ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION)
CARDIFF DISTRICT REGISTRY
HH JUDGE CHAMBERS QC
(SITTING AS A JUSTICE OF THE HIGH COURT)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD JONES
MR JUSTICE TUGENDHAT
| ROBIN CAMMISH
|- and -
Mr Timothy Atkinson (instructed by Morgan LaRoche) for the Respondent
Hearing date: 28 November 2012
Crown Copyright ©
Lady Justice Arden:
The words complained of
Please see Companies House on your Mr Cammish Coed Bach Action Team Ltd – between him and [his] girlfriend they have dissolved over 20 companies not able to sell anyone of them and coming to Swansea to tell you how to do it
Inspectors – Mr Emyr Jones
Mr John Woodcock"
"Coedbach Action Team Ltd
See statement that on 31 March public inquiry cancelled and to have the appeal dismissed, when Mr Hughes was asked – he knows nothing about it. See Mr Cammish dissolved 15 companies = not able to run them
Supporter of the power plants @ for jobs in area"
"6.1 To me these words are a direct, intentional and serious attack upon my professional and personal integrity and would have been understood as such by readers.
6.2 In making the written accusations about my business competence it seems to me that Clive Hughes does not understand the dynamics of running a successful management consultancy. Contrary to what he has written, the aims and objective of the 15 dissolved companies was never to grow them and sell them at a profit. Each one was originally set up as a means of protecting the Intellectual Property and the separate products and service offerings of QP Group to our customers, for example Outsourcing Ltd. QP Group is an international management consultancy working in the procurement and supply chain industry helping "blue chip" clients make substantial savings on their expenditure on goods and services with suppliers. By way of example, in excess of 25% of FTSE 100 companies have been or are QP Group clients. By paying £150-£200 pa to Companies House as a dormant company, the QP Group had name protection to the trading rights to outsourcings in the UK. Exactly the same approach applies to the other companies, for example, QP Engineering, QP Electronic commerce, etc. The only exception to this was QP Group (France) Ltd which was an active trading small company operation (which successfully achieved its start-up objectives of being at breakeven with turnover of €1 million).
6.3 So not only has Clive Hughes misunderstood the purpose of the company creation and dissolution, he is also inaccurate in the defamatory statements that he has made that I was "not able to sell anyone of them and coming to Swansea to tell you how to do it". That is untrue and, in addition, defamatory in its implication that I am a thoroughly incompetent businessman. The business purpose was to protect the Intellectual Property, Products and Solutions of the QP Group."
Circulation of the bundle
Costly litigation inevitably ensues
Before the judge
"34. For the reasonable reader of the communication the words can carry only one meaning and that is, "because he was unable to run them your Mr Cammish has had to dissolve 15 companies which he wanted to sell. This shows that he is a seriously incompetent businessman who is far from being the man to come to Swansea to tell you how to run your protest"…."
Grounds of appeal: (1) Meaning and (2) Fact or comment
"The Court of Appeal should be slow to differ from any conclusion of fact reached by a trial judge. Plainly this principle is less compelling where his conclusion is not based on his assessment of the reliability of witnesses or on the substance of their oral evidence and where the material before the appellate court is exactly the same as was before him. But even so we should not disturb his finding unless we are quite satisfied he was wrong."
Discussion and conclusions
Standard of appellate review on questions of meaning
"The governing principles relevant to meaning . . . may be summarised in this way:
(1) The governing principle is reasonableness.
(2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.
(3) Over-elaborate analysis is best avoided.
(4) The intention of the publisher is irrelevant.
(5) The article must be read as a whole, and any 'bane and antidote' taken together.
(6) The hypothetical reader is taken to be representative of those who would read the publication in question.
(7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, 'can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation . . .'.
(8) It follows that 'it is not enough to say that by some person or another the words might be understood in a defamatory sense'."
Was the meaning defamatory?
Threshold of seriousness
Were the words complained of fact or comment?
Would a defence of honest comment lie in the present case?
Could malice be shown on the facts of this case?
Should these proceedings continue?
(a) the Jameel test
"54 Mr Price's submissions amount, so it seems to us, to asserting that Dow Jones's failure to challenge English jurisdiction estop them from relying at this stage on arguments that could have been advanced in support of such a challenge. We do not accept this. An abuse of process is of concern not merely to the parties but to the court. It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice. If Dow Jones have caused potential prejudice to the claimant by failing to raise the points now pursued at the proper time, it does not follow that the court must permit this action to continue. The court has other means of dealing with such prejudice. For instance, appropriate costs orders can compensate for legal costs unnecessarily incurred and relief can be made conditional on Dow Jones undertaking not to raise a limitation defence if proceedings are now commenced in another jurisdiction.
55 There have been two recent developments which have rendered the court more ready to entertain a submission that pursuit of a libel action is an abuse of process. The first is the introduction of the new Civil Procedure Rules. Pursuit of the overriding objective requires an approach by the court to litigation that is both more flexible and more proactive. The second is the coming into effect of the Human Rights Act 1998. Section 6 requires the court, as a public authority, to administer the law in a manner which is compatible with Convention rights, in so far as it is possible to do so. Keeping a proper balance between the article 10 right of freedom of expression and the protection of individual reputation must, so it seems to us, require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant's reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged."
"that there is any realistic prospect of a trial yielding any tangible or legitimate advantage such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources."
(b) is the game worth the candle in this case?
(1) The number of recipients of the bundle is small. In reality the number of recipients is now known by default. It is possible that on disclosure further publication will come to light but it is unlikely that any significant further publication will now come to light.
(2) The wrong done to the respondent's reputation has been vindicated by paragraphs 12 and 13 of this judgment as to the unreasonableness of the appellant's view.
(3) No better vindication could be obtained at trial. If the appellant were to amend his defence to plead honest comment in relation to the meaning found by the judge, the focus at trial would be solely on the question whether malice could be shown, and not on whether the comment was in fact fallacious. For the reasons already given, malice would be difficult to prove in the circumstances of this case.
(4) But if the appellant were not to amend, the respondent would still not achieve at trial any vindication of more value to him than that given to him in this judgment. Any damages awarded for so limited a publication would be small in relation to the costs, and any pursuit of the claim for damages only would be uneconomic. The wide publicity that would be given at trial to the documents from Companies House could also lead to further misunderstanding amongst some members of the public to the detriment of the respondent.
(5) The loss of the opportunity to obtain a permanent injunction at trial would not prejudice the respondent to any material extent. A permanent injunction would not be available in any event unless he proves malice and (as just stated) it would be difficult for him to prove this. Furthermore, there is no great need for an injunction. It is true that the appellant has neither offered an apology nor an undertaking not to repeat the statement made in the bundle. He has, however, said that he will not repeat it. If he were to do so, anonymity is unlikely to help him and it would be difficult for him to resist a claim of malice in light of what we have said about the unsoundness of the view he has expressed.
(6) The respondent has been able to soothe the apprehension of those who received the bundle, and time has passed since the events in issue. The wounds are in our judgment likely to heal more quickly and more completely if sleeping dogs continue to lie than if they are stirred up by the publicity that may result from a trial.
(7) The dismissal would be on certain minimum terms as to costs explained in paragraph 64 below.