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
		15 December 2010

Mr Justice Eady :

1. On 24 November 2010 I heard an application made by the Defendants in this libel action for summary judgment, based on the submission that the very limited publications which took place were protected by qualified privilege and that there was no realistic prospect of the Claimant being able to establish malice against the Second Defendant.
2. The First Defendant is a firm of solicitors and the Second Defendant, Mr Harvey Fox, one of its employees. He is not himself a solicitor but discharged a number of responsibilities within the firm, which included scrutinising invoices to be sent by the firm to the Legal Services Commission for reimbursement of fees incurred by those participating in the duty solicitor scheme at various police stations and magistrates' courts. The partner to whom he was responsible was Mr Michael Field.
3. The Claimant is a practising solicitor who worked for a time on a freelance basis for the Defendant firm in the capacity of a duty solicitor and she would regularly submit invoices at the end of each month to Mr Harvey Fox.
4. It so happened that on 31 October 2008 she submitted an invoice relating to her work for that month and, in particular, in respect of the evening of 27 October. When he reviewed her claims, Mr Fox was initially doubtful as to one of the entries, because on the information available to him it appeared that there might have been a conflict of interest as between three youths, each of whom had been interviewed by the Claimant. He therefore sought clarification from her and they discussed matters both by email and on the telephone. He wanted to be clear at which stage it had become apparent to the Claimant that there was going to be a conflict of interest. He wondered whether a fee (of £270) for the third client was properly recoverable from the Legal Services Commission at all, because it seemed to him at that stage that the Claimant would have known of the conflict from having spoken to Client 2. If so, this would mean in his understanding that she should not have gone on to interview Client 3.
5. The Second Defendant also discussed the matter with Mr Michael Field. It was he who came to the conclusion, ultimately, that there had been a conflict of interest and that £270 should accordingly be deducted from the invoice to be submitted to the Legal Services Commission.
6. For administrative purposes within the firm, the Second Defendant later recorded the Claimant's figures for October 2008 on a spreadsheet and added a rather abbreviated note in these terms:

"270 deducted as conflict of interest non-claimable from LSC as already known when instructed."

Those are the words complained of. It appears that the spreadsheet was published no more widely than to Mr Field and to another employee within the firm, Mr Ackerley, whose approval was required before the sums could be paid out by the firm's accounts department. Although not accepted by the Claimant, it seems to me to be beyond argument that these two publications were the subject of qualified privilege. That defence the Claimant seeks to defeat, however, by pleading and proving malice against the Second Defendant.

7. It is clear that in the light of the decision of the House of Lords in Horrocks v Lowe [1975] AC 135 she will need to establish that Mr Fox (i) knew the words complained of to be false, or (ii) that he was reckless in the sense of being indifferent to their truth or falsity, or (iii) that he had, in publishing the content of the spreadsheet, a dominant motive of causing damage to her reputation. Furthermore, it behoves her to plead particulars of malice that are not merely neutral or equivocal but more consistent with malice than with its absence: see Gatley on Libel & Slander (11^th edn) at 30.5.
8. Unfortunately, the goalposts have proved to be rather mobile. It seems that the Claimant's reply, where malice could be expected to be raised if appropriate, was due to be served at the end of April but, and only after the Defendants threatened to apply for an "unless order", the pleading was not served until 21 May. At that time, the Claimant did not have the benefit of independent legal advice and, I gather, had to do the best she could. Later, however, permission was sought to substitute an amended reply, dated 10 November 2010, shortly before the Defendants' application for summary judgment was due to be heard. By this time, the Claimant had the advantage of being represented by Ms Kate Wilson of counsel. She had drafted the fresh pleading. She also represented her on the first occasion when the application was listed, but new documents were produced at that stage by the Defendants and it became necessary to adjourn so that those could properly be assessed.
9. Unfortunately, by the time the case came before me substantively, on 24 November, the Claimant and Ms Wilson had parted company and she appeared in person. At this stage she told me, in the course of her submissions, that some of the content of the amended reply needed to be corrected and, more significantly, that she wished to rely on a large number of new allegations contained in a document that was primarily intended to serve as a chronology. As Mr Vassall-Adams, for the Defendants, points out, much of the new material was introduced without the support of a statement of truth (whether on a witness statement or on a statement of case). For that reason, he submits it is appropriate that these new assertions should be approached with caution.
10. Against this background, the Defendants' case may be summarised as follows. The matters raised by the Claimant, whether the original particulars or the new material, do not provide any proper basis from which malice can be inferred. Further, the evidence adduced by Mr Fox, including contemporaneous documents, points clearly away from any such inference.
11. When assessing the various allegations of malice, both new and old, Mr Vassall-Adams invites me to have regard to the inherent probabilities and, in particular, to the following background factors:

i) The Second Defendant's responsibilities required him to keep records of payments to the Legal Services Commission and the spreadsheet in question summarised the outcome of the Claimant's claims for October 2008. It was necessary to record the reasons for any divergence between sums claimed and those paid.

ii) The words complained of simply recorded a decision taken by Mr Michael Field, the Claimant's supervising solicitor, and the partner to whom the Second Defendant himself answered, that there had been a conflict of interest which made it inappropriate to claim a fixed fee payment in respect of Client number 3 (or for the firm to retain him as a client).

iii) The contemporaneous police station attendance notes, and the Claimant's own handwritten notes, demonstrate that there were conflicts of interest between all three clients and also suggest that Client number 3 was seen third in sequence. There was accordingly a strong evidential basis for the Second Defendant's concerns about the propriety of claiming fixed fees for attendances on all three.

iv) The contemporaneous emails show that the Second Defendant sought further information from the Claimant to clarify the position. When he remained unsatisfied, following her explanations, he referred the matter, together with the documentation, to Mr Field for him to come to a judgment on the matter. This took place on 6 November 2008.

v) All the contemporaneous documentation indicates that the Second Defendant's concerns were genuine and, in particular, his email of 6 November (discussed further below).

vi) This was the first occasion when the Second Defendant had raised any query as to whether payments could properly be made to the Claimant. There was no history of the Second Defendant querying the Claimant's fees, whether in relation to conflict of interest or any other matters.

12. A key document is, therefore, Mr Fox's email of 6 November 2008 to Mr Field (from which identifying details in respect of the three clients have been removed):

"I've now studied Grace's typed attendance notes in respect of the conflict. They are far from clear and the hand-written version may be clearer but the chronology is apparently:

1^st Client is … . Denies involvement. Was across road.

2^nd Client is … . Admits offence. Exonerates [Client 1] but says everyone else involved.

3^rd Client is … . Denies offence.

I would have conflicted after first Client. Typed note suggests blaming unspecified others (would have clarified exactly who but take it [Client 2] as admits it). [Client 2] says "everyone else" involved except [Client 1]. On face of it must be accusation against [Client 3] but typed note does not indicate who "everyone" is exactly.

Grace completely denies she was aware that there was a conflict until she spoke to the 3^rd Client. There was a conflict between the first two as [Client 1] would need to be advised to exonerate himself by implicating [Client 2].

I think the real issue is that Grace insists that you have to speak to all Clients before deciding if there is a conflict. This is even the case apparently if the first Client blames the others as here. As I understand her position, it is that it is ethical to take instructions from a potential conflict but not give advice. Maybe the hand-written notes do not suggest it was a cut-throat in the same way as the typed notes do. The typed notes do not state who is being blamed rather than "the others". I fundamentally disagree with her interpretation of a conflict and would advise against submitting a claim for at least two of the Clients. Grace fundamentally disagrees with me. It's as simple as that. There is still the issue that her attendance times say she spent 6 and 12 minutes with these Clients which must suggest she knew there was a conflict. She bizarrely still denies that was all the time she spent despite it being explicit in her typed times.

I have pasted below my reply to Grace which I hope you will agree is a model of diplomacy. There are however several other issues on which I need your input.

Grace's last attachment is her amended attendance notes seeking to justify separate fees for the conflicts at Wandsworth Police Station. You'll see she has largely ignored my suggestion as to how [to] improve the notes. It has to now be your decision as to whether you want to pay Grace as claimed and whether you wish to claim fixed fees on the next CDS6.

It may also be semantic but you will see that the Client she did represent out of the three was [Client 3]. He instructed her as an own Client after the conclusion of her duty. The semantic point is that she has claimed £270 as a Client from her own duty which is not strictly true. Shall I pay £270 or £150.

…

I should point out, as you will know as you were copied in the e-mails, that Grace was never remotely accused of impropriety in respect of the conflicts. She was just asked to expand her attendance notes to address an unusual situation."

Ms France wishes to challenge its authenticity, and draft in an Internet expert to make an assessment, but there is no basis on which I can possibly suppose that it has or might have been dishonestly manufactured. The court requires more than bare assertion when addressing the viability of a malice plea.

13. It is necessary to remember that the issue of when to decide that there arises a conflict of interest, as between two or more potential clients, is likely to involve a matter of judgment and a decision to be taken without the luxury of leisurely deliberation. One can see from the 6 November email how Mr Fox (not himself a solicitor) was approaching the matter in the light of his experience and how he sought guidance from Mr Field. It is clear from that document that the Claimant was taking a different view of how conflict problems should be approached. There is nothing surprising about that. In legal practice, one is often confronted with matters of fine judgment as to what is or is not professionally appropriate. There is nothing to suggest that Mr Fox thought the Claimant had been dishonest or that she had fallen short of the requisite professional standards. Nor was he so claiming to Mr Field. He put the ball, quite appropriately, in his court.
14. Still less is there evidence of dishonesty on Mr Fox's part at that point. The spreadsheet complained of in this litigation was published later and merely purported to record, in very truncated form, the outcome of the query. There was plainly a duty on Mr Fox and Mr Field to make a decision about what could properly be claimed by way of public funds from the Legal Services Commission. It would not be right for them merely to rubber stamp claims from duty solicitors without applying scrutiny and, where appropriate, an independent professional judgment (specifically in the case of Mr Field). These considerations are plainly relevant to the defence of qualified privilege, but they also form part of the background against which the plausibility of the plea of malice has to be judged.
15. Ms France indicated at the conclusion of her submissions that she wished to rely on the allegations of malice contained in the Amended Reply together with the additional allegations in the chronology, and it was necessary for Mr Vassall-Adams to have the opportunity of commenting on those later in writing. I shall need to consider the submissions on both of these categories. As to the Amended Reply, I had available, in addition to the submissions of Mr Vassall-Adams and Ms France, the skeleton argument earlier provided by Ms Wilson.
16. I was reminded that the court should not conduct a mini-trial on an application for summary judgment. I should also proceed at this stage, prior to disclosure and exchange of witness statements, on the assumption that the Claimant will be able to establish the facts pleaded unless they can be demonstrated already on the documents to be simply wrong. As to any inference of malice, it should only be ruled out if a jury would be perverse to draw it: see Duncan & Neill on Defamation at para 28.28.
17. Where there is the possibility of a trial by jury, it is necessary to have in mind on the credibility of particular allegations that it is the jury's credulity rather than the judge's that is important.
18. It is suggested that these allegations of malice are fit to be left to a jury. In particular, there is disputed evidence as to the content of the telephone conversation between the Claimant and Mr Fox on 31 October 2008 and that conflict cannot be resolved, Ms France submits, without oral evidence and cross-examination.
19. The essence of Ms France's case on malice is that the documents supplied to Mr Fox on 31 October 2008 could not have given rise to a genuine belief on his part that she knew of a conflict before attending upon Client 3 and, accordingly, that his case should be rejected after being tested at trial. Her case is that in the telephone conversation she confirmed what was contained in the documents; that is to say, she told Mr Fox that she did not see Client 2 until after she had seen Client 3 and that, therefore, she could not have appreciated the conflict before seeing him.
20. The most serious allegation on the Claimant's part is that Mr Fox dishonestly asked her to inflate the times recorded in her notes. This seems to me to be fanciful in the light of the contemporaneous documents. He was only asking for "expansion" in so far as he needed to know more detail.
21. In paragraph 4.2 of the Amended Reply it is alleged that Mr Fox knew that Client 3 had been interviewed first because the attendance form she supplied gave the times as 23.18 for Client 3, 23.30 for Client 1 and 23.42 for Client 2. That is the sequence of events that she claims to have confirmed orally during the telephone conversation.
22. Matters are not quite so straightforward as this pleading would suggest. The sequence of interviews is clearly significant. Since the notes of the interview with Client 2 make clear that he was implicating Client 3, Mr Fox was entitled to raise a query whether Client 3 should have been seen thereafter. The Claimant's note records Client 2 as saying, "Everyone had the idea of getting bikes except [Client 1]". Her notes also indicate that at 23.21 (during the brief period she now claims to have been interviewing Client 3) she was in fact being given a briefing by a police officer as to the nature of the criminal activity alleged. The note is headed "Disclosure: Theft of pedal cycle using bolt cutters".
23. What is more, this sequence would be consistent with the printed "Police Station Attendance Form" in respect of Client 3. Mr Vassall-Adams submits that it appears to show him being interviewed twice, after she had seen Clients 1 and 2, and for significant periods of time. It states on its face that she attended upon him from 23.48 to 01.00 (i.e. 72 minutes). He also says that she saw him again at 01.00, but I think that she has recorded the 42 minutes between 01.00 and 01.42 as a period of travel. Be that as it may, there is no reason to doubt from that form the proposition that she saw Client 3 between 23.48 and 01.00 (i.e. after the interviews with Clients 1 and 2).
24. In the face of these documents, there is no realistic prospect of demonstrating that Mr Fox knew that she had seen Client 3 before, and only before, Clients 1 and 2. He was entitled to raise queries and to refer the matter to Mr Field.
25. It was only shortly before the original hearing that Mr Fox discovered that some of the contemporary documents still survived. He discovered, as he explained in his second witness statement of 17 November 2010, that Mr Field was unexpectedly able to retrieve them, although he (Mr Fox) had thought that they could no longer be accessed. It was by this means that he was able to put in evidence his email of 6 November 2008 and the handwritten attendance notes.
26. I granted an adjournment, so that these new documents could be assessed. When the matter came back before me on 24 November, Ms France (by this time in person) sought to rely on a new case by way of malice. She read out a list of the relevant paragraphs from her chronology. This in turn necessitated a further witness statement from Mr Fox to deal with the new allegations and further submissions in writing from Mr Vassall-Adams. It is difficult to see, in a number of these particulars, how they would support malice in any event.
27. One of the points made by Ms France, after receiving the judgment in draft, was that no evidence had been put in by Mr Field and that she wished to put questions to him in cross-examination. It is recognised, however, that it is not appropriate to allow a plea of malice to proceed simply on the basis that something may turn up if a defendant chooses to go into the witness box, or that he may make an admission in cross-examination: see e.g. Duncan & Neill on Defamation (3^rd edn) at 18.21.
28. Ms France also made the point several times that it is necessary to establish what happened on the night in question, while she was at the police station, but it has to be remembered that it is Mr Fox's state of mind that is material and, in particular, whether the documentary material he had left room in his mind to raise doubts or queries honestly. He was not at the police station and his state of mind can only be assessed on what was available to him
29. In paragraph 18 of her chronology Ms France refers to a "rant" by Mr Fox on 5 September 2008 about not being offered a Blackberry and also the fact that he had not recovered various expenses, including in respect of a printer cartridge and mobile telephone calls. This can hardly be relevant to his alleged state of mind in the middle of November when he compiled the spreadsheet.
30. Paragraphs 19 and 20 merely record various duties discharged in September 2008 and can give no support on malice.
31. Paragraph 21 appears to relate, according to Mr Fox, to events on 11 September 2008. The purpose seems to be, so far as I can tell, to attribute jealousy to Mr Fox or resentment against Ms France because she had been given more attractive, interesting or remunerative duties than him. He is alleged to have complained to her that Mr Field should have sent him to Kentish Town rather than Holborn. At Holborn he had only had one client, whereas at Kentish Town Ms France had four. On checking his diary, however, Mr Fox has challenged the underlying contention, since he was not "sent" to Holborn by Mr Field, but rather chose to attend there himself, having taken the call personally. In any event, it hardly fulfils the appropriate criteria for pleading malice, since it appears to be neutral.
32. At paragraph 23, the Claimant expresses resentment at being passed over for a sentencing hearing, since Mr Fox instructed an outside agent to go instead. He identifies the occasion as relating to a client at Tower Bridge Magistrates' Court. He had been arrested on 3 November for breach of bail conditions. Since Ms France was unavailable, he booked a solicitor agent. She phoned in with the outcome and he then booked her also for the subsequent hearing on 5 November. That would obviously provide continuity. Ms France complained to a partner (Kishora Kotecha-Pau) and Mr Fox was required to give his explanation. None of this seems to support the suggestion that the entry on the spreadsheet, two months later, was dishonest.
33. Paragraphs 24 and 25 do not appear to be relevant. In paragraph 26, she raises a squabble about her fee rates. This concerns a practice in the firm whereby different rates applied at different police stations. On the instructions of Mr Field, Mr Fox calculated the average fee for all police stations: Ms France was to be paid 95% of that. Accordingly, Mr Field agreed that her rates should be reduced by £1.00 per case. This does not begin to be relevant to malice.
34. Paragraph 30 and paragraphs 33 to 40 relate to the events of 27 October, which I have already addressed.
35. Paragraphs 44 and 48 relate to an incident on 14 November 2008 (i.e. between the email of 6 November and the compiling of the spreadsheet). Ms France is again complaining of being passed over, this time in favour of another consultant (a Mr Richard Barrett who is a higher courts advocate). Mr Fox has explained that he had tried to contact Ms France to attend at another police station while he himself was busy at BTP Central London Police Station. He had to go into the custody suite and could not delay matters. He therefore instructed Mr Barrett to attend the other clients – but only after telephoning Ms France without success.
36. An additional complaint is raised about Mr Barrett's arrival on the scene. Mr Fox changed his voicemail on the out of hours telephone, so as to invite callers in his absence to try other solicitors. He placed Mr Barrett ahead of Ms France but denies that this had any particular significance. In any event, it is quite consistent with the absence of malice in relation to compiling the spreadsheet.
37. Paragraph 50 relates to a meeting on 26 November 2008, at which Mr Fox was not even present. Ms France met two of the partners – Mr Field and Ms Kotecha-Pau. Concern was expressed by them about her performance and a number of matters were mentioned, of which the incident on 27 October was one. It is not accepted by the Defendants that Ms France was told at the meeting that Freemans had lost confidence in her. Her work arrangements were to continue unaltered, but Mr Fox was instructed to monitor her attention to certain issues. He reported back favourably, in particular as to the time she was by then devoting to advising clients and as to her recording details of their instructions. It may seem odd that a solicitor should be monitored by someone unqualified, but that is immaterial to the present dispute. Moreover, the meeting took place after the words complained of had been entered on the spreadsheet and cannot relate to his state of mind prior to that.
38. Further matters are raised about the circumstances in which Ms France and Freemans came to go their separate ways. There were financial negotiations and a complaint by her of unlawful deductions, but in so far as these matters occurred after the words complained of they can hardly be relevant. In any event, they have nothing to do directly with malice, since they are entirely consistent with its absence. What has to be remembered throughout all of this is that the Claimant has to prove that Mr Fox was actuated by malice in writing the words complained of. In her observations in the light of seeing the draft judgment, Ms France has submitted that "his assertions were … totally unnecessary and consistent with spite, jealousy of my income and grievance that built up against me as evidenced in the chronology". For present purposes, however, what is important is that they are consistent with the absence of malice: see e.g. Alexander v Arts Council of Wales [2001] 1 WLR 1840; Somerville v Hawkins (1851) 10 CB 583.
39. The upshot is that the additional material sought to be introduced on 24 November does nothing to make up for the deficiencies in the originally pleaded case. There is no realistic prospect of bringing home this serious allegation against Mr Fox.
40. Mr Vassall-Adams relied on an alternative argument, founded on the abuse of process doctrine developed by the Court of Appeal in Jameel (Yousef) v Dow Jones Inc [2005] QB 946. The suggestion is made that in view of the very limited publication (to two persons only, each of whom knew the background circumstances in any event), and the unreality of expecting to achieve the legitimate objective of any libel proceedings (i.e. vindication), the claim should be regarded as abusive.
41. It has been said more than once that the court should not enter into an arbitrary "numbers game"; that it cannot be assumed that, below a certain number of publishees, a claimant will be unable to establish a real and substantial tort. There may be very serious implications for a claimant even in cases where there is only one publishee. If it is said, for example, to an employer that an employee has been embezzling funds, or to a wife that her husband has a mistress, the implications could be devastating. In this case, one of the publishees was the Freemans partner to whom the Claimant was answerable and she suggests that it may have led, at least in part, to the firm's dispensing with her services. In these circumstances, I do not believe that abuse of process provides a separate ground for striking out.
42. In the light of my conclusions on qualified privilege and malice, however, I shall grant summary judgment to the Defendants.