England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Eady)

		Royal Courts of Justice Strand London WC2
		Friday, 15th June 2001

1. LORD JUSTICE HENRY: This is an application for permission to appeal the judgment of Mr Justice Eady, who on 16th January 2001 struck out various libel actions on the basis that the claimant had not put forward any evidence capable of discharging the burden of proving publication.
2. The facts were these. The applicant was employed as Director of Human Resources at the North London College of Nursing Studies by the regional health authority. His performance did not give satisfaction and, in a sequence of events, he was sent on special leave; he was suspended; there were disciplinary proceedings; and finally he was summarily dismissed in June 1992. He then brought against the regional health authority a variety of claims to no great effect. He complained of sex discrimination: that was discontinued. He complained of race discrimination: that was dismissed with costs by the Employment Tribunal. He complained of wrongful dismissal: that claim was struck out. In 1994 he started a clutch of libel actions. The words he complained of as being defamatory were all extracts from witness statements made in the course of the disciplinary proceedings. The defendants, in reply to these, claimed justification and qualified privilege.
3. In all but one of the eight actions the pleadings filed on behalf of the writers of witness statements for the purpose of disciplinary proceedings admitted publication of those documents by the submission of them to those responsible for the preparation and conduct of the disciplinary proceedings: that is to say, to Mr Li, the principal of the college; to Mrs Fayers, an independent adviser, so it would seem; and to Mrs Saward, the secretary to Mr Li.
4. Those pleadings then stood in that form until the events consequent upon the publication, on 5th February 1998, of the decision in Friend v Civil Aviation Authority, which altered the situation. That case held that a claimant who agreed to his employer's terms of service, which included disciplinary proceedings, thereby recognised that accusations in such proceedings must be published to the tribunal hearing the proceedings and therefore impliedly consented to such publication. The practical effect of that decision was to give defences to all connected with the disciplinary proceedings, both those who had given witness statements and those responsible for the preparation and conduct of the proceedings.
5. It then became essential to amend all the admissions of publication in the proceedings. The application to do that was heard by Master Tennant on 13th October 1998, who gave leave to withdraw the admissions and re-amend accordingly. That decision was not then appealed and has never been appealed.
6. That left standing the action against the chairman of the regional health authority, Mr Bains. As non-executive chairman, he played no part in the investigation and conduct of the disciplinary proceedings. That being so, he was not totally protected by Friend. His case was that he would not, and did not, receive or the witness statements. As such, he would arguably come under the Friend immunity. Accordingly, Master Tennant, on 26th November 1999, ordered a preliminary issue: namely, whether the statements complained of in each action were at the time published to Mr Bains. An exchange of witness statements by 3rd April 2000 was ordered. That exchange in relation to the preliminary issue did not take place, despite further orders, and finally Judge Previte ordered that, the latter order being an "unless" order, failing delivery of the witness statements, the claimant be debarred from calling evidence at the trial of the preliminary issue.
7. Mr Goldman's basic stance at this time was that he would not call any evidence supporting publication: he was simply going to invite the jury to assume that there had been publication. The judge, Mr Justice Eady, indicated the flaw in this reasoning when a strike-out application was made to him in relation to the preliminary issue on 11th January. In giving a last chance for Mr Goldman to put forward evidence if he had such evidence, the judge said this of Mr Goldman's strategy. Having set it out, he said:

"What, of course, might very well happen on that hypothesis is that an application would be made ... to the effect that no evidence had been adduced capable of persuading the jury that publication had indeed taken place to Mr Bains. If events turn out as Mr Goldman is contemplating, then that application would, as far as I can see, be likely to succeed. That is a factor of where the burden of proof lies in relation to the issue of publication. It would not be the practice of the court to say, in effect, that the matter could be left for Mr Goldman to establish what he could in the course of cross-examination. In one sense, of course, there would be no need for evidence on the part of the defendants on this hypothesis, because there is no case for them to answer in relation to the issue of publication; so cross-examination would not arise."

8. So there the judge made clear what the position was. The final hearing of the matter was a few days later, on 16th January, when, at the end of a number of last chances given to Mr Goldman, the judge finally heard the matter.
9. The respondents founded their case on the witness statement from Mr Bains, who said this at paragraph 10:

"I was not in any way involved in the subsequent disciplinary investigation and hearing that was commenced by Stephen Li against Mr Goldman. I took the normal Chairman's attitude that the correct approach for a non-executive Chairman was to leave the day to day running of the College to the College's managers. Disciplinary proceedings against Mr Goldman would, in my view, have been entirely a matter for Stephen Li to deal with in accordance with Haringey Health Authority's disciplinary policy. I would not have wanted to get involved in the disciplinary proceedings against Mr Goldman, or obtain copies of any statements served in the course of those proceedings, so as to avoid any possible allegation of bias against me in the event that I had to sit on any subsequent Appeal Tribunal. I had considerable experience in both industry and in the public sector and was well aware of the importance of not getting involved in first instance disciplinary hearings in order to protect myself from allegations of bias. There would have been little point in me sitting as a member on any Appeal Tribunal if there was any danger of an allegation of bias being made against me. I would not, therefore, have wanted to see any statements served in the context of any previous disciplinary hearing until I became formally involved in an appeal process. At that stage, I would have regarded it as my duty to ensure that an employee was treated fairly."

10. That is a powerful paragraph in this witness statement and the onus, as the judge had already made clear in the passage quoted, was on Mr Goldman to show it to be wrong.
11. Mr Goldman says that he is an expert in the matter of disciplinary proceedings. He says that it is inconceivable that a non-executive chairman would not have these statements. He says that that would be a custom of trade. It is not a custom of trade in any technical or legal sense; and I am bound to say, from my experience of the litigation of disciplinary proceedings, that what Mr Bains says accords entirely with my experience and for that reason, having heard all the arguments and seen all the evidence in this case, I would accept it without reservation. True it is that Mr Goldman, the applicant, put in documents concerning a Mr Parathian and a Mrs Malik and the disciplinary proceedings against them, but they do not assist. Although there was communication with the chairman in each case, in neither case were the witness statements sent to the chairman.
12. Mr Goldman made a number of points. First, he made the point that Miss Romney, counsel for the regional health authority, made it clear in a statement to the court that she had not received instructions from Mr Bains that he had not been given the witness statements: she, in preparing her original pleading, simply assumed that there had been publication. The issue of publication did not take on the importance it eventually acquired until the case of Friend was published. The point was academic at the time she made the pleading. She made the assumption on which the pleading was based, as she says; but counsel's assumptions are not evidence. She was, it would seem on the evidence as we know it, mistaken, because there is no evidence suggesting that Mr Bains ever said that he had received the witness statements in question.
13. In relation to the history of the admissions on the pleadings, the applicant tried to make capital out of the history of those admissions and how they differed from case to case. That was not a useful exercise. It did nothing to prove what he had to prove, namely the publication in question. The best that he could do was to suggest as a result of those matters that inconsistent statements had been made by potential witnesses at different times in relation to the general topic of witness statements, but there is nothing going the necessary final step to show that there was any evidence that the witness statements had been given to Mr Bains.
14. An example of this process comes in relation to Sheila Fayers. She was one of the team connected with the putting on of the disciplinary inquiry. An attendance note was taken from her on 12th April 1996 containing this:

"Sheila Fayers cannot remember whether in fact someone did provide Mr Bains with a copy of any of the statements. Her recollection is that Mr Bains was informed that Goldman had alleged that one of the College's employees was guilty of fraud (as mentioned in Aeres Howell's statement) but he was not actually shown a copy of this statement."

15. Mr Goldman asks us to contrast that with an account given in the second witness statement of the solicitor, Mr Doran, filed on behalf of the respondents, where he says this:

"iii.Mrs Fayers expressly repeated the instructions she gave me in 1998, referred to in paragraph 22 in my first statement of 23 April 2001, namely that the witness statements that are the subject matter of this and the 7 related actions referred to in paragraph 1 of my first statement were not given to Mr Bains.

iv.Mrs Fayers would not have `shared paper' with Mr Bains. In other words she did not give him a document detailing or reporting the allegations made by the individual Defendants in their witness statements.

v.Mr Bains was, however, given a verbal briefing of the general nature of the allegations made against the Appellant by Stephen Li before the disciplinary investigation and proceedings were commenced against the Appellant. Mr Bains was also verbally informed of the progress of the disciplinary proceedings against the Appellant and given a general verbal briefing of the nature of the allegations being made against him by his colleagues during the course of the disciplinary proceedings.

vi.Mrs Fayers informed Helena Myska at the outset of this action, and the 7 related actions, that the witness statements that are the subject matter of those actions had not been published to Mr Bains."

16. Mr Goldman relies on a comparison between those documents to show that it appears that Mrs Fayers' memory has improved with the passage of time, and he made that the subject of adverse comment in relation to her. But however that may be, it does not help him in proving that Mr Bains received a copy. It may cast doubt on the accuracy of her present recollection, but it does nothing to prove that the witness statement was published to Mr Bains.
17. So we come to the proceedings that led to the strike-out. We have considered each matter raised by Mr Goldman before us and before the judge in those matters. He filed, for the proceedings before us, a witness statement of 31st May, supplemented by one early in June. They basically deal with matters going to argument rather than evidence, and he has developed those arguments before us. There is nothing in any of the evidence or arguments before us that could possibly go to providing evidence in support of what it is necessary for him to prove in this case. Mr Goldman asked us to draw the inference that Mr Bains must have received copies of the witness statements. It seems to me that there is no "must" about it because, for the compelling reasons that Mr Bains set out in paragraph 10 of his witness statement already quoted, it would not have been his practice to get involved in disciplinary proceedings.
18. At the end of the day, there is simply no evidence supporting what Mr Goldman must prove, and there are cogent reasons to support what Mr Bains said in his witness statement. This is a case where there is no case to answer. The appeal stands no chance of success. The judge was quite right in the circumstances to strike it out.
19. There are two separate matters that should also be dealt with. At the hearing of this matter before Master Tennant in October 1998 it became clear that both the regional health authority and, more importantly, the Master himself believed that all admissions of publication had been purged from the pleadings. That was the issue that the Master was considering, and the order he made was clearly related to all such admissions. It emerged at the hearing in April last that, because of mistakes by the regional health authority's legal team, while the intention had been to remove all such admissions and while they had presented the case on that basis, in fact some relevant admissions had inadvertently been left in. Accordingly, that prompted an application to this court to delete them now.
20. Having heard the evidence in relation to this matter, it is quite clear that the original failure to delete had been mistaken. Everyone, with the exception, so he tells us, of Mr Goldman, believed that all had been omitted. Mr Goldman told the court in April that he realised that not all admissions had been removed. He was apparently keeping his powder dry on this point, hoping to impress the jury with it, but he realistically did not submit that he was in any way prejudiced by what he realised had been a mistake. Accordingly, it is clear to me that the interests of justice require that the intent of the first order be made good, namely that all of those admissions be struck out of the pleading.
21. The second point is this. Since the last hearing Mr Goldman has had a new idea. He says that he will, nine years after the events in question, allege slander in relation to exactly the same complaints. This idea has not got off the drawing board yet. For any such application to be made there would have to be fresh proceedings and fresh pleadings. But it is axiomatic that this court does not give general leave to amend in a vacuum: it only gives leave to amend in relation to a text. We have neither application nor draft amendment. The fresh proceedings that would be necessary would have to get past the hurdles imposed by the Limitation Act, and that is not a matter for today either. None of these matters are before us today and we need not consider them further.
22. Accordingly, for those reasons I would dismiss the application, strike out the action against Mr Bains and give leave to get the pleadings into order by striking out the admissions that survived by mistake.
23. MR JUSTICE CARNWATH:I agree entirely with my Lord's judgment and have nothing to add.
Order: application for permission to appeal dismissed; action against Mr Bains struck out; permission to amend pleadings granted; counsel to lodge an agreed minute of order.