Case No: B4/2011/0186
Neutral Citation Number: [2011] EWCA Civ 1513
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN’S BENCH DIVISION)
(HIS HONOUR JUDGE KAYE QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Wednesday 2 November 2011

Before:

LORD JUSTICE THORPE
LADY JUSTICE HALLETT
SIR STEPHEN SEDLEY 

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Between:

	UK LEARNING ACADEMY LTD	
Appellant	
	- and -		
	
LEEDS CITY COUNCIL	

Respondent	

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(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

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Miss K Wilson (instructed by Carter Fox Solicitors) appeared on behalf of the Appellant.

Mr J Campbell (instructed by Civil Litigation) appeared on behalf of the Respondent.

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Judgment

Sir Stephen Sedley:

1.	This appeal comes before the court by permission granted by Ward LJ on renewal following refusal by Sir David Keene on the papers.  It arises out of an action brought by the UK Learning Academy Limited against Leeds City Council on the basis, in part, of an email to which I will come.  The core of the action, however, is a claim for damages for interference with contractual relations arising out of the fact that the claimant offers vocational qualifications of a kind required by the defendant for licensed taxi drivers, but appears to have been excluded from providing such qualifications to the satisfaction of the council.  

2.	The email which circulated, and which gave rise in addition to a claim for defamation (which is part of the pleading with which we are concerned), in the form in which it first reached the hands of the claimant read as follows.  It was not topped or tailed; it simply read: 

“Good morning David. 

I am responding to you with regards to the VRQ/NVQ qualifications. 

The Council has a list of preferred trading providers who we are working in partnership with to deliver the VRQ/NVQ qualifications.  The list of training providers has been established through recommendations from the Learning Skills Council, Train to Gain brokerage service.  It is essential that we work with a small number of training providers so that we can monitor the provision of the training and the curriculum set by the Leeds Licensing and Regulatory Panel.  Trading providers on the list have signed a contract to say they will deliver in this way and as such certificates will only be accepted from those training providers.  

It is very important that drivers understand that stepping out of the list that any certificate will not be approved and drivers will have to undertake the training again at their own cost with any of the training providers on our list.  The list of training providers on our list can be found on the Taxi and Private Hire webpage and on the back page of the Winter Newsletter that will be posted out early next week.  

I understand that some less reputable companies are offering cash back offers or other free forms of training to the drivers, this is wholly unacceptable and we would welcome any reports of this behaviour so that we can report them directly to the Learning and Skills Council.  

Regards

Service Development Officer
Taxi & Private Hire Licensing
Leeds City Council.”

3.	The case itself is pleaded high and includes allegations of targeted malice.  They may well be capable of sustaining a claim for misfeasance in public office, a claim which was attempted mistakenly by way of judicial review and stopped by Holman J.  The claim also – critically for the present purposes – alleges that the document which I have read out was sent by the defendant local authority to, among others, Arrow Cars, and that from there it was disseminated sufficiently to have done damage to the reputation of the claimant.  

4.	The City Council was unable for quite some time to authenticate this document or therefore to admit that it was its own.  In fact, the doubt initially surrounding its authorship was such that the Council moved by way of application to the circuit judge to strike out the defamation element of the pleading.  The application came before HHJ Kaye who acceded to it essentially on the ground that there was not sufficient evidence to bring authorship home to the Council.  

5.	In addition to the ground of the application that I have described, the application asserted that there were insufficient allegations in the particulars of claim that the letter was published to any person or that any person to whom it was published had the requisite knowledge to identify the claimant as the subject of the letter.

6.	As I have recounted, application was made and eventually succeeded to appeal the judge’s decision.  In the interval between that grant of permission and the hearing today it has come to Leeds City Council’s certain knowledge that the author of the email was an employee and was acting in the course of his or her employment so that it is their document.  With commendable candour the Council has fulfilled its duty of disclosure sooner rather than later and has put in Mr Campbell’s skeleton argument to this court a frank admission of authorship.  This is helpful and honourable and has changed the shape of the case before us.  

7.	What Mr Campbell is therefore bound to concede is that the appeal on the ground on which Ms Wilson sought to advance it should succeed without more, because the fact that she was attempting to establish is now admitted.  He seeks, however, to sustain the judge’s striking out of the defamation claim, first of all by reiterating the contention that the claimant was not identified by or in connection with the publication; secondly, by adding a new ground, namely that there is no defamatory meaning to the email; thirdly, by contending that the issue is in any event so trivial that only nominal damages could be expected were the claimant to succeed, so that it is not appropriate to use court resources to pursue it.  

8.	The difficulty which it seems to me Mr Campbell faces in relation to the identification of the claimant is that he has no finding either way on that issue below because the case did not go off on that point.  That is not his fault but it is a fact.  A further difficulty is that the two issues that he now wishes to canvass are new.  It may well be that this court has power in a proper case, on suitable terms as to costs, to decide new issues raised before it for the first time if they are capable of being determinative of the appeal and able to be addressed without any further findings of fact.  However, the drawback to which my Lady, Lady Justice Hallett, has drawn attention is that whichever party loses the argument in this court has no further recourse, because this court will have turned itself into a tribunal of first instance.  That is something which it should do, in my judgment, only in exceptional cases.  The correct course, if it is to be taken at all, for the issues that Mr Campbell now wants to raise in support of a strikeout in lieu of the one which succeeded but we now know ought not to have done, is to make a fresh application before the court below.  

9.	Having said that, I do not wish to be taken as in any sense encouraging such a course.  This is not in my present view a case in which, so to speak, a dangling claim can be surgically severed from an otherwise complete body of pleading without more ado.  It is an endeavour to siphon off from a continuous narrative one element of it in order to reduce the ambit of the legal claims arising from it.  It may very well be questioned whether that is a proper use of the City Council’s own resources and certainly whether it is a proper use of the court’s resources, rather than letting the whole case go to trial, letting the facts be found and seeing what, if any, cause of action arises out of the facts which are found.  It may very well be – and I am inclined to think it is the case – that this is the economical and expeditious way, in all the parties’ interests, for this case now to proceed.  That, however, remains in the future.  For the present, all that I think this court needs to decide and that I, for my part, would decide, is that the appeal succeeds.

Lady Justice Hallett:

10.	I agree.

Lord Justice Thorpe:

11.	I also agree.

Order:  Application allowed