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 February 2011

Mr Justice Eady :

1. On 19 November 2010, I heard an application by Mr Steinberg to the effect that I should set aside summary judgment granted in this libel action on 18 June 2003. This was pursuant to the provisions contained in ss.8-10 of the Defamation Act 1996. Shortly thereafter an assessment of damages was made, on 25 July 2003, in the sum of £1,000 for the First Claimant, Pritchard Englefield, and £4,000 for the Second Claimant, Mr Michael Cohn (a partner in that firm). I had earlier commented, at a hearing on 17 February of that year, as follows:

"The Claimants, Pritchard Englefield and Mr Michael Cohn, are suing the Defendant over what appears (and I emphasise the word 'appears') to have been a very limited publication over the Internet, not to say a technical publication. There is evidence of publication to one person in 1999 but for the rest the Claimants will invite an inference as to much wider publication. There is no doubt that the allegations are serious and defamatory. The Claimants have expended over the last four years undoubtedly a considerable amount of money on the litigation, and yet no real progress has been made or tangible advantage secured."

2. When he appeared before me, for the first time, on 19 November of last year, Mr Steinberg was at pains to emphasise how disproportionate the Claimants' "campaign" against him had been, compared to the very modest damages recovered. He may well be right, but a libel had been published, albeit on a limited basis, and the Claimants were entitled to pursue the matter to judgment.
3. The matter was adjourned on 17 February 2003, and again on 6 May 2003, partly to take account of health problems that Mr Steinberg was suffering from at that time, and partly also to give him an opportunity, if he so wished, to produce expert evidence by which to challenge his responsibility for the publication in question. Nothing of substance was forthcoming and, on 18 June of that year, I came to the following conclusion:

"I indicated in an earlier ruling why it was that I was sceptical about the prospect of [Mr Steinberg's] resisting the Claimants' allegation that Mr Steinberg was responsible in law for the relatively limited offending publication. That scepticism has not been removed by anything which has subsequently emerged. I therefore see no solid basis for resisting the application for summary judgment. I am bound to say that it seems to me that a great deal of money has been expended, no doubt disproportionate to any possible gain from these proceedings, and any damages that may ultimately be awarded may very well fall significantly short of the £10,000 maximum. But nevertheless the proceedings are in existence. The Claimants wish to pursue them and they are entitled to finality."

4. On 12 August 2003, I granted permission to appeal to the Court of Appeal and extended time for the Appellant's Notice to 24 October of that year. After various further tribulations, the Court of Appeal dismissed Mr Steinberg's appeal on 3 March 2005 and later, on 5 July of that year, refused his application to set aside their dismissal and for the appeal to be re-heard. On 14 October of that year, the Court of Appeal refused Mr Steinberg permission to appeal to the House of Lords.
5. It goes without saying that this application comes somewhat late in the day. Part of that delay was explained by Mr Steinberg on the basis that he had sought on various occasions unsuccessfully to obtain legal assistance, but that by no means fully accounts for it. The nub of Mr Steinberg's current application is that I had been misled in certain respects and that otherwise I would not have granted summary judgment. Mr Harvey Starte, appearing for the Claimants, has submitted that Mr Steinberg's case on deceit can only have derived from the content of my judgments dated 17 February and 18 June 2003. What emerges from those is that I had received the following information:

i) that Mr Steinberg had been in England at some point in the two weeks prior to the 17 February hearing;

ii) that he had been intending during this visit to take some steps in the litigation;

iii) that one of the things he intended to do was to apply to the Court of Appeal to challenge an order made by Davis J granting a freezing order to the Claimants in this litigation;

iv) that some of this information had derived from a Mr Ian Torrance (who from time to time advised and assisted Mr Steinberg from the sidelines);

v) that shortly before the hearing there had been communication to Mr Steinberg, either from Davis J himself or from his clerk, to the effect that the more appropriate course would be for him to apply to Davis J to discharge or vary his order.

6. It is perhaps a simplistic way of approaching this application for me to say that none of this, although no doubt introduced before me as relevant information, was in any way determinative of my ruling of 18 June 2003. Nonetheless, that happens to be the case.
7. In any event, I am not satisfied that anyone gave me false information – still less information that was known to be false at the time it was communicated to the court. The background is explained in Mr Cohn's eighteenth witness statement provided for the November application. There is exhibited to that statement a copy of a note taken by a trainee solicitor who was present at the hearing on 17 February 2003, for the purpose of assisting everyone to recall what took place on that occasion. Most significantly, however, there are two letters from Mr Steinberg addressed to Davis J, one dated 4 and the other 10 February 2003. There is also a letter from Mr Torrance to the Claimants of 11 February and one from Davis J to Mr Steinberg of 12 February. None of this material lends any support to the proposition that anyone tried to deceive me.
8. In any event, what I was concerned with, as emerges from my judgments of 17 February and 6 May 2003, was that Mr Steinberg should be given a reasonable opportunity of participating in the proceedings either personally or in writing. I was also prepared to give a certain amount of leeway (as it turned out, several months) to enable him to put in any expert evidence he might wish in support of his defence; that is to say, for the purpose of showing that he was not responsible for the publication complained of. None of this was affected by the issue of whether or not Mr Steinberg was in England, and if so for what purpose, at the beginning of February of that year. It was certainly not the case that this evidence caused me to disbelieve the evidence from the doctor in New York about Mr Steinberg's state of health.
9. Mr Starte has made the point that nothing has changed in the last seven and a half years so far as the evidence is concerned. Mr Steinberg still offers no evidence to show a realistic prospect of him rebutting the Claimants' case that he was indeed responsible for the publications in question. He argues that, on this basis alone, the application should fail.
10. Logically, however, what comes first is Mr Starte's argument based on lack of jurisdiction. He acknowledges that, in general terms, the court has jurisdiction to set aside an order for summary judgment in certain circumstances: see e.g. paragraphs 8.1 and 8.2 of the Practice Direction attached to CPR Part 24. He argues, however, that the court should not avail itself of this jurisdiction on the present facts. Not only would an applicant have to pursue the matter promptly, but the jurisdiction is primarily directed towards affording a litigant relief when he or she has not been able to attend to resist the application for summary judgment. It is not apt for circumstances where the judgment is sought to be set aside on grounds of deceit. He submits that the proper route for challenging judgment in those circumstances would be by way of appeal.
11. The point Mr Starte is taking here is that Mr Steinberg has already appealed unsuccessfully to the Court of Appeal, which rejected the argument that I should not have gone ahead and heard the application for summary judgment in his absence. Mr Starte says that this issue can only be reopened before, and with the permission of, the Court of Appeal. He told me that I should not assume or usurp the jurisdiction of that court.
12. There are thus contained in Mr Starte's legal submissions two distinct points. First, he submits that where the ground for setting aside summary judgment is an allegation of deceit, it should go to the Court of Appeal in any event. Secondly, he argues that on the facts of this particular case, where there has already been an appeal to the Court of Appeal, any renewed application should be made to that court. Mr Steinberg placed reliance, on the other hand, on a dictum of Hale LJ (as she then was) in Hertfordshire Investments v Bubb [2000] 1 WLR 2318, at 2325:

"The power to reopen a case after final judgment because of fresh evidence should be the same whatever the procedural route adopted. It would be most unjust if a party to county court proceedings could reopen matters when a party to High Court proceedings could not."

Reference was also made to the words of Arden J (as she then was) in Spice Girls Ltd v Aprilia World Service BV (unreported, 20 July 2000):

"In my judgment, an appeal is not the appropriate course where there are errors in judgments which can be corrected by the court which conducted the trial. To leave such matters to an appeal means further delay, uncertainty and costs, which is not in the interests of litigants. The trial judge is in a strong position to consider the effect of the error in the context of the entire case."

She also made the following related point:

"I do not wish to say anything against the usefulness of the reconsideration jurisdiction, within its proper limits. I have made use of it myself. … There are of course cases where an error of fact or law may be too clear for argument. The best test of that is perhaps – but not necessarily – where the judge himself identifies the error which concerns him. In such a case, it is better that the error is corrected without imposing on the parties the need for an appeal."

13. I do not imagine, however, that her Ladyship had in mind such circumstances as have arisen in the present case. There is much to be said, of course, for a judge correcting a judgment or order before it is perfected, while that can conveniently be done – rather than have the parties incur the costs of an appeal. Here, however, the order was perfected long ago and has been considered by the Court of Appeal more than five years ago.
14. Reference was also made to a judgment of mine in Metropolitan International Schools Ltd v Designtechnica Corporation [2009] EWHC 1765 (QB). The passage relied upon is as follows:

"123. I have acknowledged that the misrepresentation which took place was probably due to inadvertence, and perhaps to some extent to technical 'glitches', but nevertheless it seems to me that the strict approach taken in the Dreyfus Bros case is equally appropriate in the present case. Insufficient care was taken. If it were necessary, I would regard the misrepresentation here as being of sufficient materiality to justify setting aside the order by itself."

On the other hand, this was in the rather different context of a party not giving full and frank disclosure.

15. It may be that Mr Starte's arguments on jurisdiction are correct, but at the moment I am unconvinced: it seems to me that where a fresh matter is raised, as to why the judge at first instance was misled, and the Court of Appeal has not addressed that issue, it could very well be that the appropriate route is to go back to the judge at first instance. Be that as it may, I am quite satisfied on the facts of the present case that there is no reason at all to set aside the judgment, assuming that I have jurisdiction to do so, since there is no reason to suppose that I was deceived at any point between February and July 2003. In any event, the information about whether or not Mr Steinberg was in England in the first two weeks of February played no part in the decision.
16. Another theme to Mr Steinberg's argument was that I did not appreciate at the time that he was not merely taking no part in the proceedings, even from afar, but that he was unable to do so on medical advice. He tells me that on medical advice he was not even reading any communications from the court. As I acknowledged, however, in May and June 2003, parties are eventually entitled to have their litigation disposed of, by one means or another, and a litigant cannot indefinitely put off the evil hour. By June 2003, it was clear that there was no prospect in the near future of Mr Steinberg participating in the litigation and it was on that basis that I decided that the moment had come. It does not seem to me, in these circumstances, that it would have made very much difference if I had been told that Mr Steinberg was choosing not to read any of the court papers on medical advice.
17. In this instance, it is not a question of deceit. The argument is rather to the effect that new evidence should be admitted on the issue of whether I should have proceeded in his absence. That would be a matter of admitting new evidence before the Court of Appeal, since that court was plainly seized of that issue. It is inconceivable that such permission would ever be granted, but it is certainly not a point for me to determine.
18. I can see no reason for taking the exceptional course of setting aside the judgment granted in 2003 at this late stage. Not only do I not consider that the court was deceived, or in any way induced into granting summary judgment on a false basis, but I also attach considerable importance to the fact that there is no more reason now to conclude that Mr Steinberg has a defence on the merits than there was in June 2003.
19. I have concluded therefore that the application was totally without merit.
20. After this judgment was released to the parties in draft in the middle of January, I entertained extensive further submissions from Mr Steinberg in writing. I do not propose to rehearse them in this judgment, but his primary points included the suggestion that there had been a lack of due process and/or a failure to comply with the requirements of Article 6 of the European Convention on Human Rights and Fundamental Freedoms. I reject this argument against the background recited in this judgment and my earlier judgments in February, May, June and July 2003 (and, of course, those given in the Court of Appeal). It does not follow, simply because one or other party has not participated in litigation, that there has been an absence of due process. Any system of justice must include provisions for summary judgment as well as for achieving finality. The appropriateness of summary justice in this case, notwithstanding Mr Steinberg's absence, was addressed both at first instance and in the Court of Appeal. Furthermore, it is inaccurate to state that the hearings took place "without notice" since, whether the court's communications were read or not, he had been served in accordance with the relevant rules.
21. I shall say nothing further about the issue of deceit, although Mr Steinberg has reiterated his concerns on that theme. I cannot accept that I was materially misled or that anyone was trying to deceive me. He claims that I was deceived not only by statements at the hearing in February 2003 but also later by my not being told that he was unable to oppose the applications (on medical grounds). The fact remains, however, that I did have medical certificates before me and I cannot see that I was deceived in this respect either. My decisions took those into account.
22. Mr Steinberg has also argued, again, that I was wrong to hold "that finality must take precedence over merits". Yet that is to ignore my conclusion, as expressed above, that no evidence has emerged in the last seven years to suggest that Mr Steinberg would be able to rebut the Claimants' case that he was in law responsible for the publication of the defamatory words complained of.
23. While Mr Steinberg has cited a significant number of decided cases, I have not thought it right to list them in this judgment, or to go into them in detail, because I do not see how they go to undermine the reasons I have given for my decision.
24. Had the Court of Appeal's later decision in Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 been available in 2003, an argument might well have been raised on abuse of process. Whether it would have succeeded cannot now be determined. In any event it would be contrary to public policy and the need for finality for cases to be re-opened years later in the light of developments in the law or practice that subsequently took place.