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
		13/07/2007

The Hon. Mr Justice Eady :

1. This claim, founded on defamation and in the alternative injurious falsehood, is due to be tried with a jury on Monday, 16 July, with an estimate of 10 days. If that is accurate, the close of the trial would come perilously close to the end of term. Unfortunately, at the moment, I do not have much confidence in the time estimate for reasons which will shortly appear. At this stage I am required to resolve two fundamental applications which came before me less than two weeks before the appointed trial date. One is a claim for summary judgment by the Claimants in respect of the defamation claims (only) and the other relates to mode of trial. The Claimants now seek an order, assuming that I reject the application for summary judgment, that the libel claims (as well as those based on injurious falsehood) be tried by judge alone.
2. It is unfortunate that I was unable to give ex tempore judgments in respect of these important matters, as I would have wished to do. There were two boxes of lever arch files intended to reach me the day before the hearing. One was sent to the Central Criminal Court and only reached me an hour before the hearing. The second was delivered to the Queen's Bench listing office the day after the hearing. Thus it became necessary to reserve judgment and to determine the outcome at the eleventh hour.
3. The First Claimant in these proceedings is Culla Park Ltd which carried on business at Culla House, Culla Road, Trimsaran, Carmarthenshire, which is also the home of the Second to Fourth Claimants. The second and third Claimants are Mr David Lowes-Bird and his wife Yvonne. The Fourth Claimant is their son Joshua. Business was carried on by them between 1998 and the summer of 2004. This included running a paint balling and outdoor adventure site. There was also a restaurant called Burdies at Home. The four Defendants occupy sites adjacent to that of the Claimants. The first two Defendants are David Richards and Phyllis Thomas (who is also known as Mrs Richards). The Third and Fourth Defendants are Carl and Angela Kristaps. The First and Second Defendants occupy a property known as Fourwinds, Concrete Road, Trimsaran, Llanelli and the Third and Fourth Defendants occupy land at Ffos Las Farm, Culla Road, Trimsaran, Kidwelly.
4. It is alleged that the Defendants began a joint campaign against the Claimants which involved the display of various hand-painted signs. These made a number of allegations, including in particular that the Claimants were permitting toxic waste or refuse to be tipped on their land. The claim is that such signs were displayed by Mr and Mrs Richards at various points on their land on dates between 24 June 2004 and 5 February 2005. It is also alleged that Mr and Mrs Kristaps displayed signs on their land between 24 June 2004 and the date when these proceedings commenced.
5. The proceedings were issued on 25 July 2005 and served at some point after 16 November of that year. As I have said, with one exception, the claims are founded upon defamation and injurious falsehood. The exception relates to the Second Claimant, Mr Lowes-Bird, who is an undischarged bankrupt and therefore unable to sue in injurious falsehood. His claim is confined to defamation.
6. The corporate Claimant, Culla Park Ltd, also claims special damages in the sum of £71,083 plus interest.
7. It will be apparent that some of the claims relate to publications alleged to have taken place more than 12 months prior to 25 July 2005. I ruled at the hearing on 4 July 2007 that, in so far as some of the signs were displayed prior to 26 July 2004 (only for a period of approximately one month), the 12 month limitation period should be disapplied in accordance with s.32A of the Limitation Act 1980 (as amended by the Defamation Act 1996).
8. There are nine instances of defamatory publication complained of. It is alleged that some of the words complained of were published only for a few days, but in other cases the display of the defamatory words is said to have continued for some months. At this stage I need to focus upon the nature of the Claimants' complaint and, in particular, the natural and ordinary meanings relied upon.
9. So far as the publications against Mr and Mrs Richards are concerned, it is said that the words meant "… that the Claimants and each of them had been knowingly dumping, or had knowingly been causing or allowing others to dump waste at Culla Park". As to Mr and Mrs Kristaps, on the other hand, there is an additional meaning relied upon that "… the Claimants and each of them had been knowingly dumping, or had knowingly been causing or allowing others to dump refuse tip rubbish at Culla Park".
10. The Defendants are adamant that they believe what they published to be true and say that they have genuine concerns for the local environment. On the other hand, it is necessary to consider how the statements of case currently stand in order to identify the outstanding issues in the case and, especially, in order to throw light upon the scope of inquiry at the trial and the need (if any) for "prolonged examination of documents".
11. When I adjourned the trial on 1 December 2006, I ordered inter alia the defence of Mr and Mrs Kristaps be struck out unless they complied with certain outstanding costs orders. That order was not complied with and, accordingly, Ms Skinner's primary submission is that the defence was automatically struck out. On 16 February 2007 (which was, incidentally, the first hearing in the action which any of the Defendants had attended), I declined to enter judgment against the Kristaps upon the condition that the unpaid costs order was complied with within seven days. Since, finally, the costs were paid within the time specified, Mr Kristaps submits that the defence was reinstated. There is, of course, a difference between striking out a defence and entering judgment. Although I did not allow a judgment to be entered, the defence remained struck out as a result of the earlier unless order.
12. This means that the Claimants will still need to establish their case in relation to each pleaded publication and to adduce evidence in relation to such matters as aggravated and special damages. The plea of aggravated damages in this case largely overlaps with the plea of malice which is an essential ingredient in support of the claim for injurious falsehood. Even though some defences have been struck out, it seems to me that the Defendants would be entitled to test the case in relation to such matters and, in particular, to resist allegations of dishonesty introduced in support of the pleas of malice. This allows in evidence as to their respective states of mind at various points over a considerable period of time.
13. Another characteristic of injurious falsehood is that the burden of proving falsity rests (unlike in defamation cases) upon the Claimants. That burden cannot be taken as having been discharged merely by virtue of the defence having been struck out pursuant to the unless order. It appears, therefore, that the issues not only of malice, but also of truth or falsity, will have to be explored to some extent even in the absence of a substantive defence.
14. So far as Mr Richards is concerned, his defence remains in place. On the other hand, Mrs Richards also had an unless order made against her with which she has not so far complied. This was made on 16 February 2007 but there was for several months an application for permission to appeal pending before the single Lord Justice. On 2 July she was notified that this application had been rejected, but she wishes to make a renewed application orally. Since it would not be right for me to pre-empt that outcome, her defence remains for the moment in limbo.
15. No jury bundle has been agreed, partly because of difficulties of communication with the Defendants and partly because it seems impossible to agree any matters at all. The prospect would, therefore, loom of the trial judge having to rule, in the absence of the jury, upon virtually every document which either side sought to rely upon or put to a witness. It appears at the moment that there are over 20 witnesses altogether and Mr Richards has indicated that there are two video tapes and one DVD which he would wish to take the court through. This might take a day or two in itself as he would be stopping the machine and commenting to the court on what could be seen. When asked about documents, he and Mr Kristaps indicated that they wished to rely on about 200 documents. These are some of the reasons why I doubted the time estimate of ten days.
16. There are obviously difficulties in doing so, but I now propose to address the two applications advanced by Ms Skinner on behalf of the Claimants. She found it convenient to begin with the issue of mode of trial.
17. It is not entirely easy to identify the scope of documentation in this case. The fact that there are two boxes of lever arch files does not, of course, mean that all of these require prolonged examination. As I have said, there is no agreed jury bundle and there is likely to be a significant dispute about the admissibility and relevance of many of the documents which the parties seek to introduce. It is not one of the matters contemplated by s. 69 of the Supreme Court Act 1981, or in any of the authorities, that the court should rule against jury trial because of the possibility (even likelihood) that a separate ruling will have to be given by the court in relation to each document or category of documents sought to be introduced – with the jury inevitably going in and out of court meanwhile. Plainly that is inconvenient, but when judging the documents which require prolonged examination, the court should surely concentrate on those documents which are going to be admissible and relevant and will thus require to be assessed by the jury. Since this issue has not yet been determined, there is room for a robust assessment to be made in the light of experience.
18. Logically, the first document to consider is the convenient schedule produced by Ms Skinner which amalgamates the various parties' pleaded cases and enables one to understand the issues from a single document. It has seven columns and runs to some 42 pages. Needless to say, in so far as any party is precluded from relying upon his or her defence, it would not on the face of it be necessary to go through its contents. Nevertheless, where the parties have joined issue on the allegation of malice (in the context of aggravation of damages) those are matters which will require careful analysis.
19. Mr Richards (whose defence still stands) indicated that he proposes to take the jury through the video tapes and DVD, pausing frequently to comment upon what can be seen. This would be relevant to the injurious falsehood claim, where the burden rests upon the Claimants to prove the falsity of the allegations. Even though the jury are not determining that claim in itself, they would have to sit through the process. It is also relevant to a large extent in exploring the various Defendants' states of mind at the relevant times and what they believed as to the truth of the allegations made on their signs.
20. Mr Richards and Mr Kristaps indicated that they would both wish to cross-examine each of the witnesses, although Mr Kristaps will be the only representative of the Defendants to make an opening or closing speech. Naturally, the fact that there are going to be three "advocates" will increase to some extent the time required for examination of documents.
21. It is relevant to have in mind that the jury will not be determining the issue of special damages, or that of injurious falsehood, but that they will be required to consider the evidence of malice, since the assessment of libel damages would ordinarily be a matter for them. The judge will also be paying attention to the evidence on malice in determining whether or not the causes of action based on injurious falsehood are made out. There is the possibility of confusion here and potentially inconsistent outcomes.
22. The jury will also be listening to the evidence on the issue of falsity, relevant to the claims in injurious falsehood, and especially that against Mr Richards. They will have to put that out of their minds in relation to defamation since there is no substantive plea of justification. This again would make for confusion. These are factors which seem to me to be potentially relevant in determining the extent to which the trial could "conveniently" be conducted with a jury. They are not immediately relevant, however, to the primary question of deciding whether or not they will be confronted with prolonged examination of documents. There is likely to be some examination of documents in relation to the Claimants' need to prove the falsity of the allegations, but it would be unrealistic to say to the jury they should sit there and ignore all this because they are only concerned with libel. They would need to follow what was going on.
23. The action is required to be tried with a jury "… unless the court is of the opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury". I could, of course, order that different questions of fact arising in the action should be tried by different modes of trial. That would lead to undesirable duplication and increased expenditure. It is clearly, therefore, desirable that all the issues on liability and those on damages should be resolved at one hearing if at all possible.
24. My attention was drawn to the well known decision of the Court of Appeal in Aitken v Preston [1997] EMLR 415, where the principles are conveniently expounded.
25. I need first to consider whether there would be prolonged examination of documents and then, if so, whether it could conveniently be made with a jury. If I decide not, I need to address the court's discretion to order trial with a jury nonetheless.
26. It has been clear for some time, and in particular from the earlier decision of the Court of Appeal in Goldsmith v Pressdram [1988] 1 WLR 64, that the notion of "prolonged examination" can be equated to "careful reading". Moreover, the documents to be considered are not necessarily only those which are directly relevant and admissible evidence, but should embrace also documents likely to be introduced in cross-examination.
27. Here, Ms Skinner (whose submissions were based, from an abundance of caution, upon the supposition that the Defendants were all entitled to rely upon their defences) identified a number of categories of documents for consideration. First, she pointed to the instances of publication themselves. Although there were nine relied upon in the particulars of claim, most of those consisted of more than one sign. Many of the publications overlapped in point of time, and this would need to be considered with a view to construing the meaning and context of the individual allegations. She argues also that "the jury will therefore be required to consider each of these carefully and to physically 'place' them on the Defendants' land when considering issues of meaning and reference". This may be true, but I am not persuaded that in itself it would lead to the conclusion that prolonged examination of documents is required.
28. Her next category was the statements of case. As she pointed out, each of the two sets of Defendants has served three documents setting out their case (defence, amended defence and response to a request for further information). Because it is not always easy to identify what each Defendant is saying about particular points, this in itself requires more careful examination than is sometimes the case; there is also a need for comparison and reconciliation between the various parties' positions. She submits, in particular, that "… it will be necessary to go through them, comparing them with each other, and the [environment agency documents] in order to establish malice (relied upon in aggravation of damage) and to expose the contradictions and various lies told by the Defendants".
29. There is considerable force in this argument (although, naturally, at this stage I cannot come to any conclusion as to whether she is correct in referring either to "contradictions" or to "lies"). I recognise that, in so far as the contents of a defence cannot strictly be relied upon, the scope of inquiry may be somewhat less than would appear. On the other hand, I need to bear in mind that much of the paperwork is taken up with identifying particulars of malice, and responding to them. Also, the Claimants will still need to prove their case both in libel and in injurious falsehood. This requires analysis of the plea of malice (necessary for the cause of action of injurious falsehood and for supporting the plea of aggravated damages in defamation). It will, therefore, be necessary to address carefully what allegations, if any, each Defendant knew or believed to be false at any particular time. That is no mean task.
30. Ms Skinner points out that there are three lever arch files of disclosed documents in the proceedings and two of party and party correspondence. There are many cases in which inter-solicitor correspondence can be safely ignored to a large extent, but I am not sure that is so here. Reference is made to the contents of letters in exploring the Defendants' states of mind and whether or not they can be characterised as malicious. So far as I can judge, a significant number of the documents and letters will need to be referred to.
31. Finally, Ms Skinner refers to the claim for special damages. Although the jury will not be determining this themselves, they will almost certainly have to sit through it and follow what is going on. It is not simply a question of calculation, to be carried out by accountants, since there is an important issue on causation. This ideally needs to be heard at the same time as the evidence on publication, reference and meaning – rather than being hived off for later determination. This is by no means a simple issue. One or more of the Claimants will need to be cross-examined in some detail about the claim for special damages – not least because the experts are relying upon information supplied to them by the Claimants themselves.
32. Doing the best I can on the materials available to me, and allowing for the difficulty of the Defendants having to represent themselves, I have come to the conclusion that this case will require the prolonged examination of documents.
33. The next question, therefore, is whether or not that examination can be conveniently made with a jury. Will there, in other words, be substantial difficulty encountered by comparison with carrying out the same process during a trial by judge alone? Relevant factors to take into account would include:

i) the additional length of a jury trial;

ii) the additional costs of a jury trial (taking into account, for example, additional copying requirements);

iii) any practical difficulties which such a trial would involve (e.g. the handling of bulky files, and the need to examine documents alongside one another);

iv) any special difficulties or complexities in the particular documents themselves.

Although she does not point to any special difficulties attaching to this case, Ms Skinner does nevertheless rely on the first three factors which I have identified.

34. She submits that this particular case is likely to take longer by a substantial margin, by reference to the fact that the Defendants are all acting in person. Mrs Richards and Mrs Kristaps have written to me to explain that they are not fit to attend. Plainly, a defendant should not be disadvantaged through appearing in person, but it is a factor which cannot be ignored when considering the matter of convenience. Closely related to this was another submission made by Ms Skinner to the effect that the trial judge has a duty to protect the interests of litigants in person and to ensure, so far as possible, that they are not disadvantaged by the lack of legal representation. That is a relatively simple task to undertake when the judge is sitting alone. On the other hand, it is more difficult with a jury, she submits, because the jurors could construe a judge's interventions as evidence of bias. Accordingly, she argues, a judge would feel to some extent inhibited in offering that assistance in the presence of a jury. This is a consideration rather dismissed by Mr Richards as a convenient excuse advanced on the Claimants' behalf, rather than one of genuine weight. I think there is something in Ms Skinner's point, but it is not one to which I attach special significance. If this were the only aspect of inconvenience, I would hope to be able to explain to the jury why it was necessary for me to step in from time to time, to ensure that the Defendants were not unduly prejudiced, and I am confident that most jurors would understand this.
35. If the case goes beyond the end of term, although it would be relatively easy for a judge to continue hearing the case after the vacation, this would obviously be practically impossible with a jury. Those time constraints might well lead to inconvenience. Again, it is a factor which cannot be ignored. One could overcome that potential problem by postponing the trial until after the long vacation, so as to preserve the Defendants' preferred mode of trial, but that would cause inconvenience to both parties and there would be no guarantee of slotting the case into the list next term. It is time this matter was disposed of one way or the other. As I have mentioned, the trial has already been postponed on one occasion (see [11] above).
36. Because of the scope for confusion which I have already mentioned, arising form the overlapping functions of malice and the need for the Claimants to prove falsity in the injurious falsehood claim, there would undoubtedly be considerable inconvenience in constantly explaining to the jury what is or is not relevant to their task.
37. I have come to the conclusion that in the light of all these matters the examination of documents cannot conveniently be carried out with a jury,
38. As to the third issue, I can see no reason why I should exercise the court's discretion to order a trial with a jury despite my earlier conclusions. It is now clear from the authorities that a judge in these circumstances should take into account the fact that, as a matter of public policy, the emphasis is now against trial by jury. Other factors which have been cited in the past as relevant to the exercise of this discretion are, for example, whether the case involves prominent figures in public life or other questions of national interest. I do not believe that either of those considerations applies here. It is true that the honour or integrity of the parties is involved, as is the case with most libel actions, and particularly those where there is a plea of malice. But on the facts of the present case it seems to me that a fair conclusion is more likely to be reached following upon the analysis required of a reasoned judgment. There are a number of issues, involving different parties, and it seems to me that this requires detailed analysis.
39. In the light of all these considerations, I will accede to the Claimants' application for trial by judge alone. It is, however, a pity that these issues were not canvassed at a much earlier stage in the litigation.
40. I now turn to consider the merits of Ms Skinner's arguments on summary judgment. This relates only to the defamation claims.
41. Ms Skinner conveniently summarised the principles to be borne in mind on applications of this kind. First, the court is required to make use of the powers under CPR Part 24 in appropriate cases with a view to achieving the overriding objective. It obviously saves money and achieves expedition to a greater or lesser extent, depending upon the stage at which the successful application is made.
42. Secondly, on the other hand, the procedure should not be used in a case where there are genuinely issues which require to be investigated at trial. The court should not indulge in a mini-trial. I need to be satisfied on the material before me that there is no real prospect of successfully defending the relevant claim or issue.
43. The burden is clearly upon the Claimants in this case to establish, in respect of each Defendant, that he or she has no real prospect of success in the libel claim and that there is no other compelling reason to have a trial.
44. Fourthly, the test to be applied is whether or not there is a "realistic" prospect of success, as opposed to one which is merely "fanciful".
45. Fifthly, to resist an application for summary judgment, the defendant needs to show that his case is rather better than merely arguable: see e.g. ED & F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472 at [8]. It must carry "some degree of conviction" (per Potter LJ).
46. There are other principles which need to be applied when the trial is to take place with a judge and jury. It is interesting that Ms Skinner chose to develop her arguments on mode of trial before addressing summary judgment because, she submitted, if I were to hold (as I have) that this was a case for judge alone, I could be correspondingly more robust in my approach to summary judgment. I am not sure that this is an appropriate way to look at matters, but it is probably right that I should remind myself of the special considerations which come into play when there is a prospect of jury trial.
47. When addressing factual issues, which would ordinarily be for the jury, the judge on a Part 24 application must apply the test of whether a properly directed jury could find for the Defendants on the evidence taken at its highest.
48. When addressing the parties' submissions on the facts, a judge should bear in mind that it is the jury's credulity which needs to be weighed. Even if a particular factual outcome would appear to be fanciful to the judge, allowance should be made for other possible conclusions (provided, of course, that they would not be perverse).
49. In particular, it would be necessary to assume that all the facts relied upon by the Defendants will be established at trial save and in so far as it can be demonstrated, on the papers, that some particular allegation is indisputably false.
50. Ms Skinner made submissions in relation to various elements of the defamation claims. The various instances of publication relied upon against Mr and Mrs Richards were identified as 1A to 1G in paragraphs 5 – 11 of the particulars of claim. The meaning relied upon, as I have indicated, is that each of the Claimants has been knowingly dumping, or knowingly been causing or allowing others to dump, toxic waste. There is no doubt that such a meaning would be seriously defamatory.
51. As to Mr and Mrs Kristaps, there are two instances relied upon, which are identified as 2A and 2B at paragraphs 12 – 13 of the particulars of claim. In respect of publication 2A, the meaning pleaded is that the Claimants and each of them had been "knowingly dumping, or had knowingly been causing or allowing others to dump, refuse tip rubbish". In relation to publication 2B, the pleaded meaning is the same as that against Mr and Mrs Richards (i.e. referring expressly "to toxic waste").
52. There is little doubt that the pleaded meaning in relation to publication 2A is also defamatory. Ms Skinner submits that the ordinary reader would construe the allegation as relating to rubbish which was, if not toxic, at least liable to cause harm to the environment or members of the public through disease.
53. The next issue was that of reference. Since none of the publications referred directly to Mrs Lowes-Bird or Joshua Lowes-Bird, and some did not identify either the corporate Claimant or Mr Lowes-Bird expressly, the Claimants have given particulars of reference and propose to call eleven witnesses to establish that some people are able to identify each of the Claimants from the context of the words complained of. It may be that this number will be somewhat reduced in the event, but that is the current plan. It is necessary to establish reference for the purposes of both causes of action and it is, of course, also relevant to the quantification of damage. That will depend partly upon the scale of publication which can be proved. I am invited to conclude, in the context of the application for summary judgment in the defamation claims that the case is so overwhelming that the Claimants cannot fail to make out their case in this respect. I consider that it probably is, but the evidence would still need to be called to establish the case in injurious falsehood and so as to enable the Defendants to test it, even in relation to quantification of damage.
54. It was also submitted that there is no real prospect of any of the Defendants refuting the allegation that they bear legal responsibility for the publication of the relevant words complained of. Each of the Defendants needs to be considered individually.
55. Mr and Mrs Richards have admitted placing each group of signs on their land, and they have also admitted the dates of publication. It would, therefore, seem that neither has any realistic prospect of resisting this ingredient of the claim in defamation.
56. Ms Skinner has, nevertheless, made submissions in relation to some of the evidence which rather suggests that Mrs Richards now wishes to contest her personal responsibility for publication. I am not convinced that she is entitled to do this without seeking permission to withdraw the relevant admissions. Nonetheless, it is right that I should address Ms Skinner's submissions about the evidence she wishes to introduce.
57. A Mr Frank Berry states that between June 2004 and June 2005 Mrs Richards had a number of conversations with him in which she stated that she was opposed to Mr Richards displaying the signs at her property but was unable to dissuade him from doing so – because he was adamant that contaminated waste was being tipped at Culla Park.
58. There is also evidence form Stephanie Jones, Mrs Richards' niece, who alleges that Mrs Richards tried to persuade Mr Richards to take the signs down on numerous occasions, but that she was reluctant specifically to "order" Mr Richards to remove the signs. She says that he finally agreed to remove them as soon as some pending county court litigation was concluded.
59. There is also evidence from Mrs Richards herself on the subject. She accepts that she believed that material was contaminated and accepts that she attended a "peaceful protest" at Culla Park for that reason. Nevertheless, she also claims to have been opposed to the display of the signs and to have tried to persuade Mr Richards to take the signs down on numerous occasions. He ultimately agreed a compromise and agreed to their removal after the county court litigation came to an end, as it did on 24 June 2005, and he was as good as his word.
60. Yet Miss Skinner points out that the last date of publication pleaded was 5 February 2005 and submits that, had they been displayed for another four months or so, her clients would have sued in respect of those later publications. Moreover, she draws attention to the minutes of a meeting at the town hall on 2 March 2005, at which Mr Richards stated that the signs were down by that time. There is thus an inconsistency.
61. Ms Skinner drew attention to the fact that Stephanie Jones was also at one time a supporter of the campaign. There is evidence that she carried one of the signs on one occasion and that she took part in the pleaded publication of 16 September 2004 together with Mrs Richards.
62. In the circumstances, Ms Skinner suggests that Mrs Richards' role as being responsible for publication is sufficiently clear for her clients to be able to discharge their burden under CPR Part 24, because the evidence shows that she was aware that the signs were being displayed on her property and took no steps to remove them. She argues also that her attendance at the protest, during which the signs were displayed, confirms that she positively supported their publication.
63. My attention was drawn to passages in Byrne v Dean [1937] 1 KB 818, 837-8 (Greene LJ), 829-30 (Greer LJ) and 834-5 (Slesser LJ). These rather support Ms Skinner's argument that Mrs Richards should be regarded as responsible in law for the publication of the signs which she did not take steps to remove. She also relies on the fact that Mrs Richards admits in her evidence that she took part in another protest (namely on 30 July 2004).
64. In the end, however, so far as Mrs Richards is concerned, it seems to me that the central point is that publication has been admitted. The Claimants are entitled to take that at face value.
65. Mr and Mrs Kristaps also admit placing the sign identified as publication 2A on their property (although they suggest that it was displayed for 13 months rather than 14). Save in so far as any particular significance is attached to the disputed month, therefore, it would appear that there is no realistic prospect of their escaping legal responsibility for that publication.
66. The same point arises, on the other hand, as with Mrs Richards. Mrs Kristaps too in her evidence draws a distinction between herself and her husband. She admits supporting her husband in what he has done, but asserts that she has not at any time been involved in writing or putting up the signs. Yet Ms Skinner submits that, on her own case, she is liable as a publisher in respect of publication 2A by reason of her support of her husband during the period of their display and her apparently not taking any steps to remove the relevant signs.
67. Publication 2B, as pleaded against Mrs Kristaps, relates to the protest on 16 September 2004. They deny being present or having any role in placing the signs on the public highway. Yet there is a photograph in evidence of Mrs Kristaps present at the scene. It is thus said that she must have lied in her pleaded case in stating that she was not present. There is also evidence that she attended other meetings and hurled abuse at Mrs and Mrs Lowes-Bird.
68. As to Mr Kristaps, there are some minutes of a meeting held at the same location, recording that he asked Mr Richards to speak on his behalf because he was "unwell". Ms Skinner suggests that this is consistent with his still having been present, but he says that this inference is not justified; that he was not only "unwell" but also absent. This does not seem to me to be a suitable point for resolution on the summary judgment application.
69. It is necessary to address the submissions on summary judgment, strictly speaking, individually by reference to each Defendant and each cause of action. In fact, it is nonetheless possible to approach some of them compendiously. It is said that the case against Mr Richards is "overwhelming", since publication is admitted and there would be no realistic prospect of establishing that the words complained of were not defamatory or did not refer to the Claimants (even those not specifically identified). The ingredients of a claim in defamation are, therefore, made out and, without a substantive defence, the Claimants ought to be able to proceed to an assessment of damages. As I have made clear, however, the claim in injurious falsehood would proceed and it would thus be necessary for the Claimants to establish malice and falsity for that purpose. Moreover, even on an assessment of libel damages, because of the plea of aggravated damages, malice would still need to be established. It would not be right to make findings of dishonesty against any of the Defendants purely by way of default.
70. So far as Mrs Richards is concerned, although her evidence suggests that she would not wish formally to accept liability for publication, there is an admission which would appear to conclude the matter. Her defence is not yet struck out although, subject to the matter of a renewed application for permission to appeal, it may well fall shortly. Even so, it is submitted, the elements of the tort of defamation are bound to be made out – subject to any possibility of a substantive defence.
71. The case against Mr and Mrs Kristaps on publication 2A would also appear to be very strong. There is no reference in these words to "toxicity", but in the context of a business running a restaurant and an outdoor centre for members of the public, it is argued that an allegation of tipping "refuse" would be defamatory, in the sense that it would put people off using their facilities and would thus cause the Claimants and their business to be "shunned and avoided". On the other hand, so far as publication 2B is concerned, I do not consider that the issue of publication can really be disposed of by way of summary judgment (although it may come close).
72. The remaining issues to be considered are whether or not, in respect of any Defendant, there is a viable substantive defence. Mr and Mrs Kristaps have admitted that the Claimants have not caused or allowed toxic waste to be used at Culla Park which would narrow the issue both in the context of defamation and injurious falsehood; in particular, it would mean that the Claimants would not have to prove falsity for the purposes of the latter cause of action against these Defendants.
73. More generally, there are incidental references in the defences which would imply that the Defendants wished to rely upon justification, fair comment and (possibly) a form of qualified privilege. In the case of the defences so far struck out, it would thus be necessary to consider in a little further detail the extent to which these truly amount to substantive defences. As long ago as 13 March 2006, the Master ordered that proper particulars should be set out if it was the Defendants' intention to plead any such defence. Such particulars were to be served by 10 April 2006. No further details have been supplied by Mr and Mrs Richards and, in those circumstances, where full and clear particulars would plainly be required, they should not be allowed to put forward any such defence in relation to the libel claim. The issue of truth or falsity is, however, obviously not completely foreclosed since the Claimants need to prove their case in support of the claim for injurious falsehood.
74. Mr and Mrs Kristaps in their statement of case provided a little more particularity which could be construed as giving rise to defence of justification and qualified privilege (see paragraphs 21 and 22 respectively). As I have indicated, they do not allege that there was any importation of toxic material. Indeed they admit the contrary. Thus, any plea of justification could only relate to the allegation made in publication 2A (which refers to "refuse").
75. At the heart of the Kristaps' case in this respect is a letter of 13 July 2005 from the Carmarthenshire County Council. It was there stated that some of the material going to the Culla Park site had come from a former refuse site in Llanelli. The context, however, is important. The letter also makes clear that the material in question was being delivered legitimately "in connection with the provision of recreational facilities on that land". This was because there was no question of depositing anything which could give rise to a risk of toxicity or disease (as might be the case, for example, with rotting household waste). It was explained that the material in question was subject to an exemption from waste management licensing because it constituted waste "from demolition or construction work or other excavations". If this is so, the facts would not justify the defamatory sting of the publications, which would be to the effect that the Claimants were doing something reprehensible and which would give rise to an unacceptable risk to the health or welfare of their potential customers. The whole context of the "protests" and the notices displayed was that the Claimants were doing something wrong or socially unacceptable. In the absence of any particularity, going to support wrong- doing, Mr and Mrs Kristaps' rather limited pleas of justification would be bound to fail.
76. Ms Skinner also relies upon some evidence to the effect that Mr Richards has been involved in an attempt to plant evidence on the Claimants' land. Naturally, I cannot possibly determine the merits of that allegation on an application for summary judgment.
77. As to a possible defence of qualified privilege, it cannot be said that there was any duty or interest in publishing their allegations to the world at large. The proper authorities to whom their complaints or concerns could be directed would be the Carmarthenshire County Council and the Environment Agency.
78. As to fair comment, it is clear that the allegations made were factual in character rather than comment. No such defence would therefore be viable.
79. In these circumstances, it is clear that there is no substantive defence available to any of the Defendants. In the result, therefore, the case will proceed on the basis that the Claimants are entitled to summary judgment on the libel matters save for publication 2B by Mr and Mrs Kristaps. Thus, the hearing will proceed on the basis of trial by judge alone in respect of all issues. If the Claimants pursue the alternative course of action of injurious falsehood, they will need to prove falsity. Even if they do not, but persist in the claim for aggravated damages, they will need to prove malice against each of the Defendants. That will allow in a good deal of material, going to their states of mind at various stages during which the signs were displayed, and this is likely to be the most time-consuming part of the trial. The claim for special damages will need to be examined very closely with particular reference to causation. The Defendants have produced no report on this aspect of the case, and it would be too late to do so now, but the claims cannot simply go by default and the Defendants will have the opportunity to test it in the course of cross-examination and submissions, so far as they are able to do so.
80. Another matter which will need to be carefully considered in the context of general damages, and in particular aggravated damages, is that of the "lowest common denominator" identified and discussed by Lord Hailsham in Cassell v Broome [1972] AC 1027.
81. Each side will be permitted to rely upon their location plans and make submissions in relation to them, since it has proved impossible for a single agreed document to be put in evidence.
82. In so far as time permits, so close to the trial, I will address any other directions that may be necessary at the time when this judgment is handed down. I would add, however, that it seems to me to be far too late for any order to be made pursuant to CPR 24 PD. para. 5.2(1) requiring the payment into court of a sum of money as a condition of being allowed to proceed. This would merely have the effect of stifling the Defendants from putting forward their case. It is quite possible that such an application would have stood a better chance if it had been made six months ago. Even so, however, it has to be remembered that there is an outstanding claim in injurious falsehood, making allegations of dishonesty against the Defendants, and that would be a powerful factor to weigh in the scales when considering whether or not their opportunities of putting forward a case should be foreclosed.