England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE TUGENDHAT

		Royal Courts of Justice Strand, London, WC2A 2LL
		28th October 2010

Lord Justice Maurice Kay:

1. This appeal arises in the course of a libel action in which Ms Cambridge seeks damages in respect of an email sent by Dr Makin to some 900 or so people. They are both professional interpreters, as indeed are most of the recipients of the email.
2. The case is due for trial before judge alone, starting on 8 November.
3. On 12 July Tugendhat J heard what was effectively a strike-out application on behalf of Dr Makin, but, with the consent of the parties, used the opportunity to make a pre-trial ruling as to the meaning of the words which are the subject of the action. It is not necessary at the moment to descend into the details because the parties late last night came to an agreement as to the substance of the appeal, and all we have been concerned with this morning was the one outstanding matter in dispute, namely costs.
4. In a nutshell, Ms Cambridge's case is that she was defamed in the email because the email asserted that she had abused her position as a director of NRPSI to advance her private interest in a different organisation, CINTRA.
5. On the amended pleadings Dr Makin's case was that the words used in the email did not bear a defamatory meaning at all; alternatively, it was pleaded on his behalf that there was a Lucas-Box meaning which he would seek to justify. There is also a further potential issue of qualified privilege.
6. At the hearing before Tugendhat J he concluded that the meaning of the words was indeed defamatory. The relevant part of his judgment is paragraphs 31 and 32, which state:

"31. I shall therefore state the conclusion that I have reached. It is that the words complained of mean: that the claimant used her position as a director of NRPSI to advance the private interests that she had in CINTRA in that she allowed CINTRA to use her or herself to procure that NRPSI sold data to CINTRA in order to assist CINTRA in obtaining contracts with various constabularies.

32. I reject the submission that the words complained do no more than to allege that the claimant found herself in a position where her duties as a director to NRPSI conflicted with her interests in CINTRA. In my judgment, the words complained of go further than that and they allege that she did, in fact, abuse her position as a director to advance her private interests."

He later described the meaning as he had defined it as having:

"…plainly a defamatory meaning. Moreover, in my judgment, it is a serious meaning."

7. Dr Makin sought permission to appeal. It was refused by Tugendhat J; it was also refused by Rimer LJ on the papers. However, he renewed his application for permission before Laws LJ on 8 October and Laws LJ granted permission.
8. Today we were expecting to hear the substantive appeal. At 8.30 this morning we discovered that the substantive appeal is no longer a matter of controversy and that the parties have come to terms. It is common ground between them that the language used by the judge in paragraph 31 and repeated in the sealed order of the court is, to put it at its lowest, somewhat clumsy and is susceptible to improvement. On behalf of Dr Makin, Mr Hugh Tomlinson QC would offer stronger criticism than that, but at the moment I express it in terms of what we perceive to be the common ground.
9. Ms Cambridge and her advisors came to know of the permission to appeal on 11 October. There then ensued some correspondence between the parties. Dr Makin's stance was to invite agreement to the judge's definition of the meaning of the words, yielding to Dr Makin's proffered Lucas-Box meaning and on the basis that Ms Cambridge pay Dr Makin's costs of the appeal. That was offered on the 11 October without resiling from the position that it remained Dr Makin's case that the words were not defamatory at all and that, failing agreement, that would be his position on the appeal.
10. There were further exchanges. As recently as last Friday, 22 October, Ms Cambridge proposed that the word "use" in the judge's formulation be replaced with the word "abuse", but that was promptly declined by Dr Makin. Ms Cambridge and her advisers did not see the transcript of Laws LJ's judgment until Monday of this week, 25 October. There was further toing and froing; the advisers to Dr Makin declined some suggested wording on Tuesday the 26^th, reiterating that his primary case remains that the words were not defamatory but reiterating his willingness to compromise on the basis that the meaning be agreed on the basis of his Lucas-Box meaning with Ms Cambridge paying his costs of the appeal. Again she declined. So things continued until late yesterday when agreement was reached.
11. The agreement is that the judge's expression of the meaning be replaced by the following:

"The Claimant abused her position as a director of the NRPSI by [acting on] a conflict of interest, namely

(1) by overseeing […] the sale of NRPSI members' data to a commercial agency, CINTRA, with which she was [privately interested] and from which [she] did to and did personally benefit."

12. We understand why Dr Makin's advisers and, we think, Ms Cambridge thought there was a degree of clumsiness and imperfection in the language used by the judge. We also consider that the agreed substitute language is preferable and, as the parties invite us to do, we shall allow the appeal, substituting that wording.
13. That leaves the live issue of costs. Mr Tomlinson submits that Dr Makin was compelled to bring his case to this court and that the outcome is essentially the adoption of his Lucas-Box meaning. Insofar as there is a difference in wording, he submits that it is of no substance. On behalf of Ms Cambridge, Miss Adrienne Page QC submits that until very recently the case for Dr Makin remained primarily that the words did not contain a defamatory meaning at all and that, although the case benefits from the reformulation of the meaning, the wording that has now been agreed reflects the position of Ms Cambridge throughout these proceedings, namely that the words amounted to a clear allegation of misconduct and impropriety and were plainly defamatory. She draws to our attention that the grounds of appeal are expressed largely on the basis that the wording is not defamatory at all, the alternative Lucas-Box meaning being but a small part of the grounds of appeal.
14. The question for us is whether there should be a partisan costs order at this stage or whether everything should simply be left over to trial. The first and most important question is whether, and to what extent, either party can realistically claim success in these proceedings over the other. We all take the view that the new agreed meaning is one that closely reflects the meaning contended for throughout on behalf of Ms Cambridge; we do not agree with Mr Tomlinson's suggestion that, as between the new agreed meaning and his pleaded Lucas-Box meaning, there is no difference of substance. We think that there is, not least in the use of the words "acting on" a conflict of interest, and the words "in which she was privately interested".
15. It is unfortunate that matters have had to come to this court, in order for the substance to be resolved effectively by agreement. However, in our view the approach of Dr Makin to the appeal and to the negotiations that preceded it was for most of the time conducted on a basis that was less favourable to Ms Cambridge than the one that has now eventuated and was also being proffered on the basis that she should pay all his costs of this appeal. In the course of her submissions Ms Page suggested that the appropriate order is one of claimant's or respondent's costs in the case, which she described as a generous offer. We consider that it is a realistic offer which justly reflects the respective positions of the parties in the proceedings in this court.
16. Accordingly, we shall make an order in the form suggested by Ms Paige. In view of the fact that the order will allow the appeal and substitute the words, will counsel please draw up a minute and file it later in the day.

Order: Appeal dismissed