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
		11/10/2010

Mr Justice Tugendhat:

1. The Defendant is the publisher of the Daily Mail. By Application Notice issued on 20 September 2010 it asks this court to give summary judgment against the Claimant on his claim in a libel action commenced on 19 April 2009. The Defendant submits that he has no real prospect of succeeding on the claim. In the alternative, the Defendant asks that the claim be struck out as an abuse of the process. The applications are brought respectively under CPR 24.2 and 3.4(2)(b).
2. The Claimant is, and has been since 1981, the Chief Executive of the Professional Footballers' Association ("the PFA"), which is the trade union for professional football players. The words complained of in the Amended Particulars of Claim were published in the issue of the Daily Mail for Friday 13 March 2009 under the title "McGuire's exit rocks the players union". The words complained of include the following two paragraphs (it is unnecessary for the purposes of this application to refer to the whole article):

"PFA staff were told by email yesterday morning that McGuire, who has worked so closely with his boss Gordon Taylor since joining the union's high command seven years ago, was leaving.

The breakdown in their relationship has been a talking point at the PFA since a petty dispute over a lawyer's bill, after which McGuire was surprisingly admonished by Taylor in front of other members of staff. Given that McGuire has been such a loyal servant to Taylor, the rift must have been extremely serious…"

3. On 24 July 2009, on the Defendant's application, I made a ruling as to the meaning of the words complained of. Following that ruling the Particulars of Claim were amended. So far as material to the issue of meaning, the Amended Particulars of Claim include the following:

"4. In their natural and ordinary and/or inferential meaning the words complained of in the Article meant and were understood to mean that the Claimant had acted in a petulant and wholly unreasonable manner by wrongly rebuking Mr McGuire in public in front of members of his staff over the petty matter of a lawyer's bill".

4. The lawyer whose bill is referred to is a barrister and I shall refer to him as "the barrister".
5. In the Defence it was and is denied that the words complained of are defamatory. However for the purposes of the applications before me Mr Warby accepts that he must proceed on the assumption that the Claimant succeeds on his case on meaning.
6. There is also a defence of justification. It is in the following terms:

"7. Further or alternatively, the Defendant will justify the words complained of in the following meaning: the Claimant acted in a surprising manner (that is to say he over reacted and behaved badly) when he admonished his loyal deputy, Mr Mick McGuire, in front of other more junior staff over the petty matter of a lawyer's bill".

7. There then follow eight sub paragraphs of Particulars of Justification. There is an amended Reply.
8. Much of the factual background is not in dispute. The main issue of fact is what happened at a meeting on 19 January 2009. That was some weeks before Mr McGuire left his employment with the PFA and before the publication of the words complained of.
9. The action is listed for trial by judge sitting with a jury. It is due to begin on Monday 18 October. That is less than two weeks after the hearing of this application. It is not suggested by the Claimant that the proximity of the trial is itself a reason why these applications should not be determined. No argument has been addressed, or any suggestion made, to the effect that there has been undue delay in making these applications.
10. Preparations for the trial are well advanced. There are before me a witness statement made by the Claimant together with witness statements made by eleven other witnesses for the Claimant. The Claimant and a number of the other witnesses were present at the meeting on 19 January. In addition the Defendant has requested further information from the Claimant by various communications and the responses are also before me. It is on the basis of these statements and responses made by the Claimant and the witnesses whose witness statements the Claimant has served on the Defendant that the application is made. There are also before me two witness summaries to be relied on by the Defendants at trial (one from Mr Barker and one from Mr McGuire) and other documents. The Defendant does not rely upon these documents in support of its present application before me.
11. So far as material, CPR 24.2 provides:

"The court may give summary judgment against a Claimant … on the whole of a claim… if – (a) it considers that (1) that Claimant has no real prospect of succeeding on the claim…."

12. As stated in the note to the White Book 2010 note 24.2.3, the hearing for an application for summary judgment is not a summary trial. The court will consider the merits of the Claimant's case (in such an application as this) only to the extent necessary to determine whether it has sufficient merit to proceed to trial. The proper disposal of such an application does not involve the court conducting a mini trial (Swain v Hillman [2001] 1 All ER 91; Three Rivers D C v The Bank of England (No 3) [2001] 2 All ER 513 HL). The criterion which the judge has to apply is not one of probability, it is absence of reality: see Lord Hobhouse in Three Rivers.
13. So far as the alternative application, namely the abuse of process application, is concerned the principles of the law relied on by the Defendant are derived from Jameel (Youssef) v Dow Jones and Co, Inc [2005] QB 946 and a number of subsequent cases in which proceedings have been struck out on the basis that the claim discloses no real and substantial tort.
14. So far as that application is concerned, the Defendant accepts that the meaning complained of by the Claimant would, taken by itself, be such as to qualify this claim as being one for a real and substantial tort. The point taken is that if regard is had to what the Claimant admits to be true, then the difference between what he admits to be true and what he complains about is so small that in those circumstances the claim is not in respect of a real or substantial tort.
15. Counsel for the Defendant prepared detailed written submissions analysing the various matters which are or might be in issue in the action, and setting out the material passages from the witness statements served on behalf of the Claimant. In deference to the principle that this is not a mini trial, these submissions do not involve asking the court to disbelieve any of these witnesses. It is submitted that on the basis of the admissions made in the pleadings and in correspondence, and on the assumption that what the Claimant's witnesses state in their statements is true, then the words complained of in the meaning attributed to them by the Claimant are substantially true, and there is no issue to be left to the jury. It is said that the position is comparable to that which would apply at the close of the Claimant's case at trial. Assuming the witnesses all gave evidence in accordance with their statements, and there was no material added or removed in cross-examination, the Defendant would be submitting that judgment should be entered for the Defendant at that stage. Accordingly it is submitted that it is better, and necessary, that the court should consider this point now and not leave it until trial.
16. For present purposes I can take it that there is no dispute that Mr McGuire was the only Deputy Chief Executive of the PFA up to 19 January 2009. He was therefore the second most senior figure after the Claimant. The dispute had arisen over the barrister's bill. The bill was for about £8000. It was in respect of advocacy services provided on behalf of PFA to a member facing disciplinary proceedings. Apart from Mr McGuire, two other individuals at the PFA were involved. One was the in house lawyer JA and another was another employee SB. The Claimant learnt at the latest on 12 January 2009, that a cheque had been drawn for the barrister's fees which he was asked to sign. It is his evidence that the proper procedures for instructing the barrister and drawing the cheque had not been followed. In addition the cheque was drawn on the Benevolent Fund, whereas in the circumstances it should have been drawn, if at all, on a different account. He took the matter up with the three individuals and did so in private.
17. According to the Defendant the effect of the witness statements served on behalf of the Claimant is that the matter had been resolved before 19 January and there was no outstanding issue on 19 January 2009. According to the Defendant the true effect of the witness statements of the Claimant is also that the matter was at worst a mistake, and merited no more than the private talking to which had occurred before 19 January. At least in this sense it was a petty matter.
18. For the Claimant it is submitted that that is not the effect of the Claimant's witness statements. Mr Price submits that on his evidence the Claimant maintains and is entitled to maintain before a jury that it was not a petty or unimportant matter. Mr Price submits that a jury would not be perverse if they accepted it was not a petty matter.
19. Amongst the reasons for this submission put forward on behalf of the Claimant are that on 5 January the Claimant had told staff that there were a number amongst them who had a lot of expertise which could be called upon by players facing disciplinary proceedings, and that players should be represented by staff members rather than by outside lawyers. It is true, as Mr Warby points out, that the barrister had been instructed a long time before 5 January, so what was said on 5 January did not relate to instruction of the barrister. A number of other matters are relied on behalf of the Claimant as showing that, on the Claimant's evidence, the jury could properly find that it was not a petty matter. These included the procedures by which the decision had been taken and the drawing of the cheque on the Benevolent Fund.
20. The main point upon which Mr Warby submits it would be perverse for a jury to accept that the sting of the words complained of is not substantially true relates to what happened on 19 January 2009. In particular the question is: did the Claimant admonish Mr McGuire in front of other members of staff junior to himself?
21. There is no dispute that at that meeting there were a number of members of staff present other than Mr McGuire and SB. JA was not present on account of illness. Nor is there any dispute that the Claimant referred to the barrister's bill. According to the witness statement of the Claimant, during the few months preceding this meeting he had discussed with various members of the PFA, including Mr McGuire, alterations in the responsibilities of himself and others. This included several promotions. The Claimant's evidence is that this did not in any way diminish Mr McGuire's position. Further, as to the cheque, the meeting on 19 January was a good opportunity to get across the point he wanted to make, to the effect that outside legal expenditure should not be incurred without prior authorisation from himself and that representation should usually be by PFA executives. The incident involving the barrister was an example of a case which the Claimant said should have been dealt with by a PFA executive. According to the witness statement of the Claimant, "in referring to the incident I certainly did not refer to" any of the three individuals, including Mr McGuire by name. There were approximately eighteen people at the meeting. No individual was admonished. Five employees of the PFA state in their witness statements that they recall the Claimant saying that the instruction of the barrister was something which should not have occurred.
22. The issue is whether there was an admonishment of Mr McGuire. First it is submitted that Mr McGuire identified himself as either the target, or a target, of criticism. The basis for this submission is not, as already mentioned, any evidence of Mr McGuire himself. Rather it is statements by three of the Claimant's witnesses, each of whom state that Mr McGuire started to respond to the Claimant when the Claimant raised this point. However they also say that the Claimant told Mr McGuire that the matter could not be discussed at that meeting, so none of these witnesses learnt what it was that Mr McGuire would have said if he had been allowed to continue with his intervention. The suggestion that he was intervening because he identified himself as a target of the Claimant's admonshment is an inference which the Defendant submits must necessarily be drawn by the jury.
23. As noted above the Claimant states that he did not name Mr McGuire. Eleven witnesses whose statements have been served by the Claimant state that they do not recall the Claimant mentioning the name of any individual, or any individuals, who had been involved in the matter of instructing the barrister or drawing the cheque. For the Defendant Mr Warby submits that that is nothing to that point. The jury was bound to conclude that the Claimant was in fact criticising Mr McGuire, and that those present in the room would have known that fact. They would have known that he was the person who either was, or was most likely to have been, involved. Only six members of staff dealt with player representation. Three knew, or would have known, that it was not them.
24. Mr Warby notes that it is the Claimant's own case that rebuking Mr McGuire would have been wrong. Moreover, admonishing members of staff in front of more junior staff is a matter which may be so serious as to amount to constructive dismissal. He cites the employment cases Wetherall (Bond Street W1) Ltd v. Lynn [1978] 1 WLR 200, 208 B and Hilton International Hotels (UK) Ltd v. Protopapa [1990] IRLR 316.
25. Mr Price submits that it is open to the jury to accept the Claimant's evidence if given in accordance with the witness statement that "my comments could have been directed to anybody in the room… the matter was raised as something that should not have occurred. No individual was admonished". Further no inference can be drawn from the intervention which Mr McGuire started to make. There is no evidence that anyone knew what he was going to say.
26. Mr Warby accepts that what he has to establish is that a reasonable jury properly directed could not fail to conclude that the meaning pleaded by the Claimant, as set out above, is substantially true.
27. In my judgement he has failed to do this. I cannot conclude that the Claimant has no real prospect of success in this action. There are some cases where what is said in the witness statements served before trial enable a judge to conclude that the party serving the witness statements has no real prospect of success. This is not such a case. In the circumstances there is little advantage to be gained, and a risk of prejudicing the trial, if I were to set out in detail why I reached the view that I have.
28. I turn then to the application on the basis of abuse of process. In Jameel at para 55 the Court of Appeal said the following:

"… Keeping a proper balance between the Article 10 right of freedom of expression and the protection of individual reputation must, so it seems to us, require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the Claimant's reputation, which includes compensating the Claimant only if that reputation has been unlawfully damaged".

29. It is submitted that the Claimant has not advanced a case of material damage or harm to him. He remains in his employment and does not suggest that he is in any danger in not remaining.
30. In explaining in his witness statement his purpose in bringing the proceedings the Claimant states the following:

"The reason I have brought this claim is because taking into account the history of the Daily Mail and in particular Charles Sale publishing articles about me and the PFA which have been found to be true I consider enough is enough and I want to take a stand and defend our position truly. I wish to clear my name of the suggestion that I act in an unjustified and unreasonable manner towards Mick McGuire in relation to a petty dispute. I would also like to set the record straight in relation to Mick McGuire's departure from the PFA".

31. Mr Warby submits that the only explanation amongst those given there which is a legitimate purpose of a libel action is the wish to clear his own name.
32. Mr Price submits that it is a serious allegation to make against the Chief Executive of a trade union that he has behaved in an unjustified and unreasonable manner towards one of his staff (albeit that there are worse libels). If not challenged, libels such as this tend to be repeated by the meida again and again subsequently.
33. Having reached the view that I have reached on the application under CPR Part 24, in my judgment the application on the basis of abuse of process adds little. As noted above, the case for the Defendant is not that the meaning complained of is, taken by itself insufficiently serious to be permitted to go forwards, but that the difference between the meaning complained of and what admittedly occurred is too narrow.
34. In my judgement what the Claimant's witness statements (and replies to requests for information) show to have admittedly occurred is not so clear as to enable me to say that the proceedings are an abuse of process. In other words, it cannot be said at this stage that on the Claimant's own admissions he has behaved in such a way that it would be an abuse of process for him to seek vindication in respect of allegations which he denies.
35. For these reasons the Defendant's applications will both be dismissed.