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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		8th February 2010

MRS. JUSTICE SHARP:

There are before me two applications. The first application is made on behalf of the defendant, Hardeep Singh. His application is for an unless order in relation to the exchange of witness statements in the libel action to which he is a defendant. The claimant in that libel action is described in the heading as 'His Holiness Sant Baba Jeet Singh Ji Maharaj'.

The proceedings resulted from an article published in the Sikh Times on 23^rd August, 2007. The letter before action was sent on 14^th September, 2007. The claim form, with particulars, was served on 22^nd October, 2007. The defence was served on 19^th November, 2007. Various orders for directions were made. On 18^th August, 2009 the matter came before Master Fontaine at the hearing of a case management conference. It is unnecessary for me to go into detail about that, but, of course, as parties are well aware they are under an express obligation at the hearing of a case management conference to bring before the court all relevant matters for the court to consider so that it can lay down a proper timetable to which the parties can adhere so that the matter can come up for trial on its due date, or in its proper window, and be ready when that time arrives. One of the orders that was made by Master Fontaine - as I understand it by agreement - was in relation to the service of, and exchange of, witness statements. I should add here that, in fact, the case management conference to which I have referred was the second case management conference, there having been one on 21^st April, 2009.

The order that was made was that there be exchange of witness statements of fact on 29^th January, 2010. Although the defendant is now ready to exchange witness statements, on 28^th January, 2010 - that is, the day before the due date for exchange - the defendant's solicitors received a fax which said,

"We are not in a position to exchange witness statements by tomorrow. We require an extension to file and serve our statements by 19^th February, 2010".

At that stage no explanation was given, apart from the request to which I have already referred. The defendant protested at the lateness of the request, but agreed to extend time to the date asked for, but on condition that it be an unless order by consent.

The following day the claimant's solicitors refused to consent to the unless order which had been asked for, and it was at that stage that they addressed for the first time the argument which has been advanced before me by Mr. Crystal, of counsel, who appears for the claimant, as to why it was that it was being suggested that there should now be no exchange of witness statements. What was said was that the claimant was waiting for an Indian judgment to be delivered on 8^th February, 2010, but that in the event that it was not delivered they would be making an appropriate application to the court.

I have not gone into the ins and outs which, as I have already mentioned, are somewhat complicated as to the factual matters which underlie either this libel action or, indeed, the Indian proceedings. But, it appears that there was a judgment in the Indian courts in June 2008 at which the status of the claimant, and in particular whether he was or was not entitled to call himself the Third Holy Saint, was determined. That judgment, it appears, was under appeal in the Indian courts. Mr. Crystal has told me today that it is understood that the judgment on the appeal in that matter will be handed down today. Mr. Sahota, on behalf of the defendant, tells me that in view of the way matters proceed in the Indian courts, such a judgment might not be available for thirty years. Plainly, that is not an issue I am able to determine on the information before me, although the length of time that it can take for matters to proceed through the Indian courts is indeed well-known.

As a result of the failure of the claimant to agree to exchange witness statements in accordance with the order of Master Fontaine the defendant notified the claimant that in the event that witness statements were not exchanged an unless order would be applied for. Hence the application which is now before me. That was made by application notice on 1^st February, 2010.

Three days later, on Thursday, 4^th February, 2010 the second application which is before me came into being, that being an application by the claimant for a stay of these proceedings. That is supported by a witness statement of Mr. Collins, who is a partner in the firm of Ford & Warren, solicitors for the claimant.

The defendant's position in relation to exchange of witness statements can be most easily gleaned from the reasons put forward in support of the application for an unless order, and they are as follows:

"The claimant has been extremely dilatory in pursuing this action. At the latest directions hearing on 18^th August, 2009 Master Fontaine ordered exchange of witness statements by 29^th January, 2010 (i.e. allowing just over six months to prepare and exchange). The day before exchange (i.e. 28^th January, 2010) the claimant for the first time said he would not be able to comply with exchange (no reasons given) and sought agreement to extend to 19^th February, 2010. The defendant agreed, but on condition of an unless order by consent. On the day of exchange the claimant refused to agree to an unless order, saying he was awaiting an Indian court judgment, expected on 8^th February, 2010 and that if this judgment does not materialise he will be making 'an appropriate application' to the court. Presumably though not stated, it will be for a stay of the action. The claimant resides in India, has never been to the UK, and has no family or business connections here. The defendant believes the claimant is prevaricating and using spurious, hollow grounds to delay and put off trial, which has been the hallmark of the claimant's conduct thus far. This claim is purely a 'gagging' writ".

I should just say here that Mr. Crystal, on behalf of the claimant, takes strong objection to the description of the claimant's conduct of these proceedings, which he described as "deeply disrespectful".

What is said on behalf of the claimant in support of the application for a stay is that there are three separate proceedings of which this libel claim is one. There is, in addition, another set of libel proceedings, which I shall call the "Shergill claim". Those proceedings are not in the bundle which has been prepared in relation to this matter as exhibits to the witness statements of Mr. Collins. I may have already mentioned it, but it appears that the claimant is not a party to the Shergill libel action, which I am told by Mr. Sahota involves an accusation that the claimant, Mr. Shergill, is a troublemaker. This was a claim which it is said was issued about twelve months after the words complained of were published, and, says Mr. Sahota, has all the appearance of being a "gagging writ" as well.

In addition, there are what has been described by the claimant's solicitors as the "main civil proceedings"; what Mr. Crystal referred to as the "Gurdwara action". That is an action which is apparently proceeding in the Chancery Division. On the face of the pleadings which are exhibited to Mr. Collins' witness statement, the claimant is not involved either as a claimant or a defendant to those proceedings, although Mr. Crystal tells me on instructions that he has been added as a claimant to those proceedings. Those proceedings appear to relate to the position of various trustees of (in translation) "the house of baptism into the Sikh faith" which is situated in Birmingham. The claim appears to be made by the claimants for the removal of the defendants from their position as trustees. The pleadings are extremely extensive.

The essence of Mr. Crystal's submission is that at the heart of these three actions is the status of the claimant as the Third Holy Saint; that the court should, in effect, take a grip of all three proceedings and make an order to achieve the effect that there is not more than one decision about the status of the claimant as the Third Holy Saint. So far as the Indian proceedings are concerned, he initially submitted that the position would be that a judgment by the Appeal Court in India would be determinative of the claimant's status.

I have not had the benefit of a skeleton argument from Mr. Crystal on these matters. It may be that that does not matter because I have had, as I have already said, a witness statement from Mr. Collins. However, certainly there is no representation before me on behalf of the parties to the Shergill claim - although Mr. Sahota, it has to be said, represents the defendant to that claim; nor have I had the benefit of any submissions as to what course should be taken by the parties to the Chancery proceedings. Be that as it may, I can see not reason whatever why there should not be exchange of witness statements in this case - namely, the case which is before me in which Mr. Singh is being sued for libel by the claimant.

If there were any "legs" to the argument that the exchange of witness statement should await the outcome of the Indian proceedings, I cannot see why the matter was not raised before Master Fontaine at the CMC on 18^th August, 2009. At that stage, so Mr. Crystal tells me, there was a judgment in the claimant's favour as to his status in the Indian courts. I cannot see what difference it makes to the progress of this action that the matter should either have been under appeal or, indeed, that there should have been a finding one way or the other as to the merit of the appeal by the Indian court. In any event, I can see absolutely no reason on the basis of what I have seen of the pleadings in this case why witness statements should not be exchanged merely because there is, or may be, a judgment shortly to be handed down by the Appeal Court in India as to the status of the claimant.

So far as drawing these three claims together is concerned, it seems to me that if such an application is to be made, then it should be made on notice to all parties in these three sets of proceedings. The claimant in the Shergill proceedings may well have something to say about whether his claim should be tied in some way to this particular libel action. I have no doubt that if it were to be suggested that the Chancery proceedings were in some way to be tied to these libel proceedings as well, the parties to that claim may have something to say about it too.

I am not persuaded on the information which is currently before me therefore that it would be appropriate to order a stay of this action. It seems to me that the right course to take is that there should be an unless order for exchange of witness statements.

So far as the application for a stay is concerned, that application is refused. It would, however, be open to Mr. Crystal and to the claimant, if they wished to do so, to renew that application on proper notice to all the parties, supported by a proper application and a skeleton argument which identifies a common ground in the pleadings, which Mr. Crystal tells me is there, so that the court is in a position to determine whether or not there should be any delay in this libel action because of what may, or may not, be determined in the two other actions. At the moment I do not even have before me a proper timetable in relation to those actions so that the court could, at the very least consider the implications of any order that is made as to a stay, or some form of order which attaches the progress of this action to the other actions.

In those circumstances the application for an unless order is granted, and the application for a stay by the claimant is refused.

If I have not already made it clear, quite apart from the order that was made at the CMC I do not understand what it is about the existence of the appeal proceedings in India which inhibits the exchange of witness statements in these proceedings.

MR. SAHOTA: My Lady, the unless order is on the basis that the claim be struck out at whatever date the statements are not exchanged.

MRS. JUSTICE SHARP: That would be the normal ----

MR. SAHOTA: Just to avoid any misunderstanding.

MRS. JUSTICE SHARP: Mr. Crystal, what about time?

MR. CRYSTAL: My Lady, the solicitor dealing with this matter, Mr. Collins, is away next week. We would ask until 1^st March, which is three weeks from today. It is an unless order. At the moment there was some suggestion that it should be 19^th February, which is a week next Friday. We are just asking for the further week after that.

MR. SAHOTA: My Lady, I understand the claimants themselves have said in various letters (pp. 58 and 59) that they are ready to exchange by 19^th, and the only thing they are waiting for is this judgment. But, if the witness statements are ready, they are ready.

MR. CRYSTAL: I have no instructions on that. My instructions are to ask for 1^st March.

MRS. JUSTICE SHARP: I should say a word about the timing of this. Mr. Sahota, can you point me to where it is said by the claimant that they are ready to exchange?

MR. SAHOTA: Yes, in the claimant's bundle at p.58 - the exhibits to Mr. Collins' statement.

MR. CRYSTAL: It did not say that witness statements were ready. I thought Mr. Sahota was saying that my solicitors wrote and said that the witness statements were ready. I do not think they have said that in the slightest.

MR. SAHOTA: No. What I said is that they are either ready or they are not, but they are willing to exchange by 19^th. That is what the letter says. It is amplified again in the other letter at p.60.

MR. CRYSTAL: My Lady, the trial is fixed, I think, for the third week in May. It seems to me that this is an opportunism now by the defendant ----

MRS. JUSTICE SHARP: That may be, Mr. Crystal, but unless you can give me a reason why you cannot exchange ----

MR. CRYSTAL: Because the solicitor dealing with this matter, Mr. Collins, will not be -- You have to remember, some of our evidence has to come from India. Mr. Collins is away next week. That would restrict the time available to deal with the matter to exchange by 19^th -- Whether Mr. Collins knew he was away when that letter was sent on 28^th January, I really do not know.

MRS. JUSTICE SHARP: He is away until when?

MR. CRYSTAL: He is away the whole of next week. That is why we said 1^st March.

MR. SAHOTA: My Lady, may I say one relevant thing? There will be a knock-on effect if my Lady goes to 1^st March.

MRS. JUSTICE SHARP: Can you show me where the order of Master Fontaine?

MR. SAHOTA: It is at p.47 in my bundle, just before the notes by the Indian lawyer. I have a copy here, my Lady.

MR. CRYSTAL: Page 56 of the defendant's bundle.

MRS. JUSTICE SHARP: Thank you very much, Mr. Crystal. (Pause whilst read):

MR. SAHOTA: Addressing the point of opportunism -- It is not quite opportunism because if my Lady looks at Point 3, it has a knock-on adverse effect in terms of exchange of experts' reports. Now, the defendant's expert's report is ready - at least in draft form.

MRS. JUSTICE SHARP: When is the trial window?

MR. SAHOTA: The trial is actually fixed for 17^th May. My point is, my Lady, that it was agreed before Master Fontaine that our experts needed to see the witness statements to see if there was any relevant opinion they could express on that. So, it has a knock-on effect on the expert's report exchange.

MRS. JUSTICE SHARP: I am going to make an unless order to 22^nd February. That gives you fourteen days, Mr. Crystal. That is plenty of time in which to contact Mr. Collins and gain such help as you can. You have by that means obtained three further weeks from the order that was made. The timetable that has been laid down by Master Fontaine will therefore move forward three days in respect of any other order. So, for example, the report of experts be exchanged by no later than 1^st March. I understand that this matter is fixed for the third week of May.

MR. CRYSTAL: I had not noticed before now, but I see that there is an estimate given there of ten days. I think it is only fixed for five days. I wonder whether this is a case for pre-trial review.

MR. SAHOTA: No. It is actually fixed for ten days.

MRS. JUSTICE SHARP: If you wish to make an application for a pre-trial review -- It may be that you do, and it may be that there are outstanding matters to be dealt with. I am not going to make that order, but I think the parties, if, on consideration, they consider that there are matters which need to be dealt with, then they can issue an application for a pre-trial review. I am sure the court will accommodate it. Anything else? Costs?

MR. SAHOTA: Costs, my Lady. I would invite my Lady to summarily assess the defendant's costs. I did serve, allowing twenty-four hours, an estimate of the defendant's costs which I seek.

MRS. JUSTICE SHARP: Have you seen this, Mr. Crystal

MR. CRYSTAL: I have, yes, my Lady.

MRS. JUSTICE SHARP: I have to say, in terms of scale of costs that the court sometimes sees, it is modest on the face of it.

MR. CRYSTAL: Yes. If you are minded to make an order for costs, which I anticipate you will, we say that costs should really be dealt with at the end of the exercise rather than at this stage.

MRS. JUSTICE SHARP: Thank you. The defendant is entitled to his costs. He has succeeded in the application that he made for an unless order and in opposing the application for a stay. The bill that has been put before the court was served in proper time. The total sum claimed, which is £3,304.69, is, in view of some of the bills which this court sees, a modest and appropriate sum for the matters which have been dealt with today. Accordingly, I consider the defendant is entitled to his costs in the sum of £3,304.69 which should be paid within fourteen days as is usual when costs are summarily assessed. I thank you, Mr. Sahota, Mr. Crystal, for your assistance.