England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		Date: 22 June 1999

MR JUSTICE EADY:
1. There are before the court a number of applications in these libel proceedings which are currently due to be tried on 5 July of this year. There is an application by the BBC that the action be struck out as an abuse of process or because it is frivolous or vexatious and has no real prospect of success. In the alternative it is sought to stand the case out of the list. On the other hand, on behalf of the claimant (Mr Keith Schellenberg), Mr Milmo QC asks that substantial parts of the defence be struck out and that the issues and/or evidence be confined to keep the trial within manageable bounds, in accordance with the overriding objective of the CPR 1998. He also asks that the trial go ahead on 5 July provided that the orders have been made confining the issues in accordance with his application. He also seeks in that event exchange of witness statements by 24 June. Both parties are agreed that, if the action were to be tried on the present pleadings, it could not be encompassed within the four weeks allocated to it, that is to say by the end of term.
2. The circumstances are somewhat unusual in that Mr Schellenberg had brought other libel proceedings against the Guardian and Times Newspapers which were recently compromised some five weeks into the trial of the Guardian action. The original estimate had apparently been between four and six weeks for the disposal of both actions; but at the stage of compromise there were approximately still another two to three weeks to run in the Guardian action.
3. Mr Schellenberg has put in evidence explaining the circumstances. He says, in the relevant parts of the witness statement which is now before the court:

"At that stage we had only heard from about 5 or 6 of the Defendant' s witnesses and it was not certain that all their witnesses who had given statements which of course the Judge had read would actually attend to give evidence. However I was faced with the prospect of the trial going on for a further weeks. Olswang [the solicitors representing the Guardian] had approached my solicitors on a number of occasions throughout the trial. After the first week of trial, they had put forward an offer to settle the case on the basis that I should pay their costs in the sum of £650,000. By the time my witnesses had give evidence, they were prepared to settle for the sum of £200,000 towards their costs. It was clear to me from this that they were just as uncertain about the verdict as I was. ...

When the Guardian's solicitors approached my solicitors offering to settle for £400,000 they indicated that their costs to date were in excess of £625,000 and this did not include outstanding refreshers for Counsel. They indicated that their eventual costs would be in excess of £1 million. My own costs were already in the region of £450,000 and I simply was not prepared to risk facing a bill of nearly £2 million in the event that I lost the case. I was thinking not of myself, but of my family to whom I owe a duty and also to the people who rely on me for employment in the business that I run in Scotland. Had I lost the case and been faced with such a hefty bill I would almost certainly have had to close down the business in Scotland and sell my home.

I still believe that the Guardian and Times articles were defamatory of me, unfair and politically motivated. I have had to accept that both newspapers would use their position to declare my withdrawal a victory notwithstanding that effectively they have had to pay about the same in costs as I have even though they did not make any contribution to my costs. The fact is that I was prepared to take the risk of losing the case when I started out and I was facing a bill for costs of approximately £500,000. I accept that if you wish to stand up for your principles, then you have to take the consequences, but there is no point in fighting a battle if you are going to be destroyed in the process. It is for these reasons and these reasons alone that I decided to settle my claim against the Guardian and effectively the Times, although in reality the Times article was not even considered by the Jury and was not referred to in the evidence. Had the costs of the trial not been so great, I would have been quite happy to proceed to the conclusion of the trial and to accept the verdict of the Jury for good or for bad. I believe that I had a realistic prospect of success, but I also recognised that there was a risk of failure. So I could not afford to gamble on victory when a financially prudent compromise was available to me."

4. It is necessary however, to remember that his explanation of how he came to bring the proceedings to a conclusion is prefaced with a sentence to the effect that he felt that the jury were likely to follow the judge's summing up. That is a reference to an indication by the learned judge, Mr Justice Morland, on 14 May in the following terms.

"Again it appears to me, but it will not be my decision, that the comments in the article of which you complain appear to be comments that if I were trying this case alone, without a jury, directing myself as to what is meant by fair comment, amount to fair comment on facts that I would find to be true. I am not suggesting that every allegation made against you has been proved or will be proved but if I were trying this case on my own, without a jury, it is likely that I would have already come to the conclusion that sufficient facts had been proved to be true to justify the comments that have been made about you.

That is all I say, Mr Schellenberg. It is a matter entirely for you to consider with Mr Milmo. It is not in any way trying to apply pressure on you, it is entirely a matter between you and Mr Milmo."

5. It is against that background of the disposal of the action that the BBC now argues that the present proceedings are doomed to failure. Their case is that Mr Schellenberg is abusing the court's process, in the alternative, because he caved in over essentially similar allegations and should not be permitted to take up court time over re -1itigating the same dispute in the hope of a more favourable outcome.
6. I turn to the statement of case in the present action. The complaint that is made by Mr Schellenberg, who describes himself as the owner of the Isle of Eigg from 1975 to 1995, is of a broadcast on Radio 4 to millions of listeners. It apparently took place at 9.30am on 19 April 1997 in the holiday travel programme, "Breakaway", which included a report on the Isle of Eigg by a journalist called Dilly Barlow. There was a further broadcast of the same words the following day. The words complained of are a relatively short extract from the broadcast and they consist of words spoken by Dilly Barlow in the course of that report:

"It is quite hard to imagine exactly how feudal the system was there, that a good 50% to 60% of the people did not own their own homes, and I think a very good example of this is one family - that's Colin and Marie Carr. They have lived there for 2 0 years - Marie runs a bed and breakfast. He is a sheep farmer.

Schellenberg, the previous owner, tried to evict them last Christmas ... if you could imagine what that is like to have your own home then to be threatened with eviction when you have an up and running business, bed and breakfast and your own sheep farm.

However, they are now safe."

The meaning which was put upon those words on behalf of the claimant was as follows: "In their natural and ordinary and/or inferential meaning the said words meant and were understood to mean that the Plaintiff, acting like a feudal tyrant, had callously attempted at Christmas time last year (i.e. in December 1996) to evict, without just cause, Colin and Marie Carr from their home on the island and thereby to force them out of business and to deprive them of their livelihoods as sheep farmers and as providers of bed and breakfast accommodation." There is also contained in that pleading a claim for aggravated damages which Mr Schellenberg is willing to drop as part and parcel of his exercise of trying to confine the issues for the forthcoming trial.
7. I now need to refer very briefly in the Guardian and Times actions co the Lucas Box and Control Risks meanings that appear in the defence. In the Guardian action in the re-re-re-amended defence, the Lucas Box pleading is as follows:

"1. The Plaintiff failed to live up to the promises of widespread and sustained regeneration and prosperity that he had made to the islanders and thereby destroyed the hopes and expectations of the whole community which he had irresponsibly raised by his false promises.

2. The Plaintiff culpably neglected the needs and welfare of the island's community including by causing or permitting his properties to fall into a state of dereliction and disrepair.

3. In his position as Laird, the Plaintiff was prone to behave in a capricious, autocratic and insensitive manner towards the island's inhabitants, treating the island as a rich man's play ground.

4. By his aforesaid conduct the Plaintiff made himself deeply unpopular with at least the majority of the islanders and left them feeling justifiably bitter and disillusioned with his appalling ownership of the island."

8. The Control Risks paragraph in the same pleading is as follows:

"If and in so far as the words bore and were understood to bear the meanings pleaded in paragraph 6 above [that is the paragraph from which I have just read with regard to the Lucas Box meaning] they were fair comment upon a matter of public interest, namely the Plaintiff's self-confessed notorious and controversial ownership of the isle of Eigg. The Plaintiff will rely if necessary upon the provisions of section 6 of the Defamation Act 1952."

9. Needless to say those defendants' meanings relate to words complained of which are more extensive than those in the BBC action. The complaint in that action was first of all of an article in the Guardian of 31 July under the headline "Lairds of Misrule"; and, secondly, of an article in the issue of the Guardian for 30 October 1996 in an advertisement issued by and on behalf of Wild Life Trusts.
10. It is necessary for me also to read a very short passage from the statement of claim in the Times action to which my attention has been drawn. I am not going to go into the detail of the article complained of in that case or the other quite extensive passages of the plaintiff's meaning. But one particular passage to which both parties have made reference is this, in two subparagraphs:

"(a) that as the owner of Eigg the Plaintiff had been totally insensitive to the feelings and needs of the islanders, and had instead treated the island and its community as a rich man's plaything, most notably roaring round Eigg in his Rolls-Royce Phantom accompanied by his hell raising friends waving bottles of champagne out of the window."

And more significantly for present purposes:

"(d) that the Plaintiff had capriciously played God with the lives of the Carrs without good cause withdrawing an offer to them of a 25 year partnership lease for the farm and then threatening them with eviction and also ceasing to pay their eldest son's school fees."

11. I have in mind here what was said by Lord Justice May in the recent case in the Court of Appeal of McPhilemy v. Times Newspapers Ltd at page 15 of the transcript, to the effect that so often the actual words in a libel action become submerged in the meanings derived from lawyers. That is of course a comment which applies quite often both to a claimant's meaning and to a defendant's Lucas Box meaning.
12. Mr Schellenberg explains in his witness statement why it is that he considers the present action to be materially different from the compromised proceedings and why he should still be permitted to pursue the claim against the BBC:

"14. In the Guardian and Sunday Times actions I was suing over lengthy passages which contained wide-ranging allegations about my stewardship of Eigg. My approach in the BBC action has been very different. Although my complaint in my letter before action was put on a broader basis, in my Statement of Claim I deliberately confined the ambit of my complaint to a specific allegation about my treatment of the Carrs: namely that without just cause I sought to evict the Carrs at Christmas from their home of twenty years thus forcing them out of business and depriving them of their livelihoods. Effectively I was being accused of trying to make the Carrs destitute. This is a very serious allegation in its own right, and it is far more extreme than anything said about my treatment of the Carrs in the Guardian and Sunday Times articles. In fact, I believe it is more extreme than any of the allegations of fact that are made in those articles.

15. The allegation is materially false in a number of respects. Although it is true that the Carrs were served in 1994 (not 1996) with a Notice to Quit Kildonan Farmhouse (their home of five years, not twenty), at the same time it was made clear to them that the notice was not going to be enforced and that I would continue to negotiate with them as I had been doing for over two years already. This is clear from letters passing between the Carrs' solicitors and the Carrs that were disclosed by the Carrs to the Guardian, and by the Guardian to me. I will seek the leave of the Court to rely on this in this action.

16. The Notice was not served at Christmas, but at beginning of October. Also the Notice was not peremptory, as the words complained of suggest. I had valid reasons for wishing to obtain vacant possession of Kildonan Farmhouse, and for asking the Carrs to move to another substantial house on the Island where they would have complete security of tenure. This was Laig Farmhouse, which Mrs Carr's mother wished to vacate. Even if I had intended to enforce the Notice, there was never any question of forcing the Carrs to give up their respective businesses. The Notice did not require Colin Carr to vacate Kildonan Farm, as opposed to the Farmhouse itself. He was free to carry on as a sheep farmer and I was not seeking to deprive him of the land that he required for this purpose. As for Marie Carr, she was free to take over the bed and breakfast business at Laig which her mother wished to relinquish.

17. By its Defence the BBC is not only trying to justify the allegation about the Carrs, but it is also trying to attack my entire track record as owner of Eigg over twenty years. The BBC has now said that it wants to expand its attack even further, so as to transform the trial of this action from a ten day one to one lasting 6-8 weeks. I wish the Court to restrict the issues and evidence on justification in this action to the central allegation of my treatment of the Carrs; or at least to restrict the issues and evidence sufficiently so as to enable the trial to be conducted within the ten day estimate.

18. This is not for a cynical motive of trying to exclude a mass of unfavourable evidence in order to obtain a false vindication. A lot of the evidence on the other issues is actually in my favour. The true reason is because as a matter of principle I feel I should be able to complain about a specific seriously defamatory allegation which I know to be unjustified without having to deal with a massive, lengthy and costly inquiry into every aspect of my stewardship of Eigg. I know that this point has only been made by my solicitors recently, but until recently it looked as if the case was going to settle. Also as a result of the absurdly expensive litigation against the Guardian and the Sunday Times my access to funds is very limited and I cannot afford to undertake another lengthy trial. I certainly cannot afford another legal bill for £750,000."

13. I should perhaps say that the figure of 10 days for the length of the trial is a reference back to the order for directions which was dated 27 August 1998 when the action was ordered to be set down by 8 January to be tried by judge and jury with an estimate ol 10 days.
14. What is clear is that there was no determination of the allegations relating to the Carrs in the earlier Guardian proceedings. The Carrs had not given evidence. Nor was the outcome in any way predetermined on that issue. The Guardian had not mentioned the Carrs in the words complained of but they did play a role, an apparently limited role, in the plea of justification of much more general allegations. I have not set out those particulars in the course of this judgment for the reason that I do not want to make it longer than is necessary.
15. I turn now to the BBC's defence as it now stands. Reference is admitted and there are pleas of fair comment and justification. The plea of justification in the BBC action is to be found at paragraph 6 of the defence in the following terms:

"Further or alternatively, the said words were true in substance and in fact. The Defendant will justify the said words in the meaning that as one of the former owners of Eigg, the Plaintiff perpetuated an outdated system of private ownership on the island that allowed him to maintain control over the lives of the majority of the islanders, which on occasions he exercised in a characteristically capricious, autocratic and insensitive manner, one such example being his threat to evict Colin and Marie Carr from their home on the island where they had lived for twenty years and had established their businesses; Marie ran a bed and breakfast business and Colin was a sheep farmer. The Defendant will rely if necessary upon the provisions of section 5 of the Defamation Act 1952."

16. There then followed a number of particulars of justification, numbered 1 to 10 with a significant number of subparagraphs in some of those particulars. I am not going to read those in detail. Suffice to say that they do extend over wide-ranging allegations, in some cases going back over 20 years, and some of those particulars are of course the subject of challenge by Mr Milmo in his application to which I have already referred.
17. There is also a plea of fair comment which appears at paragraph 7 in the following terms:
"Further or alternatively, the said words were fair comment on a matter of public interest, namely the Plaintiff's notorious and controversial ownership of the Isle of Eigg. The Defendant will defend as fair comment the comment contained in the words complained of to the effect that, as one of the former owners of Eigg, the Plaintiff perpetuated a 1 feudal' system of private ownership on the island that allowed him to maintain control over the lives of the majority of the islanders, which on occasions he exercised in a characteristically capricious, autocratic and insensitive manner, one such example being his threat to evict Colin and Marie Carr from their home on the island where they have lived for twenty years and had established their businesses; Marie ran a bed and breakfast business and Colin was a sheep farmer. The Defendant will rely if necessary upon the provisions of section 6 of the Defamation Act."
18. For the purposes of the plea of fair comment exactly the same particulars are relied upon as those in support of the plea of justification.
19. If the trial does proceed on that broad basis there would be another lengthy and prohibitively expensive trial. The question raised on the claimant's application is whether it is necessary for a fair disposal of this complaint that this should occur and, if not, how it can be avoided.
20. As to the abuse of process argument raised by the BBC, Mr Milmo has submitted in summary as follows:

"No issue of res judicata or issue estoppel arises here, since the BBC was not a party to the newspaper actions.

On the authorities an attempt to relitigate in another action issues which had been fully investigated and decided in a former action may nonetheless constitute an abuse of the process. But it is an exceptional finding for the court to make and there is a heavy onus on the party claiming abuse to show some special reason why the other party should not relitigate."

21. He refers to the case of Bragg v. Oceanus Mutual [1992] 2 Lloyd's Rep. 132 and in particular to passages in the judgment of Lord Justice Kerr at pages 137 to 138 and that of Sir David Cairns at pages 138 to 139, to which I shall refer further in due course. Reference was also made in this context by both parties to the recent decision of the Court of Appeal in Bradford & Bingley Building Society v. Seddon, an unreported decision of the Court of Appeal on 11 March of this year.
22. Mr Milmo contends that the defendant falls well short here of establishing any such special reason, even if the factual premises it relies upon are taken to be correct. He submits that a critical ingredient which is wanting is any prior decision by a competent tribunal. He submits that there can be no abuse in a claimant seeking to relitigate an issue which was not decided against him in earlier proceedings. He submits that the only exception to this would appear to be where the claimant's previous proceedings were struck out for a contumacious breach of a peremptory court order, and cites in that regard the case of Gardner v. Southwark LBC [1996] 1 W.L.R. 561.
23. He also points to the fact that there was not a full investigation of the issues raised in the BBC action in the earlier Guardian trial. In particular, of course, there was no investigation as to whether the actual words complained of in the BBC action were true or fair comment. He points also to the often cited judgment of Sir Robert Megarry V-C, as he then was, in the case of Gleeson v. J Wippell & Co Ltd [1977] 1 W.L.R. 510, a decision considered in the case of Bragg, to the effect that a claimant is entitled to try and obtain a better result in a subsequent action. In Gleeson the plaintiff was attempting to prove copyright in an action for infringement, having already failed to establish copyright against a defendant called H R Den Limited. He referred in particular to a passage in the judgment of the Vice - Chancellor at page 516,
24. He also referred me to an argument which I think originated with Mr Skone James, counsel in the Wippell case, to the effect that one can test submissions of that kind by posing a reverse question: applying it to this case, if the claimant had won his action against the Guardian or settled it on favourable terms, would it have been an abuse of process for the BBC to continue to defend this action? To which Mr Milmo responds that the answer must plainly be no, and that would accord with the similar conclusion reached by the Vice - Chancellor after posing a similar question in the Wippell case (at page 515).
25. If a judge can truly tell from the evidence before him or her that the action is bound to fail or that it has no reasonable prospect of success, even though there was no determination of the issues relating to the Carrs, no doubt the realistic and non-technical approach encouraged by the CPR would entitle such a judge to dismiss the claim. I need therefore to consider whether I am able, in the light of the evidence to which I have referred, to conclude that there is indeed no realistic prospect of success. I have considered the provisions both of Part 24 of the CPR (in particular the Practice Direction, relating to the court's approach, at paragraph 4,2) and also the provisions of Part 3.4. I will return to the issue of the defendant's applications shortly.
26. It will be convenient, to turn first, however, to Mr Milmo's application. I say that because if I am inclined to narrow the issues as he seeks, then I need to ask if the proceedings have any real prospect of success in that narrowed form. He invited my attention to two passages in the Court of Appeal judgments from the case of McPhilemy v. Times Newspapers on 21 May 1999, which he conveniently cited in his skeleton argument. He relied first of all upon Lord Woolf, Master of the Rolls, at pages 19 to 20 of that transcript, where he made comments to the effect that Part 1 of the CPR, dealing with the overriding objective, gives a new emphasis to the need for proportionality and also to the effect that the CPR give the court greater power to impose proportionality. He relied in particular on the following sentence:

"While under the CPR a party cannot be prevented from putting forward an allegation which is central to his or her defence, the court can control the manner in which this is done and thus limit the costs involved."

27. There was also a passage in the judgment of Lord Justice May, to which he drew my attention, at page 17 of the transcript, to the effect that the courts will now strive to manage cases so as to minimise the burden on litigants of slender means. He said that this included excluding all peripheral material not essential to the just determination of the real issues between the parties and whose examination would be disproportionate to its importance to those issues.
28. The question I posed a moment ago is whether it would be necessary tor a fair disposal of this action for the case to proceed to the extended inquiry foreshadowed in the BBC's defence. Another way of testing the matter is, to use the language of Lord Woolf, to ask whether the wider-ranging allegations are "central" to the BBC's defence. Another formulation is perhaps to ask if the BBC would suffer an injustice if prevented from canvassing the wider issues. All those formulations require me to consider the meaning of the words complained of in the context of the broadcast.
29. It is true that an application on meaning could have been made earlier by or on behalf of the claimant, for example under R.S.C. Order 82, rule 3(a), for the purpose of restricting the scope of the Lucas Box meaning in the defence, which I have read. But the court needs to consider the public interest in the efficient administration of justice and should not necessarily be precluded from doing so because a party may have been slow off the mark in raising a particular issue. There may be all kinds of reasons why a particular matter is put on the back burner in litigation, and certain arguments in that regard have been put forward before me in this context. I do not think it would be helpful to explore them. The point is that I should now, I think, focus upon the merits of the application.
30. Mr Milmo submits as follows: that the words complained of in the BBC action do not bear the general charge contended for by the defendant, namely that the claimant exercised control over the lives of the majority of the islanders in a characteristically capricious, autocratic and insensitive manner. The extract set out in the statement of claim begins with Dilly Barlow's observation that a feudal system was in operation on Eigg. However, Mr Milmo submits that both parties have always implicitly accepted in correspondence and in the pleadings that to say of the claimant that he operated a feudal system is not in itself defamatory. What he submits is the nub of the matter is the way in which feudal powers, or any other powers for that matter, are exercised. Is it being suggested that the powers were exercised in a way that would tend to lower the claimant in the eyes of right-thinking people?
31. He points out that in the statement of claim the claimant has limited his complaint to the specific defamatory allegation by Dilly Barlow about his treatment of the Carrs. Although the meaning harks back to the word "feudal", it is coupled with the word "tyrant". This reflects the fact that feudal on its own is not defamatory and that the sting of the libel, according to the claimant, resides solely in the one instance which the journalist gives of the exercise by the claimant of his feudal powers, an exercise which is portrayed by her as being tyrannical.
32. Mr Milmo argues that in its defence the BBC does not itself treat the word "feudal" as being defamatory, but it rather concentrates on seeking to justify a general charge to the effect that he acted capriciously, autocratically and insensitively. Mr Milmo accepts realistically that the admitted behaviour towards the Carrs could be characterised as autocratic, which he regards as being synonymous with tyrannical. Nevertheless, he argues that there is nothing in the actual words complained of to suggest to the listener that Mr Schellenberg was being capricious, and he says that the listener would need to be given additional information before being able to draw that inference. Similarly he submits that a reasonable listener would not draw what he describes as the bathetic inference that the claimant was being insensitive,
33. Mr Milmo's main point on behalf of the claimant is that the words complained of do not convey the imputation that the claimant's alleged behaviour towards the Carrs, however it may be described, was typical of his behaviour generally. He submits that the Carr incident was portrayed by the journalist on the programme as taking place simply against a feudal backdrop, just as the allegations of hypocritical, arrogant and fraudulent conduct on the part of Tom Cruise and Nicole Kidman were portrayed by The Express on Sunday as taking place against the backdrop of their membership of the Church of Scientology in a case which came before the Court of Appeal about a year ago; see Cruise v. Express Newspapers [1999] 2 WLR 327. He argues that Mr Schellenberg has made no complaint in his statement of claim about the charge of feudalism and accordingly he argues that he should not have to deal with the defendant's plea that he perpetuated an outdated system of private ownership {whatever that means) on the island that allowed him to maintain control over the lives of the majority of islanders. He draws an analogy with the Cruise case and relies upon the fact that the Court of Appeal held that, although the words relating to the plaintiffs' membership of what he describes as a ridiculous cult - a libel not complained of - were inextricably bound up with the words that were complained of, the newspaper could not justify the Scientology sting. Mr Milmo argues that, if he is right in this contention, the particulars of justification (which he has identified and which I shall refer to in a moment) should be struck out on the basis that they do not go to a meaning which the words are capable of bearing.
34. I need of course to address the fact that the words complained of do use the expression "a very good example of this is one family..." Does that legitimately open up, according to the tests I have ventured to set out, the full scale inquiry contended for by the BBC? What is clear is that the programme does not assert that the Carrs represent an example of capricious, autocratic and insensitive behaviour on the part of the claimant. That would amount to a general charge of a defamatory nature, which could no doubt be justified by reference to particulars of justification correspondingly general.
35. The passage selected for complaint from the broadcast should not be subjected to minute or artificial analysis. The use of the word "example" could refer to "how feudal the system was" or it could refer merely to the fact that 50 to 60 per cent of people on the island did not own their own homes. Whichever was intended, I believe it was just a casual conversational use of language. It would be to impose upon that casual use of language an artificial burden that it is not capable of bearing to hold that it is sufficient to convert the words complained of into an indictment of the claimant's behaviour over 20 years, rather than a single allegation to the listeners about the Carrs and the way the claimant treated them in relation to the notice to quit. I do not believe that the modern approach to litigation requires me to construe the words in a way that no ordinary listener would have construed them, that is to say by reading m an implication of a long history of capricious and autocratic behaviour against Mr Schellenberg.
36. In Lord Woolf's phrase, I do not regard any such allegation as being "central" to the BBC's defence of this broadcast, I consider that the words complained of are not capable of bearing that general wide-ranging meaning. That is a decision about the Lucas Box meaning. Correspondingly, the particulars to support the plea of justification would require to be narrowed in order to exclude matters going beyond the notice to quit incident. I would, therefore, be inclined to exclude the following particulars of justification as requested by Mr Milmo. Those are paragraphs 5, 6, 7 and 8 - the latter of which contains five subparagraphs - and parts of paragraph 9, in particular subparagraph (f) except for the introductory words "the plaintiff's conduct as aforesaid upset the Carr family". In other words, I would exclude references to the effect which the service of the notice to quit is said to have had upon the whole of the island's community, together with reference to a petition. Also I would exclude the general allegation about the system of private land ownership being outdated, which is contained in subparagraph (10).
37. The next question is whether a plea of fair comment is appropriate. In my judgment the defamatory allegation here, which I have already read, is one of fact rather than comment. As Mr Milmo submits, the comment identified in accordance with the Control Risks case is not one, in my judgment, to be found in the words complained of Dilly Barlow did not express the opinion that Mr Schellenberg was autocratic, capricious or insensitive. I agree also that a pleader cannot in this context rely upon opinions or comments that might have formed in a listener's mind having heard the words complained of. Any relevant comment must be one expressed directly or indirectly on the programme. I would therefore strike out the plea of fair comment.
38. The case should be confined, in my judgment, to the plea of justification in so far as it relates to the Carrs. That is something which could on the face of it be contained within the current 10-day time estimate. Unfortunately, however, if the wider ranging allegations are excluded on justification, much of the material would inevitably come back into the proceedings for the purpose of cross-examination of the claimant as to credit. It. is impossible at this stage to define how much, but past experience leads me to conclude that one should budget for a good deal of it being brought back in on credit. It is of course true that judges can control litigation by laying down time limits, seeking to define the extent of enquiry which is permissible in cross-examination and by other methods. That is, however, sometimes easier said than done. Once it became necessary in this case to explain to the jury what relevance the questions going to credit in relation to the earlier proceedings might have to the issues before them, the jury, then the proceedings would be in danger of mushrooming out of control, however much control the judge exercised.
39. Attempting to summarise the rather complicated issues in the earlier proceedings could lead to unfairness and injustice. None of that is a reason to keep material in the case on the issue of justification if it truly is impermissible for that purpose. It is simply to take note of the realities of this kind of litigation.
40. I conclude that, even if I were to make the order Mr Milmo seeks, as I would be inclined to do, it would be impossible to be confident of keeping the case within his two-week time estimate. Despite the new CPR, with the greater emphasis on judicial control and the availability of guillotines, it would be unfair to exclude an extensive enquiry on the issue of credit into the transcripts of the earlier trial, especially on the truthfulness or otherwise of some of Mr Schellenberg's answers during an unusually long cross-examination. There is a superficial attraction in saying now that there should be no cross-examination on credit save in relation to the issue of how the Carrs were treated. In my judgment, that would be, however, an artificial restriction because matters of credit cannot be confined in a way that would correspond to the particulars of justification.
41. I should now return to the application by the BBC, having given my conclusions on the merits of Mr Milmo's application. The central issue in that application seems to me to be this. Suppose the pleading is shorn of the superfluous particulars of justification, as I believe them to be, along with the plea of fair comment; suppose too that the Lucas Box meaning is correspondingly narrowed to focus on the Carrs, in those circumstances is there any realistic prospect that a properly directed jury could fail to find the words to be substantially true? I find it difficult to see any daylight between that test and that of whether there is in this context a "realistic prospect of success" (to refer back to the terms of the CPR). A possibility that might arise in relation to these two cases, perhaps more theoretical than real, is that a jury in the Guardian action might have found the words to be substantially proved to be true, even though not sufficiently convinced of the accuracy of what was alleged about the treatment of the Carrs. Against that background it might be illogical to prevent further litigation over that narrow allegation. A jury in the second action might conclude also that it had not been proved to the required standard and thus decide that the claimant was entitled to succeed in this action. Mr Schellenberg would then be entitled presumably to recover some damages.
42. I said this was a theoretical possibility simply because no-one could ever know what the decision of a jury was on the several allegations comprising the plea of justification, as one would, almost certainly, with a judge alone. While that outcome might in one sense be an unjust result in the light of other allegations found proved in the earlier action, it could well be entirely consistent with the law and in particular with the rules (a) that a particular defamatory charge cannot be defended by a general plea of justification and (b) that, particular incidents may not be relied upon by way of mitigating damages; see, for example, the principle in Scott v. Sampson (1882) 8 QBD 491 which Parliament, notably, recently declined to abrogate.
43. The fact is that the Carrs had not yet given evidence when the case came to an end. Mr Stadlen QC, for the BBC, has assured me that the intention had certainly never wavered so far as their evidence was concerned and the BBC certainly intend to call them. That cannot be prejudged of course. I can form no view as to how those witnesses may strike a jury. I must focus therefore upon the documents bearing upon the issue and such facts as may be thought uncontroversial. Of course the broadcast was inaccurate in referring to "last Christmas", which would have been construed as Christmas 1996, but the sting of the words is not in the timing but in the substance of the allegation. There was a notice to quit the farmhouse, served in October 1994 and due to expire at the New Year. Also there was a notice to determine the business partnership. The plan was to press the Carrs into moving, at least in the medium term, out ot the family home into Laig Farmhouse, which they had apparently no wish to occupy. This followed the claimant and the Carrs reaching a form of agreement in principle in 1992 that there should be a degree of security both in relation to the farm and the house, in particular for a period of 2 5 years.
44. I am not going to rehearse in detail the history of the documents to which I was taken, and which are exhibited to the witness statement of Miss Geraldine Proudler, who was solicitor to the Guardian in the earlier action. It is said that this volte-face, as it has been described in the course of submissions, caused great upset to the Carrs and their family as well as leading apparently to great anger and resentment among adults on the island. This led to the petition to which I have referred and which was before the jury apparently in the Guardian action.
45. There was also before the court the document that led Mr Justice Morland at that trial to make the comment that the tactics adopted in relation to the Carrs' elderly relative {in the autumn of 1992 at any rate) appeared to be, in his word, "shabby"; see his comment on 5 May at page 161 of the transcript. This remark was made in the course of the evidence of Mr Cheape and it referred to a tactic summarised by counsel as being to use old Mrs Kirk, who had lived there for 35 years, as a negotiating card in the negotiations to get the Carrs out of Kildonan. Mr Milmo submits that this was an inappropriate intervention by the judge because at that stage he did not know the full circumstances, in particular the history of the relationship between the claimant and the Carrs and the intentions of Mr Schellenberg for their future.
46. As to the tactic referred to by Mr Justice Morland, there had been at the trial at one stage an attempt by Mr Schellenberg to distance himself from it on the footing that it had been adopted by his agent without his approval. Indeed Mr Cheape had said he thought also that it was his firm's recommendation rather than Mr Schellenberg's. That turned out, so far as one can tell from the documents, not to be the case. Shortly afterwards, Mr Cheape spotted from his note in the course of his evidence on 5 May, at page 162, that Mr Schellenberg had indeed given him those instructions to use her as what was then described as a pawn. On 10 May, at page 64, Mr Schellenberg described that suggestion as preposterous.
47. It is not so much that what he did is said to be unlawful. The criticism is that it was a capricious exercise of feudal powers which had led to considerable uncertainty and distress. At one stage Mr Schellenberg described the notion as a formality; see the transcript for day 8 at page 39. It is true that it was never enforced and that the Carrs remain in place even today. Nevertheless the essence of the criticism is of the threatening tactics employed ana the advantage the client was prepared to take of the quasi-feudal position accorded to him by Scottish law. The claimant had offered the Carrs the opportunity to stay at Kildonan Farmhouse for two years while the house at Laig Farm was upgraded. He wished them to move there but they were unwilling to do so. Therefore, to resolve the impasse, a letter was sent enclosing what was described as "a formal notice requiring you to move"; it was dated 3 October 1994. An earlier note, dated January 199 4, was shown to him in cross-examination, although he had apparently not had an opportunity to see it beforehand, recording Mr Cheape's understanding at that time as to Mr Schellenberg's intentions. It is said that those intentions were to reserve Kildonan from a sale as his own bolt hole on Eigg. It was therefore "essential" that the vacant possession of the farmhouse be obtained in the course of "this year", i.e. 1994.
48. Mr Schellenberg did not agree with that description and said on 10 May (page 52 of the transcript) that this was entirely Mr Cheape's phraseology and that he did not agree with it. It is said also that by the end of 1994 his plan was to sell the estate as a whole and that he therefore had no interest in having a bolt hole. But whatever the motive, says Mr Stadlen, the fact remains that eviction was used as a threat and it is likely to have caused anger and upset to the Carr family.
49. Mr Milmo places some reliance on the fact that the Carrs had not yet given evidence and that a jury might disbelieve their testimony. They have, he indicated, so far only provided very short statements; and so far as Mr Carr's statement is concerned, although it is considerably longer than that of his wife, it only deals in very short compass with these specific allegations.
50. The meaning of the document served as a notice to quit is none the less clear and it might be thought to speak for itself. There is the possibility that a jury might find that, in saying they were upset, they were not telling the truth. But I must take account of the realities and not fanciful possibilities. It is impossible to accept, in my judgment, that the notice was not intended to have some effect on the Carrs; otherwise there would have been no point in serving it. It was intended on Mr Schellenberg's own case to bring the Carrs into line and to compel them to do something they did not wish to do. Maybe Mr Schellenberg did think that they were selfish and had a disproportionate role on the island. But the words in the broadcast were not concerned so much with the merits of the dispute, or with his intentions, but. with the availability of eviction as a weapon that a feudal laird has under the system of land tenure operating in Scotland.
51. I asked Mr Milmo the question: if it was not using the threat of eviction to get possession, what was the purpose? He replied that it was a question of intention and, if Mr Schellenberg did not intend to enforce the eviction notice, it could not amount to a threat of eviction; or at least that was an issue to be left to the jury. I have to remember, however, that the words complained of are about the threat of eviction and the impact upon the Carrs themselves. Whatever the merits of Mr Schellenberg's overall strategy for the island, no reasonable jury could fail, in my judgment, to conclude that it was a threat to evict at the New Year and that it would not be pleasant to be on the receiving end of it. The programme did not invite the listeners to consider the nature of the dispute even in general terms or give any information about the merits of that dispute one way or another.
52. Mr Milmo argues that the broadcast was capable of meaning that the threat was directed not only to the occupation of the house and to the bed and breakfast business then being carried on there by Mrs Carr, but also to the sheep farming business which was Mr Carr's livelihood. I do not agree about that but I am prepared to accept, for the purposes of this present argument, that it is a meaning which the words are capable of bearing. What is being contemplated, therefore, is a jury finding that he used the threat of turfing the family out of the house and bringing the bed and breakfast business to a close, but that he did not, despite dissolving the partnership, threaten to bring the sheep farming livelihood to an end and that, to this extent, the words were untrue. Mr Milmo argues that it must follow that the matter should be left to the jury because, if they find that meaning, Mr Shellenburg would succeed to that extent, since there has been no attempt to justify that specific meaning.
53. It becomes a matter of applying section 5 of the Defamation Act so as to determine how much compensation should be paid in respect of that part of the defamatory allegations, having regard to such parts of the plea of justification as might have been upheld. That, he says, is a classic jury question; it is not an area into which the judge should intrude. Certainly that would be the traditional approach, but I am not sure that it is any longer permissible. Even in a jury action it is regarded under the CPR as a judge's duty to take a realistic and practical attitude. He or she is expected to be more proactive even in areas where angels have traditionally feared to tread.
54. I have seen nothing to suggest that the CPR are to be applied any less rigorously, or the judges are to be less interventionist, in litigation of the kind where there is a right to trial by jury. That important right is sometimes described as a "constitutional right", although the meaning of that emotive phrase is a little hazy. Nevertheless I see no reason why such cases require to be subjected to a different pre-trial regime. It is necessary to apply the overriding objective even in those categories of litigation and in particular to have regard to proportionality. Here there are tens of thousands of pounds of costs at stake and several weeks of court time. I must therefore have regard to the possible benefits that might accrue to the claimant as rendering such a significant expenditure potentially worthwhile.
55. It is in this context that, it seems to me, Mr Stadlen's submissions come into play about the damage done to the claimant by the outcome of the previous litigation and the adverse publicity following in its wake. Mr Milmo is quite right of course in saying that a defendant cannot pray in aid damage done to reputation after the date of publication for the purposes of mitigating damages; see Gatley on Libel and Slander, 9th Edition, at paragraphs 33.31 and 33.33. For present purposes, on the other hand, those principles are beside the point. I am here taking those matters into account not in the context of damages but for the purposes of applying at a pre-trial stage the overriding objective of Part 1 of the CPR. I am therefore not only entitled, but indeed bound, to ask whether, in the old colloquial phrase, the game is worth the candle.
56. Mr Stadlen has emphasised several times the particular objectives that libel actions are intended to achieve, including the restoration ot reputation or character and, where an injunction is sought, the prevention of similar allegations in the future. Here, he submits, it would be wholly unrealistic to ignore what happened following the collapse of the Guardian action. The Guardian and other-newspapers have been free since this time to repeat the allegations originally complained of and they have apparently taken full advantage of it. I need not refer to the articles which have been put in evidence; it is the principle that matters. Moreover, the earlier case was abandoned even though the claimant's meanings put upon the words complained of could only be described as seriously defamatory; in particular, of course, the meanings which I read from the Times pleadings, it being undeniable, as Mr Schellenberg himself has conceded, that the Times action was itself in effect compromised following the collapse of the Guardian action. Those meanings are, as will be apparent from a comparison, very close to the one complained of in this action.
57. Against that background, the pursuit of the present action in the hope of salvaging something from the disastrous outcome of the previous action can only, in my judgment, be characterised as a desperate exercise in damage limitation. It represents one last throw of the dice. In all the circumstances I am afraid I cannot accept 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.
58. I should say a few words about the separate but very closely related subject of abuse of process. As I indicated, I have been referred by the parties to the recent decision of the Court of Appeal in Bradford & Blngley Building Society v. Seddon on 11 March 1999. I can cite certain helpful passages from the judgment of Lord Justice Auld in that case. (It is unreported and so I am referring to a Lexis transcript). He said at an early stage:

"The broad question is whether the second claim falls foul of the well established principle in Henderson v Henderson (1843) 3 Hare 100, that a party should, save in special circumstances, bring forward his whole case in one go and not subsequently seek to re-open the same subject matter by reference to claims against different persons and/or in respect of different issues."

Later he referred again to the judgment of Sir James Wigram in Henderson and quoted him:

"... where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."

Lord Justice Auld continued: "In my judgment, it is important to distinguish clearly between res judicata and abuse of process not qualifying as res judicata, a distinction delayed by the blurring of the two in the court's subsequent application of the above dictum. The former, in its cause of action estoppel form, is an absolute bar to re -1itigation, and in its issue estoppel form also, save in 'special cases' or 'special circumstances'; see Thoday v. Thoday [1964] P 181, CA, per Diplock LJ at 197g-198g, and Arnold v. NatWest Bank Plc [1991] 2 AC 93, HL. The latter, which may arise where there is no cause of action or issue estoppel, is not subject to the same test, the task of the court being to draw the balance between the competing claims of one party to put his case before the court and of the other not to be unjustly hounded given the earlier history of the matter." He continued a little later:

"Thus, abuse of process may arise where there has been no earlier decision capable of amounting to res judicata, either or both because the parties or the issues are different, for example, where liability between new parties and/or determination of new issues should have been resolved in the earlier proceedings, or where there is such an inconsistency between the two that it would be unjust to permit the later proceedings to continue. The first of those examples is an adaptation of Sir James Wigram V-C's inclusion in the principle of res judicata of a requirement that a party should be bound by what he and the court has not done before as well as what they have done. However, his words are now more notable as a source of the doctrine of abuse of process, rather than an exact definition of what may constitute res judicata."

59. I bear in mind also what was said by Sir David Cairns in Bragg v. Oceanus Mutual [1982] 2 Lloyd's Rep. 132, 138 to 13 9:

"... 1 consider that it is for him who contends that the retrial of the issue is an abuse of process to show some special reason why it is so. Since the cases in which the retrial of an issue (in the absence of an estoppel) has been disallowed as an abuse of process are so few in number, it would be dangerous to attempt to define fully what are the circumstances which should lead to a finding of abuse of process. Features tending that way clearly include the fact that the first trial was before the most appropriate tribunal or between the most, appropriate parties for the determination of the issue, or that the purpose of the attempt to have it retried is not the genuine purpose of obtaining the relief sought in the second action, but some collateral purpose.

It would in my judgment be a most exceptional course to strike out the whole or part of a defence in a commercial action, or to refuse leave to amend a defence in such an action, simply because the issue raised or sought to be raised had been decided in another commercial action brought against the same defendant by a different plaintiff. The facts that the first action had been fairly conducted and that the issue had been the subject of lengthy evidence and argument could not, in my view, be sufficient in themselves to deprive the defendant of his normal right to raise any issue which he is not estopped from raising.

If further the defendant was at some disadvantage in the earlier proceedings from which he would be free in the later ones, that is a positive reason why he should not be deprived of the opportunity of raising the issue afresh."

60. Of course, what is a special reason may change with time. What would not count as a special reason in 1982 might be counted special in the modern era of the Civil Procedure Rules. The court may now limit issues in accordance with the overriding objective, for example.
61. Mr Stadlen submits that I should not look at the earlier proceedings and the outcome in too technical a fashion. He says that, although there was no determination, the situation is now to all intents and purposes as though there had been. Mr Schellenberg was doing no more than graciously conceding defeat, and saving everyone time and money. In paragraph 9 of his witness statement he recognised in effect that he was likely to lose on the plea of justification and fair comment, given the judge's various interventions but particularly that of 14 May, which I have already read. It is necessary to look at the claimant's own meaning (d) in The Times action, which I also read, relating to the Carrs. As I have indicated, it seems to me to be clear that that is one of the matters which Mr Schellenberg abandoned when he settled the proceedings, effectively against both the Guardian and the Times.
62. That is the reality of the situation. The principle is that all disputes should be brought into one piece of litigation, in so far as they can, and not left to be dealt with piecemeal in serial court hearings. Of course the publication on the radio was different from the articles published in the newspapers. But the issue of how Mr Schellenberg treated the Carrs was fairly and squarely in play in the Guardian and Times action by virtue of the pleaded case. It could have been resolved. In the practical sense, a resolution of that issue would to all intents and purposes have resolved the corresponding issue in this action. That never happened because Mr Schellenberg chose to terminate the trial shortly before verdict. Harking back to the words that I read a moment. ago from Sir David Cairns, in so far as Mr Schellenberg was at a disadvantage in that respect with regard to the earlier proceedings, that was a disadvantage of his own making, although of course I bear in mind what he has said about financial pressure.
63. I agree with Mr Stadlen that in those circumstances the public policy considerations underlying such cases as Henderson v. Henderson and Greenhalgh v. Mallard [1947] 2 All ER 255 are entirely apposite. In the words of Lord Justice Somervell in the latter, at page 257:

"... res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them."

64. I could also refer to some other illuminating passages in the judgment of Lord Justice Auld in the Bradford & Bingley case, but I think that that would be superfluous.
65. In the circumstances, I would have narrowed the issues in accordance with Mr Milmo's notice of application, if this matter were uncluttered by the history which I have described relating to the Guardian action. In the result, however, I will accede to the BBC application. I will strike out the pleading and dismiss the action. I will also vacate the trial date on 5 July.