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 QUEEN'S BENCH DIVISION
(His Honour Judge Previte QC)

		Royal Courts of Justice Strand London WC2 Tuesday, 5th March 2002

Tuesday, 5th March 2002

1. LORD JUSTICE BUXTON: This is an application for permission to appeal by the applicant Mr Ralph Wallis (who acts in person, as I think he has done throughout) against two orders made by His Honour Judge Previte QC, sitting as a Deputy Judge of the Queen's Bench Division, in libel proceedings that Mr Wallis brings against three defendants, all of whom are called Valentine. They are in fact husband and wife and son.
2. His Honour Judge Previte QC made two orders on 5th December 2001. First of all, he gave summary judgment pursuant to Part 24(2) of the Civil Procedure Rules 1998 against the claimant in respect of a question raised in paragraph 7 of the particulars of claim:

"... and further on about the same date and with express malice, published the said affidavit to other persons..."

3. Secondly, he ordered the whole of the particulars of claim to be struck out pursuant to Part 3.4(2)(b) of the CPR and, as a result, for judgment to be entered against the claimant.

Part 3.4(2)(b), as will be recalled, deals with where the court considers that the statement of case is an abuse of the court's process.

4. I do not intend to go into the background of this matter in any detail. It is very well set out, if I may respectfully say so, in the judge's judgment. There has been a long unfortunate history of dispute between Mr Wallis, on the one hand, and the Valentine family on the other. The present claim alleges libel in three documents, a letter dated 28th April 2001, a letter dated 12th July 2001 and an affidavit, sworn by Mr John Valentine, the second defendant, which was sent under cover of the second letter of 12th July 2001. The letters were addressed to the claimant and to a Miss Grenegh, who is Mr Wallis's partner and at all material times has lived with him at 39 Russell Square, Brighton. The second and third defendants, husband and wife, lived at 38 Russell Square, an adjoining property, and it is from disputes amongst neighbours that the present action arises.
5. The claim that the proceedings were an abuse rested upon two separate limbs. The first was that Mr Wallis was not pursuing the matter to vindicate his reputation, but out of malice or for the dominant purpose, as the judge found, of causing further harassment and expense to the defendants. The judge in particular drew attention to and relied on a letter that had been written by Mr Wallis in 1999 to Mr Valentine's then solicitor after there had been extensive right to light litigation between the parties, in which Mr Wallis stated:

"It may be that after this process is partially or fully implemented that I will need to seek leave to approach the court again. The particulars of claim will be long, they may well be well drafted. I am impecunious and you may not recover your costs, if any. I may well represent myself. I will then embark upon a period of sustained and extensive litigation."

6. That is said to be the motivation. The second limb of that complaint, either a cumulative or an alternative reason why the case should be struck out, was and is that the actual damage to Mr Wallis's reputation caused by the alleged publications, even if they were in fact in technical terms defamatory, would be very slight. The reason for that contention was that the only publication that Mr Wallis could apparently establish was to his partner, Miss Grenegh. The allegedly libellous matters related to the lengthy history of disputes between Mr Wallis and the Valentines to which I have already referred, and which are set out in the judge's judgment.
7. It is therefore said that it could not materially affect Mr Wallis's position that such letters had been written to a lady who was already, as it was contended, well aware of the history and circumstances, and had indeed, as the judge was prepared to assume, been involved in those matters to the extent that she apparently had financed some part of the pursuit of them.
8. In order to know whether that contention was well-founded, that is to say that there had been only very limited publication, consideration had to be given to Mr Wallis's claim that the affidavit had not only been published to Miss Grenegh but also to "other persons". The facts that Mr Wallis is able to assert in respect of that claim are limited or non-existent. He was asked by the defendants, as set out at pages 3 and 4 of the judge's judgment, to say to whom it was he referred; and he replied by raising issues as to the identity of the new owner of the Valentine House Hotel, which is the premises at 38 Russell Square, Brighton, previously occupied by the Valentine family. The judge was satisfied, on evidence put before him that he sets out in paragraphs 4 and 5 of the judgment, that there had been no deceit about the identity of the owner, and that in the course of the transaction selling the hotel, although it had been necessary to inform the new owners of the existence of this neighbour dispute, they had not been shown the affidavit complained of. Apart from that, Mr Wallis has claimed, as he did before me after being questioned on the matter, that in due course either further information may be forthcoming demonstrating that the judge was wrong about that; or it may become apparent, contrary to the contentions of the defendants, that other persons have seen this affidavit apart from Miss Grenegh.
9. The judge decided, as he was asked to do, to determine that question of fact, that is to say whether there had been a publication to other persons, under Part 24 of the CPR. He concluded, at page 18 letter A of the judgment, having earlier set out the facts and then reverted to what he had been told about the ownership of number 38:

"On the issue of the extent of publication of the affidavit, my view is that Mr Wallis has no reasonable prospect of establishing that the affidavit was published to anyone other than Miss Grenegh. That issue should, in my view, be determined now. I give summary judgment for the defendants on that issue under CPR 24.2. I see no compelling reason why that issue should proceed to trial."

10. Mr Wallis contends in his grounds of appeal, and has carefully and fully repeated before me today, that it was not open to the judge to make that determination under Part 24(2). He says that that follows from the combined effect of two cases in this court of recent vintage, Safeway Stores v Tate [2001] 2 WLR 1377, and Alexander v Arts Council of Wales [2001] EWCA Civ 514, which I understand so far not to have been reported.
11. In Safeway this court had to decide whether it had been open to a judge to dismiss an entire claim in libel under paragraph 24. The objection to that course was seen to be the terms of section 69 of the Supreme Court Act 1981, which holds that, where on the application of any party to be tried the court is satisfied that there is an issue or claim in libel, the action shall be tried with a jury. This court decided that that provision, section 69, could not be set aside by the terms of rule 24 of the Civil Procedure Rules. Otton LJ said this, with the agreement of the other members of the court, at page 1386 letter D:

"In my judgment, the right to trial by jury, and in particular to have the jury determine the question `libel or no libel' is not a matter of mere procedure, but an important and substantive legal right. As such it is beyond the power of the Civil Procedure Rules Committee to abolish or limit by its general powers to reform the rules of practice procedure."

12. In other words, as the Lord Justice went on to say, rule 24 does not override the specific provisions of section 69 of the 1981 Act. I will come back to that case in a minute. But it was regarded as binding on this court in Alexander. May LJ said in general terms of Safeway in paragraph 39 of Alexander:

"Safeway v Tate is thus a decision binding on this court to the effect that, if there is a material issue of fact in a libel case, section 69 of the Supreme Court Act 1981 entitles a party to have that issue decided by the jury. It is, however, for the judge to decide whether there really is such an issue."

13. The Lord Chief Justice said this at paragraph 59:

"CPR 24 does not and should not be regarded as giving a right to summary judgment in a defamation case where there are issues fit to be placed before a jury. In saying this, I am reflecting what Otton LJ said in Safeway v Tate."

14. In Alexander the judge had, after hearing the evidence, removed the case from the jury because he held that there was no issue that the jury could properly consider. This court held that, despite Safeway v Tate, it was open to the judge to take that course. In other words, the matter was prima facie one for jury trial, but if no jury could come to a conclusion other than in one direction, it was not right that the question should be submitted to them: because, I would say as a gloss of my own, any decision contrary to the judge's estimation would have been perverse. Mr Wallis, however, points out that that is not this case. First, the effect of Judge Previte's decision under Part 24 was the question of publication or no. That never reached the jury at all. Second, Judge Previte does not appear to have said in terms that no jury could have concluded otherwise than in the terms that the judge himself concluded. So, Mr Wallis says, and I accept, the actual decision in Alexander is of no direct assistance in the present case.
15. I revert to Safeway v Tate. I must say that I have substantial doubts as to whether the decision in that case, broadly expressed though it is, touches the issue in this case. That is because, without setting it out in detail, it is plain that Otton LJ, when speaking of the primacy of jury trial in a libel case, had principally in mind, and very firmly in mind from a constitutional point of view, that the principal question in a jury trial is whether a publication was in fact libellous, that is to say the question of libel or no libel. He emphasised that in his reference to Neville v Fine Art & General Insurance Company that is to be found at page 1385 letter E of the judgment. He mentions that in particular at page 1386, letter D, in the passage that I have already cited, and he also makes that same point three times on page 1387 at letter E, at letter F (quoting the word of Lord Morris of Borth-y-Guest in James v Skeleton), and at letter H on page 1387.
16. All that said, however, the question for me at this stage is whether it is unarguable that the judge was precluded from making the decision on the question of fact as to publication that he did under Part 24 of the CPR: bearing in mind, of course, that he did not have the benefit, as I understand it, of having any of the authority that was put before me. I do not think it is open to me to say, in view of the general statements that are to be found in the two authorities that I have referred to, that it is unarguable that the judge was wrong in his view with regard to Part 24. I bear in mind in particular, and having emphasised the background of Safeway Stores v Tate, the fact that, in the passage that I have already cited at page 1386 D, Otton LJ regarded the determination by the jury of libel or no libel as a particular example of the right to trial by jury, that cannot be taken away by the Civil Procedure Rules; and not as the whole extent of the issues affected by that right. I also have to note the general terms in which both May LJ and Lord Woolf CJ expressed themselves in Alexander in passages that I have already cited.
17. The present case is, of course, unusual, not only because it concerns a question of fact as to whether there had been publication, but also what, I have to say, is the extremely unsatisfactory position as to whether there is any issue of fact to argue about at all. That is because of the difficulty that Mr Wallis has had in substantiating, other than in the most general terms, the allegations of publication to others. When the judge in this case said at 18 B (the passage already cited)

"Mr Wallis has no reasonable prospect of establishing that the affidavit was published to anyone other than Miss Grenegh"

he, in my judgement, came very close to saying that no jury on the material that was before the judge could possibly so determine. But he did not say that in terms, and it may be that in the light of the dicta in Alexander and the decision in Safeway Stores that that is what he needed to say.

18. With some hesitation, therefore, I give permission to Mr Wallis to appeal against the judge's entering of summary judgment under Part 24(2), that is to say paragraphs 1-3 of his present grounds of appeal. I have already indicated that I see very considerable difficulties in Mr Wallis's way, not only on the issue of the proper reach of Safeway Stores, but also on how that case, even if it were to be held to apply to these facts, could in fact be properly used by Mr Wallis to resist an order in the terms that the judge was minded to make. Nonetheless, because of the strong and general terms in which this court has expressed itself in relation to the use of Part 24 in defamation cases in recent months, I consider that this is a question that should be considered fully by this court, and should not be determined by me as unarguable.
19. I then turn to the striking out of the particulars of claim under Part 3.4(2)(b).
20. On the material before him and on the facts he had found, I am entirely satisfied that the judge was right to strike that claim out. He was entitled to find, particularly on the basis of the correspondence that I have referred to, that the matter had been brought for the purpose of causing harassment and expense, and that the publication to Miss Grenegh was unlikely to have resulted in harm to Mr Wallis's reputation. That is what the judge concluded at page 22 B of the decision, and I would go so far as to say that, looking at law of libel, one has to distinguish rather carefully between technical publication of a libel, and a publication that is likely to have actual detrimental effect upon the reputation of the person in respect of whom the publication is made: which of course is the basis of liability in libel.
21. I do not feel able to say, however, that the view that I take on the claim as it was before the judge overrides the question of summary judgment on part of the Part 24 claim. The reason for that is this. It was an element in the judge's decisions, as he clearly sets it out, and it is an element in my own consideration, that there had been no publication to anyone other than Miss Grenegh, which is what the judge found in his decision under Part 24. Should the Court of Appeal be of the view that the judge was not entitled at this stage to take that view under Part 24, then (but, in my judgement, only then) it would be open to it, if so minded and if so persuaded, to review the basis upon which the judge approached his decision under Part 3.4 with a view to seeing whether that should be reconsidered.
22. In order to maintain that position therefore (but, I emphasise, only for that reason), I give permission to appeal in respect also of paragraph two of the judge's order, that is to say that the particulars of claim should be struck out. But I emphasise, to assist Mr Wallis and the respondents, and also the court hearing this case, that in my view - and of course it is open to the Court of Appeal to take the different view - complaint can only be made of the striking out if the judge was held to have been wrong in his findings under Part 24 of the Civil Procedure Rules. It would therefore be appropriate in my view (which again is not necessarily going to be that of the Court of Appeal) to deal with the Part 24 question first before going on to the question of strike out. I would also add that, so far as the question of strike out is concerned, the fact-finding and assessment made by the judge were in my view for him, and are not ones with which this court would interfere.
23. I make it plain that I give permission in respect of the Part 3 order only on the basis that the appeal succeed in respect of the Part 24 of the order.
Order: As above. Copy of the judgement to be provided to Mr Wallis at public expense. Mr Wallis will within 14 days file notice of this order and a copy of the Appellant's Notice upon the respondents. The case should be heard by a court of three with a time estimate of 3 hours. I order that paragraphs 3 to 5 of Judge Previte's order be stayed pending the hearing of this appeal or until further order with liberty to the defendants to apply to this court.