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
QUEEN'S BENCH DIVISION
(MR JUSTICE EADY)

		Royal Courts of Justice Strand London, WC2
		3rd March 2005

1. LORD JUSTICE SEDLEY: This is an appeal brought by permission of Eady J against that judge's decision to give summary judgment against the appellant, pursuant to sections 8 to 10 of the Defamation Act 1996. Mr Steinberg's grounds of appeal are, in brief, that the judge was wrong in principle to entertain an application for summary judgment against a defendant who was without the funds to instruct counsel and was too unwell to attend on his own behalf.
2. It is not necessary to set out the intervening history of the appeal. It is listed today for hearing, over 20 months after the decision in question and following a succession of adjournments. Mr Steinberg, a member of the bars of England and Wales and of the state of New York, who lives principally and practises in New York, is not present. Nor is he represented.
3. He has, however, made the court fully aware of his case in lengthy correspondence. It is not necessary or appropriate to reproduce it in this judgment. From it, however, two grounds can be discerned, for, in Mr Steinberg's contention, not proceeding with this appeal today in his absence.
4. One ground is that he had been led, he says, by the Citizen's Advice Bureau located in this building to believe that they had arranged pro bono representation for him. For my part I am not prepared to accept this without some proof beyond Mr Steinberg's assertion that it is so. But, in any event, by the 22 February 2005 Mr Steinberg was writing to the Civil Appeals Office that he knew that he would be unrepresented today. That being so, he has had it within his power to attend on his own behalf and has not done so. I say that he has had it within his power because there is not, as there was at an earlier stage, any medical evidence that Mr Steinberg is at present unfit to conduct his own case. He writes, credibly, that he is under great stress. But he is a professional barrister and attorney, and for my part I do not accept that he cannot conduct his own case in this court.
5. The other ground is that Mr Steinberg considers that the state, through the Legal Services Commission, is required by Article 6 of the European Convention on Human Rights to afford him public funding for representation on this appeal. He has been fortified in this view by the recent decision of the European Court of Human Rights in Steel and Morris v the United Kingdom, application number 68416/01, judgment given on 15 February 2005. In that judgment the court held that the principle of equality of arms had been violated by leaving two impecunious and inexpert defendants to fight a liable action, which ran for two years in court, against a well-funded and expertly represented claimant. Mr Steinberg considers that the same applies to him in these proceedings and has written to the Legal Services Commission to say so. The Legal Services Commission has replied to him, somewhat opaquely, that it has noted his letter and filed it.
6. Meanwhile Mr Steinberg had lodged a petition with the European Court of Human Rights dated 5 April 2004. That court has helpfully today copied to this court, by fax, the official letter of notification to Mr Steinberg, dated 5 October 2004, of the outcome of his application. The material paragraph reads:

"In light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court found that they did not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols."

7. What therefore matters for present purposes is that there is no visible prospect of public funding in this appeal and no indication that the Legal Services Commission is under a legal obligation whether under domestic or Convention law to provide it. The Steel and Morris case gives no support to the view that the Convention requires legal aid to be generally available to libel defendants, and there is a world of difference between Mr Steinberg's situation and that of the petitioners in Steel and Morris.
8. In these circumstances there are, in my judgment, no good grounds for adjourning this appeal. Doing so would offer no realistic prospect of Mr Steinberg's appearance on a future occasion, whether in person or by counsel.
9. The court, however, has written submissions from Mr Steinberg. Although he will not be in a position to reply to any arguments of the respondents, and the court will not have all the assistance it might have in forming a judgment, it is apparent from his email that he wishes the appeal to be determined if it is not adjourned. This I therefore propose that we should do.
10. The entirety of Mr Steinberg's written argument relates not to the appropriateness of using sections 8 to 10 of the Defamation Act 1996 at the point at which it was used, nor therefore to what principally prompted the judge to give permission to appeal, but to the injustice of doing so when he was neither present nor represented and had been unable through lack of funds to file expert evidence in his defence.
11. Eady J had already adjourned the claimant's application for summary judgment from 17 February to 6 May 2003 to enable Mr Steinberg to complete his evidence, and from 6 May to 18 June 2003 in order to allow him to put in further evidence about his medical and financial situation. In the second instance he had followed the decision of this court in Teinaz v London Borough of Wandsworth [2002] EWCA Civ 1040.
12. On 18 June 2003, Eady J give a fully reasoned judgment. Since the present judgment is not, in the circumstances, going to be a source of law for any purpose, it is not necessary to do more than to incorporate Eady J's judgment by reference to its neutral citation [2003] EWHC 1461 (QB).
13. The judge had before him a further medical report recommending that Mr Steinberg should "stay away from the legal battle for another four to six months": in other words, as the judge said, the avoidance of finality could continue indefinitely, since the source of the medical problem was the stress of the litigation itself.
14. Eady J then turns to the merits of the defence. He recalled that he had expressed scepticism on an earlier occasion about the prospect of negativing publication, and noted that nothing had since been produced which laid his scepticism to rest.
15. The judge was satisfied from the considerable volume of correspondence being conducted from the United States by Mr Steinberg that he was entirely capable of presenting his own case either in person or in writing, and that the written submission and materials which he now had did not make out a tenable defence. He did not accept - and in this events have borne him out - that public funding was a true possibility. He therefore entered summary judgment and went on to give directions for the disposal of consequential matters, most particularly the assessment of damages.
16. In none of these respects does it seem to me that Eady J can be faulted. He was fully entitled to conclude on the basis of the material before him that, in the words of section 8, there was no defence which had a realistic prospect of success and that there was no other reason why the claim should be tried. I do not accept Mr Steinberg's written submission (a) that his unavailability made it premature to reach such a conclusion, and (b) that the only way to avoid a breach of Article 6 was to allow the claim to go to trial.
17. The first argument assumes that Mr Steinberg's indefinite unavailability was a ground for adjournment; but the judge had correctly dealt with this and had held that it was not. The second assumes that a fair hearing can only take place at a full trial; but there is no reason to think that a proper provision for summary disposal of a claim to which no realistic defence has been advanced falls foul of Article 6.
18. One further argument put forward by Mr Steinberg is that it was wrong to give summary judgment when the claimants had been abusing the process of the court and stacking up costs orders against him. Abuse of process falls to be dealt with as and when it is drawn to the attention of the court. It is not an answer to a claim for summary judgment if the claim is otherwise well-founded.
19. The mounting costs orders were nonetheless of concern to the judge. He said:

"I am bound to say that it seems to me that a great deal of money has been expended, no doubt disproportionate to any possible gain from these proceedings, and any damages that may ultimately be awarded may well fall significantly short of the £10,000 maximum. But nevertheless the proceedings are in existence. The claimants wish to pursue them and they are entitled to finality."

In the event the damages awarded by Eady J were £1,000 to Pritchard Englefield and £4,000 to Mr Cohn, the second claimant: £5,000 in all. The costs awarded against Mr Steinberg to date, according to Mr Starte, who has today, as before, appeared and given the court his assistance, have now passed £191,000, without including the costs of enforcement and without including the costs of other related actions. Even though the costs in this action have been incurred by reason very largely of the guerilla war waged by Mr Steinberg against an outcome which was inexorable from the start, the disparity between the degree of damage reflected in the award and the costs run up in securing it is, if I may say so, gross. Eady J's concern about it was entirely justified.

20. This has given me cause to consider one further issue. In recent weeks this court, in Jameel v Dow Jones & Co Incorporated [2005] EWCA Civ 75 has dismissed a libel action in which it was clear that no real or substantial publication had occurred. The court held that Duke of Brunswick v Harmer (1849) 14 QB 185 was no longer good law in this regard. The publication on a web hyperlink of the allegedly defamatory material could be shown to have reached nobody to whom it meant anything, apart from agents of the claimant himself. Although no such ground of appeal is advanced in the present case, the court itself will be alert to ensure that its process is not being misused.
21. I have therefore looked again at the factual basis of the claim upon which summary judgment was given. It was a long way from the situation found in Jameel. The copy letter from Mr Steinberg to Pritchard Englefield, suggesting in no uncertain terms that the latter artificially and unprofessionally inflated their solicitor and own client costs, was accessible to anyone, including in particular a potential client, who fed the claimant's name into a standard search engine. It was also readable by anyone who accessed the defendant's own professional website. The inference of substantial publication was, it seems to me, irresistible.
22. I return therefore to the judge's decision to proceed to summary judgment in Mr Steinberg's absence. For the reasons I have given I consider that he made no error of law or of principle in concluding that he should do so. I would accordingly dismiss this appeal.
23. LORD JUSTICE LONGMORE: I agree.
24. LORD JUSTICE WARD: So do I. The appeal is dismissed.

Order: Appeal dismissed. Costs assessed at £25,000.