether the claim is brought by an individual or a corporation. The effect on an individual of a defamatory publication is a factor that can make the wrong “real and substantial” even where the extent of publication is relatively limited. In contrast, a corporation has no Article 8 rights and no “soul” or “immortal part”. Notwithstanding Jameel, it remains the case that a corporation can only be injured in its pocket. Moreover, a large multi-national corporation is likely to be more resilient to the publication of a defamatory allegation. 20. Not only is the corporate status of the claimant relevant, it is submitted that the position of the defendant should also be taken into account. Historically, English defamation law and procedure treats an individual defendant of limited means in the same way as a large media organisation. However, the Jameel jurisdiction is explicitly derived from the CPR’s overriding objective which requires the court to consider “the financial position of each party” in dealing with a case in a “proportionate” manner. Moreover, in Steel the ECHR regarded the huge disparity in means between the parties was a relevant factor in ensuring that there were proper safeguards to protect freedom of expression in cases brought by large corporations against individuals. Application of the principles to the facts 21. The following factors (set out in no particular order) are relevant in this unusual case:- 21.1. The allegedly tortious act is the publication by D to “the Sunday Mirror”. D’s only communications were with Mr Owens. There is no evidence that any other MGN employees saw the ET1. Even if they had, the extent of publication is minimal. 21.2. D’s sole involvement in any publication was to act as the intermediary between the Employees and Mr Owens. He was simply the messenger. In contrast to Haji- Ioannou, he is not the author of the allegations complained of. 21.3. C is a large multi-national corporation. The “publication” to Mr Owens has not caused it any harm. Insofar, as it is permissible to take into account the Article (which is only relied on in support of damages), there is no evidence that it has caused C any 7 harm. No special damage or particulars of any actual injury to reputation are alleged. Moreover, C has taken no action against MGN, notwithstanding the continuing publication online. 21.4. It is accepted that an allegation of indifference to racism in the workplace is potentially serious. However, such allegations are commonly made by employees in tribunal claims. It is a fact of life for large companies, which are generally resilient to them, unless they are upheld by the tribunal or court. Moreover, the scope for any harm is minimised by neutral reporting and the inclusion of the employer’s rebuttal. Readers can see the allegations for what they are i.e. unsubstantiated claims. 21.5. C has already brought a libel claim against the Employees in relation to the same publications and the same alleged damage. The claim has been resolved. The settlement included a public statement by the Employees (who made the allegations complained of) that has fully vindicated C. There is no tangible vindication that can be provided by D. Moreover, any acceptance by D that the allegations were untrue would be parasitic on the statement made by Employees. He has no independent basis for concluding that they are untrue. 21.6. There is no defence of justification. Any trial will not determine the truth or falsity of the allegations and can add nothing to the public statement made by the Employees. 21.7. There is no threat of any republication of the allegations by D. This was a one-off assignment. He has no personal interest in the dispute between C and the Employees other than as the Employees’ agent, a role that he fulfilled in January 2009. 21.7.1. AD2 [11-12] seeks to justify the need for an injunction on D’s successful application to set aside the non-disclosure order and the denial of defamation in the POC. There was no jurisdictional basis for the order and D’s justifiable conduct in setting it aside cannot be relied on in support of an injunction against repetition. C may wish to close off all public discussion of the issues raised by this case, but this is not a remedy that is properly available.9 21.7.2. Contrary to what is suggested in AD2, D has made clear that he has no intention of publishing the allegations complained of.10 The standard denial of defamation in the Defence does not rationally afford any basis to infer an intention to publish the allegations complained of. 9 See correspondence at pages 489-492, 494, 495-496, 499, 503, 504 of Bundle 2 10 See letter of 29 March at page 504 of Bundle 2 8 21.7.3. There remains no rational basis for inferring the necessary intention on D’s part that would justify the injunction sought in the Claim Form. 21.8. The litigation has caused D considerable stress and anxiety and the potential financial consequences for him and his family are serious. 21.9. As at 2 November, C’s estimated future costs were over £135,000. Little has been done to pursue the litigation since then. C’s estimated trial costs are around £100,000. The trial is estimated to last 4 days. 21.10. There is no witness statement from any officer of C. This is a remarkable omission in the light of the issues raised by the application. A company can only act through the agency of individuals. There is no proper evidence before the court of why C commenced this claim or what it hopes to achieve by continuing with it. AD2 gives evidence of the remedies to which, he submits, C is entitled. However, he is not in a position to give evidence of C’s intentions and aspirations and does not seek to do so. He could, in theory, give hearsay evidence of what he has been told by identifiable officers of C, but he does not even seek to do that. The court is entitled to draw an adverse inference from the absence of any evidence from C.11 21.11. Insofar as is necessary, D will submit that the factors set out in [24-30] below, relied on in support of the case on dominant collateral purpose, are also relevant in relation to Jameel. 22. In the light of the above, it is clear that no legitimate purpose in terms of vindication can be served by the continuation of the proceedings such as would outweigh the costs, use of court resources and anxiety to D in prolonging the claim. There are no contested facts that need to be resolved in order for such a determination to be made. Dominant collateral purpose – relevant legal principles 23. The following principles are relevant12:- 23.1. Where a claimant commences or pursues a claim with a dominant collateral purpose it is liable to be struck out as an abuse of process. 23.2. The principle applies throughout civil litigation, although defamation claims are particularly vulnerable to such abuse. 11 In accordance with established principles. See, for example, Phipson on Evidence 17th ed at [11.15] 12 See Goldsmith v Sperrings Ltd [1977] 1 WLR 478. 9 23.3. The purpose does not have to be malign, merely collateral i.e. “one which the law does not recognise as a legitimate use of the remedy sought”. 23.4. In cases of mixed motives the test is whether but for the collateral purpose the claimant would have commenced the claim. 23.5. It is an abuse of process to commence a defamation claim with the dominant purpose of obtaining documentation and information that might assist the claimant in relation to the defence or prosecution of a claim against a different person. The provision of documentation and information in such circumstances is governed by the rules relating to third party disclosure. They provide proper protection for the third party. It is far less burdensome to be a third party than a defendant. For example, a third party is generally protected as to costs. In contrast, a defendant is at risk as to the costs of the entire claim and specifically in relation to Part 18 requests and applications for disclosure. Moreover, a defamation claim consumes more resources than an application for third party disclosure. 23.6. The claimant’s purpose may be inferred from an objective assessment of his actions. Where, however, the claimant provides a witness statement in which he denies the collateral purpose and explains his true purpose that may negative such an inference. Where the claimant does not give any evidence of his motivation in response to evidence that suggests it may be collateral, the court will be entitled to draw the appropriate adverse inference. 13 Dominant collateral purpose – application of the principles to the facts 24. Judged objectively, all of C’s dealings with D (as set out in TS1) have been directed to the provision of information and documentation to assist its rebuttal of the Employees’ allegations. C was aware of D’s involvement at the time it commenced the Employee libel claim. Yet, it showed no interest in D until the Employees’ Defence sought (unconvincingly) to distance them from the Article and provided a date for their first contact with D that C suspected to be false. The information that Schillings originally sought from D was primarily directed to the credibility of the Employees’ account in the Defence. It was only when D refused to provide this information that he was sued. Following the settlement with the Employees there has been a marked lacked of interest in pursuing the claim against D. 13 See for example Goldsmith at 499 B-G. The corollary must also be true. 10