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
		08/07/2011

Mr Justice Tugendhat:

1. The Claimant appeals against an order of Master Kay made on 20 January 2011 by which he struck out this claim for libel. On that day he handed down his written reasons for his decision, following a hearing that had taken place on 18 November. He gave permission to appeal, explaining that his decision was based on a technicality. The reason he had given for striking out the action was that the Claimant had not identified any person who had accessed the websites on which the words complained of had been published.

THE PARTIES

2. The parties are all Koreans who live in England. Although they have had some legal assistance in this litigation, on the appeal the Claimant and the First Defendant appeared in person.
3. The Claimant graduated from Seoul National University in 1984 with a BSc Engineering, and from the London School of Economics in 1989 with a BSc Economics. Between 1990 and 1998 he taught mathematics in Seoul, amongst other activities. In 1998 he established three colleges in Seoul. In 2001 he came to the United Kingdom and established a college in New Malden, Surrey. He taught A- Level mathematics, physics and economics, amongst other subjects, to Korean students preparing to attend Universities in the UK. Together with his son he also established a restaurant and pub business. In 2007 he was declared bankrupt in the UK. He was discharged in 2008.
4. The First Defendant is the publisher of the website named as the Fourth Defendant and of a newspaper "The Korea Post". He has also been managing director of companies in the field of education, amongst other activities. There is a dispute between the Claimant and the first defendant as to whether the college with which the First Defendant is associated was in competition with the Claimant's business.
5. At the time the words complained of were first published the Second Defendant was the chief editor for the Fourth Defendant and the paper version of the Korea Post. The Third Defendant was appointed as chief editor of the Fourth Defendant's website in July 2008, according to the Defendant.
6. There is a large ex-patriate Korean community in the UK, the majority of whom reside in or around Kingston. The Fourth Defendant's website is one of the major publications serving that community. The Korea Post is distributed throughout UK Korean society.
7. Three articles are complained of. They are all in the Korean language. The first is one posted on 11 April 2007 headed "1,000,000,000 Korean Won Fraud Scandal on Student's Parents". (That sum is the equivalent of something over £500,000.) The second is an article posted on 16 May 2007 headed "Grief of the Gull Mother". The third is an article posted on 9 July 2007 headed "Arrest Warrants issued for Gull Mother Fraud Scandal Suspects". The phrase "Gull Mother" is the English Translation of the Korean phrase used to denote Korean ladies who leave Korea with their child or children to live in England, in order to enable the children to obtain an education in England, while their husbands remain in Korea until the family can be reunited.
8. The meanings which the Claimant attributes to each of the three articles complained of are very similar. They are that he preyed on the vulnerable parents of Korean students, and was a blackmailer, a criminal, a fraudster and a liar. In respect of the third article complained of the meaning he attributes to it is, in addition, that an arrest warrant had been issued against him.
9. The Defence of all four Defendants includes a denial of publication. That is the only defence which is material to the issue I have to decide. There is an issue as to whether the articles complained of refer to the claimant. There are, in addition, pleaded defences of qualified privilege (Reynolds Privilege) and justification or truth. The meaning the Defendants say is true is that the Claimant had abused the trust of vulnerable women by persuading them on deliberately false pretences to pay him large sums of money which he did not repay.
10. The plea of qualified privilege refers a press release issued in early April 2007 by the Korean Embassy in the UK. It is the Claimant's case that the press release did not name him, but that a couple (whom he identifies) claimed to identify him as the person referred to in the press release. It is the Claimant's case that this is a fabricated allegation.
11. In the Defence it is pleaded that on 4 April 2007 a broadcasting corporation in Korea (referred to as MBC) included in its 9 pm news bulletin a story to the effect that it was the Claimant who was said to have perpetrated a fraud on fifty Korean women known as "Gull Mothers".
12. The Claimant's case is that he brought proceedings for defamation in the Seoul District Court. By a judgment handed down on 5 June 2008 the Seoul Court found (in the translation provided by the Claimant):

"1. Confirmed fact: ...

(b) The falsehood of the report: ... It is clear that though the Claimant may have received expensive private lesson fees, there is no evidence to suggest that he was involved in the fraud against 50 gull mothers as suggested in the report, and that the report is false or unproved fact.

(c) Result: Therefore it is clear that [MBC] is responsible for libel and slander due to the report based on the fabricated or false information".

13. The Seoul court ordered MBC to broadcast a revised report in terms set out in the judgment (to be "read at the same speed as in all other of its news programs... after the first to o'clock News Desk' since this ruling, with the subtitle 'revised report' from beginning till end") and to pay damages in the sum of 5,000,000 Won (the equivalent of about £2,500).

CHRONOLOGY

14. The relevant chronology of events is as follows.
15. In April, May and July 2007 the articles complained of were first published.
16. On 5 June 2008 the Seoul court delivered judgment against MBC.
17. 3 December 2008 is the date on which the Claimant claims to have had his attention drawn to the fact that the publications complained of existed.
18. On 7 or 8 January 2009 all the words complained of were removed from the Fourth Defendant's website.
19. On 25 November 2009 the claim form and Particulars of Claim were issued. It is drafted by the Claimant in person. The plea as to publication is similar in relation to each article:

"The persons to whom the ... article was published (the Korean community in the UK) understood the article in Korean".

20. 7 May 2010 the Defence was served. In addition to the pleas already mentioned, the Defendants relied on the one year period of limitation. It follows that the period of publication which the Claimant can rely on does not exceed the period 26 November 2008 to about 6 or 7 January 2009. As to publication the Defence included the following:

"16.4 The Claimant has failed to identify named individuals to whom the article was published or plead a platform of facts upon which an inference of publication to third parties could be based. In the premises the claim is defective in that it fails to establish a fundamental element of the cause of action, as per Al Amoudi v Brisard [2006] EWHC 1062 (QB)..."

21. On 21 June 2010 Master Kay gave directions. He ordered that (in the event that the case was not settled by 23 July) the parties should give standard disclosure on or before 10 September, and fixed a case management hearing for 28 October 2010.
22. On 23 August 2010 the solicitor then acting for the Defendants wrote to the Claimant asking him to identify the persons alleged by him to have read the words complained of. They threatened to apply to strike out the claim if he did not do so. The Defendant's solicitor also argued that the claim was an abuse of process on the basis that there was no real or substantial tort. The Claimant (who was not legally represented) replied with arguments of law, but did not identify any person who he said had read the words complained of. He also complained of a further publication dated 27 August 2010.
23. On 4 October the Master made an order (as varied on 15 October) that unless the Defendants complied with the order for disclosure by 25 October, they would be debarred from, defending the action and there would be judgment for the Claimant with damages to be assessed.
24. . 25 October 2010 the Reply was served. It included the following:

"13 Paragraph 16.4 of the Defence is denied. The posting is in a public domain, and any reader can go into it and can read freely without any restriction. There was no restriction to reading the articles, and any of the more than 50 million Korean language readers, including 50,000 Koreans in the UK, could have read the article".

25. 28 October 2010 the Defendants issued an application notice asking for the claim to be struck out, or for summary judgment. In a witness statement in support the solicitor then acting for the Defendant referred to the fact that the Particulars of Claim do not identify any person alleged to have read the words complained of. He also described what he said, were the difficulties in finding the words complained of on the website.

THE JUDGMENT OF THE MASTER

26. In his judgment Master Kay recorded the submissions of Mr Sherborne, counsel who was then instructed for the Defendants. He had submitted, on the basis of AI Amoudi v Brisard [2006] EWHC 1062 (QB) that when publication on a website was complained of a claimant must produce evidence of publication. He also submitted that even if there were evidence of limited publication the court may not now allow the matter to proceed if the likely damages are out of proportion to the time likely to be spent on the case, while accepting that the court should only exercise its discretion to strike out a case in obvious cases. He referred to well known authorities. Mr Sherborne also submitted that the claim was weak for a number of reasons which had been explained in a witness statement by his instructing solicitor. These included the fact that the words complained of had been on the website for a considerable period of time before the Claimant claimed to have become aware of them, and that the number of persons to whom the material was published in the period 26 November 2008 to 6 or 7 January 2009 is likely to have been very small.
27. The Master went on to refer to a witness statement filed by the Claimant. That is dated 18 November 2010, the date of the hearing. The Master recited that the Claimant said that he had requested that the words complained of be removed on a number of occasions in December 2008 and January 2009 before they were in fact removed. He referred to the judgment of the Seoul Court which the Claimant had exhibited to his witness statements. The Claimant said that the website was accessible to the public and he gave reasons why he submitted it was likely that the number of people who would have accessed the websites would have been about 8,000, 7,500, and 6,500 in respect of the three articles. But the Claimant still did not identify any publishee. The Master recorded that the Claimant also complained of further publications, including the one already referred to on 27 August 2010 and two in October 2010. The First Defendant does not accept that there is any basis for the numbers of people who the Claimant claims accessed the website.
28. Directing himself on the law, the Master concluded that the Claimant had not put forward any case on the nature of the website itself which was sufficient for a jury to be able to infer that there had been publication.
29. There could be, and is, no complaint about that conclusion of the Master insofar as it is based on the material that is in the Particulars of Claim and in the witness statement of 18 November.
30. However, in his judgment the Master went on to say the following:

"19 During his submissions the Claimant informed me that the articles had been seen during the relevant period by an individual or individuals who had confirmed that they could be witnesses but that they were afraid of the Defendant [Mr Park]. I appreciate that this could be a problem but the burden is upon the Claimant to demonstrate that there has been a publication and he has failed to provide sufficient particulars to support such a case with respect to actual publication to any individual."

31. On 23 November 2010 the Claimant wrote to the Master. In his letter he said that the time for witness exchange had not yet taken place and added

"I believe there should be an opportunity for exchange of the witness statements made by the people who read the defamatory articles before the Defendants can raise question over the credibility of the witness statements. In our case we have not even had a chance to exchange witness statements. Also, I have acquired witness statements from dozens of witnesses who say that they have seen the defamatory articles in question. Since I began this case, more than 100 people have told me orally that they have seen the articles. ... [He gave as reasons why a number would not wish to give evidence in court that they were afraid that if they did they too would be defamed]... When the trial begins I will actually call ten witnesses to the stand. If I could be assured that the identities could be kept safe from the people who continue to defame me and those around me, I would persuade more than 100 people to be witnesses for me. From the time the articles were posted on the website in 2007 to the morning of 8 January 2009, more than ten witnesses have provided me with statements and have agreed to stand in court as witnesses for me".

32. Following receipt of the draft judgment, on 17 January 2011 the Claimant wrote to the Master again. On this occasion he enclosed thirteen witness statements. Most are dated November or December 2009 but two or three are dated in early 2010. A number of them are specific as to the period within which the person making the statement claims to have read the words complained of, specifying the period up to early January 2009.
33. The Master referred to this evidence in the final version of his judgment in a new paragraph 24 where he said:

"On 17 January 2007, after the draft of this judgment had been prepared and sent to the parties, a bundle of further information was received from the Claimant. This is too late and it would not be fair to allow further evidence to be admitted at this stage".

34. There is a transcript of the hearing at which the judgement was handed down on 20 January 2011. The Master opened the proceedings by referring to that paragraph which he had added to his judgment. He then said:

"Sorry Mr Kim, the reality of it is that I am afraid you have a hearing and that is when the matters have to be dealt with on the basis of the evidence before the tribunal at that stage. If further evidence was allowed at this late hour after the draft judgment had been sent to the parties, it would allow continuous litigation and no one would ever finish".

THE SUBMISSIONS OF THE PARTIES

35. The Claimant submits that, as is clear from the Judgment, he had told the Master at the hearing that he did have witness statements. Before the Judgment was handed down he provided thirteen witness statements. The case is of great importance to him given the extreme seriousness of the allegations. His reasons for not identifying the witnesses were his concern that they would be prevailed upon to withdraw. He complains of the Defendants' conduct in continuing to defend the action notwithstanding his success in the proceedings against MBC and Seoul. He refers to other proceedings against other persons which he has brought in this jurisdiction where he has obtained settlements favourable to him. He submits that he should have been given an opportunity to put right his failure to identify in the Particulars of Claim any publishees, and that he did put this right by his submission of the thirteen witness statements.
36. Mr Park submits that the judgment is right for the reasons given by the Master. In addition he refers to other passages in the Judgment (set out below) in which the Master expressed his doubts as to whether the damage caused in the period from November to 7 January was significant or substantial. He submits that the Claimant should not be permitted to adduce fresh evidence on this appeal. He also states that some of the witnesses whose statements have been put forward are members of the family of the Claimant, and, in some instances, gives other reasons why their evidence may not be reliable.

DISCUSSION

37. Neither I on this appeal, nor the Master, could make any finding of fact. At this interim stage of the proceedings the court cannot decide whether the witnesses for the Claimant (or the Claimant himself) are afraid of the consequences if their identities are revealed. Nor can the court decide whether the witnesses are credible.
38. In my judgment, the Master took an unduly restrictive view in saying that the information which the Claimant provided after the judgment was circulated in draft was too late to have any effect on his decision to strike out the proceedings.
39. He was entitled to hold that on the material that had been before him at the hearing, the Claimant could not succeed at trial simply on the basis that publication to readers of the articles on the website could be proved only by inference. It would follow from this that the Claimant could succeed only by calling evidence of publication to identified readers.
40. However, where the court holds that there is a defect in a pleading, it Is normal for the court to refrain from striking out that pleading unless the court has given the party concerned an opportunity of putting right the defect, provided that there is reason to believe that he will be in a position to put the defect right. In para 19 of his Judgment the Master recorded that the Claimant had informed him that he already had witnesses. On 17 January 2011 the Claimant demonstrated that that was not wishful thinking, or a bluff, by submitting the statements that he did submit.
41. In those circumstances I conclude that it was wrong in principle for the Master to strike out the claim without giving the Claimant an opportunity of rectifying the defect in his case. Accordingly this appeal will be allowed.

ABUSE OF PROCESS

42. I have not overlooked the observations of the Master as to the strength of the claim for damages. In para 22 of his Judgment he said:

"I have it in mind that the basis of the Claimant's claim in damages is that his businesses have been adversely affected by the alleged defamation. However the Defendants have stated that the Claimant was already insolvent at, or about, the time when the articles were first published. If, as I think it should be, that evidence is accepted it is difficult to see how the alleged defamations can have contributed to the Claimant's business losses. On the contrary it is more probably that the Claimant's business suffered financial loss arising from earlier competition which, it appears had grown up between himself and [Mr Par]....[and he continues making other observations as to the probability of the facts alleged]"

43. The Master did not decide to strike the claim out on grounds that there was abuse of process, or no real or substantial tort. He was right not to rely on those observations as a ground for striking out the claim. Accordingly that matter is not before me on this appeal.
44. But since the Master included that paragraph in his Judgment it is right that I should explain why it is irrelevant. First, a court cannot make findings of fact as to what is probable or not probable on an application to strike out. That is not the test for a strike out, nor even on an application for summary judgment.
45. Secondly, and more importantly, as has been explained in a number of cases, the main purpose of a claim in libel is not the recovery of damages for past losses (although that is one purpose). The main purpose is for the Claimant to vindicate his reputation, that is, to prevent damage being suffered in the future by reason of repetition of the defamatory allegations complained of. It is for that reason that a claimant does not have to prove that he has already suffered any damage before the claim in libel is brought.
46. Of course there is force in the Defendants' submission that the fact the claim is confined to a short period before 7 January 2009 may well have the effect that any damages which the Claimant may be awarded (if he is successful in the Claim) would be only a small proportion of the damages that he would have been awarded if the statute of limitation did not preclude him from relying on the whole period during which the words complained of were on the website. But the defamatory meanings complained of in this case (and which the Defendants seek to justify) are very serious. I express no view as to whether the Claimant is likely to succeed in this claim or not. But if he were to succeed, the vindication of his reputation for honesty would be a real benefit to him, even if his damages for past losses were modest.

CONCLUSION

47. For the reasons given in paras 37 to 41 above, this appeal will be allowed.
48. At the handing down of this judgment I will endeavour to give directions for the further progress of this action. If the parties still have the benefit of legal assistance of any kind, I encourage them to attempt to agree as many of the necessary directions as they can,