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
		11/11/2013

Mr Justice Tugendhat :

1. The Defendants apply to strike out two libel actions, or for alternative orders. The First Defendant is the publisher of a Cheshire local newspaper, the Northwich Guardian ("the Northwich Guardian"). The first action is one brought by the Claimant by a claim form bearing the issue date of 17 September 2012. In this action the Claimant complains of publications in the issue of the Northwich Guardian dated 14 September 2011, and a related online publication. As against the Second Defendant she complains of those parts of the same publications which contain statements attributed to Superintendent Guildford. The second action was brought be a claim form issued on 23 May 2013 (and amended on 17 July 2013). In this action she complains of publications dated 30 May 2012. The only defendant to this action is the Northwich Guardian
2. The facts giving rise to these claims arise out of criminal convictions which were described by Moses LJ in his judgment delivered on 22 May 2012 (R v Krause [2012] EWCA Crim 2058). He was giving his reasons for dismissing the Claimant's renewed application for permission to appeal against the second conviction.

"1. This is a renewed application for permission to appeal against conviction following this applicant's conviction of acting in breach of a restraining order contrary to section 5(5) of the Protection from Harassment Act 1997. The conviction was recorded on 9th September 2011.

2. The case against this applicant was that she had breached various requirements of a restraining order which had been made against the applicant by Chester Magistrates' Court on 29th July 2010. The prosecution case was that in relation to two of the counts she had been staring at her neighbours from her premises, the third count alleged that she had shone a torch at the vehicle and the occupants, and the fourth count that she had approached a visitor, a gas man, about apparently a long-running grievance she had in relation to noise emitted from the flue of her gas boiler.

3. The original restraining order was eight items long. As a result of an appeal, with which we have just dealt with by way of an appeal by way of case stated, the restraining order was reduced. Part of the grounds of this appeal, which the applicant pursues, is that she says that she was found guilty of breaches in respect of aspects of the original restraining order that no longer remain.

4. Even if that were correct, and we doubt that it is, it would not amount to any ground for an appeal. The order that was made by the Magistrates' Court requires required the applicant to obey it until such time as she was able to demonstrate either that it was wrong or could be overthrown. There might be circumstances in which an unlawful condition was imposed that was unenforceable and therefore it would amount to a defence to show that it should never have been in place, but that was not the defence of this applicant at trial, and in any event it would not have been open to her so to contend in relation to the conditions that were imposed against her. It is important to emphasise that although they sound trivial here within the courtroom, they are merely a demonstration and a manifestation of a long-running dispiriting saga of what has found to be harassment by this applicant against her neighbour.

5. The grounds she also pursued, that she has not pursued today, partly concern bad character, which the single judge disposed of since it was obvious that the history of the matter had to be laid before the jury pursuant to section 101(1)(c) of the 2003 Act.

6. Today the main thrust of the applicant's case is that she was not guilty, that what she had done was merely a distortion of the truth made by her neighbours, who have lied about what in fact occurred. She seeks to put forward today audio evidence, and we have a transcript of that, showing that they were merely, on the contrary, harassing her by seeking to trap her into committing a breach of the conditions of the restraint order, and in any event persisting in allowing their boiler to emit a noise as recorded on a decibel chart that she has shown us today that was apparently recorded on the neighbour's own CCTV.

7. It is important, and I suspect the applicant well understands it, that the grounds of appeal which it is open to her to advance before this court do not include an application merely to have a re-run of the trial in which she was convicted. There may well be things she wished she had said or been able to demonstrate, or indeed evidence she wished she had adduced, at trial. The fact is she did not give evidence and the evidence made against her was believed. In those circumstances there is no warrant or basis upon which we can reconsider it again. The application is dismissed…."

THE FIRST ACTION

The statements of case

3. The words complained of in the first action were published a few days after the Claimant's conviction in the Crown Court for breach of the restraining order. They were under the heading "Woman 'wreaked misery on family – Court sentences 47 year old over campaign of harassment'". The article in the print edition read as follows:

"A Hartford woman wreaked misery on the day–to-day lives of her victims' after breaking the terms of a restraining order, a court was told.

Jan Krause, who is now legally a woman but used to be a man, was found guilty by a jury of four counts of breaching the order, when she appeared at Chester Crown Court, on Friday.

The 47-year-old, who lives on Walnut Lane, was charged with conducting observations on her neighbours, the Story family, their home at 11 Walnut Lane, shining a torch into the faces of visitors to their property and approaching a gas man who was testing their central heating system.

Krause denied breaching the order but the jury took less than 20 minutes to find her guilty.

Krause was sentenced to a community order of 250 hours unpaid work and ordered to pay £600 prosecution costs.

Following the trial, which lasted four days, Ch Supt Craig Guildford said: "Krause has displayed an over-whelming sense of arrogance throughout the police investigation and the subsequent trials.

"In my opinion, it is her obsessive and arrogant nature that has fuelled her criminal conduct throughout. I am also keen to acknowledge the professionalism and dedication of my officers during this lengthy case despite the efforts of Krause to undermine their professionalism.

"We are committed to supporting the victims of harassment at every level- whether it is domestic-related, community-based or as in this case extreme neighbour issues."

During the trial, Oliver King, prosecuting said Krause had shown 'quite deliberate behaviour' to breach the conditions of the order and she 'knew full well what she was doing".

"It was precisely the conduct she was engaged in before relating to the order being made," he said.

Mr King told the court that Krause's behaviour was a breach of terms three, four and five of her restraining order.

In Krause's defence, which was taken from two police interviews dated October 22 and December 22 2010, she admitted positioning a reclining armchair in her garage, in August 2010.

But she denied that she was sitting there to watch the Story family, instead saying that she was looking after her dog and taking a break from the tension inside her house.

"I needed to get away from her [her mother] because my mum was undermining my attempts to function as a female in society," she said.

"I wasn't staring at anybody's house.

"I was probably just staring into open space or looking for my dog."

Krause claimed that a large walnut tree shields the view from her house to 11 Walnut Lane.

Krause denies breaching term three of the order by shining a torch into her neighbours' faces on September 21 2010.

She said that she carried the torch for 'road safety reasons' because she was taking her dog, who had recently suffered illness outside.

Krause claimed that instead, her neighbour Ms Story and her friends were intent on causing trouble for her.

"They came out deliberately to intercept me – they have stage managed the whole thing as usual.

"Ms Story won't be satisfied until she sees me put away."

Krause said she approached a British Gas engineer on November 11, 2010, outside Ms Story's home and asked him if he knew that Ms Story's boiler made a whistling noise.

When passing sentence His Hon Judge Roger Dutton, said: "The magistrates felt it necessary for the protection of the Story family that a restraining order should be put in place.

"Almost immediately, you continued to behave the same way as before, making their life a thorough and complete misery.

"Why you have allowed these issues to dominate your life is a mystery to me and a great sadness to all of us.

"The consequence of you being unable to get along with your neighbours has cost the country thousands of pounds in court costs which it could ill afford."

Kraus said she intends to appeal against her conviction."

4. The online edition included, as the first paragraph of the article,

"Jan Krause has wreaked misery on the day to [day] lives of her victims and shows a flagrant disregard for the law and the sentence that was imposed on her".

5. The form in which the articles report the Claimant's defence reflects the fact that she chose not to give evidence.
6. The words complained of as against the Northwich Guardian are the following:

"(A) 'Jan Krause is now legally a woman but used to be a man;

(B) 'Following the trial … Ch Supt Craig Guildford said: 'Krause has displayed an overwhelming sense of arrogance throughout the police investigation and the subsequent trials. In my opinion it is her obsessive and arrogant nature that has fuelled her criminal conduct throughout…'

(C) 'Jan Krause has wreaked misery on the day to [day] lives of her victims and shows a flagrant disregard for the law and the sentence that was imposed on her'

(D) 'I am also keen to acknowledge the professionalism and dedication of my officers during this lengthy case despite the efforts of Krause to undermine their professionalism'"

7. The words complained of as against the Chief Constable of Cheshire Police are Passages (B), (C) and (D).
8. The Particulars of Claim are not in the form required by the CPR. They are verbose and argumentative, and do not include, as they are required to do (PD53 para 2.3), the defamatory meaning which she alleges that the words complained of bear.
9. Nevertheless, the Defendants filed Defences. The Defence of the Northwich Guardian dated 9 November 2012 raises the following defences (amongst other averments):

i) The claim is time barred, having been issued more than one year after the date of the publication complained of (Limitation Act 1980 s.4A);

ii) Passage (A) is not capable of bearing a defamatory meaning,;

iii) Passages (B), (C) and (D) are fair and accurate reports of a press statement issued by the Chief Constable of Cheshire Police and so were published on an occasion of qualified privilege (Defamation Act 1996 s.15):

iv) alternatively, "the hard copy publication, save for the extract from the press statement on behalf of the Second Defendant consisted of a fair and accurate report of legal proceedings in public brought against the Claimant by the Crown and were published on an occasion of absolute privilege by s.14 of the Defamation Act 1996 or by common law". (See the Defence of the Northwich Guardian at para 9, however Mr Hirst accepts that the words in Passage (A) were not themselves a report of such proceedings).

10. The Defence of the Chief Constable of Cheshire Police dated 12 November 2012 raises the defence of limitation (amongst other averments).
11. There is a Reply dated 13 September 2012. That too is verbose and argumentative. It contains an allegation of malice against the editor of the Northwich Guardian who was in post at the time. As to the defence of limitation, the Claimant alleges that (notwithstanding the date stamp of 17 September) she did in fact deliver it to the court office on 14 September, that a receipt stamp of that date was affixed by the court, and that it ought to have been issued, or be treated as having been issued, on that date.
12. The case has a long procedural history in which the court has made a number of case management orders, and in which the Claimant has made numerous applications. It is not necessary to refer to these in this judgment.

The application notices

13. The Defendants issued application notices on 11 February 2013 and 13 March 2013 respectively. The Defendants ask that the claims be struck out, alternatively that summary judgment be entered against the Claimant, on the grounds that the claims are an abuse of the process of the court (CPR r3.4(2)), alternatively that they have no real prospect of success (CPR r24.2). The defences are bound to succeed. Alternatively, having regard to her criminal convictions, there is no vindication which the Claimant can achieve: Jameel v Dow Jones [2005] QB 946; Williams v MGN Ltd [2009] EWHC 3150 (QB); Ewing v News International Ltd [2008] EWHC 1390 (QB); and King v Grundon [2012] EWHC 2719 (QB).
14. The Northwich Guardian asks in the alternative for a ruling that Passage (A) is not capable of bearing a meaning defamatory of the Claimant (CPR PD 53 para 4.1).
15. The Chief Constable of Cheshire Police contends that the claims are a collateral attack on the Claimant's convictions in the Magistrates Court and the Crown Court, and other proceedings, in which the Claimant has attempted unsuccessfully to undermine those convictions. She is seeking to rely on the information which she could have put before the Crown Court, and which, for that reason, as Moses LJ explained, she could not rely upon subsequently in seeking to appeal against her conviction. The same principle applies to prevent the use of such material in subsequent civil proceedings. See Hunter v Chief Constable of West Midlands Police [1982] AC 529, and the other cases cited in the White Book (2013) note 3.4.3.3.

Discussion

16. There is no doubt that the proceedings are an attempt by the Claimant to relitigate in this libel action the matters which she sought to rely upon in support of her unsuccessful application for permission to appeal against her conviction (see para 6 of the judgment of Moses LJ). In her statement of case there are allegations that her neighbours and the police had been "conspiring to pervert the course of justice" and had "concealed prosecution evidence", and numerous similar allegations. In her Reply she alleges in her plea of malice that the Defendants knew that she was not guilty of the offences of which she had been convicted.
17. It is clear from the extract from the summing up delivered on 9 September (which the Claimant has put before the court) what her case was at trial. The Judge directed the jury:

"[the Claimant's case] is the neighbours who are all entirely wrong, joined as they have been apparently by malicious police intervention…. So where does the truth lie? Is the conduct that you heard about true? Is it a continuation of what has gone on before in the face of the court order protecting her neighbours or might it all be untrue and an unscrupulous attempt by a number of individuals, including the police apparently, to ensure her conviction for something they know perfectly well she hasn't done?"

18. Since the Claimant has been unable to appeal against her convictions, there is no prospect of her being able to obtain any remedy in these libel claims, in so far as they are based on Passages (B), (C) and (D).
19. Passage (A) is different. It does not relate to the offences of which she was convicted. But a claim in libel in respect of that passage is hopeless. In my judgment the words complained of in that passage are incapable of lowering the reputation of the Claimant in the minds of right thinking people, and, even if they were, there is no dispute that the words are true. The only alternative basis for a claim which the Claimant has suggested in respect of this passage is harassment.
20. The Claimant does allege harassment as the basis for her plea of malice, but she fails to spell out a case by reference to the Protection from Harassment Act 1997.
21. In my judgment it is plain that the first action is an abuse of the process of the court. It is an attempt to undermine her convictions, and can achieve nothing of any benefit to her.
22. Since she is a litigant in person I have considered whether, if given an opportunity, she would have any prospect of pleading a claim in harassment (see eg Trimingham v Associated Newspapers Ltd [2012] EWHC 1296 (QB) para [70]). I can see no basis on which she could do so. She has shown me a number of print outs from the internet which she understandably finds highly offensive. But she is unable to suggest any basis for inferring that these were caused by the Defendants' publications of which she complains in this action. As she herself says, the information in Passage (A) is information upon which she herself relied in the Crown and Magistrates' Courts. She relied on it in support of her unsuccessful application for the proceedings to be heard in private. According the newspaper reports in the papers, she relied on it again in support of her argument that she be not sentenced to imprisonment because of the hardship which she would suffer if she were imprisoned.
23. For this reason I shall strike this action out. It is unnecessary for me to consider the other grounds relied on.

THE SECOND ACTION

24. The words complained of in the second action were published a few days after the judgement of Moses LJ given on 22 May 2012. After dismissing her application for permission to appeal against her conviction the court heard submissions on sentence. The transcript of the judgment then continues:

"(Submissions on sentence followed)

8. LORD JUSTICE MOSES: Miss Krause, we think you have done enough community work. I am not quite sure on what basis, but we really want to hope that things get a bit better, we just think that all these quarrels and litigation and police and courts just make life so much worse for you and your family. What we are going to do is allow your appeal and reduce the amount of hours down to 150, so you have done it and need not do any more.

9.

10. THE APPLICANT: At least it was contact with somebody.

11. LORD JUSTICE MOSES: Well, if you would like to go on doing it, if you would like us to say 200 -- what do you want? You can withdraw the appeal. We are just trying to make things better.

12. THE APPLICANT: Another seven and a half hours.

13. LORD JUSTICE MOSES: So you can say goodbye to them. We will reduce it so that you have to do another seven and a half hours, that is down to 157 or something. One more go, all right?

14. THE APPLICANT: Thank you, your Lordship.

15. LORD JUSTICE MOSES: To say goodbye to them.

16. To that extent the appeal will be allowed. Do not ask me to give reasons because I cannot think of any."

25. It is clear from that part of the transcript that the Court permitted the Claimant to appeal against her sentence, and they allowed the appeal to the extent that they reduced the sentence to 157 hours.
26. The words complained of in the second action are under the heading 'Court takes pity on woman over harassment of her neighbours Community service in graveyard reduced to 'put her troubles behind her'':

"A woman who was ordered to do community service in a graveyard after harassing her neighbour has had her punishment slashed after complaining the lawnmower she has to push is too heavy.

Jan Kraus, 48, became embroiled in a bitter dispute after complaining about what she said was an annoyingly loud whistle from her neighbour's boiler flue in Walnut Road Hartford.

Lord Justice Moses said it had led to a 'campaign of harassment' aimed at driving her neighbour, nurse Carol Story, out of her home.

Her campaign led to convictions last September on four counts of breaching a restraining order by pestering her neighbour and a sentence including 250 hours' community service mowing a graveyard lawn.

She tried to overturn her convictions a the Court of Appeal, but only succeeded in having her graveyard labour cut to 157 hours by merciful judges in London.

Lord Justice Moses said he would cut the order to 150 hours to end her punishment immediately, but upped it on her request so she can say 'goodbye' to her community service pals.

"I'm pushing a lawnmower around a graveyard every Sunday," said Krause, complaining that the motor had been disconnected from the heavy mower, making it difficult to move.

"No one can push that lawnmower. I do my best, but I feel it is undeserved punishment."

The judge said Krause would be better off if she put her court troubles behind her and got on with her life.

"We just think all these quarrels, litigation, police and courts make life so much worse for you and your family," said the judge, sitting with Mr Justice Underhill and Judge Melbourne Inman QC.

At the centre of the trouble, which began in 2005, was a complaint by Krause, who lives with her brother and elderly mother about her neighbour's allegedly noisy boiler.

Breaches of the restraining order included staring at her neighbour's with a notebook and pen in her hand and shining a torch in their house guests' faces.

Representing herself at the Court of Appeal, unemployed Krause tried to overturn the convictions, claiming she was a victim of mistaken identity and trying to shift some of the blame onto her neighbours, who have since moved.

The judges rejected her conviction appeal.

Krause is also subject to a 10-year restraining order."

27. In spite of lengthy statements of case and an amendment, the Claimant again failed to set out in writing a defamatory meaning. The "sting" which she does set out is that the words complained of contained a

"false assertion that the [her] 250-hour community service sentence was reduced by the Court of Criminal Appeal because [she] had 'complained' to the Appeal Tribunal that the Cheshire Probation Trust's graveyard lawnmower was 'too heavy for her to push'. Notwithstanding that [she] had entertained no such explicit complaint to the Appeal Tribunal…"

28. In response to questions during her oral submissions the Claimant explained that her complaint in this action is that the report means that she is workshy and a shirker.
29. By the application notice dated 23 October 2013 the Northwich Guardian ask that the claim be struck out, alternatively that summary judgment be entered against the Claimant, on the grounds that the claim is an abuse of the process of the court (CPR r3.4(2)), alternatively that it has no real prospect of success (CPR r24.2). A defence of absolute privilege under the Defamation Act 1996 s.14 is bound to succeed, alternatively the words complained of are incapable of bearing any meaning which is sufficiently serious to amount to a defamatory meaning.
30. Mr Hirst submits that the words are not capable of being defamatory. There can be no dispute as to the test. As set out in Jeynes v News Magazines Limited [2008] EWCA Civ 130 at [14]:

"The legal principles relevant to meaning … may be summarised in this way: (1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any 'bane and antidote' taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, 'can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation …' …. (8) It follows that 'it is not enough to say that by some person or another the words might be understood in a defamatory sense.'"

31. Further, to amount to a defamation an allegation must pass a certain threshold of seriousness: Thornton v Telegraph Media [2010] EWHC; 1414 (QB); [2010] EMLR 25 at para [16].
32. Mr Hirst submits that no reasonable reader could think the worse of the Claimant for appealing (successfully) against her sentence on the ground that the unpaid work she had been required to do was too physically onerous.
33. In my judgment this submission must succeed. It follows that the claim must be struck out on this ground.
34. During the hearing the Claimant produced a transcript of the hearing on 22 May. The only reference in that transcript to the lawnmower is in an answer she gave to Moses LJ: "Are you doing any of the unpaid work or have you not started that?" The Claimant replied: "I am pushing a lawnmower around a graveyard every Sunday". In the course of her oral submissions she said that after the hearing a reporter had asked her questions, and that it was in response to those questions out of court, and not in court, that she had referred to the lawnmower being heavy.
35. It is not possible for me to determine on paper whether it was in court or out of court that the Claimant referred to the lawnmower being heavy. So I would not have struck out the claim on the ground that a defence of absolute privilege is bound to succeed.
36. However, even if I am wrong in my conclusion that the meaning is defamatory, having regard to the damage to her reputation that she suffered by reason of the convictions, I would have struck out this claim on the further ground that there is nothing of any possible benefit to her which she can achieve by the second action.

CONCLUSION

37. For these reasons these actions will be struck out. The claims are wholly without merit.