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
		29/01/2016

Mr Justice Nicol :

1. The Claimant and Defendant were once married. They separated acrimoniously. One consequence has been this claim for libel. The trial is listed to start on 29^th February 2016 and is estimated to last for 7 days. The hearing before me was intended to be a pre-trial review. In practice, the only matter which required resolution was an application issued by the Defendant on 15^th January 2016. In order to explain the nature of the application it is necessary to say a little more about the claim.
2. In 2012 the Claimant says that he was in a relationship with another woman, Deborah Bligh. The first part of the claim for libel concerns a series of postings made by the Defendant on 23^rd December 2012 on the Facebook website and published, the Claimant alleges, to a number of Ms Bligh's friends and relatives. I shall refer to this part of the claim as the 'Facebook publications'
3. Ms Bligh's former partner was Eric Roche. They had two girls. Ms Bligh and Mr Roche had also gone through what seems to have been a bitter separation. Mr Roche was a citizen of, and resident in, France. There were custody proceedings in France concerning the couple's two daughters. The second part of the claim for libel arises out of an email which the Defendant wrote to Mr Roche on 2^nd January 2013. I shall refer to this part of the claim as the 'email publication'. There is some overlap between the defamatory meanings attributed to the two parts of the claim, but the meanings attributed to the email publication go substantially further than those ascribed to the Facebook publications.
4. The Defendant's application seeks an order pursuant to CPR r.3.4(2)(a) and/or (b) striking out the claim based on the email publication on the basis that the email was published on an occasion of absolute privilege and/or it does not disclose a real and substantial tort. As issued, the application sought other orders as well. The Claimant, however, has accepted that absolute privilege can be asserted in relation to proceedings in France in the same way as if proceedings were being conducted in England. Thus, he accepts that it is immaterial that the custody proceedings in relation to the children of Mr Roche and Ms Bligh were taking place in France rather than in England. He does not, however, accept that the email publication is protected by absolute privilege as opposed to qualified privilege (and the qualified privilege is, he pleads, defeated by the Defendant's malice). The Claimant also disputes that the email publication claim should be struck out because it does not disclose a real and substantial tort.

The contact between the Defendant and Mr Roche

5. It seems that the Defendant first contacted Mr Roche through the medium of his Facebook page on 26^th December 2012. At 11.25pm [France is one hour ahead of GMT. It is not clear whether the timings adjust for this, but the parties agreed that this was of no consequence for present purposes] she sent a message which said,

'Hi this is quite difficult I am the ex wife of Deborah [Bligh]'s latest boyfriend, I am trying to understand why she does not seem to have much contact with your daughters as she has a lot of access to my son and I am very worried. Should I be? I would be very grateful if you would reply and apologise for bothering you, but as a parent I am sure you understand.'

6. Mr Roche replied in French shortly afterwards with some abusive remarks about Ms Bligh. The Defendant said she did not speak French and Mr Roche resumed in English asking about Ms Bligh's boyfriend. The Defendant took this to be a reference to the Claimant. She replied that the Claimant was a good father to their son but not a good man. After some further exchanges, the Defendant asked Mr Roche if he could stop Ms Bligh taking her daughters to England. She added that 'she [I assume Ms Bligh] told Terry [the Claimant] she was taking you to court to get her girls back.' Mr Roche said it was he who wanted to go to court. The Defendant provided Mr Roche with her email address and invited him to stay in touch.
7. On 29^th December 2012 at 12.03 pm the Defendant again got in touch with Mr Roche through Facebook. She asked,

'Are you able to give me any more information on Deborah, eg the court ruling on how you have the girls and she doesn't I am really worried as [the son of the Claimant and the Defendant whom I shall call 'J'] has told me that she has given up her job and moved in with Terry so she will be with my son 50% of the time and already she has done a few things that I have concerns about. Also from your perspective [J] has told me that Daddy is going to help her get her girls back, which I think you should know. By the sounds of it this woman does not deserve children and I don't want her to have mine as she cant be bothered to look after her own. I have a friend who speaks fluent french if it is easier for you to send me details in french.'

8. Mr Roche made a lengthy reply in French the same day which it is not necessary to set out. It made further derogatory remarks about Ms Bligh. It ended 'merci de me tenir informe des intensions de votre ex mari.' In the Defendant's translation this is rendered as 'please keep me informed of your ex-husband's intentions.' The Claimant, though, says it should be translated as 'thank you for keeping me informed about your ex husband's intentions'.
9. Four days later on 2^nd January 2013 Mr Roche sent an email to the Defendant in French. As translated (about which there is no dispute), he said,

'Can you give me more information about your ex-husband, such as whether he has already been arrested, and, if so, when and why, is he violent or not, as I don't want my girls to go to just anyone's place (if he's violent with her that's her problem, but I don't want my daughters to risk being in the middle of it) as I need to go to court on 18/01/13. And I'd like to know where my children might be taken as like you said if they move to his I'd like to know what I can do about it…'

10. The Defendant's emailed reply (in English) is the email publication which is the second part of the libel claim. It is not necessary to set it out. She made a number of allegations about the Claimant's behaviour and attitudes. She concluded by saying,

'If you or your solicitor need any more information I am more than happy to help.'

11. In her witness statement the Defendant says,

'It was my understanding that the information Eric [Mr Roche] was seeking from me would be passed on to his lawyer to be used at the court hearing. I felt that he was entitled to know this information and use it for that purpose, just as I was entitled to know about who [J] would be living with.'

12. Mr Roche replied to the Defendant's email the same day (in French) which, translated, said,

'Thank you very much for this information, my lawyer will know how to make good use of it.'

13. In his witness statement for these proceedings Mr Roche says,

'I wanted to have something in writing from [the Defendant] that I could use at the hearing on 18 January so that is why I sent her the email on 2 January. I passed Nicola's email on to my lawyer, Alexandra Deval, who included it in the file of evidence I relied on at the custody hearing on 18 January. This file was given to Deborah's lawyer and to the court in advance of the hearing. No objection was made by Deborah's lawyer to the email.'

14. The hearing did indeed take place on 18^th January 2013 before Judge Anne Farssac of the Tribunal de Grande Instance of Aix en Provence. Her judgment was given on 8^th February 2013, although an English translation has only relatively recently been obtained. Although the judgment records Mr Roche's concern about 'the conditions of hospitality for his daughters in England as a result of the new companion of the mother where they were staying', Mr Barca QC, on the Claimant's behalf, draws attention to the passage in the judgment which says,

'For his part, Mr Roche does not file any document likely to establish that Mrs Bligh is not living with her daughter, as she stated, and was housed in unknown conditions with another man. The investigative measure requested does not in this case seem to be justified.'

15. Mr Barca submits in light of this that Mr Roche's evidence to the effect that the Defendant's email was included in the court file and put before the French Court seems to be inaccurate.
16. Judge Farssac ordered Mr Roche to have custody of his two daughters, but with Mrs Bligh having access (including staying access), with the girls and made provision for splitting the holidays between their parents. It seems that Deborah Bligh appealed the decision to the Court of Appeal of Aix en Provence. The Court's judgment (of 25^th February 2014) and the pleadings (or parties' submissions preceding judgment) have been even more recently obtained and translated. Mr Barca submits that these do show that the Defendant's email was put before the appellate court in support of the proposition that the Claimant was described by her as a violent and marginal person. The appeal was dismissed. The judgment makes no further reference to the allegations against the Claimant and makes no findings in relation to them.

Absolute privilege: the pleadings

17. Paragraph 12 of the Re-Amended Defence says that the email was published on an occasion of absolute privilege. The particulars in support of that plea include the following,

'The email was made in the course of or in connection with judicial proceedings. …The email was a response to an email from Mr Roche [of 19.15 on 2^nd January 2013]… [which had] sought information from the Defendant about the Claimant for the purpose of the substantive hearing to determine custody on 18 January…the allegations complained of were germane to the subject matter of the proceedings; alternatively, they did not have no relevance to it…Mr Roche passed the email to his lawyer, Maitre Deval, who included it in the file of evidence to be relied on by Mr Roche at the hearing. In accordance with French procedure the file was provided to Ms Bligh's lawyer and the Court in advance of the hearing…the availability of a defence of qualified privilege does not provide sufficient protection.'

18. In paragraph 13 of the Re-Amended Reply the Claimant denies that any absolute privilege attaches to the publication of the email. No admission is made as to whether it was made in the course of or in connection with judicial proceedings. It is denied that it was made in response to Mr Roche's email of 2^nd January 2013. The other particulars relied on by the Defendant are either not admitted or denied. It is fair to note that, to some extent, matters have moved on since then since Mr Barca now accepts that absolute privilege applied in connection with French proceedings in the same way that it does to English proceedings.
19. Mr Price QC, for the Defendant, also draws to my attention to the claim (in the Particulars of Claim) for aggravated damages in the course of which the Claimant says at paragraph 9.5,

'As the Defendant manifestly intended or at least foresaw, her communication with Mr Roche was deployed by him to prejudicial effect in the French custody proceedings, causing Ms Bligh further and ongoing distress, which in turn, distressed the Claimant.'

Elsewhere in the pleadings (paragraph 13.4 of the Re-Amended Reply) the Claimant has said that his claim does not extend to the publication of the email in court. But, Mr Price argues, it is the Claimant's own case that the Defendant 'intended or at least foresaw' that her email would be deployed in the French custody proceedings.

20. In addition to the plea of absolute privilege, the Defendant also relies on qualified privilege. At an earlier stage in the litigation, she further defended the email publication on grounds of justification and fair comment. At that stage, the Claimant was disputing that the email was published on an occasion of even qualified privilege, although in the alternative he pleaded in reply that the defence of qualified privilege was defeated by malice. Following further correspondence, however, the Defendant withdrew her defences of justification and fair comment and the Claimant accepted that the email was published on a qualified privilege occasion (though maintained that this had been lost because of malice). At the hearing before me, it became apparent that there was an unresolved issue as to whether any agreement which the parties may have reached on this matter precluded the Defendant from maintaining in particulars in support of qualified privilege (and/or in evidence in response to the plea of malice) that what she alleged in the email was true. In the absence of agreement, that is a dispute which will have to be resolved on another occasion.

Absolute privilege: the law

21. There is no dispute that a witness is protected by absolute privilege for what is actually said in evidence (whether orally or in writing). It is also clear that absolute privilege applies to some extent at an earlier stage. In Watson v M'Ewan [1905] AC 480, 487-8 Lord Halsbury LC said,

'It is very obvious that the public policy which renders the protection of witnesses necessary for the administration of justice must as a necessary consequence involve that which is a step towards and is part of the administration of justice - namely, the preliminary examination of witnesses to find out what they can prove.'

22. In Lincoln v Daniels [1962] 1 QB 237 CA, Devlin LJ considered that the protection would also extend to instructions given by a party to his solicitor (see p.260). At p. 263 Devlin LJ said,

'It is not at all easy to determine the scope and extent of the principle in Watson v M'Ewan. I have come to the conclusion that the privilege that covers proceedings in a court of justice ought not to be extended to matters outside those proceedings except where it is strictly necessary to do so in order to protect those who are to participate in the proceedings from a flank attack. It is true that it is not absolutely necessary for a witness to give a proof, but it is practically necessary for him to do so, as it is practically necessary for a litigant to engage a solicitor. The sense of Lord Halsbury's speech is that the extension of the privilege to proofs and precognition is practically necessary for the administration of justice; without it, in his view, no witness could be called.'

23. It should be recalled that he then went on to conclude that, while it was convenient for complaints about barristers to be channelled through the Bar Council, it was not a practical necessity for this course to be followed and, accordingly, the plea of absolute privilege for such a communication failed. It was sufficient for complaints to the Bar Council to be covered by qualified privilege (see p.264).
24. In quoting from the particulars in support of the plea of absolute privilege I noted that the Defendant said, 'the allegations complained of were germane to the subject matter of the proceedings, alternatively, they did not have no relevance to it.' The double negative in the alternative is an allusion to the principles enunciated by Clarke LJ in Smeaton v Butcher [2000] EMLR 985 CA, at [26],

'(1) A statement by a witness or prospective witness, whether made to a solicitor for the purposes of the preparation of a statement, proof of evidence or affidavit, or made in a statement, proof of evidence or affidavit, is absolutely privileged unless it has no reference at all to the subject-matter of the proceedings.

(2) In deciding whether the statement has any reference to the subject-matter of the proceedings any doubt should be resolved in favour of the witness.'

25. Smeaton, as Mr Price observes, was a case where the claim was struck out because the defence of absolute privilege was obviously applicable.
26. So far, the propositions on which Mr Price relied were uncontroversial. That was not the case with some further points which he advanced. Putting them in my own words, these were:

i) If a statement was actually used in Court, then it necessarily followed that any earlier communications preparatory to that deployment had also to be protected by absolute privilege. Were it otherwise, witnesses would be discouraged from coming forward and that would be detrimental to the administration of justice.

ii) The test should be objective. If it turned on subjective matters, such as the defendant's purpose in making the statement, uncertainty would be introduced and the value of the privilege being absolute would be undermined.

iii) Watson v M'Ewan concerned evidence gathered by a lawyer, but the same principles should apply to evidence gathered by a litigant on his or her own account. That was of particular importance given the growing phenomenon of litigants in person.

27. Mr Barca argued that it was important to remember that this form of absolute privilege began as a protection for what was said (whether orally or in writing) in court. It could properly be referred to as 'witness immunity' (absolute privilege also provided a defence for others who took part in court proceedings – lawyers and judges – but that was immaterial for present purposes). The extension of the immunity to earlier statements or publications was only for what was necessary for that core purpose. He submitted that the privilege either applied or did not apply on the occasion when the publication took place. It could neither be created, nor taken away, by subsequent developments. He recognised that this meant it applied to the proof or statement of a person not in the event called as a witness. However, conversely, the fact that a statement was later deployed in court as evidence could not retrospectively confer immunity, if it did not have that protection when originally published. He submitted that what was critical was whether the statement was made for the purpose of giving evidence in court proceedings. The format in which the evidence was to be given was unimportant (i.e. it did not matter whether the evidence was to be given orally or in writing), but what was important was that the content of the statement was something as to which the maker was prepared to testify in court. That would serve to distinguish matters which were said with seriousness as opposed to a general rant or loose talk. There may well be a wider class of statements which were made in a context of mutual duty and interest. They would be protected by qualified privilege.

Absolute Privilege: Discussion

28. This is an application by the Defendant to strike out the claim based on the email publication on the grounds that the Claimant has no reasonable cause of action. It could only be granted if it was plain from the pleadings that the defence of absolute privilege was bound to succeed. In my judgment that is not so.
29. I agree with Mr Barca that whether a publication takes place on an occasion of absolute privilege has to be determined at the time of publication. In libel it is publication which is the tort. If when publication took place, the occasion was not privileged, I cannot see how it could retrospectively become non-tortious because of later events. Lord Hoffman addressed the point in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177 at p. 214 when he said,

'I find it impossible to identify any rational principle which would confine the immunity for out of court statements to persons who are subsequently called as witnesses. The policy of the immunity is to enable people to speak freely without fear of being sued, whether successfully or not. If this object is to be achieved, the person in question must know at the time he speaks whether or not the immunity will attach. If it depends upon the contingencies of whether he will be called as a witness, the value of the immunity is destroyed.'

30. A similar point was made by Lewison LJ in Singh v Reading Borough Council [2013] 1 WLR 3052 CA when he said at [67]

'As Ms Williams submitted, judicial proceedings immunity does not retrospectively immunise an antecedent act if that act is not itself within the immunity.'

31. It follows that, the later deployment of a statement in judicial proceedings cannot be determinative of whether it enjoyed absolute privilege at the time the statement was originally published. I do not regard anything said by Devlin LJ in Lincoln v Daniels (above) as suggesting the contrary.
32. I also agree with Mr Barca that it is a necessary condition of absolute privilege for statements made in advance of judicial proceedings by prospective witnesses that the statement is made for the purpose of such proceedings. Thus in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184 at p.191-2 Drake J. said,

'If this object is to be achieved I think it essential that the immunity given to a witness should also extend to cover statements he makes prior to the issue of a writ or commencement of a prosecution, provided that the statement is made for the purpose of a possible action or prosecution and at a time when a possible action or prosecution is being considered.'

33. Drake J.'s views were endorsed by the House of Lords in Darker v Chief Constable of West Midlands [2001] 1 AC 435. In the course of his speech, Lord Clyde considered the objection that a 'purpose' test would allow too much uncertainty and thus undermine the value of the absolute character of the privilege. He rejected it at p.458 where he said,

'That same consideration of avoiding a circumvention of the immunity should serve to justify its application at the early stages of a litigation or a prosecution where evidence is being collected with a view to court proceedings. It may be that here some delicate questions of fact may arise as to whether or not the material in question was or was not provided with a view to court proceedings. But while the line may be difficult to draw in some cases the distinction in principle is clear. In the case of statements, as Drake J recognised in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184,191, the statement must be made "for the purpose of a possible action or prosecution and at a time when a possible action or prosecution is being considered".

34. In the present case, the Defendant pleads various particulars in support of her claim of absolute privilege, but they are all either denied or not admitted. There is no clear pleading that the email was written for the purpose of setting out what the Defendant would be willing to say as a witness in the French proceedings. In view of Mr Price's submission that the privilege is not dependent on proof of such a purpose, it is possible that the omission is deliberate. Mr Price argued that the sequence of the exchanges between the Defendant and Mr Roche is pleaded and is undeniable. He submits that, if purpose is necessary, it is a clear inference to be drawn from that exchange. Even setting aside that this is a strike out application (rather than an application for summary judgment on the absolute privilege issue), it does not seem to me that the matter is so clear cut as to decide it in the Defendant's favour in advance of a trial. I have said that I agree with Mr Barca that the purpose for which the statement is made is critical. I am inclined to agree with him that the purpose must be to set out that which the maker of the statement would be prepared to testify to in evidence in court (as opposed to a looser expression of views or, as Mr Barca described it, a 'general rant'), but the precise contours of this part of the requirement are best explored at trial rather than on a strike out application. Whether the Defendant had the necessary purpose is also a matter for trial.
35. I have not overlooked Mr Price's reliance on paragraph 9.5 of the Particulars of Claim. The Claimant pleads that the 'As the Defendant manifestly intended or at least foresaw her communication with Mr Roche was deployed by him to prejudicial effect in the French custody proceedings.' This is a pleading in support of a claim for aggravated damages. In that context, it may not matter whether the Defendant intended (on the one hand) or foresaw (on the other) the consequence of her email. At one point in his oral submissions, Mr Price argued that either alternative was also sufficient for the purpose of absolute privilege. However, it seems to me that this is far from obvious. There is or, at least, may be, a significant distinction in the context of absolute privilege for a pre-trial statement between an intention that the information it contained should be used in legal proceedings and foresight that it may be.
36. Mr Barca also signalled that there may be an application to amend this part of the Particulars of Claim. That's as may be. It is for the future. As it currently stands, this part of the pleadings does not cause me to alter my view.
37. That would be sufficient for me to reject the application to strike out the claim based on the email publication because of absolute privilege. I should record, though, an additional concern. The communication in this case followed an approach by Mr Roche directly, rather than by his lawyer. As I have noted above, Mr Barca was prepared to accept that this was not a complete bar to absolute privilege. He was right to do so. It would be unjust if a lawyer could reassure a potential witness that his proof of evidence would be protected by absolute privilege but a litigant in person could not. Nonetheless, when evidence gathering is not filtered by a lawyer with some knowledge of what is or is not relevant or is or is not proper to be included in the evidence, some more thought may need to be given to the precise boundaries of when the privilege will apply. Lord Hutton in his speech in Darker v Chief Constable of West Midlands said at p. 468,

'The predominant requirement of public policy is that those who suffer a wrong should have a right to a remedy, and the case for granting an immunity which restricts that right must be clearly made out. In Mann v O'Neill (1997) 71 ALJR 903 the judgment in the High Court of Australia of Brennan CJ, Dawson, Toohey and Gaudron JJ states, at p.907: "the general rule is that the extension of absolute privilege is 'viewed with the most jealous suspicion, and resisted unless its necessity is demonstrated'." And in Roy v Prior [1971] AC 470, where this House held that a defendant was not entitled to the absolute immunity which he claimed, Lord Wilberforce stated at p. 480: "Immunities conferred by the law in respect of legal proceedings need always to be checked against a broad view of the public interest."'

38. Resolving such novel matters on a strike out application, in advance of a determination of the actual facts is a course against which the higher courts have frequently counselled – see for instance X v Bedfordshire County Council [1995] 2 AC 633, 641.

No real or substantial tort

39. Mr Price relies on Jameel (Yousef) v Dow Jones and Co Inc [2005] QB 946 CA to submit that the email publication does not represent a real and substantial tort and the claim in that regard should therefore be struck out as an abuse of the court's process.
40. He submits that the pleaded publication was to just one person (Mr Roche) and the Claimant is indifferent to that person's view of his reputation. The Claimant has expressly disavowed any reliance on the deployment of the email in the French custody proceedings. In any case, it is clear from the French judgments that the email played little, if any, part in the Courts' reasoning. In her witness statement, Ms Bligh says that she is now back living with the Claimant and does not believe the statements in the Defendant's email about him to be true. Whatever hurt she may have suffered cannot be compensated by a claim for damages brought by the Claimant. The application does not apply to the Facebook publications and the Claimant will be able to pursue his claim in relation to them even if the email publication is struck out. The meanings in the latter go beyond the former and there is no evidence that the Defendant has sought to repeat them. There will be a saving of time, cost (and potential embarrassment) if the latter do not have to be litigated.
41. I am not persuaded that the email publication should be struck out on Jameel grounds. As Warby J. said in Ames v Spamhaus Project Ltd [2015] EWHC 127 (QB) at [33] 'The jurisdiction is however exceptional; the assessment of whether a real and substantial tort has been committed is not a "numbers game"; even publication to a single individual can be highly damaging.' Whether a particular libel claim ought to be struck out on Jameel grounds is likely to be highly fact-specific and so the citation of other cases, decided against different factual backgrounds is unlikely to be helpful – see Sharp J. in Haji-Ioannou v Dixon [2009] EWHC 178 (QB) at [30].
42. In this case, I accept the submissions of Mr Barca that it may not be easy or appropriate to hive off (or fillet out) part of the communications by the Defendant. In his Particulars of Claim, the Claimant relies on the gratuitous character of the Defendant's publications to Ms Bligh and her Facebook friends and, likewise, the gratuitous character of her communications with Mr Roche. Although Ms Bligh in her witness statement says that she does not now believe what the Defendant said about the Claimant, she also says that 'the doubts I had about him and his intentions poisoned our relationship for a long time.' Further, in her Re-Amended Defence, the Defendant alleges that the whole claim is an abuse of process because it was brought for an improper or collateral purpose. For this to be determined the Court will necessarily have to investigate to some extent the nature of the claim regarding the email publication. That will be so even if that claim were to be struck out as a separate cause of action in accordance with the present application.
43. Mr Price accepts that the allegations in the email publication went beyond those in the Facebook publications. If the Claimant is successful at trial, he would ordinarily be able to expect to be granted an injunction to prevent repetition of the same or similar words as those in relation to which he has succeeded. Mr Price argues that, in the absence of any repetition, the Claimant will not be able to establish the need for an injunction. In my judgment, that is an argument for trial. The Defendant has not offered an undertaking not to repeat the contents of the email publication and, in those circumstances, I do not consider the situation to be so clear cut that I could say the Claimant was bound to fail in his claim for injunctive relief in that regard.
44. Mr Barca also submitted that this relief should not be granted in view of the Defendant's earlier indications in correspondence that she was contemplating a Jameel-type application. Notably, it was part of the relief sought by the Defendant in an application notice issued on 1^st July 2015, but not in the event pursued. Had this argument stood alone, it may have been relevant to costs, but not to whether the claim should have been struck out. If it had been clear that the claim in relation to the email publication was an abuse of process and was amenable to being struck out, then there would have been no purpose in allowing that claim to go to trial, whether or not the Defendant should have acted in a more timely fashion. As it is, I have found against the Defendant on other grounds.