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
		29/10/2018

MR JUSTICE FOSKETT:

1. This matter comes before the court on the Defendant's application, issued on 14 June 2018, to strike out the Re-Amended Particulars of Claim dated 1 August 2016 or to enter summary judgment for the Defendant. As will appear, it is the second occasion on which such an application has been made by the Defendant.
2. A very detailed background to the Claimant's litigious activity is set out in the judgment of the Divisional Court in A-G v Johnson [2017] EWHC 979 (Admin), a judgment upon the implications of which the Defendant relies heavily in this application. That judgment led to the Divisional Court making an indefinite "all proceedings" Civil Restraint Order ('CRO') against the Claimant on 3 May 2017. In short, the judgment demonstrated that the Claimant was an inveterate litigator of almost always hopeless causes. I will return to the alleged significance of that matter below.
3. The present action was one of 45 different proceedings commenced by the Claimant over the years and came to be embraced by the Divisional Court's order. However, because Nicol J, on 18 May 2016, had given the Claimant permission to proceed with a limited feature of the present claim, Garnham J, who had delivered the judgment of the Divisional Court, gave the Claimant permission to proceed with this claim on that limited basis by an order made on 25 January 2018. He made it plain that the permission was very limited and expressed himself thus in the order:

"In the light of the hearing before Nicol J, and the fact that the judge considered these proceedings and gave the claimant permission to continue with the claim for defamation relating to publication before 1 January 2014, I grant permission in the terms set out above. The fact that the Divisional Court granted and All Proceedings order means the claimant needs this permission to proceed but should not prevent his continuing to prosecute what the court has determined is potentially a valid claim."

4. The order made by Garnham J specified that "[for] the avoidance of doubt, the Claimant does NOT have permission to continue with any element of his claim other than that for which Nicol J gave permission on 18 May 2016." (The emphasis was as in the order.)
5. The proceedings are defamation proceedings arising out of the publication on a website operated by the Ministry of Justice, the Defendant in this action, of the Claimant's name as the subject of a General Civil Restraint Order ('GCRO'). It appears that his name first appeared on that list in or about February or March 2013 and was taken off in August 2014 after these proceedings had been issued on 30 June 2014. It was taken off at the suggestion of the Senior Master at an interim stage and before whom the proceedings came initially on the first strike out/summary judgment application made by the Defendant. That application was dated 20 February 2015. It was heard on 22 October 2015 and the reserved judgment was given on 27 January 2016: [2016] EWHC 177 (QB).
6. It is not disputed that, whatever else may be said about his status as a potential litigant at that time (see paragraph 2 above), the Claimant was not the subject of a GCRO at that time and his inclusion on the list was a mistake. I will return shortly to his true status at the time, but what he seeks to do in this action is claim damages for defamation based upon the period that the offending entry on the register appeared (namely, from February/March 2013 until the end of 2013). The Defamation Act 2013 came into force on 1 January 2014. That Act required that "serious harm" to a person's reputation should have occurred or was likely to occur for the relevant statement to be defamatory and it is now accepted on his behalf that such a threshold could not be crossed by the Claimant.
7. The Senior Master had concluded (at [31] of her judgment) that "neither the Amended Particulars of Claim nor the draft Re-Amended Particulars of Claim show any reasonable grounds for a defamation claim to be brought and/or that there is no real prospect of such a claim succeeding." Nicol J allowed the Claimant's appeal from that decision in relation to the period prior to the coming into effect of the 2013 Act. I have not seen any transcript or note of his judgment, but I am told that, whilst he considered that the Senior Master was right to grant summary judgment on the basis that the Claimant could not pass the "serious harm" threshold required under the Act to which I have referred for the period after 1 January 2014, on the material available to Nicol J, he might be able to pass the threshold at common law for the limited period to which I have also referred and, accordingly, the order of the Senior Master was set aside in relation to that period.
8. What was known to the Senior Master and to Nicol J was that, whilst not the subject of a GCRO at the time his name appeared on the list, he was the subject of a Limited Civil Restraint Order ('LCRO') made by Sharp J, as she then was, on 29 November 2012. I assume that was for a period of 2 years and thus covered the period that is relevant for the purpose of these proceedings.
9. As I have said, I have not seen the judgment of Nicol J. However, I must assume for present purposes that he thought that the fact that the Claimant was subject to an LCRO at the time his name appeared on the GCRO list was arguably not sufficient to prevent his claim under the pre-2014 law from proceeding. In Mr David Mitchell's Skeleton Argument for that appeal on behalf of the Defendant, he contended that the hypothetical reasonable reader of the publication "would have differentiated little, if at all, between a Civil Restraint Order classified as General rather than, Limited."
10. That issue would have fallen to be judged by reference to the law applicable at the time. This has been variously stated, but the following paragraph from the judgment of Warby J in Lachaux v Independent Print Ltd and others [2016] QB 402 provides a useful reminder of what had to be established under the pre-January 2014 law:

"A meaning is defamatory of the claimant if it "[substantially] affects in an adverse manner the attitude of other people towards him, or has a tendency so to do ": Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985, para 96, per Tugendhat J. This also is an objective test. Although the word "affects" might suggest otherwise, it is not necessary to establish that the attitude of any individual person towards the claimant has in fact been adversely affected to a substantial extent, or at all. It is only necessary to prove that the meaning conveyed by the words has a tendency to cause such a consequence. The "people" envisaged for the purposes of this test are ordinary reasonable readers."

11. As I say, I do not know what Nicol J said about that, even assuming it was an issue in play, but I will assume in the Claimant's favour that, having considered that test, he determined that listing him publicly as the subject of a GCRO (rather than as the subject of a LCRO) was arguably capable of affecting his reputation in a substantial manner. That said, I would respectfully think that this must have been a border-line decision.
12. Mr Mitchell, on this application, suggests that Nicol J had very much less than the full picture about the Claimant. For example, he draws attention to a sentence in the Claimant's personally composed and signed Skeleton Argument in support of the appeal to Nicol J which asserted that "at no time has a … GCRO been made against [the Claimant]."
13. That was not correct. He had been made the subject of a GCRO by Nelson J on 24 July 2008 which was upheld by the Court of Appeal on 16 April 2009: see [53] – [55] of the judgment of the Divisional Court.
14. He had also been the subject of an LCRO made on 23 March 2007 in Southend County Court by his Honour Judge Yelton. That information was not available to Nicol J.
15. Furthermore, none of the background that now appears in the judgment of the Divisional Court was before him. I have summarised the effect of that judgment above (see paragraph 2), but (subject a point raised by Mr Mainwaring: see below), it evidences the commencement by the Claimant over many years going back to 1999 of a multiplicity of actions in various courts or proceedings in tribunals, virtually all of which have been characterised as without merit. It is a very substantial catalogue of hopeless litigation. It led to the successful application by the Attorney General under section 42 of the Senior Courts Act 1981. The Claimant now finds himself listed on the Vexatious Litigants list.
16. In [83] of the judgment, Garnham J said that the court was satisfied that the Claimant had "habitually, persistently and without reasonable grounds instituted vexatious proceedings, made vexatious applications in proceedings and instituted vexatious prosecutions." Anyone who reads [10] – [60] of that judgment will understand clearly why that conclusion was reached. It was that which led to the indefinite order made against him, both as 'Lee Johnson' and under the various aliases he has adopted from time to time.
17. Mr Mitchell, on behalf of the Defendant, submits (a) that the Defendant is entitled to make this application for summary judgment even though a previous application was made and (b) that it should succeed. Mr Henry Mainwaring, for the Claimant, contests both propositions.
18. As to the first, Mr Mainwaring submits that the present application should be dismissed because the issues raised within it are res judicata. His primary contention is that having raised, and apparently not succeeded, in the argument referred to in paragraph 9 above, the Defendant is simply attempting a second bite at the same cherry. Mr Mitchell's response is that the Defendant, not having known at the time about the rest of the Claimant's litigation history (with the exception of the LCRO to which he was subject at the time), including the fact that he had in the past been the subject of a GCRO (contrary to what Nicol J was told), no principle of res judicata prevents (or should prevent) the making of the current application.
19. I do not consider that any detailed consideration of the principles of res judicata, or more accurately, abuse of process, is required. It is clear that the Defendant did not know of the full history of the Claimant's litigious activity – if it had, it is inconceivable that reliance upon it would not have been placed at the time of the earlier application for strike-out/summary judgment. Assuming, for present purposes, that the principles of res judicata apply at the interim stages of litigation, the only issue might be whether the Defendant "should" have known about it and, therefore, brought it to the attention of the court on that occasion. Whether that kind of argument succeeds depends upon a "broad merits-based" analysis of the reasons for not bringing forward the material on an earlier occasion: see, in particular, Johnson v Gore-Wood & Co [2002] 2 AC 1, HL, and Stuart v Goldberg Linde [2008] 1 WLR 823, CA. In my judgment, there is no reason why the Defendant should have known about the full history to which I have referred at the time the application was made. It might have emerged during the disclosure process. If it had, it would almost certainly have prompted a second application. As it happens, it did emerge, probably because of the pending Divisional Court case (see paragraph 21 below). It follows, in my view, that there is nothing that prevents the Defendant from making the current application.
20. The Re-Amended Particulars of Claim (permitted by Nicol J) alleged that the natural and ordinary meaning of the publication of the Claimant's name on the GCRO list was that he was variously "a frivolous and incautious litigant", someone who had "abused and/or continues to abuse … the judicial system", was "deeply irresponsible and/or profoundly lacking in good judgment" and was "an unreliable and/or unbelievable and/or untrustworthy person".
21. The Defendant served its Defence dated 16 September 2016. By then it must have become aware of the more detailed background because, in paragraph 10 of the Defence, 'Particulars of Truth' were pleaded in 18 sub-paragraphs. Since they were pleaded before the proceedings before the Divisional Court took place, they do not mirror precisely the conclusions and findings of that court. However, it is plain that the source material for the pleading was substantially the same as that placed by the Attorney-General before that court. This pleading is, of course, the Defendant's currently pleaded case of justification. It did not at the time (because it could not have done) rely specifically on the conclusions of the Divisional Court because they had not materialised. It must be observed that many of the pleaded particulars reflect observations by judges at various levels on the lack of merit in the litigation commenced by the Claimant. The evidential status of that material, if established at trial, is doubtful (see paragraph 24 below), but I do not consider it fatal to the present application.
22. On the assumption that the source material evidenced by the judgment of the Divisional Court is admissible in these proceedings, in summary Mr Mitchell submits the following:

(i) that the Claimant will be unable to show a potentially diminished reputation (or a tendency towards one) by virtue of the appearance of his name on the GCRO list;

(ii) to the extent that it is different from (i), that he will not be able to demonstrate any significant damage to his reputation (see Jameel v Dow Jones & Co Inc [2005] EWCA Civ 95; [2005] QB 946);

(iii) that the Defendant is bound to succeed in its defence of justification/truth because the "essential" or "substantial" truth of the "sting" of the defamatory statement will be established (see Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 1, at [34]).

23. I should, perhaps, add that it was confirmed in the case of Chase v News Group Newspapers Ltd that a defendant could rely upon material that post-dated the alleged defamatory statement: [53].
24. I have reservations about the way the foregoing submissions have been formulated. At common law, a claimant does not have to establish damage to reputation, merely that the published statement has the defamatory tendency referred to by Tugendhat J in Thornton (see paragraph 10 above). If that is achieved, damage to reputation is presumed. That presumption is, however, rebuttable by the defendant, who may adduce evidence to establish that the claimant's reputation has not in fact been damaged, or not materially so. However, the material that can be relied upon for that purpose is limited. For example, it cannot be achieved by reference to specific conduct, save for notorious events such as convictions (see Goody v Odhams Press Ltd [1966] 1 QB 333) or contextual matters.
25. Nonetheless, I am quite satisfied that it would be legitimate for the Defendant to plead and prove the whole of the Claimant's litigious conduct, before and after the defamatory statement, by way of justification. I have reservations about the way the defence of justification has been pleaded thus far (see paragraph 21 above), but it would be fanciful to suggest that the source material upon which those averments are based could not be established as factual material at the trial. If that is so, the defence of justification would be bound to succeed. If that assessment were wrong, and some damages were recoverable, it is, in my judgment, quite clear that the compensation would be so modest that the continuation of the claim would represent an abuse of process of the kind described in Jameel (see paragraph 22 above).
26. I have reached that conclusion without having to consider the Claimant's non-compliance with paragraph 2.8 of PD53 which contains the mandatory requirement of the service of a Reply to an averment that the alleged defamatory statement is true, the Reply "specifically admitting or denying the allegation and giving the facts [relied upon]." It is not disputed that the Claimant has not complied with that provision.
27. Mr Mainwaring contended that (subject to the matter referred to below) this was a technical requirement and that the Defendant was entirely aware of the Claimant's case and that a Reply was not really necessary in the circumstances. It was suggested that the requirement was simply "overlooked" by the Claimant when he was acting in person.
28. Mr Mainwaring had drafted a Reply on the Claimant's behalf and sought permission to serve it, albeit out of time. It was a valiant attempt to comply with the Practice Direction, but in truth it did not address the issues required. That is not Mr Mainwaring's fault: the reality is that there is no substantive answer to the Defendant's Defence.
29. Had it been necessary to do so, I would have dismissed the required application for relief from sanctions and thus rejected the application to rely upon the proposed Reply, thus concluding that a mandatory requirement of the rules had not been complied with. However, such a conclusion is really a reflection of the merits of the Claimant's response to this application and thus adds nothing to it.
30. The only issue remaining is one that Mr Mainwaring has relied upon throughout, namely, that reliance on the contents of the Divisional Court's judgment runs counter to the rule in Hollington v F Hewthorn & Company Ltd [1943] 2 AER 35 that a party cannot adduce evidence of a judgment in civil proceedings, where that party was a stranger to the action, in order to establish the truth of those matters in subsequent proceedings. He submits that whether the Claimant is a vexatious litigant is a matter to be established by evidence at trial and that, as things stand, there is no admissible evidence before the court to support the Defendant's position.
31. In Hourani v Thomson [2017] EWHC 432 (QB), Warby J summarised the effect of Hollington in this way:

"… the opinions, findings, or conclusions of a court or other investigative body are, as a rule, inadmissible for the purpose of establishing the correctness of those opinions or conclusions: see Hollington v F Hewthorn & Co Ltd … and the majority in Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1 (see in particular [28]-[33], [79], [103], (Lord Hope), and [130]-[133] (Lord Hutton)). This rule, though long controversial, remains an established part of the common law. Its effects are not limited to criminal convictions (the subject matter of the decision in Hollington v Hewthorn). It extends to other findings of fact or evaluative assessments, including those contained in official reports, such as the Bingham Report on the BCCI scandal (the subject matter of the passages cited from Three Rivers.)"

32. As that passage suggests, Hollington is a much-criticised case, but naturally I would be obliged to follow its ratio if it was directly in point in this case notwithstanding that practice now is very different from what it was when that case was argued 75 years ago. On a purely practical level it would, in my view, be an absurd and disproportionate waste of time and resources for it to be necessary for a court considering the question of whether a claimant's alleged status as an inveterate litigator of hopeless causes is established in a defamation case to ignore a finding to that effect by another court (particularly at the same or higher level as the court undertaking that task) where that finding has been based on repeated individual findings by other judges or tribunals in other cases. I do find it difficult to believe that any such scenario could possibly have been contemplated by the Court of Appeal in Hollington's case.
33. However, if it be the case that the decisions and observations in other cases involving the Claimant are, strictly speaking, inadmissible for the purposes of establishing the defence of justification in this case (which I consider is the binding effect of Hollington), I consider that the source material that underlies those decisions and observations is admissible as hearsay. I respectfully agree with the analysis of Warby J in Hourani v Thomson [2017] EWHC 432 (QB) where he said this at [21]:

"The rule in Hollington v Hewthorn does not exclude reliance on hearsay statements of fact, of whatever degree, which are made or recorded in investigative reports, or in court judgments. So where a report or judgment records that a witness made a particular statement of fact to an investigator or to the court, that record can be relied on as evidence not only that the statement was made but also (if so desired) as evidence that what the witness said was true. Both sides have sought to rely on statements of this kind in relation to the issue of truth. That is legitimate. But the court has to consider what weight to attribute to such material. And that process is governed by the Civil Evidence Act 1995 and the CPR."

34. That affords a basis for receiving evidence (even in the form of the underlying material to be deduced from the contents of a judgment of a court in other proceedings) that would undoubtedly sustain a defence of justification.
35. It is not, of course, open to me to create an exception to the rule in Hollington, but were that option open to me I would, for my part, regard the process by which someone is declared to be a "vexatious litigant" to be a process by which that person is accorded a status known to the law. Only a court can establish that status after consideration of the evidence before it. As I have said, any proposition of law that required a repetition of that process in defamation proceedings in order to establish a defence of justification arising from that status could not, in my view, be supported.
36. Some broad support for that general proposition can be found, by way of analogy, in the reasoning of the Court of Appeal in Goody v Odhams Press Ltd (see paragraph 24 above). In that case the Court of Appeal allowed evidence of the claimant's previous convictions in mitigation of damages. The reasoning of Lord Denning MR at pp. 340-341, with which Danckwerts and Salmon LJJ agreed, represents a compelling rationale for permitting the reception of that evidence in that situation. Just as the previous convictions of the plaintiff in that case were destructive of his reputation, so too would be the finding of the Divisional Court that the Claimant in this case was a "vexatious litigant". The decision of the Court of Appeal in Waters v Sunday Pictorial Newspapers Ltd [1961] 1 WLR 967, per Willmer LJ at p. 973, might also be thought to afford some broad support for that approach.
37. However, irrespective of those considerations, for the reasons I have given, I hold that there is nothing in the Hollington case that precludes the reception and reliance at this stage upon the facts emerging from and underlying the conclusions reached in the judgment of the Divisional Court.
38. For these reasons, I am of the view that the claim has no real prospect of succeeding and, accordingly, the Defendant is entitled to summary judgment.