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
		8 November 2012

Mr Justice Eady :

1. I am asked to resolve a preliminary issue in a defamation action pursuant to an order dated 30 May 2012. It is limited in scope, being solely concerned with whether the First and Second Defendants can rely on a settlement reached between the Claimant and the Fourth Defendant, in accordance with a Tomlin order of 15 March 2012, as extinguishing or satisfying any of the causes of action pleaded against them; alternatively, if not, whether it can be said nevertheless to have become an abuse of the court's process, by reason of that settlement, for the Claimant to continue with one or more of those causes of action. The resolution of this preliminary issue is not going to be dispositive of the whole claim, in any event, since other pleaded causes of action remain to be tried.
2. Publication of the defamatory words was confined to a handful of people, who at the time were current members of staff at the Manchester Metropolitan University ("MMU"), although that is not in itself said to render any of the claims an abuse of process. Some of the defamatory allegations were by no means trivial: they were capable of reflecting adversely on the Claimant's competence and behaviour in his capacity, at that time, as an employee of that institution. Allegations of that kind can sometimes do considerable harm even where publication is limited.
3. Since the case was begun in the Liverpool District Registry, it has not been subjected so far to any of the disciplines of costs budgeting, as the pilot scheme did not extend to that court. How much difference it would have made can only be a matter for speculation, but it might have led to considerable savings on both sides. Their total expenditure so far seems to have exceeded £1m. This would seem to most people to be disproportionate, not only to the issues involved, but also to any potential benefit to be gained by the Claimant from pursuing the claims. It is naturally tempting, therefore, to look for any steps that can be taken, by case management or otherwise, to narrow the issues and limit the parties' continuing financial exposure.
4. The Claimant was employed by MMU (the Second Defendant) until May 2011, when they finally parted company. He was a senior lecturer in the Department of Food and Tourism Management and held the post of Postgraduate Programme Leader until June 2008. In August 2007, there was a visit by various MMU staff to Vilnius University (the Fourth Defendant), in Lithuania, in connection with a joint project. There was a return visit the following December. At the time, the Third Defendant, Ms Zilinskaite, was on the staff of the Fourth Defendant. In an email sent by her on or about 7 December 2007, while she was on the visit to England, she made certain allegations about the Claimant, including some relating to his conduct during the August visit. This has been referred to as the "Vilnius Memorandum". She sent it to John Theodore and Michael Jeffery, who each had a degree of supervisory responsibility for the Claimant and his involvement in the Vilnius project. There would thus appear to be a prima facie case of qualified privilege in relation to those communications. She also copied it to the First Defendant and he thus became an additional publishee. The Fourth Defendant was said to have been vicariously liable, under English law, for the publications by the Third Defendant.
5. It is also alleged by the Claimant that the First Defendant was a co-author of the Vilnius Memorandum who would, on that basis, be jointly and severally responsible for its publication. He has always denied this, as indeed did the Third Defendant in a witness statement dated 26 June 2009. In his defence at paragraph 11, however, he does accept that on receipt of the email containing the Vilnius Memorandum he forwarded it to three other people. That would technically, of course, represent a separate set of publications by him and thus separate causes of action. The persons to whom he accepts that he forwarded the document were Ameela Gabriel, Audrey Rodgers (both of the Human Resources Department) and Cath Fairhurst (Head of the Clothing Design and Technology Department). Those communications might well attract qualified privilege also.
6. The content of the Vilnius Memorandum was as follows:

"MEMO

PARTICIPANTS

1. Jurgita Sekliuckiene, project expert, Vilnius University (VU);

2. Roma Adomaitiene, lecturer on quality, VU;

3. Viktoria Zilinskaite, project coordinator and expert, VU.

During the visit to Manchester Metropolitan University (MMU), UK, a number of issues related to design and content with respect to developing the Master's Programme listed above were reviewed. The programme consisted of a number of predetermined activities; opportunities to attend lectures, seminars and workshops; opportunities for meetings with colleagues to discuss subject-related issues; and opportunities to use the Faculty's library resources for independent study.

Having attended the lecture and seminar on service quality in tourism with Khalid Ansari 3-4 December 2007, the following was observed:

1. The lectures lack tourism/hospitality/industry relevance;

2. The lecture notes and references were obsolete;

3. The content of the lecture was more suitable to undergraduate level rather than postgraduate;

4. The information provided in the slides had not been properly updated (during the lecture the information on ISO standards 9002 and 9003 was presented as if the standards were still applicable, but the latter standards had been merged with 9001 seven years ago);

5. The content of the lecture was more pertinent to product quality rather than service quality (e.g. 8 of Garvin's dimensions are applied to products, rather than services);

6. The demonstrated slide material was inconsistent both in content and direction;

7. The demonstrated teaching methodology was poor (e.g. lack of communication with students, no dialogue or debate promoted).

Based on the above, the Lithuanian team identified an urgent need to expand the team of MMU experts to develop the service quality module by adding David Briggs to the team. D Briggs demonstrated an operations management lecture with the perspective on service quality, which ties into the new Master's Programme, the 2^nd semester of which focuses on operations management. The VU team were impressed by the direct industry relevance of D Briggs teaching material.

K Ansari had been requested to supplement and correct the service quality module in September 2007, but no additional information had been received. Also, K Ansari did not communicate properly and effectively with the Lithuanian counterpart Dr R Adomaitiene on the issues of improving the module. Therefore, the ability and qualifications of K Ansari may be treated as insufficient for delivery of the module materials required.

The drawbacks on the Events Management module developed by K Ansari are the same as mentioned above for service quality module (no lecture notes, inconsistent slide materials, poor referencing). Therefore, VU team has identified an urgent need to expand the team of MMU experts to develop this module by adding Catherine Feeney, Senior Lecturer, [of] the Faculty of Food, Clothing and Hospitality Management.

On a personal note, K Ansari was considered as overpowering to a point of being arrogant; pompous and dictatorial in his conversations to the Lithuanian counterparts; he was observed making false promises with respect to this project and possible future projects that are not his responsibility; there was clearly an inability to complete tasks. When asked by J Sekliuckiene to provide scientific articles by K Ansari – it was obvious that he has no publication record.

During the visit to Lithuania 6-7 August, K Ansari was observed excessively abusing alcohol on two successive days of the visit and he was not able to concentrate on the work to be completed. K Ansari talked down to the Lithuanian counterpart developing Strategic Management Module and requested T Knowles to simplify the material provided to VU, doubting the qualifications of Lithuanian counterparts (fortunately, T Knowles ignored that request). Furthermore, K Ansari behaved sexually inappropriately, three times inviting the Lithuanian Project Coordinator V Zilinskaite for a 'night cap' in front of other people present at dinner. This is unprofessional, unethical and is regarded as sexual harassment. He has compromised the excellent work of numerous people at MMU which is unacceptable. He has also compromised the MMU and VU relationship with his actions.

Given the above, VU experts find it very difficult to work with K Ansari both professionally and personally.

The issues related to a range of aspects concerning the Strategic Tourism Management module have been clarified between Dr J Sekliuckiene and Dr T Knowles. Dr Knowles's support in these matters is appreciated and particularly his willingness to share teaching material.

The issues related to International Tourism Policy and IT in Tourism will be finalised during the visit of Dr T Knowles to Lithuania in January 2008.

The central request from VU team is to find best lecturers for the delivery of pilot module, since this will be the major advertising exercise of the new Programme to the Lithuanian tourism industry. MMU has a number of highly qualified lecturers in tourism/hospitality industry both from practical and theoretical perspective.

Memo developed by

Viktoria Zilinskaite

Project coordinator and Expert"

7. In his skeleton argument, Mr Samson, for the Claimant, conveniently summarised the defamatory allegations by reference to eight categories, as follows:

a) being a sex pest;

b) being an alcoholic;

c) being unqualified for his lecturing post at the university;

d) being guilty of deception in apparently buying his qualifications;

e) making false promises to external departments of MMU;

f) professional incompetence;

g) being arrogant and patronising in his manner; and

h) telling lies.

8. The First and Second Defendants have entered pleas of qualified privilege and justification. It is not for me to determine the merits of either of these defences at the moment, naturally, but I note at this stage that there is an extensive plea of malice against the First Defendant, going into a history of what the Claimant characterises as a "campaign" against him. There is a good deal of overlap between this and the plea of justification, in particular as to the First Defendant's belief or knowledge at various times in relation to the factual averments supporting the plea of justification. It is important to note, for present purposes, that the substance of the pleas of malice and justification remains very much in issue.
9. As I have already mentioned, a settlement was reached with the Fourth Defendant in March of this year. It is the Claimant's case, however, that the claims against the Third Defendant are still outstanding, as well as those against the First and Second. Again, that is not for me to resolve at this stage, but for the moment I am puzzled as to how the claim against Ms Zilinskaite can continue when the only basis of liability relied upon against the Fourth Defendant was in relation to her publication of the Vilnius Memorandum, and of one other email, for which the Fourth Defendant was said to be vicariously responsible. It would appear to me, as things stand at the moment, that all liability in respect of any tort committed by her must now have been disposed of by the settlement.
10. I have referred to the claim against the First and Second Defendants in respect of the Vilnius Memorandum, and also to the admitted republication by the First Defendant to three other persons. Additionally, however, the Claimant relies upon two claims in slander against them. It is pleaded, first, that the First Defendant spoke defamatory words, at some point in January or February 2008, to a former member of MMU staff called Michael Anthonisz. It is denied that the First Defendant spoke any such words to Mr Anthonisz and it is said, in any event, that there is no evidence that any harm would have been suffered thereby to the Claimant's reputation. Nevertheless, for what it is worth, that claim remains outstanding and is obviously unaffected by the settlement with the Fourth Defendant.
11. Secondly, reliance is placed upon words allegedly spoken by the First Defendant on 14 March 2008 during the course of an investigatory interview into the allegations made in the Vilnius Memorandum. Apart from the First Defendant, there were three persons present; namely his own wife, Mr Terry White, who was a member of the MMU Human Resources Department, and Mr Jeffery, the Head of Department. Since the purpose of the meeting was to investigate the allegations made in the Vilnius Memorandum, which had already been published to Mr Jeffery and to the HR Department, Miss Page QC argues that any words spoken on this occasion would have added little to the impact of the Memorandum. In any event, there would appear to be a strong argument in favour of qualified privilege. Be that as it may, it would be outside the scope of the settlement, since it did not concern the Third and Fourth Defendants.
12. It is against this background that Miss Page relies upon the settlement with the Fourth Defendant as disposing also of the claims in respect of the initial publication of the Vilnius Memorandum against her clients. This involved a lump sum payment to the Claimant by the Fourth Defendant of £112,500, inclusive of damages, interest (if any) and costs. There was also an agreed statement in open court which was read on 21 March of this year. It seems to have been agreed between the Claimant and his solicitors that they would retain the round figure of £100,000 in relation to costs and the remaining £12,500 would be treated as representing damages for the Claimant. As far as I am aware, that division was not publicly announced. It certainly did not represent any assessment or evaluation by the court.
13. Miss Page summarised her clients' case on the basis of three alternatives:

i) that as a matter of legal construction the settlement operated as a release of the cause of action in respect of which the Claimant was seeking to make the First Defendant liable as a joint tortfeasor with the Third Defendant; alternatively

ii) if, properly construed, the settlement did not involve a release of the cause of action, the Claimant has nonetheless, through the settlement, received full satisfaction and/or has no real prospect of recovering further damages at trial against the First and Second Defendants (at least no more than a nominal sum); alternatively

iii) in the wake of the settlement it has become an abuse of process for the Claimant to persist in his claim for damages against the First and Second Defendants in respect of the Vilnius Memorandum.

14. When assessing these arguments in the context of the litigation as a whole, it is to be noted that Miss Page conducted an analysis to show that the exclusion of claims in relation to the Vilnius Memorandum would in itself do little to narrow the issues. The majority of allegations about the Claimant would still have to be investigated in relation to other causes of action. As Mr Samson points out, therefore, there would be very little to be gained, if measured purely in case management terms, by acceding to Miss Page's application.
15. Miss Page contends that there still remains a "rule" in respect of joint tortfeasors, to the effect that the release of one by way of accord and satisfaction will operate to release all others. She submits that the cause of action in respect of the Vilnius Memorandum is "one and indivisible" and is extinguished by the settlement. In support of the principle for which she contends Miss Page referred to Duck v Mayeu [1892] 2 QB 511, Apley Estates Co Ltd v De Bernales [1947] Ch 217 and Gardiner v Moore [1969] 1 QB 55.
16. It is fair to say that in modern times there has been considerable criticism of this supposed rule. It was described by Steyn LJ in Watts v Lord Aldington (Note) [1999] L & TR 578, 595 as a "trap for the unwary". He said (at p.594) that its "absurd consequences" had led judges, in the best common law tradition, to devise ways of escaping the rigours of its application. In any event, there was always a degree of flexibility, in the sense that a claimant entering into such an agreement could reserve his right to pursue other joint tortfeasors, either expressly or impliedly, at the time of settlement. Mr Samson argues that it would be obvious to any fair-minded observer that the Claimant was not intending, by the settlement with the Fourth Defendant, to dispose of the claims against the First and Second Defendants (or, he argues, against the Third Defendant either) in respect of the Vilnius Memorandum.
17. It is convenient to set out the terms of the schedule to the Tomlin order containing the terms of settlement, which provided in paragraph 3 as follows:

"Payment of the above sum, together with agreement of the attached Statement in Open Court, is made in full and final settlement of the Claimant's claims herein against the Fourth Defendant and any other claims the Claimant has or may have against the Fourth Defendant resulting from publication of the 'Vilnius Memo' referred to in paragraph 10 of the Particulars of Claim and the email sent by the Third Defendant on 3 February 2008 referred to paragraph 16 of the Particulars of Claim howsoever arising including interest and costs."

18. A distinction was sometimes drawn as to the consequences of such settlement agreements by reference to whether they should be characterised as a release or a covenant not to sue any particular defendant. This has more recently, however, been seen as an "arid and technical distinction": see e.g. the observations of Lord Denning MR in Bryanston Finance Ltd v de Vries [1975] 1 QB 703 at p.723C. The modern approach is to apply ordinary principles of construction to such agreements in seeking to determine the intention of the parties and, in particular, that of the relevant claimant.
19. In Watts v Lord Aldington (Note), cited above, the Court of Appeal had to consider Lord Aldington's settlement agreement with Mr Watts following the notorious jury award of £1.5m against Count Tolstoy and Mr Watts as joint tortfeasors. He was prepared to release Mr Watts on payment of what appeared, in the circumstances, to be the token sum of £10,000. There was no express reservation of his right to pursue Count Tolstoy for the balance. Moreover, the language used appeared to be consistent with a release: see the remarks of Steyn LJ at p.595. The wording was as follows:

"Lord Aldington undertakes to accept the said sum in full and final settlement of the judgment and orders referred to above and any liability howsoever arising before today's date which would involve any payment by you directly or indirectly to Lord Aldington."

Despite this, the court held that it was necessary to imply a reservation of Lord Aldington's right to enforce the judgment against Count Tolstoy. It was said that any other construction would offend against common sense: per Neill LJ at p.594.

20. Of course, the disparity in the sums involved in that case was so great as almost to compel that outcome. Here, by contrast, Miss Page argues that there would be no necessity to imply any such reservation of rights against her clients. She submits that the wording of the settlement in this case, as set out above, represents a release and that there is nothing here to justify that being overridden. I bear in mind, however, the rather different emphasis of Lord Diplock in Bryanston Finance Ltd v de Vries, cited above, at p.732B, where he said that " … courts nowadays are reluctant to construe an agreement with one tortfeasor as a release rather than a covenant not to sue him, unless it is plain that the agreement was intended by the plaintiff to operate also as a release of the other joint tortfeasors from their liability".
21. Miss Page referred to a number of specific factors:

i) The settlement afforded the Claimant the opportunity of a public retraction and apology and "substantial damages" from the employers of the only person identified as being the author of the Vilnius Memorandum.

ii) There was no public suggestion, either in the statement in open court or otherwise, giving any indication that anyone other than Ms Zilinskaite might have been responsible for the Vilnius Memorandum.

iii) The announcement by the Claimant in the statement in open court that he regarded his reputation as having been vindicated in respect of the Vilnius Memorandum would give reasonable readers the impression that the vindication was in no way subject to any qualification in respect of a co-author.

iv) These libel proceedings have thus achieved the primary purpose of such litigation: any publishees of the Vilnius Memorandum would conclude in the light of the statement in open court that the vindication had been complete.

v) A contrast is drawn with the Aldington case, in the sense that a reasonable person in this instance might well conclude that there had been "an entirely satisfactory and conclusive settlement of the cause of action": in other words, there were no loose ends of the kind remaining after the settlement with Mr Watts.

vi) Since all that had been publicly revealed about damages was that they were "substantial", ordinary readers would assume that a sum had been negotiated which adequately reflected, in the Claimant's eyes, any restoration of his reputation that was necessary following the publication.

vii) Reference was made to a recently disclosed document, showing that the Claimant had reported to Mr Jeffery (one of the principal publishees of the Memorandum and of the alleged slander of 14 March 2008) that he had recovered "substantial legal costs and damages": this was evidence of how the settlement had provided the Claimant with the means to promote the message of vindication to the recipients of the original Memorandum.

viii) In any event, it is suggested that the sum of £12,500 was neither unrealistic nor inadequate in the context of a pre-trial settlement in respect of a very limited publication.

ix) In his communication with Mr Jeffery, the Claimant had described the sums recovered as a result of the settlement as "very large". It was consistent with the view taken by his legal advisers at the outset of the claim, since the maximum damages claimed in respect of all four causes of action pleaded was said to be £50,000 (although later increased by way of amendment).

22. I have been unable to reach the conclusion that these overlapping factors, taken individually or cumulatively, do lead to the conclusion for which Miss Page contends. It seems to me important to note that there remain outstanding extensive pleas of justification and malice. I hardly think that a reasonable bystander, having the relevant knowledge, would conclude from the terms of settlement between the Claimant and the Fourth Defendant that those highly contentious issues were intended to be swept up and resolved at the same time. Having pursued his remedies against Miss Page's clients throughout, and issue having been joined as I have said, he then chose for whatever reason to enter into negotiations with the Fourth Defendant alone. It is not for me to speculate, but it may be that he took the step simply to obtain some funds for the purpose of enabling him to go on against the First and Second Defendants. It matters not. For whatever reason, they were left out of the settlement discussions.
23. Since neither party to the agreement sought to involve the First or Second Defendants in the discussions, it is not easy to understand how either of them could or should have assumed that their potential liability was also to be extinguished. It was known that they were pleading defences of privilege and justification. Even if the assumption was made that the claims against Miss Page's clients were no longer to be pursued, why should it also have been assumed that they would be happy not to seek to recover any part of the substantial costs already incurred? Against this factual background, I can see no basis for thinking that those claims could simply be disposed of without their even being informed, let alone consulted, by a secret accord which was res inter alios acta (the phrase used by Steyn LJ in Watts at p.594).
24. If one were to follow Miss Page's "rule" to its logical conclusion, it would seem that the public policy considerations supposedly underlying it would permit the following scenario. A claimant (C) has launched a libel action against two defendants whom he alleges to be jointly and severally responsible for serious and widespread defamatory publications. He then finds himself confronting a strong plea of justification from one of them (A) which he would rather not address. In fact C, realising that he has been rumbled, rues the day on which he so hastily launched his claim. He wishes to be rid of it and, on being advised of Miss Page's "rule", decides that he can dispose of A and his defence of justification by buying off the other defendant (B) through a secret deal. (B might or might not have adopted A's defence.)
25. If the "rule" does indeed represent the present law, then he would be able to extract a modest sum from B and negotiate the terms of an apology and/or a statement in open court. This could then be represented as a complete vindication of C's reputation in respect of the serious charges made against him by A even though they are, as yet, untested by way of disclosure, witness statements or cross-examination. Indeed, the "rule" would presumably enable such a deal to be done with B even after A has served his witness statements and is ready for trial. In any event, having read out his statement in open court and having issued a press release at the same time, C then informs A for the first time that the cause of action against him has been extinguished and that his lengthy (and expensive) defence of justification has fallen by the wayside.
26. Is it to be supposed that A is then left without the opportunity to prove the truth of his allegations? Is it acceptable that the public should have been misled by the statement and press release into accepting an ex hypothesi totally false vindication? What if A, having been cheated out of his opportunity to prove the truth about C, wishes to recover his costs incurred in defending himself up to the point of the settlement agreement between B and C?
27. Whatever may have been the position in the past, a court which is invited now to interpret the law, in so far as it may be unclear, will necessarily have to take into account the jurisprudence under the European Convention on Human Rights and Fundamental Freedoms and, in particular, the rights of A. In putting forward his defence of justification, A would no doubt be seeking to vindicate his right of free expression under Article 10 and his right to have it fairly and openly tested in accordance with Article 6.
28. These are factors which could be relevant in at least three ways. First, the court will have them in mind in determining whether there can indeed still be a "rule" such as that for which Miss Page contends and, if so, the extent of it. Secondly, they are factors which will form part of the reasonable assumptions and expectations of the negotiating parties (C and B). Thirdly, they would be relevant for the court to take into account when deciding whether it is necessary to imply a reservation in respect of the outstanding litigation between C and A.
29. In the present case, the facts are less starkly clear than in the hypothetical scenario I have been discussing. As Miss Page points out, the settlement between the Claimant and the Fourth Defendant does not deprive her clients of the opportunity of justifying most of the allegations, since they fall to be considered in relation to other pleaded publications. Yet this does not affect the points of principle as to how far the "rule" extends in practice.
30. If it is helpful to speak at all of such a "rule" as still subsisting, it is nevertheless necessary to recognise that any rigidity it once had has been so eroded by judicial interpretation that it is probably better simply to take into account the policy considerations underlying it (such as the desirability of finality) when construing the individual settlement agreement before the court. It should not be allowed to override what would otherwise be the common sense interpretation of the particular factual matrix. The words of Lord Diplock in Bryanston Finance, several decades ago, would appear to support a flexible approach; moreover, that is surely reinforced by the need to pay due regard to the balancing exercise now required when applying Strasbourg jurisprudence.
31. Furthermore, it is fair to point out that the settlement in relation to the Fourth Defendant embraced a cause of action which had nothing to do with the First and Second Defendants. It concerned an email sent by Ms Zilinskaite on a separate occasion. The agreed terms of the statement in open court clearly refer, and refer only, to the causes of action relied upon against the Fourth Defendant. No mention was made whatever of either the First or Second Defendant. It is impossible to ignore the contents of this statement when seeking to construe the settlement agreement as a whole. Although the reading of the Statement on 21 March 2012 post-dated the agreement, the wording formed part of it.
32. There is also the fact that the Claimant seeks an injunction against the First and Second Defendants. Mr Samson argues that the First Defendant has shown himself to be something of a "loose cannon" and that, therefore, the Claimant regards the obtaining of an injunction (in the absence of any proffered undertaking) as an important remedy. Whether or not Mr Samson's description of the First Defendant is fair, the fact remains that Miss Page's clients vigorously maintain the truth of the allegations, as well as relying upon a defence of qualified privilege: it would thus have been reasonable to suppose that at some stage in the future they might think it appropriate to repeat one or more of the allegations to other interested persons. This is all part of the factual matrix against which the settlement agreement has to be construed.
33. Additionally, there was a claim for special damages against all Defendants. I understand it to be part of Miss Page's case that this too would have been embraced within and extinguished by the settlement.
34. I have already referred to the First Defendant's admission that he re-published the Vilnius Memorandum shortly after it was received. It would be a somewhat curious construction of the settlement agreement which involved the Claimant's intending to dispose of the claim against him in respect of the primary publication while leaving outstanding that in respect of the forwarding of the email to the three persons I have identified.
35. In the light of these considerations, I cannot accept (in Lord Diplock's words) that "it is plain that the agreement was intended by the [Claimant] to operate also as a release against the other joint tortfeasors". Far from it.
36. Another factor which is relevant, and which Mr Samson put in the forefront of his argument, was that the damages element in the financial settlement was so modest as to indicate in itself that the settlement could not have been intended to embrace the claims against the First and Second Defendants. Indeed, Mr Samson submitted that I should fix a bracket of damages that would be appropriate to compensate for their (ex hypothesi) wrongful publications. That, he says, would support his argument.
37. I do not believe that any such course would be appropriate or helpful. I do not regard this factor as being as significant as he suggests. In the first place, the £12,500 figure was agreed only between the Claimant and his solicitor as representing a convenient split between costs and damages. It would not be helpful for the court, as Mr Samson has suggested, to go through a large number of damages awards in other cases in order to see that £12,500 represents a modest sum in respect of these allegations. It would not be comparing like with like. I am prepared, however, to go so far as to accept that the overall payment of £112,500 by the Fourth Defendant is one more factor pointing away from interpreting the settlement as including a release of liability on the part of Miss Page's clients. But I do not regard it as centrally important. There are several other more telling considerations, in my judgment, and I have listed them above.
38. Having considered the terms of settlement in the light of the general principles, I am unable to accept Miss Page's submission that there has been a release in respect of any of the causes of action against her clients. I must now turn to her first alternative argument based on satisfaction. Once again, it is confined to the claim based on the proposition that the First Defendant was a co-author of the Vilnius Memorandum.
39. The argument proceeds on the hypotheses (i) that the First Defendant was a co-author of the Memorandum, (ii) that the defence of justification has failed and (iii) that the original publications of the Vilnius Memorandum were not covered by privilege or that the defence has been defeated by establishing malice on the part of the First Defendant. Even if the Claimant succeeds in negotiating these hurdles successfully, Miss Page's argument is to the effect that he has already received full compensation in respect of all relevant tortious conduct. There would be nothing left to compensate him for.
40. Considerable reliance is placed on the House of Lords decision in Jameson v CEGB [2000] 1 AC 455, which concerned concurrent tortfeasors in the context of a personal injury claim. It was held (by a majority) that the harm incurred by the claimant had been compensated for by the settlement reached with one of a number of potential tortfeasors. The agreement reached could not be construed as signifying that the sum was being accepted only in partial satisfaction. The claim was obviously one for unliquidated damages. As Lord Hope explained at pp.473-4, the claim would remain unliquidated until such time as the appropriate compensation has been fixed either by a judgment of the court or by an agreement as to the amount to be paid to satisfy the claim. If the claim is for the whole amount of the loss for which the relevant defendant, as one of a number of tortfeasors, is liable to him in damages, then where the claim against him is satisfied, that will have the effect of extinguishing any claim against other, concurrent, tortfeasors. In other words, there should be no double recovery.
41. In circumstances where a settlement is reached with one tortfeasor for only part of the full value of a claim, or for that matter a judge determines the compensation in respect of only a part of the claim, it may be possible to recover the balance against any other tortfeasor liable in respect of the harm suffered. Yet again, however, it will depend upon the particular circumstances. It would have to be clear that the settlement (or judgment, as the case may be) covers only part of the damage suffered.
42. The policy underlying the principle was stated by Lord Clyde, at pp.482-3, as being not only to avoid double recovery but also "to secure that litigation should be terminated and successive claims discouraged". Here, of course, that consideration does not arise. I am concerned with one action which has from the outset proceeded against four alleged tortfeasors and, in respect of the Vilnius Memorandum, those persons are said to have been jointly and severally liable. There is no question of successive claims. Accordingly, it is necessary only to have in mind the other identified policy (i.e. the avoidance of double recovery).
43. Counsel naturally recognised that it is appropriate now to read the Jameson case in the light of, and subject to, the later observations of their Lordships in Heaton v AXA Equity and Law [2002] 2 AC 329. Lord Bingham there (at [8]-[9]) referred to the conclusion in Jameson and commented:

"8. This conclusion was reached by a number of steps which included the following:

(1) Proof of damage is an essential step in establishing a claim in tortious negligence ([2000] 1 AC 455, 472A-C).

(2)  Such a claim is a claim for unliquidated damages (473D, 474A).

(3)  Such a claim is liquidated when either judgment is given for a specific sum or a specific sum is accepted in a compromise agreement (473D, 474B, 474E).

(4)  A judgment on such a claim will ordinarily be taken to fix the full measure of a claimant's loss (473E, 474B).

(5)  A sum accepted in settlement of such a claim may also fix the full measure of a claimant's loss (473E, 474E-F): whether it does so or not depends on the proper construction of the compromise agreement in its context (473B, 476E, 474H).

(6)  On the facts of A's case, the sum accepted from B in settlement was to be taken as representing the full measure of A's loss: it followed that A's claim in tortious negligence was extinguished and he had no claim which could be pursued against C (476E).

I do not think the first four of these steps are controversial. The fifth proposition may perhaps have been stated a little too absolutely in Jameson, but as expressed above I do not think it can be challenged. There was clearly room for more than one view, as the division of judicial opinion in Jameson showed, whether the sum accepted in settlement by A was to be taken as representing the full measure of his loss, but if it did the conclusion followed: A could not have proved damage, an essential ingredient, in his action against C, and that was fatal to the widow's Fatal Accidents Act claim against C.

9. In considering whether a sum accepted under a compromise agreement should be taken to fix the full measure of A's loss, so as to preclude action against C in tort in respect of the same damage, and so as to restrict any action against C in contract in respect of the same damage to a claim for nominal damages, the terms of the settlement agreement between A and B must be the primary focus of attention, and the agreement must be construed in its appropriate factual context. In construing it various significant points must in my opinion be borne clearly in mind:

(1) The release of one concurrent tortfeasor does not have the effect in law of releasing another concurrent tortfeasor and the release of one contract-breaker does not have the effect in law of releasing a successive contract-breaker.

(2)  An agreement made between A and B will not affect A's rights against C unless either (a) A agrees to forgo or waive rights which he would otherwise enjoy against C, in which case his agreement is enforceable by B, or (b) the agreement falls within that limited class of contracts which either at common law or by virtue of the Contracts (Rights of Third Parties) Act 1999 is enforceable by C as a third party.

(3)  The use of clear and comprehensive language to preclude the pursuit of claims and cross-claims as between A and B has little bearing on the question whether the agreement represents the full measure of A's loss. The more inadequate the compensation agreed to be paid by B, the greater the need for B to protect himself against any possibility of further action by A to obtain a full measure of redress.

(4)  While an express reservation by A of his right to sue C will fortify the inference that A is not treating the sum recovered from B as representing the full measure of his loss, the absence of such a reservation is of lesser and perhaps of no significance, since there is no need for A to reserve a right to do that which A is in the ordinary way fully entitled to do without any such reservation.

(5) If B, on compromising A's claim, wishes to protect himself against any claim against him by C claiming contribution, he may achieve that end either (a) by obtaining an enforceable undertaking by A not to pursue any claim against C relating to the subject matter of the compromise, or (b) by obtaining an indemnity from A against any liability to which B may become subject relating to the subject matter of the compromise.

In my consideration of this matter I have gained much assistance from the clear and illuminating judgments of the New Zealand Court of Appeal in Allison v KPMG Peat Marwick [2000] 1 NZLR 560 and from the perceptive critique of Jameson in Foskett, The Law and Practice of Compromise 5th ed, (2002), pp 119-125, paras 6-42-6-57."

44. Here, Miss Page argues that any other interpretation of the facts than that for which she contends would entail the notion that the Fourth Defendant was leaving itself exposed to the possibility of a future claim for contribution by her clients. That might arise if a trial takes place of the claim against them and a judge or jury awards (say) £50,000 in respect of the Vilnius Memorandum. What she has in mind is that her clients might then seek a contribution from the Fourth Defendant to even up their respective shares in the overall compensation figure (for which they would both be ex hypothesi liable). That is a risk which the Fourth Defendant might have to face, and as to which it may well have been advised prior to entering into the settlement agreement. In any event, it is immaterial whether the parties to the settlement were aware of the legal consequences: see e.g. per Steyn LJ in Watts v Lord Aldington at p.597.
45. A similar point was addressed in the judgment of Neill LJ, at p.594, where he considered a submission of Mr Turner, counsel for Mr Watts:

"Mr Turner suggested that the right inquiry was whether the parties intended that Count Tolstoy should continue to have the right to have recourse to Mr Watts. With respect this question seems to me to give the wrong emphasis to any possible contribution proceedings. The settlement was concerned with the rights which Lord Aldington had against Mr Watts. Though it is legitimate to imply into such an agreement a term as to the reservation of rights against Lord Tolstoy, there is no basis for making any implication as regards possible rights of contribution by Count Tolstoy."

As Steyn LJ observed, ibid, " … the consequence that the unreleased tortfeasor may bring an action of contribution against the released tortfeasor must be faced". Thus, as Lord Bingham suggested in Heaton, if the Fourth Defendant wished to protect itself against a possible claim for contribution, it should have stipulated for an undertaking or indemnity.

46. Miss Page also placed reliance on a passage in Lord Hope's speech in Jameson, at p.476, to the effect that a judge may not allow a claimant to open up the question whether the amount which he has agreed to accept from the first concurrent tortfeasor under a settlement represents the full value for what has been claimed. He observed:

"That kind of inquiry, if it were to be permitted, could lead to endless litigation as one concurrent tortfeasor after another was sued on the basis that the sums received by the plaintiff in his settlement with those previously sued were open to review by a judge in order to see whether or not the plaintiff had yet received full satisfaction for his loss. Different judges might arrive at different assessments of the amount of the damages … The principle of finality requires that there must be an end to litigation."

47. As I have already noted, those remarks could hardly have application in regard to a case where all relevant parties are already before the court. There is no risk of serial litigation. The question that mattered, according to Lord Hope, was " … not whether the plaintiff has received the full value of his claim but whether the sum which he has received in settlement of it was intended to be in full satisfaction of the tort". All will depend on the circumstances. On the facts before him, Lord Hope referred to the express acceptance that the sum received was "in full and final settlement and satisfaction of all his causes of action in the statement of claim". That is not so here.
48. In this context, Miss Page referred also to the contents of the statement in open court, read before me on 21 March 2012, which she says must be taken to be a true and accurate representation of what it contained. She suggests that the Claimant there gave the impression that he had received full compensation in respect of the Vilnius Memorandum. No doubt it was intended to put the most favourable possible "spin" on the settlement, but no reference was made to the claim against Miss Page's clients. That is not surprising since they were pressing ahead with a defence of justification. But, in those circumstances, it can hardly be claimed that the statement in open court, or any other terms of the settlement, conveyed the message that all causes of action against all parties had been fully satisfied. This would not be true at the time the settlement was reached, or at the time when the "spoils" were divided up by a confidential arrangement between himself and his solicitor, or at the time when the statement was read.
49. As Miss Page herself acknowledged in the course of submissions, damages in a libel action are normally assessed to take into account everything down to the moment of the verdict (or equivalent). A defendant's conduct up to and including the trial can be taken into account – usually by way of aggravating the damages. That is a consideration which does not arise in personal injury claims. Here, for example, before a reasonable onlooker could conclude that the sum agreed between the Claimant and the Fourth Defendant represented the full value of compensation for the Vilnius Memorandum publications, he or she would need to be confident that it was to be taken as reflecting any additional hurt to feelings occasioned by the plea of justification entered by the First and Second Defendants.
50. In the light of the settlement reached, I am unable to conclude that there is anything in it, express or to be implied, which has the effect of either determining the maximum compensation in respect of the Vilnius Memorandum or precluding the Claimant's continuance of his claims against the First and Second Defendants.
51. The next question is whether it would be an abuse of process for the Claimant to continue against the First and Second Defendants. Reliance is placed on the doctrine explained by the Court of Appeal in Jameel (Yousef) v Dow Jones Inc [2005] QB 946, where the court applied the test of whether "the game was worth the candle". Miss Page argues that no legitimate purpose can be served, in light of the settlement, by the Claimant continuing against her clients. He would not be able to gain any tangible advantage, such as to justify the considerable cost to the parties or the use of court resources.
52. I reject this argument also, even though there would be many advantages, for all concerned, in bringing this long running dispute to a speedy conclusion. I cite again, in particular, the contested issues of justification and malice. The continuance of the litigation has the potential, at least, to vindicate the Claimant's reputation in respect of those serious allegations against his professional competence and personal behaviour. That is one of the main objectives of any libel action. The supposed vindication deriving from the statement in open court was not very compelling to any interested observer who took the trouble to read it. It was expressed in terms simply of the Fourth Defendant's accepting the Claimant's assurance. It would be a matter of public record that Miss Page's clients were justifying the allegations, since the statements of case are nowadays publicly accessible under CPR 5.4. There would be nothing to suggest that they had withdrawn their defence. There thus remained, at the least, a very large question mark over the Claimant's reputation. I cannot see, in these circumstances, that the court's process is being abused in the sense contemplated in Jameel or otherwise.
53. For these reasons, I answer the questions raised in the preliminary issue in the negative.