England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR LEAVE TO APPEAL

		Royal Courts of Justice Strand London WC2 Friday, 24th May 2002

1. LORD JUSTICE LATHAM: This is an application by Dr. Adoko for permission to appeal against a decision of Gray J of 6th March 2002, in which the judge ordered that the defendant to the proceedings should have summary judgment. In effect, he dismissed the claimant's claim under his powers in CPR Part 24.2. The claim was a claim for damages for defamation arising out of a letter which the defendant had written to an internet server, Freeserve.Com.Plc of 20th November 2001.
2. The background to these proceedings is a long running dispute between the applicant and the Law Society for whom the defendant, a partner in Bindman's, acted at all relevant times. The dispute culminated in a series of industrial tribunal applications by the applicant against the Law Society, in respect of which the Law Society admitted that it had unintentionally indirectly discriminated against the applicant. There were subsequent applications by the applicant to extend the claim to direct discrimination but that was not permitted. Two further sets of proceedings were commenced by the applicant against the Law Society relating to discrimination, both of which were struck out. Ultimately, an order for costs was made against the applicant on 27th October 1997 in the sum of £14,224.
3. The applicant has undoubtedly a deep seated sense of grievance about the way in which he was treated, both by the Law Society and during those proceedings by the defendant. He published a book called "The Most Corrupt British Judges". Chapter 7 was directed to the defendant. He was accused in that document of blackmail and of greed. He was described as a hound and a vulture, and there were other allegations which were clearly capable of being defamatory of the defendant.
4. The applicant published the book, in particular that chapter, on a website using Freeserve.com.Plc. It was on learning that that had occurred that the defendant wrote the letter to which the applicant takes exception. The letter was intended to persuade Freeserve.com.Plc to withdraw from their site the applicant's book, and indeed it did.
5. After having set out in the letter the defamatory allegations made by the applicant against the defendant and asserting that they had caused him distress, the defendant went on to say:

"There is also the possibility that absurd as they are the claims in the book could cause financial damage to Mr. Lewis."

6. It is the applicant's contention that, by describing the contents of the book as absurd, the defendant defamed him. Before the judge, Gray J, the defendant successfully argued that the occasion of the publication of this letter was privileged. It undoubtedly was. The applicant does not seek to suggest otherwise before me today. What he says, however, is that there is material in the documents before the court which could justify an allegation of malice. He refers to the history of the dispute between himself and the Law Society. He refers to the contents of certain letters, in particular letters which have indications that the defendant on behalf of the Law Society could be taking proceedings against the applicant arising out of assertions that he was making, these assertions being similar to the assertions made in the book but dating back to 1995, and in particular a press conference that he held in February 1995. It is suggested that it is clear from those documents, and the way in which the defendant behaved in relation to the industrial tribunal proceedings, that he was acting so as to justify the conclusion that he was motivated by malice, and that, accordingly, the letter to Freeserve.com,Plc, which falls into the same category, was therefore motivated by malice.
7. The material did not impress Gray J as justifying the conclusion that there was anything which could be relied upon by the applicant so as to make good his assertion of malice. I agree that there is nothing in these documents which could support an averment which the court could properly leave to the jury as being evidence of malice. It follows that, on that basis, the applicant has not persuaded me that there is any real prospect of his succeeding on an appeal.
8. He has, however, two further arguments. The first is that under CPR Part 24 the court is required to consider, not simply whether or not the action could succeed, but also whether or not there may be some other compelling reason for the matter to proceed to trial. He submits to me that the fact that the defendant is a solicitor with a well known firm and a part time judge means that the issues raised are of public importance, and it follows that the case is one which should proceed to a jury for that reason. I can see no justification for requiring that the defendant should meet a hopeless claim for the reasons that the applicant has given. I see no reason why the court's time should be spent exploring a hopeless claim. It follows that I can see no compelling reason why the normal course should not follow in the event of the claim itself being manifestly hopeless.
9. Finally, the applicant takes a pleading point, in that he submits that the witness statement of the defendant does not properly put in issue the facts which he intends or would intend, if the matter proceeded, to prove as showing that the claims made by the applicant in his book were absurd. That seems to me to be a misconception. The position, so far as the defendant was concerned, is that his assertion that the complaints by the applicant were absurd is self-evidently one which he was putting in issue by reason of the contents of his statement. An example of the misconception of the applicant is that he criticizes the second sentence, in which the defendant says that he made the statement "serves to set out my recollection of the matters in which I was instructed to conduct proceedings against Dr Adoko". The applicant seems to think that that means that thereafter he is not asserting facts but simply recollection. One has only to state the way in which the applicant has approached it to appreciate that the applicant is wholly in error in believing that what, thereafter, the defendant set out as the history of the matter cannot be treated as evidence of the underlying facts. Of course it can. Everybody's evidence as to past events consists of their recollection of past events. That is the basis upon which evidence is given. Facts are found by the court. It follows, in my judgment, that there is no prospect of the applicant succeeding in the proceedings. There is no basis upon which the matter should proceed in those circumstances and the judge, on the material before him, was fully entitled to conclude that this was a case which should not trouble the court further. I agree, and therefore I dismiss this application.
Order: Application refused.