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

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		7 October 2003

Mr Justice Gray:

The issue on the application

1. It is not uncommon to find the same or a similar story appearing in several newspapers on the same day or within a short space of time. This can happen when a newsworthy story breaks in the columns of one paper and is followed up by others. Where the story in question is said to be defamatory of an individual, separate libel actions are often commenced against the various publishers concerned. In general there is nothing remotely improper about this. It is what occurred in the present case. The two Claimants, Captain Sarah Pedder and Sergeant Allan Dummer (to give them the military ranks which they held at the time), started separate actions in respect of stories about them which appeared in February 2002 in the columns of the Sun, the Standard, the Mail and the Daily Telegraph respectively.
2. For reasons into which it is not necessary to go in any detail, the action against Associated Newspapers Ltd (the publishers of the articles in the Standard and Mail) came on for trial first, although neither of those newspapers had been the originator of the story. The trial took place before me, sitting with a jury, in July 2003. After a trial which lasted for some ten days and which involved the calling of many witnesses of fact, the jury answered in favour of the Defendants the questions whether in each case they found for the Claimants or the Defendants, and the action against Associated Newspapers was accordingly dismissed with costs.
3. As matters stand at present, two further actions remain to be tried, against the publisher of the Sun, News Group Newspapers Limited, the present defendants, and against Telegraph Group Limited respectively. The trial of the Sun action is due to commence on 13 October 2003. Whether the action proceeds on that date depends on the judgment in the instant application.
4. It is against the background summarised above that News Group apply to dismiss the Sun action on the footing that it would be an abuse of the process to re-litigate against the Sun what News Group claims are effectively the same or nearly the same issues as were litigated in the Associated Newspapers action and resolved by the jury in that case against the Claimants.

Application for permission to amend the Defence

5. 5. Also before the court are several further applications which News Group Newspapers have indicated they intend to make in the event that the application to dismiss is refused. One of those is an application for permission to amend the Defence to make significant alterations to the ambit of the plea of justification. Since one of the principal questions arising on the application of the Sun to dismiss is the similarity or otherwise between the issues which arise in the Sun action and those which have already been litigated in the Associated Newspapers action, it appeared to me that it would be sensible to deal with the question of permission to amend the Defence before dealing with the application to dismiss. It is preferable to decide the latter application by reference to the issues which would arise at trial in the event that permission were to be granted to amend the plea of justification.
6. 6. In the result the application for permission to amend, whilst not consented to by Mr Mackenzie who appears for the Claimants, was not resisted either. Mr Mackenzie realistically accepts that the amendment, although late, would cause his clients no prejudice because, as will be seen, the plea of justification now sought to be put forward is in very similar terms to the defence of justification which the Claimants have already had to meet in the Associated Newspapers case. Accordingly, I gave permission to amend.

The issues in the action against Associated Newspapers

7. The stories which appeared in the Standard and on the following day the Mail were in similar terms. The former was headed "Army captain faces sack over her 'affair'" and the latter bore the heading "Desert manoeuvres". In each case the subject matter was an "affair" (a term employed in both articles) which was said to have taken place between Captain Pedder and Sergeant Dummer whilst their Army unit was on exercise in Oman. The defamatory meanings ascribed to the two articles on behalf of the Claimants were similar: in the case of the Standard it was said to bear the following meanings:

"…that the Claimants during an important army exercise in Oman indulged in an illicit and improper sexual relationship during which they had sexual intercourse.

…the Claimants lied as to when the sexual relationship had

started."

The Mail article was alleged to bear the meanings that:

"…the Claimants during an important army exercise in Oman indulged in an illicit and improper sexual relationship during which they had sexual intercourse.

…the Claimants had failed to carry out their duties during the exercise in Oman as they were distracted by their sexual relationship.

…the Claimants' behaviour was particularly reprehensible because the Claimants' unit could have been sent into action in Afghanistan.

…the Claimants had lied to their unit authorities in claiming that there was no sexual relationship between them while they were on exercise in Oman."

8. It its Defence, Associated Newspapers denied the meanings asserted by the Claimants, adding "In particular, it is denied that the article alleges that the Claimants had made improper use of military transport or had lied as to when the sexual relationship started". The pleader described the issue as to the meaning of the words as being the Defendants' "primary contention".
9. The substantive defence relied on by Associated Newspapers was justification. (The statement of case also pleaded Reynolds-type qualified privilege but that was not pursued at trial and I say no more about it). In its original form the defamatory meanings which the Standard sought to justify were:

"…that the Claimants had, alternatively there were reasonable grounds for believing that the Claimants had:

(a) broken the Army's code of conduct while serving together on a training exercise in Oman by having an affair, and the Army was therefore conducting an investigation into the Claimants' conduct;

(b) claimed that their relationship had started only after they had returned from Oman, deliberately failing to provide a full account of what had happened".

Similar meanings were sought to be justified by the Mail.

10. Shortly before the trial commenced, Associated Newspapers obtained evidence from about a dozen witnesses, most of whom had served in the same unit as the Claimants in Oman. Emboldened by that further evidence, the newspaper successfully applied for permission to amend the Defence so as to justify the further defamatory meaning that the Claimants had had an affair whilst on the training exercise in Oman and not just the lower meaning that there were reasonable grounds for suspecting this to have been the case. The supporting particulars made clear that, if the articles bore the meanings put on them by the Claimants, namely that sexual intercourse had taken place between the two Claimants whilst in Oman, then the newspapers would contend that that was indeed true and that the Claimants did have sexual intercourse in Oman on three occasions, namely on 17 or 18 November in a Land Rover at Camp South; on 24 November on Donkey Beach at Salalah and on 27 November at the Hilton Hotel in Salalah.
11. This was the case put in cross-examination to the Claimants at the trial; it was supported directly or indirectly by a number of the Defendants' witnesses and it formed the thrust of the case on justification put before the jury in the closing speech of leading counsel for the newspapers, Mr Bernard Livesey QC.
12. When I came to sum up the case to the jury, I attempted to summarise in a nutshell how each side put its case. At paragraphs 40-42 of the transcript, I said this:

"40. The Claimants say that whilst there were on operational duty in Oman, until they flew back on 28^th November, no physical or sexual contact had taken place between them, although an emotional bond was at least beginning to develop. They say that the first time that physical contact took place between them was by that canal in Aldershot on the morning of 30^th November, after they returned to the United Kingdom. According to the Claimants' case, sexual intercourse did not take place until the weekend in Derbyshire in mid-December, a month or so after they had got back to the United Kingdom. That is the Claimants' case in essence.

41. The Defendants' case [on justification], again in a nutshell, is that not only was there physical and sexual contact whilst the two of them were still in Oman, they say, as I understand it, that full sexual intercourse took place on those three occasions: in the Land Rover, at the barbeque party, and at the Hilton Hotel in room 407 on the night of the 27^th/28^th November.

42. It is for you to decide, members of the jury, which version of events is right, or whether the truth lies somewhere in between and, if so, where. You have to arrive at those decisions in order to decide whether, in whatever you find to be their meanings, the articles were substantially justified".

13. But Mr Mackenzie is undoubtedly correct to point out that it is clear, not only from the transcripts of the closing speeches but also of the summing up, that the question of the meaning borne by the two articles remained a live issue for the jury. The relevant passages from the speech of Mr Livesey are to be found at pages 138-9 of the file prepared for the present application. Likewise in the summing up, I gave the standard directions to the jury how they should approach the issue of meaning; made some comments about what the articles might have conveyed and reminded the jury of the rival cases on meaning, concluding with the following words:

"It is for you to resolve the dispute as to what the articles conveyed by reference to the 'ordinary reasonable reader' test, about which I directed you earlier. Your decision on the issue of meaning will determine what it is that the Defendants have to prove in order to establish their defence of justification. I should remind you that even if you conclude that the articles bear the higher meaning for which the Claimants content, namely the meaning that they engaged in sexual intercourse, the Defendants still say they can justify that higher meaning".

The issues in the Sun action

14. So much for the action against Associated Newspapers. I turn now to the action against the Sun. The two Claimants sue on stories published in no less than four issues of that newspaper, namely those for 21, 22, 23 and 26 February 2002. The first, second and fourth articles were respectively entitled:

First article "Desert Rats – married sarge and newlywed Captain Sarah face the sack for affair in Oman"

Second article "Arm in Army… Desert lovers' Paris trip"

Fourth article "Rat's it, I'm off – Army cheat Sarah killed our marriage with letter"

15. Effectively the same defamatory meanings are pleaded in relation to the first, second and fourth articles and the cartoon which accompanied the first article. Those meanings are that:

"1) the Claimants during an important army exercise in Oman indulged in an illicit and improper sexual relationship during which they had sexual intercourse;

2) the Claimants' behaviour was particularly reprehensible because the exercise was to be followed by an active service deployment in Afghanistan of British services personnel from the exercise;

3) the Claimants had behaved in a flamboyantly promiscuous

manner;

4) the Claimants had made improper use of military transport in furtherance of their illicit and improper sexual relationship during the exercise in Oman;

5) the Claimants had indulged in an illicit and improper sexual

relationship while on duty during the exercise in Oman;

6) the Claimants had lied to their unit authorities in claiming that there was no sexual relationship between them while they were on exercise in Oman;

7) the Claimants' colleagues did not believe them in their claim that there had been no sexual relationship between them while they were on exercise in Oman".

16. However, as Mr Mackenzie correctly points out, the position in relation to the third article of 23 February 2002 is somewhat different. That story was based on an interview said to have taken place with the first wife of Sergeant Dummer. The story was headed:

"Sgt Rat will desert you – Ex warns Army cheat's new love"

The ex-wife of Sergeant Dummer was said to have claimed that her former husband had been guilty of persistent and unrestrained infidelity during their marriage. The first defamatory meaning relied on by the second Claimant is the same as is attributed to the other articles, namely that "the Claimants during an important army exercise in Oman indulged in an illicit and improper sexual relationship during which they had sexual intercourse" but the second, third and fourth defamatory meanings asserted in relation to the third article are these:

"2) The Second Claimant would have sexual relationships with other women during his relationship with the First Claimant.

3) The Second Claimant was dishonest and promiscuous.

4) The Second Claimant had exploited women under his command or direction."

17. All the defamatory meanings relied on by the Claimants are denied in the Defence of the Sun, albeit without elaboration. In the alternative the newspaper relies on the defence of justification. There are also pleaded, perhaps optimistically, defences of fair comment and qualified privilege but for present purposes nothing turns on those defences.
18. The defamatory meanings sought to be justified by the newspaper are broadly the same in respect of the first, second and fourth articles, namely:

"…the Claimants formed a close emotional, sexual and adulterous relationship while deployed in Oman, despite each being married and despite being respectively an officer and a senior NCO in the same Army unit".

There was some discussion whether the inclusion of the word "adulterous" in the pleaded meaning necessarily connotes an intention on the part of the Defendants to allege that the Claimants had sexual intercourse together in Oman. I would think that it does. What is clear from the supporting particulars of justification is that the Defendants do allege that there was a sexual relationship between the Claimants whilst they were in Oman. The particulars do not in terms allege sexual intercourse. Nor, as the pleading stands at present, does News Group Newspapers rely on the events at the Salalah Hilton which formed a significant part of the case of justification advanced by Associated Newspapers. But I was told by Mr Richard Parkes QC, acting for the Defendants, that his clients intend to do so once they have been able to obtain from Associated Newspapers the documents on which that part of their case was based.

19. In relation to the third Sun article, the two meanings sought to be justified are:

"(a) the Claimants formed a close sexual and adulterous relationship while deployed in Oman, despite each being married and despite being respectively an officer and a senior NCO stationed together in the Army; and that

(b) both Claimants thereby betrayed their spouses, and the Second Claimant cheated his wife Claire and behaved like a rat towards her".

Procedural history

20. At this point I should say something of the history of the three actions brought by the Claimants. The story broke in the columns of the Sun and one might have expected that action to come on first for trial. I was told by Mr Mackenzie, and I accept, that it is fortuitous that this did not happen: the progress of the three actions depended on such matters as the time taken by the various Defendants to serve their defences, the diaries of the different Masters assigned to the actions and counsels' diaries. So it came about that the Associated Newspapers action was ready for trial first. I was told that in about May 2003 discussions took place between the lawyers acting for Associated Newspapers and News Group as to the possibility of a joint trial of the two actions. Both concluded that separate trials would be preferable. According to Mr Parkes, this was mainly because the two Defendants formulated their cases of qualified privilege differently. At the Pre-Trial Review in the Associated Newspapers action in July 2003 I suggested that News Group might give an undertaking to be bound by the finding of the jury on liability in the Associated Newspapers case. Mr Parkes, then as now appearing for News Group, told me that he was without instructions but that he doubted whether his clients would agree to this course. The point was not pursued.
21. I mention these historical events because Mr Mackenzie for the Claimants placed some reliance on them in opposing the abuse application. But in my judgment if the pursuit of the claim against News Group otherwise qualifies as an abuse of process, the conduct of News Group has not been such as to deprive them of the relief sought.

The authorities on abuse of the process

22. A number of authorities have been cited to me as to the circumstances when the court will accede to an application to strike out a case on the ground of abuse of process. The starting point, emphasised in the cases, is that it is a strong thing to deprive a litigant of the opportunity of having his case heard in court. In Johnson v. Gore-Wood [2002] 2 AC 1, Lord Bingham of Cornhill said at

"The rule of law depends upon the existence and availability of courts and tribunals to which citizens may resort for the determination of differences between them which they cannot otherwise resolve. Litigants are not without scrupulous examination of all the circumstances to be denied the right to bring a genuine subject of litigation before the court…"

I bear those words in mind on the present application.

23. The particular form of abuse with which this action is concerned is the re-litigation of an issue which has already been determined by a competent tribunal. (I should mention in passing that Mr Parkes relied not only on the antecedent action against Associated Newspapers but also upon the disciplinary proceedings before the Army Board. I do not, however, consider that the latter materially advances his clients' case). It is clear that the court may in suitable circumstances dismiss an action even if the doctrine of res judicata is not applicable. Auld LJ summarised the position as follows in Bradford & Bingley Building Society v. Seddon [1999] 1 WLR 1482 at 1490:

"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".

24. Later in his judgment, having made reference to the "rule" in Henderson v. Henderson that parties to litigation should bring forward their whole case in the same proceedings, Auld LJ accepted, following Bragg v. Oceanus Mutual [1982] 2 Lloyd's Rep. 132, that the modern doctrine of abuse of process is capable of application where the parties to the proceedings in which the issue is raised are different from those in the earlier proceedings. But he made clear at 1492:

"In my judgment mere 're'-litigation, in circumstances not giving rise to cause of action or issue estoppel, does not necessarily give rise to abuse of process. Equally, the maintenance of a second claim which would have been part of an earlier one, or which conflicts with an earlier one, should not, per se, be regarded as an abuse of process. Rules of such rigidity would be to deny its very concept and purpose".

25. Mr Parkes pointed out that the Bradford & Bingley case was decided before the introduction of the Civil Procedure Rules. Schellenberg v. BBC [2000] EMLR 296 was a case decided after the introduction of the CPR. It was by no means a typical re-litigation case. Mr Schellenberg had brought an action in libel against the Guardian. The defences relied on were justification and fair comment. After the trial had proceeded for some weeks, following a clear indication from the Judge that he would have decided the case in favour of the newspaper if he had been sitting alone, the action was settled on terms which were very disadvantageous to Mr Schellenberg. He had also brought an action against the BBC, which had broadcast one of the several defamatory allegations which had been published about him by the Guardian. When Mr Schellenberg, following the settlement of that action, indicated his intention to pursue his claim against the BBC, the Corporation sought to dismiss the action as an abuse of process.
26. It appears that the ground on which Eady J acceded to that application was that, applying the overriding objective, the action should not be allowed to proceed since he accepted that there was no realistic prospect of a trial of the BBC action yielding

any tangible or legitimate advantage such as to outweigh the disadvantages to the parties in terms of expense and the wider public in terms of court resources. But Eady J went on to consider the question of abuse. His conclusion on that aspect was that, since the subject matter of the claim against the BBC could have been resolved in the context of the Guardian case and since Mr Schellenberg in settling the Guardian action had effectively abandoned the subject matter of his libel action against the BBC, it would be an abuse to allow a new proceeding to be started in respect of it.

27. The last authority to which I should refer is an unreported decision of the Court of Appeal, namely Oates v. Associated Newspapers Limited (CA, 19.05.2000). Mr Oates had previously sued Mirror Group Newspapers in respect of alleged libels published in two articles. In that action the jury found in favour of the Mirror in relation to one article but in favour of Mr Oates in relation to the other action, but awarded him only one penny damages in respect of the latter. Thereafter Mr Oates sought to pursue an action against Associated Newspapers in respect of an article published in the Mail on Sunday. The gist of the article complained of in the second action was much the same as that of the articles which were the subject of the complaint in the Mirror action. There had been an issue between the parties in the earlier action as to the meaning of the Mirror articles. The Mirror sought to justify the articles in a lesser defamatory meaning than that ascribed to them by Mr Oates. The defences served in the two actions were in broadly similar terms. The Court of Appeal dismissed the appeal of Mr Oates against the Judge's decision to dismiss the second action as an abuse. Mance LJ said at paragraph 24:

"Of course, whether or not there is a real prospect that a jury might reach a different decision, with regard to the proper interpretation of two articles and the issue whether on a correct interpretation The Sunday Mail article could be justified, is not determined by examining either the allegations or the defence in either action. What is required is a realistic assessment, bearing in mind the substance of each article. The Judge concluded that the jury in the present action was overwhelmingly likely, judging by the decision of the jury in the previous trial, to find that in its natural and ordinary meaning The Mail on Sunday article was justified. Any other outcome, he concluded would be a verdict inconsistent with that of the first jury".

Mance LJ continued at paragraph 27:

"The jury, having reached that conclusion in respect of the Mirror article, there is nothing which could, in my judgment, lead sensibly to any different conclusion in respect of the Mail on Sunday article, which was the origin of the Mirror article in all probability albeit, as I have said, in somewhat fuller form. In those circumstances, in my judgment, the Judge was correct to conclude that there was no real prospect of success in relation to the Mail on Sunday article and that it would be an abuse of process to allow further litigation on this subject by permitting the matter to go to a fresh jury trial in respect of the Mail on Sunday article".

28. In the same case Potter LJ said at paragraph 37:

"The Claimant… has failed to demonstrate to me that, if this matter were to proceed to trial against Associated Newspapers, the essential facts and issues before the jury going to liability, arising from the matter contained in the Mail on Sunday article of 16 February 1997, would be other than those which have already been the subject of a jury's verdict in the action brought against Mirror Group Newspapers in respect of the similar matter published in the Mirror on the Monday following and almost certainly culled and appropriately re-jigged from the Sunday Mail article".

The funding of the claimants' case

29. Although the Court of Appeal in the Oates case did not in terms find any "additional element" justifying the dismissal of the action as an abuse, it appears from the passage already cited from the judgment of the Court of Appeal in Bradford & Bingley that, where the ground of abuse is that a party is seeking to re-litigate an already decided issue, some "additional element" or "special reason" must be shown before the claim will be dismissed as an abuse. It may be that this requirement has not survived the introduction of the CPR. But I shall for the purposes of this judgment assume that the requirement remains.
30. The case for News Group is that the requisite additional element is present here because the Claimants are funding this claim (as they funded the claim against Associated Newspapers) by means of a Conditional Fee Agreement ("CFA") without after the event ("ATE") insurance cover. The consequence of this, according to News Group, is that, even if their defence succeeds, they face the dismal prospect of being unable to recover from the Claimants their costs of the action, which are estimated at between £300k-500k. If the Claimants win the action the costs to be borne by the Defence will no doubt be substantial, not least because of the success fee which would be recoverable by Mr Mackenzie which is thought to be 100%. Why, the Defendants ask rhetorically, if the claim has any merit, is there no ATE insurance cover in respect of the Defendants' costs.
31. Mr Parkes argues that to permit the Claimants to pursue the present claim would not further any of the aims underlying the Access to Justice Act, 1999, as stated by Lord Bingham in Callery v. Gray [2002] 1 WLR 2000 at 2002-3. It is further submitted that the exposure of the newspaper to costs which arise in the present case has a chilling effect upon its right to freedom of expression contained in Article 10 of the European Convention on Human Rights. Mr Parkes relies by way of analogy upon the conclusion of the Strasbourg court in Tolstoy v. UK [1995] 20 EHRR 442 that the size of the damages award in that libel action restricted the defendant's right to freedom of expression. It is submitted that there is here no pressing social need for such a restriction: see Sunday Times v. United Kingdom (2) [1991] EHRR 229 at 241-2. Mr Parkes further argues that the court is under a duty to act compatibly with Convention rights: see section 6(1) of the Human Rights Act. Moreover, section 12(4) of that Act obliges the court to have particular regard to the importance of the right to freedom of expression.
32. It seems to me that the first question which I have to address is whether by their present claim the Claimants are seeking to re-litigate the issue which was decided against them in the Associated Newspaper case. As to this Mr Mackenzie argues that it cannot be assumed that the jury in the Associated Newspapers case found in favour of the newspaper on the ground that there had been a sexual relationship between the Claimants whilst they were on exercise in Oman, still less that sexual intercourse had taken place between them at that time. It is perfectly possible, submits Mr Mackenzie, that the reason why the jury in the Associated Newspapers case found in favour of the Defendants was that they accepted that the Standard and Mail articles meant no more than that there existed reasonable grounds for suspecting a sexual relationship and/or sexual intercourse in Oman and found that the articles were true in that lesser meaning. It cannot therefore be said, so the argument runs, that the Claimants are seeking in the present case to re-litigate an issue already decided against them or that a verdict in their favour in the present case would be inconsistent with the jury verdict in the Associated Newspapers case.
33. I accept that on a strict analysis it is possible (although in my opinion unlikely) that the basis of the decision of the jury in the Standard and Mail action was as suggested by Mr Mackenzie. But the authorities cited earlier indicate that the courts nowadays adopt a more robust and realistic approach than that advanced on behalf of the Claimants. Eady J referred in Schellenberg at 318 to the duty of the Judge under the CPR to take "a realistic and practical attitude" and to the expectation that the Judge will be "more pro-active even in areas where angels have traditionally feared to tread". That passage was expressly approved by the Court of Appeal in Wallis v. Valentine [2003] EMLR 175.
34. The decision of the Court of Appeal in Oates v. Associated Newspapers also appears to me to be in point. On its facts that case bears a striking resemblance to the present one. The argument which Mr Mackenzie advances in the present case would have been available to Mr Oates. Yet in the passages quoted earlier the Court of Appeal, adopting a robust approach, took the view that realistically the outcome in the second action was likely to be the same as in the first.
35. It was, as I have indicated, open to the Claimants to start serial actions in respect of the various alleged libels upon them. However, having done so and having lost the first action, they stand at risk of having their subsequent actions dismissed as an abuse of the process. I am satisfied that in the circumstances which obtain here the Claimants' action for damages in respect of the first, second and fourth Sun articles does represent an attempt to re-litigate an issue which was effectively decided against them in the Associated Newspapers action. The incontrovertible fact is that the stories sued on in the two actions are substantially the same. The Claimants' conduct in Oman was exhaustively investigated in the course of the previous trial when numerous witnesses, in addition to the Claimants themselves, were called to give evidence. To permit that question to be re-litigated before a different jury would be perceived – and in my view rightly perceived, not least by the witnesses themselves – as allowing the Claimants a further impermissible bite of the cherry. Subject to the question whether the requisite additional element is present here, I would dismiss the claims in respect of the first, second and fourth Sun articles as an abuse of the process.

The third Sun article

36. The conclusion at which I have arrived thus far relates to the first, second and fourth Sun articles. Mr Mackenzie has a separate argument in relation to the third article which, as I indicated earlier, alleges sexual infidelity by Sergeant Dummer with a number of women before any relationship with Captain Pedder. Those earlier relationships did not feature in the Standard or Mail articles. Why then, asks Mr Mackenzie, should Sergeant Dummer be denied the opportunity of vindicating his reputation in respect of those allegations, given that they have not been the subject of previous litigation.
37. I cannot accept that submission. It appears to me that if a jury in the Sun action were to accept that Sergeant Dummer behaved like a "love rat" when, as a married man he struck up a sexual relationship with Captain Pedder, a married woman, the jury would be unlike likely to award more than nominal damages in respect of the allegation that he had behaved like a "love rat" on previous occasions. Indeed the jury, applying section 5 of the Defamation Act 1952, might well conclude that, even if the earlier infidelities did not take place (as to which there is no evidence), the references to them did not materially injure the reputation of Sergeant Dummer, having regard to the truth of the allegation of his sexual relationship with Captain Pedder. In that event a jury in the Sun action would be entitled to find the defence of justification proved in relation to the third article.
38. The third article referred in terms to the sexual relationship between Sergeant Dummer and Captain Pedder. The reality is in my view that Sergeant Dummer would lose nothing by being deprived of the opportunity to sue on the allegations of earlier infidelities. The inclusion of those allegations in the third Sun article is not in my judgment a good reason for letting the Sun action proceed.

The additional element

39. There remains the question whether News Group Newspapers can establish the additional element which, according to Bradford & Bingley, is a necessary condition of having an action dismissed as an abuse in a re-litigation case. I take the reference to "additional element" to connote some feature or circumstance of the case which creates particular unfairness for the party facing the prospect of re-litigation.
40. I have summarised earlier the basis on which the newspaper asserts that the requisite additional element is present here, namely its exposure to costs and the consequent restriction on its right to freedom of expression consequent upon the Claimants funding their litigation by means of CFAs.
41. I recognise that CFAs have been sanctioned by Parliament in the 1999 Act and that there is no statutory or other requirement for ATE insurance to be in place. I also bear in mind that in Musa King v. Telegraph Group Limited [2003] EWHC 1312 Eady J was not prepared to strike out a libel action on the sole footing that it was said to be an unmeritorious claim which was funded by a CFA without ATE insurance (although I understand that Hale LJ has given permission to appeal that part of the judgment). But in Musa King no question of re-litigation arose. The question which I have to decide is whether in a re-litigation case (as I have held this to be) the necessary additional element has been made out. My answer is in the affirmative. It seems to me that the following combination of circumstances satisfy the requirement, namely:

i) the ability of the Claimants to pursue this claim at no risk to themselves in costs;

ii) the exposure of the Defendants, win or lose, to a considerable costs burden; and

iii) the consequent chilling effect on the Defendants' freedom of expression.

These features give rise in my opinion to a real unfairness to the Defendants if this action were to proceed. The necessary additional element is present. In the light of the history, I cannot accept that it is appropriate or consistent with the overriding objective to permit this action to proceed to trial.