B e f o r e :
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| | MANCHES & CO (A Firm)
| Claimant
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| | - and -
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| | MICHAEL JOSEPH
| Defendant
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Mr Jalil Asif (instructed by the Claimants)
Mr Michael Joseph in person
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I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
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The Honourable Mr Justice Eady
HTML VERSION OF APPROVED JUDGMENT
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Crown Copyright ©
Mr Justice Eady:
The Claimants are a firm of London solicitors who are suing to recover the balance of fees said to be owing to them from the Defendant, Mr Michael Joseph, for services rendered in connection with a libel action and certain broadly related matters. The total claim at the outset of the trial stood at £36,251.72 including interest. Mr Joseph resists the claim in its entirety and seeks to recover the sum of £17,220.48, paid on account, in respect of interim bills rendered to him from time to time during the early stages of the litigation in question.
The case has a number of unusual features, including the basis upon which Mr Joseph puts his case. He has conducted this litigation in person from beginning to end. Although he has done so with good humour and courtesy, despite his undoubtedly strong feelings in the matter, one of the consequences has been that the legal basis for resisting the claim was by no means clear.
I do not mean that Mr Joseph has been disadvantaged in articulating or developing his case, through lack of expertise, since I am sure that all his complaints have been brought to the attention of the court in the course of the hearing. Indeed, I would like to pay tribute to the scrupulous care with which Mr Asif, appearing for the Claimants, has not only presented his clients’ case but also been at pains to ensure that every aspect of Mr Joseph’s complaints was fully addressed and considered in accordance with any legal principles that might be potentially relevant. Unfortunately, the problem has been that Mr Joseph’s frustrations and complaints cannot be matched to any viable cause of action or defence.
I believe that Mr Joseph found himself caught up in a stressful and enveloping libel action which grew out of all proportion to the essential issues while, in his own words, much of what was happening “went over his head”. He certainly had opportunities to extricate himself early on, relatively cheaply, but he felt very strongly that the proposals put forward by his opponents were unfair; he insisted on taking a strong line against an aggressive adversary, whose tactics he wished to match with equal vigour. Ultimately, after the present Claimants had ceased to act, and a good deal of time and money had been spent on both sides, the libel action settled on the basis of a formula that did not really satisfy either side. There was then immediately satellite libel litigation based on the terms in which an announcement of the settlement had been couched. That, in turn, has only just been settled.
At the outset of this hearing, Mr Joseph confirmed what appeared to be the position from the pleadings and witness statements; namely that he was not challenging the Manches charging rates or the time spent. He summarised his case by drawing an analogy with a householder who asks a builder to mend his leaking roof but finds that, instead, he has built him an expensive garden fence that he did not require. Thus, although Mr Joseph’s counterclaim is formulated in terms of professional negligence, the true basis of his resistance would in legal terms be more akin to pleading total failure of consideration. That is, however, in itself manifestly unsustainable because (as will emerge in due course) the Claimants put in many hours of work on his behalf and in accordance with his instructions. Moreover, he had paid interim bills without demur and, at no stage while they were acting for him, did he ever register any complaint of misconduct or negligence with the firm itself. Nor did he attempt to have any of the bills taxed in accordance with the provisions of the Solicitors Act.
So far as negligence is concerned, there is no indication of damage caused by any of the alleged breaches of duty, and the financial claim is merely put on the basis that it is precisely co-extensive with the sums paid on account. I will consider each of the complaints in some detail, one by one, but the fundamental difficulty is that the Defendant’s case from a legal point of view is neither fish nor fowl.
I turn to the original libel proceedings. Mr Joseph is a hypnotherapist by profession and was also one of the moving spirits behind a publication known as The European Journal of Clinical Hypnosis (“the Journal”), which was devoted to issues concerning the clinical application and use of hypnosis and which circulated amongst those interested in clinical hypnotherapy. The purpose of the Journal was intended to be the provision of a forum in which those engaging in experimental hypnosis and hypnotherapy could exchange ideas and opinions with other like minded practitioners. Its constitution provided that its editorial policy was to promote the highest ethical principles and standards of professional practice in clinical hypnosis and to encourage interest, understanding and acceptance of hypnosis as a “therapeutic resource”. It was part of its function also to promote the case for rigorous standards of training and of ethical practice. It was expressly not part of its role to promote or support “the use of hypnosis in the field of entertainment nor … in hypnotherapy by use of distance learning techniques”.
The Journal was, I understand, available only upon subscription or to students of clinical hypnosis in the furtherance of their education. At all material times the number of subscribers was something over 400. Mr Joseph told me that the Journal never made a penny profit and he himself had subsidised it financially, from time to time, for the sake of its stated objectives.
The Claimant in the relevant libel proceedings was a Mr Paul McKenna, who had acquired something of a reputation as a stage hypnotist and also apparently practises as a hypnotherapist. As the terminology makes clear, hypnotherapy is a form of treatment intended to benefit patients suffering from a variety of emotional or psychological problems. Accordingly, those who practise it are subject, or supposed to be subject, to certain objective ethical standards which have been codified by various interested bodies. Stage hypnotism by contrast involves using hypnosis on “volunteers” for the sake of entertainment. It is deplored by many practitioners of hypnotherapy.
It was pleaded in the defence in the libel proceedings that a number of the relevant professional bodies refuse to countenance the use of hypnosis for entertainment and indeed actively discourage it. Such bodies include the National School of Hypnosis and Psychotherapy Register of Hypno-psychotherapists and Central Register of Advanced Hypnotherapists; the British Society of Medical and Dental Hypnosis; the National College of Hypnosis and Psychotherapy; the British Institute of Hypnotherapy; the British Association for Counselling; the British Society of Clinical Hypnotherapy; the British Society of Experimental and Clinical Hypnosis; the International Society for Hypnosis; the British Hypnotherapy Association; the Institute of Complementary Medicine; and the United Kingdom Council for Psychotherapy. There is no doubt room for a wide range of views on such matters.
In Issue 9 of the Journal there appeared an article by one Angela Trainer entitled “Another Stage in the Developing Career of Paul McKenna?”. Mr McKenna had been running courses in hypnosis in conjunction with a Mr Michael Breen as well as courses in “neuro linguistic programming” in association with Mr Breen and a Mr Richard Bandler. Miss Trainer’s article reviewed one of the training courses presented by Mr McKenna in favourable terms and, in effect, commended it to readers of the Journal. She had apparently attended the course, although had not been required to pay the course fee, which would normally amount to approximately £800.00 plus VAT. It was this article which ultimately led to Mr Joseph’s many subsequent problems. It clearly upset a Miss Tracie O’Keefe, another hypnotherapist (who at that time had no connection of any kind with Mr Joseph; indeed they had never met).
Miss O’Keefe wrote a letter to the Journal in the following issue (No.10) and in very strong terms criticised the Journal’s decision to carry Miss Trainer’s article. She was strongly of the view that the Journal had no business carrying what she regarded as free advertising for Mr Paul McKenna’s activities, and I have no reason to believe that she was other than sincere in her expression of that opinion. She obviously regarded his behaviour towards the subjects he hypnotised on stage, for entertainment purposes, as degrading and incompatible with the professional obligations of one who practises as a hypnotherapist. She described some of his “entertainments” that she had seen, which she considered to be lewd and tasteless and, in some cases, to have caused distress to the participants. It will become apparent immediately that this is classic territory for vigorous debate of the kind normally considered to be protected by the defence of fair comment. What is important for present purposes, however, is that her letter had nothing whatever to do with Mr Joseph.
Mr McKenna instructed a firm of solicitors, Schilling and Lom, to represent his interests in relation to the publication of Miss O’Keefe’s letter and a cartoon published underneath it. They wrote a letter which Mr Joseph regarded as inappropriately aggressive and generally “over the top”. It was addressed to the Journal and dated 9 August 1996. It alleged that the letter from Miss O’Keefe headed “Staging an Ethical Protest” was offensive, inaccurate and seriously defamatory. It complained also of an imputation to the effect that Mr McKenna had offered some “improper and illegal inducement to Angela Trainer”. It further cited the last paragraph of Miss O’Keefe’s letter because of a reference in it (hardly wise or tactful) to Adolf Hitler. What Miss O’Keefe had said was this:
“I know Mr McKenna has greatly raised the public profile of hypnosis. But I believe a clinical hypnotherapist would not do anything to degrade a client either in private or in public. This is why we have codes of ethics. Isn’t it?
Hitler got publicity, roads built, armies mobilised and disillusioned German youth enthused, but do we now refer to him as a great leader? In my mind Mr McKenna is a popular entertainer, who may be making Richard Bandler, himself and Mr Breen a great deal of money this summer but he falls a long way short of the therapeutic iconoclastic divinity Ms Trainer’s article portrayed him to be”.
This passage prompted Schilling and Lom to respond:
“In an exercise of astonishing excess, the last paragraph of the said article likens our client to Hitler. It is difficult to imagine a more offensive and inappropriate reference to someone who has devoted a considerable amount of his time to providing hypno-therapeutic services to individuals free of charge”.
Subsequently, in the statement of claim which was ultimately served on 1 November 1996, one of the meanings attributed to Miss O’Keefe’s letter was to the effect that Mr McKenna “… was willing to act in a totally ruthless and callous manner, similar to that adopted by Adolf Hitler, in order to achieve what he wanted”. That was a meaning which, in my judgment, was unsustainable but, unfortunately, it tended to obscure the dialogue between the parties.
What is more central to the unhappy history leading to the present litigation is another passage from Schilling & Lom’s 9 August letter. Because of its undoubted significance for Mr Joseph, I should set out the relevant paragraph in full:
“As you are well aware, your readership is not only substantial, [but] it comprises most of the influential practitioners of hypnotherapy in Europe. You have therefore published outrageous libels against our client directly to persons whose opinion of our client is critical to their professional reputation and standing. This goes far beyond fair or reasonable expression of opinion, since it is from an obviously self-interested source, and both malicious and inaccurate. We note in this regard that your proprietor, Michael Joseph, is also the proprietor of College of Hypno-Therapy [sic]. ”
The letter concluded by demanding a letter to each of the subscribers withdrawing the allegations and apologising; an undertaking not to repeat the allegation; proposals for compensating Mr McKenna by way of substantial damages; and an undertaking to reimburse Schilling & Lom for their fees in full.
Unfortunately, but understandably, Mr Joseph became indignant and angry at what he felt was this unwarranted slur. The offensive nature of the allegations clearly stirs strong feelings in him even today. That insult was a constant factor in determining his conduct and his attitude to the libel litigation which followed in early September 1996 when Schilling & Lom’s complaint was rejected. Similarly gratuitous suggestions were made in paragraphs 5.5 and 5.6 of the statement of claim and in paragraph 3.4 of the Reply. He regarded it as essential for any settlement between the parties to have at its core a withdrawal by Mr McKenna and Schilling & Lom of the allegation of bad faith against him. Ultimately, after four long years, it was withdrawn.
When Schilling & Lom complained, Mr Joseph sought advice, on his own behalf and on behalf of the Journal, from Mr John Rubinstein of Manches & Co. He acted thereafter for the Journal, and periodically also for Mr Joseph, in responding to the initial complaint and dealing with the ensuing litigation. The terms of the retainer were put in evidence. From these it is clear inter alia that factors outside Manches’ control were expressly mentioned as something that might affect costs and that tactical decisions might have cost implications that would need to be borne in mind.
Miss O’Keefe had also taken offence at the tone of Schilling & Lom’s approach and she firmly refused to withdraw any of the comments she had made. For a time, when she had the benefit of insurance cover, she was represented by another firm of solicitors, Oswald Hickson Collier & Co. She also had the benefit of advice from junior counsel. Not surprisingly, there was consultation and a degree of co-operation between Manches & Co and Miss O’Keefe’s advisers in drafting a defence and in generally approaching tactics.
Before I turn to the detail, I wish to make it clear that I have great sympathy for Mr Joseph’s frustration over what happened to him. He was sued in respect of a defamatory article of which he knew nothing until after it was published. Unfortunately, the Journal described him at the time, on the inside front page, as its “publisher”. There was a perception, therefore, among lawyers on both sides that he could, for that reason, ultimately be found liable for the publication by a jury. I have myself considerable doubt about that, since the convention or tradition whereby editors take direct responsibility for what is published in their newspapers (even though they may have had no hand in the matter) is one that is anomalous so far as the law of defamation is concerned and, what is more, it is confined to the special circumstances of newspaper journalism: see e.g. R v. Odhams Press Ltd [1957] 1 Q.B. 73, 80per Lord Goddard C.J. It seems to me that, if, as was the fact, Mr Joseph had no hand in the publication of Miss O’Keefe’s letter, it would have been open to him personally to avoid legal liability for its publication.
In any event, of course, there was a strongly arguable defence of fair comment in relation to what Miss O’Keefe had said about Mr McKenna’s stage performances (subject always to the possible implication that Mr McKenna had bribed Miss Trainer, which would be a factual allegation rather than a comment, and for which there is no evidence whatsoever beyond waiving the course fee). It was inevitable that Schilling & Lom on Mr McKenna’s behalf were going to allege that any defence of fair comment on the part of Miss O’Keefe was vitiated by her malice. She may well have ultimately succeeded on this issue, if the matter came to trial, because the hard-hitting expression of strongly held opinions is not to be confused with malice. The touchstone is honesty: see now Albert Cheng v. Tse Wai Chun Paul [2001] E.M.L.R. 777. Be that as it may, even if Mr Joseph were to be held technically responsible for the publication of Miss O’Keefe’s letter, there could be no question of any state of mind on his part “actuating” its publication (or that of the cartoon). He undoubtedly developed strong feelings about Mr McKenna in due course, not least as a result of Schilling & Lom’s allegations about him, but they could in no way have motivated or caused the earlier publication of Miss O’Keefe’s letter. Moreover, if a jury had found Miss O’Keefe malicious, there would be no basis for holding that either of the other defendants could be vicariously liable for her state of mind: See Gatley on Libel & Slander (9th edn), paragraphs 12.23 and 16.24.
It is hardly surprising, therefore, that Mr Joseph regarded the issue in the libel claim against him as very straightforward and as being quite distinct from any argument about possible malice on the part of Miss O’Keefe.
I have little doubt that nowadays a libel practitioner, acting on Mr Joseph’s behalf, would make every effort to try and bring matters to an early conclusion for these fundamental reasons. It would be possible now to attempt an early resolution by persuading the court that Mr Joseph had nothing to do with the publication and that, therefore, Mr McKenna had no realistic prospect of success. There would be possible mechanisms for achieving this by reference to CPR Part 24 or sections 8-10 of the Defamation Act 1996 (which were not in effect at the material time). Unfortunately, however, in those days it would have been unrealistic for practitioners in the field to attempt any form of summary judgement, since defamation had been one of the long established exceptions to the former RSC Ord. 14 procedures. As a matter of fact, in so far as it is relevant, the court is to an extent also more flexible about entertaining applications for a robust rejection of a plea of malice: see e.g. the remarks of Lord Woolf M.R. (as he then was) in S v. London Borough of Newham [1998] E.M.L.R. 583. Nevertheless, as I have indicated already, the central issue for Mr Joseph was that of non-publication.
Given that these options were not available in 1996, it seems to me that there was little choice but to take one of two courses of action. Either Mr Rubinstein could have persuaded Schilling & Lom that Mr Joseph was not responsible for the publication of Miss O’Keefe’s letter, with the aid of statements from relevant persons, or he had to prepare on all fronts to defend the libel proceedings. His personal view was that it would have been too risky for Mr Joseph to confine his defence to that of non-publication since he did, after all, have to overcome the hurdle of rebutting the description on the front page. Moreover, since he was acting for the corporate proprietor of the Journal anyway (for which no such defence would be available), other defences had to be explored as fully as possible. Although Schilling & Lom were made aware of Mr Joseph’s case on publication, they did not seem very impressed.
One of Mr Joseph’s cris de coeur throughout the hearing was that the defence actually served was geared to the interests of Tracie O’Keefe rather than his own. I am afraid there is confusion here. Since all relevant Defendants were being sued in respect of the same article, inevitably there would be a good deal of overlap. On the other hand, there would need to be differences of approach on the more limited issues of publication and malice. What Mr Joseph failed to address, however, although the point was made several times by Mr Rubinstein during the course of his evidence, is that the interests of the Journal could not conceivably be served by relying purely on the defence of non-publication. It required a substantive defence to be pleaded on its behalf. When it came to pleading justification and fair comment (and for that matter, qualified privilege), it would obviously be wise to make common cause, so far as possible, with Miss O’Keefe.
There seemed to be another paradox at the heart of Mr Joseph’s case. On the one hand, he wished to distance himself from Tracie O’Keefe’s defence; on the other, he wished to rely on a narrow pleading of fair comment. One possible approach (with a view to narrowing the issues and saving costs) would have been to limit the plea of fair comment to the matters on which Tracie O’Keefe was directly commenting in her letter; in particular, to the stage performances of a lewd and degrading character which she had herself witnessed. Mr Rubinstein pointed out, however, that there were pitfalls in taking this approach. It is necessary to address these, because Mr Joseph failed to take account of them during the course of his evidence or submissions.
Mr Rubinstein had misgivings about placing all his clients’ eggs in the Tracie O’Keefe basket. He had to form a judgment in the circumstances confronting him in 1996 and 1997. He was wary of Miss O’Keefe because he regarded her as a “loose cannon”. With the benefit of hindsight, it may very well be that he would take a different view of her, but that does not matter. It is necessary to judge his conduct at the material time. One unhappy incident (described by Mr Joseph at one point as the “the catalyst”) was that Miss O’Keefe posted a message on the internet which had the effect of simply provoking Mr McKenna and Schilling & Lom. It is not possible at this stage to be precise about the date when it appeared, but it was shortly after receiving the complaint from Messrs Schilling & Lom. What she said was:
“I am a professional hypnotherapist at The London Medical Centre, Harley St. London. Paul McKenna says he is going to sue me because I exposed details about his stage show in the European Journal of Clinical Hypnosis. We think it is just hot air, but just in case has anyone got any dirt on him. The fewer stage hypnotists there are the safer the public will be”.
Just as her reference to Hitler was, to say the least, unfortunate and just as the possible imputation of bribery with regard to Angela Trainer was inherently provocative, so too this internet communication was hardly diplomatic. I have little doubt that by “any dirt on him” Miss O’Keefe was simply referring to potential confirmation by other witnesses of conduct on the part of Mr McKenna of the kind which she so deplored herself. It was bound, however, to be relied upon as fuel by Mr McKenna, and his advisers in particular, with a view to arguing that she was malicious. It was in fact relied upon in paragraph 5 of the statement of claim and in paragraph 5.7 of the reply (when it was belatedly served in early 1998). They also sought to fix Mr Joseph with responsibility for what she had done. At all events, this was one of the reasons why Mr Rubinstein became wary of her and characterised her as a “loose cannon”. If she was disbelieved, or thought to be exaggerating, in her descriptions of Mr McKenna’s stage activities, then the objective stage of the fair comment defence would fail – and fail for all Defendants who chose to rely upon it (including the corporate Defendant which had undoubtedly published the words complained of). That is to say, the essential factual substratum for fair comment might simply collapse.
There was another difficulty about Miss O’Keefe’s evidence which troubled Mr Rubinstein. She was potentially, as he was subsequently to describe her, “in line for a contribution notice”. Thus, the fact that at some point she and Mr Joseph could come into conflict during the course of the litigation imposed an inhibition on him in his dealings with her and, in particular, he judged it for that reason imprudent to take a detailed signed witness statement from her.
Furthermore, if at any stage Miss O’Keefe decided to disappear from the litigation (perhaps because she was willing to go along with a settlement recommended by her insurers, for example), there was the possibility that her evidence would not be available at all or, if it was, that it might not be quite as clear or unequivocal as her original letter had suggested. These were factors which Mr Rubinstein was fully entitled to take into account although, as it subsequently emerged, Miss O’Keefe stuck to her principles and was not willing to go along with a settlement which involved any compromise on her part or the payment of money to Mr McKenna. She was indeed prepared, ultimately, to sacrifice the benefit of insurance cover rather than compromise her principles. It is important, once again, to emphasise that Mr Rubinstein was assessing her without the benefit of hindsight.
In my judgment, a telling factor in this litigation is the drafting of the original defence towards the end of 1996, in collaboration with Oswald Hickson, Collier & Co, and the discussions which surrounded it. Mr Joseph claimed at various points that he had no real idea of what was being done on his behalf; that it was not explained to him, and that it all was “legalese” which went over his head. At various points in his closing submissions, Mr Asif highlighted the importance of contemporaneous documents and records. He was clearly right to do so. What is clear beyond doubt is that, on 12 November 1996, Manches faxed to Mr Joseph (on 01264 358800) 23 pages of draft defence. The Manches transmission report of that date shows that the transmission began at 9.43 a.m. and concluded some nine minutes later. It shows also that 24 pages were transmitted successfully. This step was taken by Manches with a view to giving Mr Joseph an opportunity to study and comment upon the draft defence, well in advance of a proposed round table meeting with Oswald Hickson, Collier, Tracie O’Keefe and her counsel (which ultimately took place on 28 November 1996). From the note, it appears that the meeting lasted from approximately 4.15 until (I was told) sometime between 7.00 and 8.00 p.m.
Against that background, it is important to assess the criticisms which Mr Joseph made in the course of his own evidence and his cross-examination of Mr Rubinstein. His case at first was that he was not told what was in the defence; it appeared to have nothing to do with him. When shown the fax transmission sheet of 12 November, his first reaction was that he had no recollection of it. Then he said that he remembered receiving something of that sort but that, despite what the Manches transmission records stated, the transmission was not complete. He did not receive all the pages. This is hardly a satisfactory answer. The defence was clearly an important document. He must have realised that this was so. If some pages were missing, it was a simple matter to telephone Mr Rubinstein or his secretary and have them re-transmitted. Moreover, he was there when the content was discussed with everyone present on 28 November. The defence ultimately contained substantive pleas of qualified privilege, fair comment and justification as well as the bare denial of Mr Joseph’s responsibility for the publication. Mr Rubinstein says that the defences were explained to Mr Joseph, discussed with him and approved by him. What is more, Mr Rubinstein says that he was never given instructions to confine Mr Joseph’s defence to one of non-publication. Indeed, Mr Joseph has not asserted the contrary. In those circumstances, it seems to me that Mr Rubinstein is clearly right in what he says.
A complaint which Mr Joseph now makes is that Mr Rubinstein failed to instruct counsel at any stage to advise or represent him or the Journal in the libel action. The first point which troubled me about this accusation is precisely what detriment he says came about as a result of this decision. When I asked him what difference it would have made, on his case, he replied that he simply had no idea. That is no basis at all for making a finding of professional negligence.
In any event, Mr Rubinstein says that he was conscious throughout of the need to conserve funds as far as possible. He regarded himself as sufficiently experienced in defamation matters to conduct the proceedings, including much of the advocacy at the interlocutory stage, without engaging the services of counsel. This may be an unusual step to take, but it cannot in itself amount to a breach of duty. Furthermore, the advice that was given to Mr Joseph and the Journal as to the options for defending the claim, the gathering of evidence and the tactical issues was not such that it could be said to be outside the scope of what a reasonable solicitor, with defamation expertise, would offer. No libel action is exactly the same as another. Practitioners have to tailor their experience and judgment to the facts of each case. Naturally, there is enormous scope for differences of view or emphasis. Some solicitors or counsel might have taken a different view from Mr Rubinstein in certain respects, but that is neither here nor there: see e.g. Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582; Calver v. Westwood Veterinary Group [2001] Ll. L.R. Med. 20.
In this context, it is important to bear in mind that there was a good deal of co-operation with Miss O’Keefe’s advisers, particularly with reference to the drafting of the defence, and there was an experienced libel junior as part of her team. I am quite satisfied that the omission to instruct counsel cannot be categorised as breach of duty – quite apart from the important consideration that it cannot be shown to have caused any detriment or damage.
In his witness statement Mr Joseph objected at some point to the inclusion in his defence of what he describes as “Miss O’Keefe’s assertions on the dangers of stage hypnosis”. Much later in the course of litigation, when he was acting for himself, Mr Joseph set out to delete a number of allegations of that kind (while retaining a significant amount of the particulars originally included in the defence). I am satisfied, however, that Mr Joseph did not instruct Mr Rubinstein to exclude these matters. Indeed, as I have indicated, he was present at discussions when the content of the defence was thoroughly addressed. What he said in his witness statement was that “this was not at all the defence I wanted or expected but it was too late to do anything about it”. That is unconvincing.
Mr Joseph also said that he voiced his reservations to Mr Rubinstein many times about the defence and sometimes in the presence of one of his witnesses, Miss Ursula James, who often attended their meetings. Mr Rubinstein is described as having a one track mind and as simply not wanting to hear about his objections. Miss James appeared to be of the same opinion. Contrary to his own wishes, Mr Rubinstein was pressing him to obtain approximately 30 references to articles on the subject of stage hypnosis and its potential risks. There is an implication that Mr Rubinstein was “churning” by looking for material that would occupy him or his staff in the expenditure of lucrative time. I cannot accept this. It does not seem to me to accord with Mr Rubinstein’s evidence and the explanations he gave for the criticisms levelled against him. It is necessary to recall that on one occasion (to which I will come later) Mr Rubinstein actually gave up a day of his holiday and appeared in court before Thomas J in July 1998 without making any charge. A gesture of that kind does not sit comfortably with the suggestion of “churning”.
In any event, it is necessary to consider the factors underlying Mr Rubinstein’s judgment as to why the broader aspects of stage hypnosis should be explored. Although fair comment might be thought to be the primary and obvious defence to raise, there was the possibility that Miss O’Keefe’s accusation of “unethical” behaviour against Mr McKenna would be construed ultimately, by a jury, as fact rather than comment. In that event, it would be necessary to fall back upon a plea of justification. Moreover, as I have already indicated, Mr Rubinstein was throughout concerned about the wisdom of proceeding on the narrow front of Miss O’Keefe’s own evidence about the stage performances that she had seen. I appreciate naturally that an investigation of the kind Mr Rubinstein was contemplating would be likely to take up a good deal of time, and therefore money, but it was an exercise in prudence which cannot in my view be criticised. It is necessary to recall, also, that a strong defence of justification based upon solid and well documented material can often deter a claimant from going to trial or encourage a settlement. The fact that certain pleaded issues might take a month or six weeks to resolve can often be as much a deterrent for the claimant as for the defendant. Once again, therefore, I find myself quite unable to uphold Mr Joseph’s criticism of Mr Rubinstein in this respect. The position might have been different, however, if Mr Joseph had specifically instructed him that he wanted the issues confined for tactical or financial reasons, but there is no evidence that this was ever done.
Another topic which loomed large during the course of Mr Joseph’s evidence was the video material which came into his possession in early March 1998. This came from America and, although I have not seen it, it related to performances given on television in the United States by Mr McKenna. It apparently provided Mr Joseph with strong support for Tracie O’Keefe’s comments about lewdness and tasteless exploitation of those who were subjected to hypnosis. Mr Joseph regarded these as “gold dust” so far as the litigation was concerned, and he thought that they would lead immediately to the collapse of Mr McKenna’s claim, if drawn to his attention at the right time and in the appropriate manner. He apparently wished Mr Rubinstein to offer Schilling & Lom the videotapes in exchange for Mr McKenna’s surrender in the libel proceedings and the vindication of his (Mr Joseph’s) own integrity. He did not shrink from referring to this as “blackmail”, but Mr Rubinstein counselled Mr Joseph against taking any steps that could be construed in that light. He naturally saw the value of the tapes, both from the point of view of tactics and ultimately by way of supporting evidence, but he did not perceive them as capable of administering an immediate “knock-out blow”. There is no doubt that he drew them to Schilling & Lom’s attention very shortly after Mr Joseph told him of their existence. Mr Joseph would have preferred the revelation to have been made more aggressively, but there is nothing in that point. It was a matter for Mr Rubinstein’s judgement, and there is no conceivable way that they could have been used to bring Schilling & Lom to heel more quickly. It is on the record that by May 1998 a much more conciliatory offer was forthcoming. One can only speculate, but the existence of the tapes may very well have played a part in drawing out those concessions. Mr Joseph was quite convinced that Mr McKenna would never proceed to trial once the videos had been produced, but one of Mr Rubinstein’s assistants, Sam Randhawa, properly warned him (over the telephone on 5 June of that year) that the case could not responsibly be conducted on that assumption.
I next turn to one of the major bones of contention between the parties. A significant part of the outstanding fees which Manches & Co seek to recover in this litigation was attributable to an application to strike out the libel action for abuse of process. The application was inspired, so I believe, by the decision of the House of Lords in the case of Grovit v. Doctor [1997] 1 WLR 640. Because of financial considerations, Mr Rubinstein was looking for any possible route that could have the effect of limiting his clients’ exposure by bringing the proceedings to an end without the need for a full-blown jury trial. As is well known, Grovit v. Doctor concerned a libel case in which the claimant had made no attempt to progress his action over a considerable period of time. The Court of Appeal indicated in strong terms that the court might very well be prepared to draw an inference, if there was unexplained delay over a long time, that the claimant was not genuinely interested in pursuing defamation proceedings for their proper purpose; that is to say, the vindication of reputation. Sometimes, wealthy men have used libel litigation, notoriously in some cases, for the purpose of stifling comment on their activity or to punish commentators who may have troubled them for one reason or another. It is in that context that courts are rightly wary of long delays.
It so happened that Mr McKenna took no steps in the libel proceedings for some considerable time after the defence was served. As the months went by in 1997, his opponents began to think of how this could be turned to their respective clients’ advantage. It seems that Mr Allway of Oswald Hickson, acting for Tracie O’Keefe, took the view that it was better to let sleeping dogs lie and in due time make an application to dismiss for want of prosecution in accordance with the Birkett v. James principles. It was in Mr Joseph’s nature, however, not to sit idly by but rather to take the fight to Mr McKenna.
This is how it came about that Mr Rubinstein canvassed the possibility of making what he called a Grovit v. Doctor application. He realised that this would be a speculative course of action, but there was a possibility at least that matters might be brought to an early conclusion. Mr Joseph decided that he would go along with this proposal, although I am quite satisfied that the advice he was given on prospects of success was very cautious. It is inconceivable that Mr Rubinstein would have advised him that this tactic provided a simple and straightforward solution. Mr Joseph acknowledged in his witness statement that he thought it “worth the gamble and gave him the go-ahead”.
On 3 February 1998 Sam Randhawa sent Mr Joseph a letter with which he enclosed Mr McKenna’s Reply which had been sent to Manches on 23 January 1998 (albeit without a notice of intention to proceed), an extensive request for further particulars of the amended defence and Mr Rubinstein’s second affidavit in draft. This, he explained, was to be in support of the application to dismiss Mr McKenna’s action on the ground that the year long delay was an abuse of process, whereby Mr Joseph had been effectively “gagged” from discussing the topic of Mr McKenna’s stage hypnosis performances. He went on to say:
“Recent case law has supported the long held the [sic] belief that libel actions must be not only brought but also conducted as expeditiously as possible in order to avoid a risk of being struck out. If you have any queries about the contents of the enclosed documents, then please do not hesitate to contact Mr Rubinstein or myself. In the meantime we shall let you know as to when this application is listed for hearing by the Court”.
It is quite clear that Mr Joseph was advised from the outset as to the speculative nature of the strike-out application and the reasons why it was being contemplated. Mr Rubinstein commented in a letter of 2 March 1998 as follows:
“You will recognise that this application is very much a tester and whilst it does not have much chance of success, it should at least be tried in view of the very substantial Request for Further and Better Particulars which Paul McKenna is seeking to serve on EJCH and yourself”.
The letter also pointed out that the original estimate of 1 hour for the proposed hearing was likely to be increased to some 2 ½ hours (with inevitable cost consequences).
It is relevant to bear in mind that, having taken the advice of counsel, Oswald Hickson Collier had decided to join in the strike-out application (although naturally in some respects the issues would differ). It is unreal to suggest that the proposal to go forward with the strike-out application, in the light of the cautious advice that had been given, was one that no reasonable solicitor could pursue. As an alternative, however, to incompetence, Mr Joseph has put forward in his defence the suggestion that the application was being promoted by Manches & Co “to make money for themselves”. This financial motive is one to which I shall return shortly.
It was later suggested that the video material, which had recently come into Mr Joseph’s possession should be exhibited to an affidavit and used to bolster the argument that the claim should be regarded as an abuse of process. The proposed tactic therefore offered Mr Joseph some chance of an early resolution, while at the same time utilising the videotapes which he regarded so highly.
When the matter came before Master Tennant on 17 June 1998, things went only too well for Mr Joseph, in the sense that the Master decided that because Mr McKenna had failed to swear his affidavit he should be ordered to attend for cross-examination on it, if sworn, and in default the action should be struck out. This was a decision at which the Master arrived of his own motion. It was not something which was sought by Mr Rubinstein, who was appearing for Mr Joseph on that occasion. At all events, the Master’s decision left Mr Rubinstein in something of a quandary because, if Mr McKenna decided to put matters right and swear his affidavit, there was every possibility of an appeal against the Master’s order that he should attend for cross-examination. Mr Rubinstein was of the view that, if he did so appeal, a Judge would be unlikely to uphold the Master’s order. Nevertheless, no doubt while the order was still in existence it served to exert a little tactical pressure on Mr McKenna and his advisers. Meanwhile, of course, the principal issue of whether the claim should be struck out as an abuse of process would remain unresolved.
Mr McKenna swore the affidavit and appealed. There was then an unhappy hearing before Thomas J on 17 July 1998. I am told that the Judge expressed disquiet, on coming into court, that such an issue should be before him. He could see no basis upon which cross-examination of Mr McKenna could be ordered in advance of the trial. He did not apparently realise, until some time had elapsed, that the order had been made of the Master’s own motion and appeared to be under the impression that it was something for which Mr Rubinstein had applied. It became apparent both to Mr Rubinstein and Mr Joseph that the appeal was, from their point of view, a lost cause and this was discussed between them over the short adjournment. Some criticism has been levelled at Mr Rubinstein by Mr Joseph for not telling him in forceful terms that the resistance to the appeal should be abandoned forthwith. In the absence, however, of any such instructions from Mr Joseph, Mr Rubinstein battled on to no avail.
It is obvious that in June Master Tennant appeared to think that the application had, at that stage, at least some merit. Otherwise, he would not have wasted time ordering Mr McKenna to attend for cross-examination. Similarly, when the matter received the consideration of Thomas J in July, there is no reason to suppose that he thought the strike-out summons itself to be futile or without merit. His disapproving remarks were apparently confined to the Master’s rather surprising order that Mr McKenna attend for cross-examination.
It was before Thomas J on 17 July 1998 that Mr Rubinstein, while supposed to be on holiday, came to court and represented both clients free of charge. I believe that the allegation that the firm was motivated by financial considerations is unsustainable, on the evidence before me, but this ex gratia representation is especially telling. Mr Joseph was unconvinced. If Mr Rubinstein had indeed made no charge, as Mr Joseph was prepared to accept during the hearing, he thought it more likely that this was simply down to a guilty conscience. With the benefit of hindsight, as so often happens in litigation, it is possible to conclude that a good deal of money and time could have been saved. While I quite understand Mr Joseph’s frustration over this exercise, which clearly accounts for a very significant proportion of the outstanding fees, I am quite satisfied that he was made aware of the underlying reasons which prompted the application in the first place. Moreover, he was willing to go along with it, not least because it was consistent with his own philosophy of taking the fight to Mr McKenna.
It is true that ultimately, at a time when he was acting for himself, Mr Joseph decided to abandon the strike-out application when appearing before Morland J in 1999. By that time, Mr McKenna had apparently revived his interest in the action. It was thus more difficult then to invite the court to draw an inference that he had no genuine desire to vindicate his reputation (in accordance with Grovit v. Doctor). It is in this context that Mr Joseph’s pleaded allegation (in paragraph 10.3 of his defence) has to be assessed. This was to the effect that the advice being given by Manches in January 1999, as to the chances of success on the strike-out application, “shall be proof that their advice throughout did not benefit me”. The change of advice is entirely understandable. It is very rare that a true Grovit v. Doctor inference can be drawn, and it is clear that the glimmering hopes which had begun to emerge through Mr McKenna’s delays in 1997 had been quite confounded by the increased activity on his part which had become apparent during 1998.
It is hardly surprising that by August 1998 both Manches & Co and Mr Joseph had become concerned about the way costs were building up in circumstances in which no obvious exit route was available. Shortly thereafter, Mr Joseph decided that he would represent himself while leaving the Journal in the hands of the firm. It is clear, however, that during the period when he was representing himself, a decision was made that he would continue to pursue the strike-out summons despite the risks. He informed Schilling & Lom of his decision in a letter of 12 November 1998, in which he said he wished “to have a full hearing of my outstanding Summons”. He invited them to afford him the courtesy of agreeing to a further adjournment so that it could be re-listed at the beginning of December.
Another point which has been a source of understandable irritation to Mr Joseph arises from the circumstances in which Manches eventually, in January 1999, applied to come off the record as solicitors for the corporate defendant. The retainer was terminated on 14 January and the application to the court took place on 25 January. Shortly before this, Mr Paul Woolf had taken over the file within Manches & Co because Mr Rubinstein was at that time very heavily engaged in other litigation.
Mr Woolf gave evidence before me and it is clear that he found the situation problematic and, indeed, took advice on behalf of the firm from counsel (Mr Penny) as to the appropriate course of action to extricate the firm from its difficulties. It was perceived that there was a conflict of interest between Mr Joseph and the company. At all events, it came about that information regarding the advice which Manches & Co had given, as to the conflict and to the stance in which Mr Joseph wished to take on his own behalf, found its way into an affidavit before the court. Morland J clearly thought that Manches & Co had improperly revealed confidential information that was the subject of legal professional privilege. Subsequent discussions between Mr Woolf and Mr Penny led them to the conclusion that they did not necessarily agree with the Judge’s view but, nevertheless, an immediate apology was forthcoming in court and the application continued on its course. Whatever was said in court, Mr Joseph has pointed out that no personal apology was forthcoming to him.
It is unnecessary for me to consider the conflict in further detail or to address the appropriateness, or otherwise, of the reference to confidential information before the court. None of this seems to me to bear upon the issues in this case, either with regard to negligence or the quantification of the outstanding bills. I have no doubt whatever that Mr Joseph feels he was unjustly treated in this regard, but the episode has no legal consequences relevant to the present claim.
There were other miscellaneous points raised in the course of the hearing which seemed to me also to be very much “by the way”. For example, Mr Woolf at one point passed on a report of a very recent decision of the Court of Appeal in December 1998 for Mr Joseph’s consideration. I believe it was Mr Penny who originally referred to it (UCB Bank v. Halifax), but it seemed to have no relevance then and I am quite sure it has none now.
Another figure who hovered at the edges from time to time was Mr Roger ter Haar Q.C. At one point, Mr Rubinstein thought of employing Mr ter Haar’s services to present the Journal’s case (and indeed that of Mr Joseph) on the strike-out application, as and when it came to be heard. This occurred to him, apparently, for the first time in August 1998 shortly after Thomas J had indicated that he thought the case fit for expedition and indeed suitable for vacation business.
Mr ter Haar, who is an eminent silk with a very large civil practice, was well known to Mr Rubinstein as a friend and relative. From time to time, he had engaged Mr ter Haar’s services and, not infrequently, at very modest rates in deserving cases. Mr Joseph seems to have thought that there was something “fishy” about this arrangement, but I am quite satisfied that his concerns were unfounded. As it happens, Mr ter Haar’s services were never required in the event. He was not instructed. The matter proceeded no further than enquiring of his clerk as to his availability. Mr Joseph cannot understand why it was even mooted as a possibility, bearing in mind that Mr ter Haar does not hold himself out as being a defamation specialist. Mr Rubinstein, on the other hand, took the view that the strike-out application was one that did not particularly require libel expertise. One could hardly disagree, and I have no doubt that Mr Joseph’s interests would have been well served at the hearing if he had been fortunate enough to be represented by Mr ter Haar – provided there was any life left in the merits of the application. Mr Rubinstein was simply suggesting ways of furthering his clients’ interests.
I believe that now Mr Joseph’s complaint in this respect is confined to the proposition that he was put at unnecessary financial risk because, as he believes, the very mention of Mr ter Haar’s name had led Schilling & Lom to set about acquiring the services of Mr Patrick Milmo Q.C. Whether this is actually the case, I have no way of knowing; but Mr Joseph believes that the appearance of Mr ter Haar on the scene, without any instructions from him, increased his own financial exposure because he would probably have had to pay Mr Milmo’s fees when the strike-out application was ultimately dismissed. In fact, this never happened.
These facts have only to be stated for it to become apparent immediately that they do not disclose any breach of duty on Mr Rubinstein’s part, nor indeed any damage accruing to Mr Joseph.
A further criticism made by Mr Joseph is that other solicitors within Manches & Co were, from time to time, engaged on the litigation without his express permission or instructions. I have already referred to Mr Randhawa and to Mr Woolf. This again, however, gives rise to no cause of action or legitimate ground of complaint. It is quite clear from the terms of the retainer that it was the firm whose services Mr Joseph was employing, and that there was no obligation for them to be rendered through Mr Rubinstein and him alone. It is common practice, save in special circumstances, for work to be shared between appropriate fee-earners. Indeed, it is very often cheaper to employ less experienced solicitors or trainees for certain tasks than to take up the time of a senior partner. What matters, of course, in those circumstances is that the person concerned should be given proper supervision. In the present case, there is no suggestion that this did not happen.
Mr Asif has submitted that on the evidence presented to the court on behalf of Manches, much of it unchallenged, they are entitled to succeed in the claim for recovery of the fees. There is no challenge to the rates or the hours worked; nor clearly was there a total failure of consideration. Nor is there any breach of Manches’ duty of care owed to Mr Joseph and to the company. That would dispose of the counterclaim in negligence, but there was no formulation of any plea of damage flowing from their alleged shortcomings either. Mr Asif is clearly right. I am sorry that Mr Joseph has got himself into this position, but his claim is simply unsustainable in law. In those circumstances, there must be judgment for the Claimants.
