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 2016

Sir David Eady :

The article complained of

1. The Claimant commenced this libel action on 20 November 2015 in respect of an article published originally in the Daily Mail and on the Mail Online website on 29 November 2011, although the claim is confined to publication on the website. The article was headed "Grasping peers and why it's so wrong to play the race card" and written by the second Defendant. It was prompted by comments made by Lord Alli to the effect that the suspension of a number of peers involved in the Parliamentary "expenses scandal" had been racially motivated. In the course of quite a long piece, she made reference to the Claimant in these terms:

"The promise of a big tribunal pay-out can prompt some people to make vexatious claims of racial discrimination, with some making one allegation after another. In 2007, London's High Court threw out a claim from serial race claimant Suresh Deman, a finance lecturer whom the judge declared to be 'obsessed' with being racially discriminated against. Mr Deman took 40 cases to employment tribunals, winning more than £194,500 and costing the taxpayer more than £1 million in legal bills."

2. Although the passage is inaccurate in a number of respects, she was referring essentially to the findings of Underhill J (sitting in the Employment Appeals Tribunal) on 1 September 2006, when he upheld an application by the Attorney-General under s.33 of the Employment Tribunals Act 1996 for a "restriction of proceedings order" against Dr Deman: [2006] UKEAT 0113/06. That provision is headed "Restriction of Vexatious Proceedings" and performs a comparable function to that of s. 42 of the Senior Courts Act 1981. It was found that the Claimant had "habitually and persistently instituted vexatious 'proceedings' (held to cover both the institution of the initial proceedings and the institution of the appeals) and to have habitually and persistently made vexatious applications in the course of those proceedings within the meaning of s.33(1)(a) and (b) of the Employment Tribunals Act 1996". At paragraph [170], the Judge observed:

"… it is his practice to assert racial discrimination as a response to any decision or action adverse to him. In other words, Mr Deman's unsuccessful claims are not to be regarded simply as a series of particular misjudgements or 'mis-predictions' as to whether he had a viable case. They are the product of an obsession that he is a victim of racial discrimination which exists without reference to the evidence in any particular case."

Although the Claimant wishes to argue in the present proceedings that Underhill J reached a conclusion to which no reasonable judge could have come, the judgment was not successfully appealed and stands to this day.

The defamatory meaning

3. The meaning of the words complained of is plain; namely, that the Claimant was a serial race claimant who had been found to be "obsessed with being racially discriminated against". Throughout the particulars of claim there are suggestions of other defamatory meanings, but none of them seems to me to hold water. For example, the words do not convey to any reasonable reader that the Claimant was guilty of fraud or of falsely claiming expenses like the peers who were the focus of Lord Alli's remarks. Nor do they bear the meaning that he was "half man and half reptile"; or that he is "a totally irrational and deranged person … who behaved in a venomous manner"; or that he "has no business to be in the country".
4. Against this background, the Defendants issued an application on 22 December 2015, shortly after they were sued, to strike out the claim under CPR 3.4 and for summary judgment under CPR 24(2). The case has been advanced before me by Mr Glen on a number of grounds.

Limitation

5. The claim was launched almost four years after the original publication and thus well outside the 12 month primary limitation period which applies in defamation cases. There were a few "hits" on the article in the twelve months immediately prior to the commencement of the claim on 20 November 2015. That emerges from the evidence put in by the Defendants' solicitor Ms Kim Waite. She has exhibited a table compiled by an employee of the first Defendant. Before turning to that, however, it is necessary to consider the relevance of the "single publication rule" introduced by s.8 of the Defamation Act 2013, which came into effect at midnight on 31 December 2013.
6. As it happens, the evidence shows that there was a "publication" on 1 January 2014, in the sense that someone accessed the article on that date. But with effect from that date the single publication rule meant that it would count as "the first publication" for the purpose of s.8. Consequently, the limitation period would begin to run from that date and thus expire at midnight on 31 December 2014. None of the other publications occurring thereafter in 2014 or 2015 would count as a separate publication, giving rise to a new cause of action, with its own limitation period (as would have been the case under the common law). Once the primary period expired, therefore, it would be necessary to obtain leave to bring proceedings outside the limitation period in accordance with s.32A of the Limitation Act 1980. It is clear from s.8(6) that this regime (introduced by the Defamation Act 1996 to mitigate the effect of the 12 month limitation period) continues to apply.
7. It follows that none of the publications on which the Claimant wishes to proceed can give rise to a claim unless leave is obtained under s.32A. The statutory test is whether it would be "equitable" to permit the case to go forward in the particular circumstances. The court must have regard to any prejudice that would be caused to either side. It has been long recognised that the exercise of that discretionary jurisdiction is exceptional because, for reasons of public policy, time is treated as being of the essence in the defamation context: Steedman v BBC [2001] EWCA Civ 1534; Austin v Newcastle Chronicle and Journal Ltd [2001] EWCA Civ 834; Bewry v Reed Elsevier [2015] 1 WLR 2565, at [5]-[8].
8. I have come to the conclusion that there is nothing here of an exceptional nature to justify granting leave to bring the proceedings out of time. It is noteworthy that the Claimant says that he only discovered the existence of the article on or about 10 September 2015 (in the course of other litigation he was pursuing in Northern Ireland). If it had been causing his reputation any serious harm, such as to justify bringing proceedings for libel, that is very surprising. Even when he found out about it, he did not complain until 30 October last year. There is no satisfactory evidence to explain the delay, or how it is possible to demonstrate that "a real and substantial tort" has been committed, or why "the game is worth the candle": see Jameel v Dow Jones [2005] QB 946 (CA). (The Claimant did refer to some rather unpleasant "readers' comments", which are fairly typical for newspaper readers responding online nowadays, but they appeared to date from shortly after the original publication in 2011. These outpourings tend to be ephemeral and of little significance: see Smith v ADVFN Plc [2008] EWHC 1797.)
9. On the other side, there would be clear detriment to the Defendants if they were called upon to defend this very stale case and that would impact upon their Article 10 rights. Their rights under Article 6 also need to be borne in mind, since the long delay would undermine their ability to receive a fair trial. I am told that the person who was reporting on the 2006 litigation before Underhill J has destroyed his notes in accordance with his usual practice, and it is also significant that the many tribunal applications brought by the Claimant, and which Underhill J had to scrutinise ten years ago, are now even more remote – going back in some instances to the mid-nineties. It is no answer to say that the Defendants have the benefit of the judgment itself and of the recorded findings, since the whole purpose of the Claimant is to reopen the case and challenge the findings of the Judge as irrational.
10. He clearly wishes to re-fight old battles. It is relevant here to have in mind his declared objective in the last paragraph of his witness statement. He wants to establish that Underhill J was guilty of "tailoring selective facts to arrive at the wrong conclusions" and says that "… my cases were exposing both the Judiciary and the Employers the nature of institutionalised racism in the Higher Education Sector of which Baroness Flather is proud off (sic)". It is by no means obvious what he hopes to achieve, but it seems a long way from what should be the primary objective of a libel action; namely the speedy restoration of reputation following serious harm.
11. In the circumstances, therefore, I decline to grant leave under s.32A of the Limitation Act. It is not necessary to go further, but in case I am wrong about that, I will address the other arguments put forward by Mr Glen.

The absence of "serious harm" and/or abuse of process

12. Parliament introduced a new threshold test of "serious harm" by s.1 of the Defamation Act 2013. It is clear from the explanatory notes that the intention was to build on the judicial developments in the light of the CPR, whereby it had become increasingly common to strike out claims (especially libel claims) which, for one reason or another, could not be said to justify the time and money required to resolve them. Variously, it was put on the basis of abuse of process, triviality, lack of proportionality, the absence of a "real and substantial tort", or the "game" not being "worth the candle". This approach overlaps to a large extent with the new test of "serious harm".
13. Here, it is difficult to see what tangible or legitimate advantage could be achieved by allowing this claim to proceed further. In particular, it is hard to identify any serious harm that the publications have caused to the Claimant's reputation and which requires redress – especially having regard to the promulgation of the findings of Underhill J in 2006.
14. It is necessary also, in that context, to consider a Court of Appeal decision in 2010, in which similar comments were made by Sedley LJ: Deman v Commission for Equality and Human Rights [2010] EWCA Civ 1279. It was an appeal from a decision of His Honour Judge Collins CBE, who had struck out a claim against the Commission because of its repeated refusals to support the Claimant in his claims of racial discrimination against various academic institutions (which had not appointed him to posts for which he had applied). Sedley LJ referred, at [4], to the decision of Underhill J and commented that the claim before the Court of Appeal "… displays once more the vices of prolixity and unsupported assertion which drove the EAT to bring some at least of his activity to a halt".
15. Accordingly, even if it were not statute barred, it would be appropriate to strike out the claim under CPR 3.4 as disclosing no reasonable grounds for bringing the action, as constituting an abuse of process and as having no real prospect of success. Nor is there any compelling reason why the case should be disposed of at a trial. I will grant summary judgment also under CPR Part 24.

The earlier action against Associated Newspapers Ltd

16. Mr Glen drew my attention to a claim against the first Defendant in 2007 over a virtually identical allegation. The headline of the article on that occasion, in the Daily Mail on 19 November 2007, was to the effect "Race-claims lecturer beats legal ban to carry on suing". A letter of complaint was sent on 5 May 2008 but that was rejected on behalf of the first Defendant and proceedings followed on 17 November of that year – again very shortly before the expiry of the limitation period. A strike out application was made, which was listed for 6 April 2009. Just before that, on 31 March, the Claimant contacted the first Defendant's solicitor to say that he was intending to discontinue, provided he was not going to be ordered to pay the Defendant's costs. He had been contemplating applying for an adjournment, but decided that he preferred to discontinue if he could do so on terms that were not too disadvantageous. The Defendants were willing to go along with that, but insisted that he file and serve a notice of discontinuance. He withdrew and the costs were waived.
17. Mr Glen argues that it is not permissible now to reopen that contest in these proceedings, when he had the opportunity to have the issue resolved in 2008, but chose not to. Mr Glen sought to draw an analogy with the court's refusal to allow Mr Schellenberg to proceed against the BBC after settling his case on disadvantageous terms against two newspapers, shortly beforehand, when he could have resolved the same issues in that (part heard) case: Schellenberg v BBC [2000] EMLR 296.
18. If a litigant seeks to mount a collateral attack on an earlier decision by taking proceedings against someone other than a party to those earlier proceedings, then it would only be an abuse to do so if (i) it would be manifestly unfair to a party in the later proceedings that the same issue should be re-litigated, or (ii) it would bring the administration of justice into disrepute. Mr Glen submits that this applies here. He says it matters not that the earlier case was settled, rather than judicially determined: Aldi Stores Ltd v WSP Group Plc [2008] 1 WLR 749, at [11]. I am not persuaded, however, since the circumstances are rather different. At that time, the Claimant was pleading ill health and lack of funds as reasons why he wished to settle. It is possible that, unlike Mr Schellenberg, he was not simply avoiding a contest, but was unable to take on the fight at that time. I am not in a position to say now that those reasons were not genuine. If this argument stood alone, therefore, I would not be willing to strike out as an abuse. But, as I have explained, that is not the only argument available.

A collateral attack on the EAT proceedings

19. Mr Glen also put forward the suggestion that the present claim amounts to a collateral attack upon the decision of Underhill J in 2006 and would be an abuse of process for that reason. He submits that the arguments now advanced by the Claimant "are simply reheated versions of the same arguments which were considered and rejected before the EAT". What is more, he would use the opportunity to attack the Judge's integrity and character as well as his reasoning. That is impermissible and I can see that this exercise would bring the administration of justice into disrepute. I would uphold the argument were it necessary to do so.

Qualified privilege and malice

20. Finally, Mr Glen submits that there is an unanswerable defence of qualified privilege available because the defamatory words consist partly, and indeed primarily, of a report of judicial proceedings (i.e. those before Underhill J) and would be protected under the provisions of s.15 and Sch.1 (Part 1) of the Defamation Act 1996. The report is fair and accurate in the material respects, although there are a number of sloppy but peripheral inaccuracies. For example, the hearing was in the EAT and not in the High Court (although of course the judgment was given by a High Court Judge). The case was not "thrown out", since the Attorney General's application was upheld. Also, the hearing took place in 2006 rather than 2007. I do not consider, however, that any of these points is such as to undermine the fairness or accuracy of the report, or indeed its overall character as a report. The court has traditionally adopted a broad interpretation of these concepts, as one would expect in relation to reports which are largely compiled by lay persons and intended for a lay readership. See e.g. Kimber v Press Association [1893] 1 QB 65 and Tsikata v Newspaper Publishing Plc [1997] EMLR 117.
21. There are a number of bare assertions of malice intended no doubt to undermine any such defence of privilege. But the law demands that such allegations be properly pleaded. Mere assertion will not do: see e.g. Somerville v Hawkins (1851) 10 CB 583; Telnikoff v Matusevitch [1991] 1 QB 12; Seray-Wurie v Charity Commission [2008] EWHC 870 (QB). There must be facts pleaded which are more consistent with the presence of bad faith than with its absence. Here there is nothing of substance – only assertions which are liable to be struck out. There would, therefore, be a defence of qualified privilege available to both Defendants.

Overall conclusion

22. For all these reasons, I would uphold Mr Glen's submissions and accede to the Defendants' applications.