England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND AN EXTENSION OF TIME

		Royal Courts of Justice Strand London WC2 Monday, 26th March 2001

1. LORD JUSTICE MAY: This is an application by Mr Steinberg, who, I believe, has come all the way from New York, for permission to appeal against an order of Mr Justice Gray made on 26th July 2000 in a defamation action. The application is made quite considerably out of time, but I am not particularly concerned about that because if I thought it was right to give permission I would be inclined to extend time.
2. Mr Steinberg acts in person. It is one of his complaints that the combination of the actions, as he sees them, of the claimants in this case and of orders which the court, including Mr Justice Gray, has made in relation to costs have been responsible for the fact that he is unable to employ lawyers. That is no small part of the complaint that he makes about these proceedings generally and about part of the order of Mr Justice Gray in July 2000.
3. One consequence of Mr Steinberg acting in person is that he has had some difficulty in putting together all the papers. He tells me that has not been helped because some other solicitor has lost a whole lot of papers. I have no doubt that increases the difficulty. I have been able with his help to piece together the essential features, as I see them, of this quite complicated affair. They are as follows. Needless to say, they are very much an outline. I have read and taken into account all the papers put before me (subject to one qualification), but particularly a long witness statement which Mr Steinberg made in amended form on 3rd January 2001 and a long skeleton argument which he faxed through over the weekend and which I had the opportunity of reading this morning. The exception to that is that Mr Steinberg - and he noted a short while ago in what he was saying - handed to me a long witness statement he made in these proceedings in 1999. He asked me to look at it and I have done so. He knows perfectly well I have not read every word of that.
4. The outline story is as follows. The claimants are a substantial firm of solicitors in the City of London. Mr Steinberg - the applicant in this matter this morning and defendant to proceedings - was their former client in a matter whose nature I do not fully know and Mr Steinberg tells me it is not necessary to do so. The claimant solicitors acted for Mr Steinberg in some dispute. There were instructions to counsel to draft proceedings but those proceedings were not drafted and were not launched. It is one of Mr Steinberg's complaints that his instructions were that the proceedings should be in a form that he required. It is, I think, the case that counsel gave an advice. Mr Steinberg says that that was unasked for and ought not to have been paid for. There is a serious dispute in the underlying material as to whether the claimant solicitors did or did not ask counsel to advise. I infer that relations broke down between the solicitors and Mr Steinberg.
5. The solicitors claimed their fees. Mr Steinberg tells me that they said they would not continue to act for him unless their fees to date were paid in full. Fees initially were not paid. The solicitors brought proceedings against Mr Steinberg for those fees. He tells me they obtained judgment in default and that they have subsequently taken steps to enforce that judgment. I gather that is now water under the bridge but it is important background material.
6. Against this background, on 20th February 1998 Mr Steinberg put a document - in the form of a letter to the partner of the claimant firm with whom he had been dealing - on the Internet. The letter, putting it neutrally, complained of the way in which the solicitors had conducted or not conducted his litigation and complained about their fees and attitude towards fees. At the heart was an allegation that the claimant solicitors had intentionally done things which were unnecessary simply to increase their fees. The word "churning" appears quite frequently in the material that is before me. The claimant solicitors did not like this alleged publication so they issued libel proceedings by writ dated 20th July 1998. It is in these proceedings that the present matter comes before me this morning.
7. Mr Steinberg put in a defence. There were interlocutory proceedings, all or mainly in the first instance before Master Ungley. The precise full details are not clear to me but the outline is. The matter eventually came before Mr Justice Gray on 26th July 2000. He was then dealing, among other things, with an application by the claimant solicitors in the libel proceedings for an order requiring Mr Steinberg to provide further information of his defence. Mr Justice Gray in his judgment sets out a bit of the history of the proceedings. He refers to the original defence served in October 1998. He refers to the fact that that defence contained or may have contained a defence of justification and fair comment. He refers to the fact that at that stage there was a counterclaim. He refers to the fact that Master Ungley struck out the counterclaim but gave permission to Mr Steinberg to draft an amended defence. The amended defence was served apparently on 8th March 1999. Between then and October 1999 it appears that the master struck out the proposed defences of justification and fair comment which had been set out in the amended defence.
8. Mr Steinberg appealed against that order. On 27th October 1999 Mr Justice Gray dismissed that appeal. The pleadings in this libel action had reached the stage where there was an amended defence and the defences of justification and fair comment had been struck out. The appeal against that order had failed. It appears that, among other things, a question arose as to the extent, if any, of the true publication of the document which Mr Steinberg had put on his website back in February 1998. Whilst I have not the details, the generality appears to be that this was not a website or document to which all the world had access, and there appears to be a question whether there was any real publication of this document at all. However that may be, the claimant sought further information. It was upon that request for further information that Mr Justice Gray had to make orders in July 2000.
9. It is relevant to record that counsel appearing for the claimant had made clear that the claimant's object was to launch in due course an application for summary judgment under the recently introduced Part 24 of the Civil Procedure Rules. It is to be remembered that before the Civil Procedure Rules came into force there was no provision for summary proceedings to be taken by a claimant in defamation proceedings under the former Ord.14 of the Rules of the Supreme Court. There was an apparent change in that when Part 24 of the Civil Procedure Rules came into force. The extent of that change has recently been considered by the Court of Appeal in Safeway v Tait to which Mr Steinberg has referred.
10. Having considered the matters before him, Mr Justice Gray made the following order. I shall read it more or less in full. He had said that there had been correspondence between the claimant solicitors and Mr Steinberg about the further information. There were a number of versions of an answer to the information and the claimant's position was that the information that Mr Steinberg wanted to introduce was introducing irrelevant or inadmissible material and was not responsive to the request made. Mr Justice Gray records on page 5 of the transcript that -

" ..... Mr Steinberg conceded that much of the information in his responses to the request for information, is not, in truth, responsive to the requests made of him."

11. The order which Mr Justice Gray made was -

"1. The defendant delete from the response to the request for information those parts of the response dated the 28th March 2000 which have been edited out at page 106 and the following pages of the bundle prepared for this application,

2. The response should incorporate the information set out in the further information served by the defendant on the 26th day of April 2000. He must incorporate information at 2 (a) in his answer to paragraph 2 (a) of the request as given in his initial answer of the 28th day of March 2000. The same applies to information at 2 (d),

3. The defendant identify, in addition all persons who he knows to have been given the URL of the web page in question and that he state when and how such persons were given that URL."

12. I interpose, that is a matter of identifying the persons to whom the document was published.

"4. Unless the defendant complies with paragraphs 1 to 3 above of this order by 4.00 pm on the 23rd day of August 2000 the defence be struck out and the claimants be at liberty to enter judgment for damages, interest and costs to be assessed,

5. The defendant do make an interim payment of 25% of the claimant's schedule of costs (£6,768.00) being in the sum of £1,692.00,

6. The balance of the schedule of costs in the sum of £5,076.00 be reserved,

7. The defendant's application that The Honourable Mr Justice Gray be recused from hearing today's application be refused,

8. The defendant's application for permission to appeal the judge's decision not to recuse himself from hearing today's application be refused."

13. The judge had heard Mr Steinberg's application to which those last orders relate at an earlier stage in the proceedings and, in short order, he refused to recuse himself. He referred to a witness statement Mr Steinberg had made and said he was satisfied that no sufficient reason had been shown why he should recuse himself. He said:

"It is quite apparent that Mr Steinberg disagrees with the decisions I arrived at, when this matter was last before me in, I think, October of last year. But that cannot, of course, justify an application being made [to] me to recuse myself, in order to give the litigant a better chance in front of a different tribunal."

14. Mr Steinberg's notice of appeal refers only to the application to recuse to which Mr Justice Gray did not accede. Mr Steinberg's skeleton argument this morning says that what he wants to do - or in addition - is to be allowed to appeal against the whole of Mr Justice Gray's order. Mr Steinberg has told me that what he wants to be able to do is to appeal against the whole of that order and, if he succeeds in doing so, he wants the matter sent back before another judge. Although the form of the notice of appeal refers only to the application to recuse, it is fair to say that subsequent parts of it indicate inferentially that it is the substance of the order with which Mr Steinberg is concerned.
15. The witness statement that Mr Steinberg had made and his long and detailed skeleton go into a lot of discursive detail. I have read both of them. The essence of what Mr Steinberg says is as follows. First, Mr Justice Gray was not impartial. Mr Steinberg gives a lot of details in support of this. He refers to the judge hectoring him, as he would have it, when making submissions. He refers with a lot of details to the judge, as he would have it, twisting words and expressions that Mr Steinberg had used to mean things not intended. He referred to findings of fact which he says were unsupported by the evidence. There is much reference in both these documents to the earlier litigation which I have summarised.
16. As to the background of the decision Mr Steinberg wants to appeal, one of his main points is that he submits he is entitled in this defamation action to have matters decided by a jury. He refers to Safeway v Tait. He refers to what he calls an inalienable right to have these matters decided by the jury. What Safeway v Tait actually says is that in defamation cases the parties are entitled to a jury trial on those matters which in a libel action are for the jury to decide. One of the matters which is certainly not for the jury to decide in libel proceedings is the orders that a judge should make in anticipation of a trial to get the pleadings in order. That, essentially, in my estimation, is what Mr Justice Gray was doing here. Mr Steinberg says it was a spurious application in the first place, designed, among other things, to generate costs which he would be ordered to pay, that the claimant was wasting time and that the order that was made was, to use his phraseology, a grossly inequitable order. In particular, the costs orders were inequitable because they prevented him from being represented. Additionally, he submits that the unless order part of Mr Justice Gray's order had the effect of enabling the claimant to obtain summary judgment in these libel proceedings when they ought not to have been entitled to do so.
17. Mr Steinberg says he reckons that he complied with the order to file further information. He tells me - this matter is not in detail before me - that notwithstanding that the claimant obtained what he understands was, in effect, summary judgment on the basis he had failed to do so. That matter is not before the court this morning.
18. The best summary perhaps of what Mr Steinberg says appears in the witness statement. He says:

"In conclusion, it is often said that justice ought not only to be done by British Courts but it also ought to be seen to be done. Under the circumstances the Appellant Defendant had a right in a defamation matter to have his case heard before a jury and the learned judge was wrong in law to Order that this Appellant be deprived of that right merely if the Claimants could interpret that he has not properly fulfilled Claimant-defined terms in that Order. In addition the hearing was sufficiently clouded by suspicion of partiality that it cannot be said that justice was either done or was seen to be done and as such the order ought to be quashed; the costs Order or orders reversed; and the case ought properly to be passed over to another Justice of the Queen's Bench Division."

19. The skeleton submission says much the same thing with liberal reference to the over-riding objective.
20. Mr Steinberg repeats that, according to him, Mr Justice Gray was not willing to examine in detail facts of the way in which the matter had come to the point that it had. He submits that in those circumstances additionally the order that was made was unfair.
21. In my judgment, this is an application which I must refuse. I think that Mr Steinberg is correct that the main burden of the application must concentrate on the order that Mr Justice Gray made. The application for permission to appeal in relation to his refusal to recuse himself is a part only of that. If the order in its other manifestations fit to be examined by the Court of Appeal and the appeal were to succeed, there would be little problem if the court thought this was right in directing that the matter go back before a different judge. The essential point is whether the substantive part of the order is one upon which one should give permission to appeal.
22. On the matter of Mr Justice Gray not being impartial, I have to say that, in my view, Mr Steinberg has demonstrated no proper basis on which the case management order of 27th July was wrong. They were simply orders designed to require Mr Steinberg to answer in due form what, in my view, were proper requests for information. The judge was entitled, indeed I think bound, to exclude material which was not responsive to the request and which was, as I think importantly, on the face of it, introduced in support of defences which had been struck out, the striking out against which the appeal had failed.
23. I do not think Mr Steinberg makes any case that Mr Justice Gray was not impartial. Lack of impartiality is not established against a judge simply by the assertion of a litigant who has had orders made that he does not like. It can only be done by reference to the content of what was done and the way in which it was done. The material before me - apart from Mr Steinberg's pure assertions, and I do not think it is right to proceed on those assertions alone - does not begin to establish that Mr Justice Gray was not impartial.
24. The principal reason on which I refuse Mr Steinberg's permission is that, in my view, there is nothing he has demonstrated to show that these case management orders were wrong. They were proper orders designed to get the pleadings in the case in order. In addition, it was open to the judge to make an unless order in the circumstances of the case. A court is always in a position to impose sanctions if sanctions are appropriate and all Mr Steinberg has had to do in order to proceed is to comply with the order. He says he did so. It may be things have taken a different turn but that different turn occurred on a different occasion and that matter is not currently before me.
25. For these reasons the application is refused.
Order: Application refused