England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE GRAY)

		Royal Courts of Justice Strand London, WC2 Thursday, 10th October 2002

1. LORD JUSTICE TUCKEY: This is an appeal (with the permission of Lord Justice Aldous) by Mr John Pepin who is the claimant in these libel proceedings from two decisions of Gray J made at a case management conference in the High Court on 20th May 2002. Firstly, he gave judgment under CPR Part 24 for the respondent, Mr Taylor, on his counterclaim and, secondly, he upheld Master Foster's decision to transfer the case to the Leicester District Registry.
2. Mr Pepin claims that he was libelled on a number of occasions by Mr Taylor in Newsgroup messages posted on the Internet. The trigger for the alleged libels appears to have been a message from Mr Pepin suggesting that children were being bullied at Woking High School. Mr Pepin complains of Mr Taylor's response to this and later messages. These messages with which this case is concerned emanated from Mr Taylor's e-mail address, roger@volney.freeserve.uk, and were signed "Roger T".
3. Mr Taylor's counterclaim arose out of a message in this exchange from Mr Pepin on 14th November 1999 which said:

"Funnily enough the Police also seem to know you, seems you've been in prison more time than out. And what about that Psychiatrist you were looking for in your post, did you find them. I guess not.

Anyway I have better things to do than argue with an insane ex-prisoner and I'm off on holiday today."

These words were said to be understood to refer to Mr Taylor because he could be identified from his e-mail address and way of signing for a number of reasons which are pleaded in the counterclaim, which basically says that he used both his e-mail address and his full name in many communications with his friends, acquaintances and fellow members of the educational hierarchy. He is a teacher.

4. In his defence to this counterclaim Mr Pepin admits that he published the words complained of but denies that they identified Mr Taylor, who is put to proof of the matters he relies on. Alternatively, the defence says that the allegations were true or justified in defence of Mr Taylor's libels on him.
5. By the time of the case management conference before Gray J both parties were acting in person and the judge was faced with the task of trying to bring about a trial which was manageable. He sensibly pruned Mr Pepin's claim, about which there is no complaint. He then turned to the counterclaim and questioned Mr Pepin about his assertion that the words complained of were true, the upshot of which he records in his judgment as follows:

"I enquired of Mr Pepin what was the factual basis for those allegations. Mr Pepin conceded that it may have been that Mr Taylor was looking for a psychiatrist not for his own treatment but for treatment of a friend. It is in my view plain that Mr Pepin has no basis for any allegations concerning Mr Taylor's sanity.

Similarly, in relation to the allegation that Mr Taylor is an ex-convict, Mr Pepin admits that he made that allegation in an attempt to undermine him. There is therefore no possibility, as it appears to me, of any substantive defence of justification succeeding."

I pause there to say that nothing which Mr Pepin has put before us or said this morning persuades me that the judge was wrong to reach this conclusion.

6. The other point which the judge discussed with Mr Pepin was whether Mr Taylor was identified. In the course of this discussion the judge referred to a draft writ which had complained of the libels which are the subject of these proceedings which Mr Pepin had sent by e-mail to Mr Taylor. In the course of the discussion about this writ, Mr Pepin volunteered to the judge that, although he had not put the writ on the Newsgroup message board, someone else, whom he suggested was Mr Taylor, had and so it had got into the public domain in that way. What he did not say to the judge at the time was that the draft writ did not actually name Mr Taylor as Mr Roger Taylor, but simply identified the defendant as roger@volney and so on; that is to say by his e-mail name. So in fact the writ would not have given any further information than the e-mail messages themselves. This point only emerged in discussion with Mr Pepin this morning.
7. In his judgment on this aspect of the case, however, the judge said:

"The point that Mr Pepin took when I indicated to him that I was minded to consider an application to strike out his defence to the Part 20 claim, pursuant to Part 24 of the CPR, was to argue that Mr Taylor was not identifiable in the publication complained of. That appeared to me to be a proposition with no realistic prospect of being accepted by a jury, not least in the light of Mr Pepin's case that millions of readers have access to the postings on the Web.

Moreover, it emerged in the course of discussion that a writ or a draft writ naming Mr Taylor had been posted on the Newsgroup Web. It does not matter, for the purposes of the law of libel, who posted the writ. The fact is that Mr Taylor was identified. Whilst I readily accept that there may not have been many who were able to identify Mr Taylor as the person said to be an insane ex-prisoner, I am quite satisfied that there would have been some. It follows that there is in my judgment no real prospect therefore of Mr Pepin successfully defending the part 20 claim, save as to damages."

As to damages the judge had made it clear in the course of his discussion with Mr Pepin that the points that he was raising about identity could be taken in the context of any dispute about damages, since if very few people had identified Mr Taylor that would obviously go to damages. In this context it would also be open to Mr Pepin to make the point which he makes to us this morning that Mr Taylor has used a number of different e-mail addresses when posting messages on the Internet.

8. On this appeal Mr Pepin complains that he was given no warning that the judge was proposing to take the course he did. Mr Taylor was not present or represented at the hearing. It is clear from what I have already said that the judge was mistaken about what the draft writ said. Mr Pepin says that if he had notice of the judge's intention to give summary judgment against him, he would have been able to bring this and other points out before the judge so that the judge would not have proceeded in error. He submits that it was only his misunderstanding about the draft writ which caused the judge to give judgment in the way that he did.
9. I do not think the judge can be criticised for dealing with the counterclaim in the way he did. This case cried out for case management. The rules allow a judge to do what Gray J did. If the judge thinks there is no real prospect of a claim succeeding, he ought, when exercising his case management powers, to dismiss it summarily: see CPR Part 1.4(2)(c) and paragraphs 5.1 and 5.2 of the Practice Direction to CPR Part 26. In the course of his discussion with Mr Pepin the judge made it clear what it was that he was intending to do and yet Mr Pepin, who is an experienced litigant in person, did not ask for an adjournment or indicate that he found himself in any difficulty in dealing with the points which the judge put to him. I can confirm that Mr Pepin is articulate, quick thinking and clear. That also comes out of the transcript.
10. The question then is whether the judge was right to decide the identity issue summarily in the way he did, given that he was mistaken through no fault of his own about what the writ actually said.
11. I think it is clear from the passage of the judgment which I have cited that the judge gave two reasons for his decision. The first of those clearly has nothing to do with the writ since the passage in which he deals with the writ starts with the word "moreover". The judge's first reason is convincing. The summary judgment does not result in any real injustice to Mr Pepin since, as I have already said, it will still be open to him to argue that Mr Taylor was identified to so few people by the words complained that he should receive minimal damages. That disposes of Mr Pepin's complaint about summary judgment.
12. The Master transferred the case to Leicester on an application by Mr Taylor supported by a signed statement of truth which said:

"In defence of this claim I have exhausted all of my savings, have borrowed heavily and am unable to earn sufficient to cover my debts. I can no longer afford the services of a solicitor.

I own no house nor other significant property or capital. ...

I work as a temporary supply teacher. This allows me to leave a school at once without causing contractual problems and minimises the potential harm such revelations could have for a school. Supply work is, by its nature, irregular and I have not earned sufficient to cover my debts in the past year. This situation is likely to continue for the duration of this case.

To attend Court in London will either require that I travel daily or stay in overnight accommodation. Not only will this attendance mean that I am unable to earn an income for those days but will also incur the travelling and overnight costs. Such costs are totally outside my ability to pay.

I therefore respectfully request that this case is dealt with in a Court in or near Leicester so that I am able to afford to attend hearings."

13. The Master in a subsequent letter said the reasons for his decision were that it was:

"... much more convenient for the Defendant, (who lives in the Leicester area) who has difficulty in attending hearings in London because he is a supply teacher who is offered a few days work at a time and cannot teach on all days offered on each occasion and because it is expensive for him to travel to London for interim applications."

14. Mr Pepin appealed the Master's decision. In support of this appeal he produced a witness statement which is dated 12th February 2002, in which (and I summarise) he asserted that in a number of respects Mr Taylor was lying about the inconvenience and difficulty which he had referred to in the statement which I have quoted.
15. Gray J first of all reminded himself that the appeal was by way of review of the Master's decision, a decision which involves the exercise of discretion. Having regard to the factors set out in CPR Part 30.3, which Gray J set out in his judgment, he continued:

"I have read Mr Pepin's witness statement, as well as his reasons for seeking to appeal Master Foster's order. I have also read the grounds of opposition to the appeal which have been put forward by Mr Taylor.

The sad fact of this case is that not only is Mr Pepin impecunious -- and according to a medical certificate dated 30 April 2002, currently suffering from depression -- but so too is Mr Taylor impecunious. Moreover, Mr Taylor is, according to a fax he sent into the court over the week-end, suffering from a severe depressive illness which is being treated by chemotherapy. He says also that his wife is suffering from cancer and that she is unlikely to be able to work for much longer. He says he has been ruined by these proceedings. He gives further reasons which in effect support the decision to which the Master came.

I have to consider and review the way in which the Master weighed the rival considerations in the balance. The Master was plainly impressed by the fact that it was much more convenient for Mr Taylor that the trial take place in Leicester. He lives in the Leicester area. He has difficulty attending hearings in London because he is a supply teacher who is offered a few days work at a time and is required to teach on all days offered on each occasion. It is expensive for him to travel to London for interim applications. It appeared to the Master that the difficulties confronting the claimant were less."

Then Gray J says:

"I find it impossible, carrying out my review function, to say that the Master erred in principle or that he was plainly wrong in the way that he exercised his discretion."

16. In granting permission to appeal Lord Justice Aldous said:

"... before the judge there was extra evidence put in by Mr Pepin which threw doubt upon the veracity of the statements made by the defendant. The judge did not refer to that evidence and appears not to have taken it into account. In those circumstances, I believe it right that this court should review the matter upon the basis of the totality of the evidence that was before the judge."

However, it is clear from the passage I have quoted that Gray J did consider and take into account the statement from Mr Pepin because that is what he says. So, with respect, Lord Justice Aldous was wrong about this.

17. Be that as it may, Mr Pepin has argued this morning that it was nevertheless wrong for the Master to have transferred this case to Leicester. The proceedings had gone on for 18 months in London without objection from Mr Taylor, during which time he had been represented by solicitors who have incurred substantial costs which, if Mr Pepin is unsuccessful in the proceedings, he will be expected to pay. It is now, Mr Pepin says, too late for Mr Taylor to turn round and say, "I want the case in Leicester." It is inconvenient for Mr Pepin to go to Leicester because he, as the judge records, is impecunious. Mr Pepin also says that all the witnesses who are likely to be called at this trial live down south, so Leicester is not a convenient forum.
18. I do not accept these submissions. The Master had a discretion to exercise. The fact that the defendant lives in Leicester is a strong reason for the court fixing a venue of the defendant's convenience, since he has not chosen to be sued. The fact that he has counterclaimed to some extent detracts from this consideration, but not much since it was Mr Pepin who started these proceedings and he complains of many libels.
19. The Master had a balancing act to perform, as the judge records. I can see nothing to indicate that the Master erred in principle when exercising that discretion or that the judge did so when reviewing it in the way that he did.
20. For those reasons I do not think that this court should interfere with the decision to transfer.
21. For the reasons I have given, I would dismiss this appeal.
22. LORD JUSTICE LONGMORE: I agree. All the matters about which Mr Pepin complains in relation to the decisions of Gray J made at the case management conference have been very fully covered by my Lord, and I do not wish to add anything of my own.

ORDER: Appeal dismissed with costs assessed in the sum of £100.

(Order not part of approved judgment)