As long ago as 24 November 2005, in an interlocutory application to strike out, HHJ Previte QC sitting as a judge of the High Court dismissed the appellant’s claim in defamation brought against a supermarket chain to which he, the appellant, was delivering goods. The claim was also dismissed against an employee of the chain whom he believed had defamed him. With the leave of Keene LJ, the appellant now appeals against that dismissal and seeks to resurrect the claim, offering, in response to a request made by the respondent’s solicitors, amended pleadings in support.

Expressing my gratitude to Keene LJ for his comprehensive summary of the facts, it remains necessary to set out the background in a little detail. The appellant was a self-employed haulage driver. On 17 December 2003, he was carrying out a contract for a company for whom he regularly worked called TDG Plc. On that day he was delivering goods for Kimberley Clark corporation to the first respondent’s distribution depot at Wakefield. There he had unloaded the goods, but was waiting for the goods to be checked, so that the delivery note could be signed on behalf of the first respondent. An argument developed between the appellant and the employees of the first respondent. The upshot was that the delivery note was taken into the first respondent’s office and in due course brought back to the appellant, signed with the words “goods unchecked” written on it and also the following words “driver banned from any Morrisons site”.

In due course the appellant passed the delivery note on to TDG as he was required to and as, according to the judge, the respondents must have anticipated. The appellant claimed that the words had damaged him in his livelihood. He sued in defamation both the first respondents and their employee, whom he named as Mark Downing.

The particulars of claim were originally drafted by the appellant acting in person, adopting a narrative style which perhaps, not surprisingly, did not comply with the Civil Procedure Rules. The case came before HHJ Previte on 18 October 2005 on an application for summary dismissal. The judge did not accede to that application but he observed that while the words used were defamatory and had been published to a third party, the respondents were clearly going to rely on qualified privilege. A proper reading of his judgment appears to make it clear that he believed was the appropriate and operative defence. The appellant, who by that date was represented by counsel, asserted that, in that event, they intended to respond with an allegation of malice.

The judge noted, as was indeed the case, that the respondents in their defence denied that the second respondent, Mark Downing, had written the words complained of and asserted that they had been written by another employee for whom the respondent was responsible. The judge observed that malice was likely to be the live issue of the trial and that, despite the delay in taking proceedings, the matter should go to trial. He put the matter in this way:

Thereafter, he gave directions directing the applicant to amend his particulars of claim and serve a draft reply giving particulars of malice by 1 November 2005. No application had in fact been made by then, but amended particulars of claim and a draft reply were served on the respondent’s solicitors by that date. There was still no application by the time an unless order was made on 15 November 2005. The application was issued the following day.

The draft reply spelt out particulars of malice brought against the second respondent, Mr Downing. It was, for example, pleaded that he was giving vent to personal spite and ill-will towards the appellant by putting the words, or causing to put the words complained of on the delivery note. The phrase “causing to be put” is apt to describe a situation in which he has made malicious complaint to his superior who has then, in fact, instructed that the words be placed upon the delivery note.

The solicitor’s response gave notice that they regarded those particulars as speculative; they would ask the judge to strike out the claim. So on 24 November the matter came back before HHJ Previte. He considered the substance of the matter rather than the breach of the time stipulation. He pointed out in his judgment that the appellant’s case depended on establishing express malice and that the respondent’s case had always been that the named second respondent, Mr Downing, had not written the words nor caused them to be written.

A witness statement by Mr Stephen McVeigh of the respondent’s solicitors identified the person who decided that the words should be written as the line manager of Mr Downing; that manager was not identified by name. This witness statement was dated 22 November. Then, at the hearing itself, yet a further witness statement was obtained by the respondents from Mr McVeigh which was put in, as I understand it, after the short adjournment. It sought to deal with this matter in more detail as a result of a conversation which the solicitor had had with the line manager who was described as the general manager of the depot; he was still not identified by name.

When that statement was served, and Mr Boggis-Rolfe today accepts that it fleshes out what had previously been asserted on several occasions, counsel for the appellant sought an adjournment so that he could take instructions. However, the judge took the view that it had been the respondent’s case for a considerable time that someone other than Mr Downing had published the words and the appellant would be in no position to give instructions on that aspect because he was not in the respondent’s office when the words were written. He therefore could not refute that part of the respondent’s case, namely that the line manager rather than Mr Downing had written the words or caused them to be written. The judge thereafter observed:

The appellant appealed against that order but again did not comply with the rules. The result was that he was dismissed, thereafter being renewed before Keene LJ by which time he was represented by Mr Jonathan Miller, who argued successfully that it was at the very least arguable that a proper reading of Mr McVeigh’s second statement suggested that only two people had been involved with the appellant which he said was consistent with the appellant’s account. It is submitted that was the second of these people who had become vehement and with whom the appellant had had an argument. If this was not Mr Downing, it must have been the line manager, and if it was him he is the same person who it is said wrote defamatory words about him, so the allegation can stand even if he is mistaken in saying the man identified himself as Mr Downing. It was in those circumstances that leave was granted.

In this court, Mr Miller has developed the argument that he advanced before Keene LJ. Mr McVeigh’s second statement put the matter in this way:

Before going on it is worth making the point that the statement again does not identify by name the person who wrote the offending words on the delivery note, thereby preventing the claimant from fixing the identity of that employee even at that stage. For my part, I deprecate this approach. It was not by chance. In any event, even without identifying him it does not answer the undoubted point that whoever did so was acting in the course of his employment and thus potentially creates a liability, if liability there is, in the first defendant’s employers. Even if the person who directed the words be written on the delivery note was not the person with whom the argument took place, it remains possible circumstantially to argue that any malice which infected the person involved in the argument was then passed on and infected those responsible for the delivery note.

Whatever be the merit of that, Mr Miller has analysed the statement in this way. He says with force the appellant has always made clear that he had spoken to two people at the first defendant’s site. The first person who he described as a foreman told the claimant to remove his vehicle, leave the site and return to collect the checked receipt note. The foreman then became aggressive and called the second person, described as “shift supervisor” whom he said called himself Mark Downing and it was this second person who threatened to terminate his contract and subjected him to threat, later returning the delivery notes endorsed with the potential defamatory remark.

Even if he is wrong, he believed that it was the second person who identified him as Mark Downing. The proper course, so it is submitted, would not have been to refuse the adjournment so that this statement, produced at the eleventh hour and fifty-ninth minute could be considered, but rather to require the identification of the second person and consider whether to permit adding or substituting him as a defendant under CPR 19.5.3(a), on the basis that it is clear that the relevant party has been misnamed and his identity can be made clear by reference to a description specific to the case.

Mr Boggis-Rolfe, who appears for the respondents in this court as he has below, took a robust line and addition, by respondents’ notice, advanced other reasons why this appeal should be refused. He said, as is undoubtedly the case, that this claim had been delayed and he said that the defendants had been caused prejudice, not least because the proceedings were, in his submission, grossly disproportionate to what is at stake and thus a storm in a teacup.

As to the facts, he explained that there were four people involved. The foreman, whom the claimant has alleged was aggressive; the supervisor, or goods in manager; the line manager instructing endorsement and the checking clerk who wrote it. In his skeleton argument, none of these other employers are named, although one has been named in answer to a request from my Lord, Lord Justice Sedley. He thus argues that the statement is not corroborative of the claimant’s account. He goes on to say that the weakness of the request for an adjournment in November 2005 is clear from the fact that the pleadings had not been perfected even on his own account (notwithstanding the judge’s leniency) and that no reply alleging malice against the line manager existed. The claimant should not, he argued, be given further information to make up a case which he said did not exist. He argued that the court is being asked to substitute a new and unknown defendant some two years after the expiration of the limitation period.

With forensic care, Mr Boggis-Rolfe took us through the correspondence and the pleadings to demonstrate that the denial that it was Mr Downing who had caused the endorsement to be written was known at a very early stage. He accepts, however, as is the fact, that prior to production of the second statement on the day of the hearing, HHJ Previte had been minded to reject the application to strike out. The judge observed in his judgment:

It is important to underline that the learned judge did not dismiss this case for pleading or technical reasons. He did so because he thought that an adjournment would not avail the claimant because he could not challenge the defendant’s evidence that the words complained of were written by the line manager and the second defendant was no more than a postman. That required him to take at face value the words of that second statement without having given the claimant the opportunity to deal with it.

In my judgment, the learned judge should have been very slow to decide the strike out on the basis of evidence obtained during the hearing. It was not just a question of whether the claimant could rebut that which was asserted; if it was to be determinative counsel then appearing was entitled to have the chance carefully to consider it, to take instructions and to see whether -- as is now argued -- it might not provide some other support for the way in which the events transpired, even if the employee responsible had been misidentified. Furthermore, whosoever might have published the words, liability to that publication and for any malice that could be established on anyone acting in the course of his employment would arguably remain with the first defendant vicariously; see Egger v Viscount Chelmsford [1965] 1QB 248, 291(d-f).

Given the potential argument that malice can be established on circumstantial evidence, I for my part would not be prepared to dismiss this claim as unsustainable. I take that view notwithstanding the additional arguments advanced by Mr Boggis-Rolfe by way of the respondents’ notice. In concentrating on the narrow picture of the identification of the second defendant in my view the learned judge failed to keep the wider perspective in mind and thus fell into error as a result.

I have two further observations. First, I accept, of course, there has been considerable delay, not least because the passage of time before the commencement of proceedings. The judge was entitled to have regard to this delay but, in my judgment, given the detailed history, it should not be considered as determinative. Given the extent to which the defence had been somewhat coy about identifying those who were involved in this incident, whose identity must have been known to them, I am not prepared entirely to commend their handling of this litigation.

Secondly, although any challenge to the claimant’s professionalism is one which he is entitled to take seriously, given what I understand to be the absence of specific adverse consequences to him, I accept that it may be correct now to describe the case as having developed into a storm in a teacup. For that reason, although I would allow the appeal and restore the claim, I would not presently be prepared to deal with any other aspect of its further disposal.

In my judgment, it is absolutely essential that mediation of this dispute is undertaken as a matter of extreme urgency. Both sides must take a realistic line as to the view to be taken in the light of all the circumstances and the passage of time. For a formal disposal, however, I would allow the appeal and direct that it be transferred for a further hearing to an appropriate county court. Having said that, I simply cannot believe that sensible advice should not bring this dispute to an end.

I agree with the entirety of my Lord, Lord Justice Leveson’s judgment and would particularly, with respect, endorse what he has said about the importance at this stage of mediation.

I agree that the appeal should be allowed and that the action should be restored and remitted -- subject to any arguments to the contrary by counsel -- to the county court for directions and hearing. Put at its simplest, the claim is against the first defendants, Wm Morrison Supermarket Plc, and one of its employees, named in the claim as Mark Downing, alleging that that employee had libelled or caused the claimant to be libelled and, in response to a defence of qualified privilege, had done so maliciously. It was inherent in the account indicated by the claimant in his pleaded case that at least one other employee of Morrison was involved in the chain of events giving rise to the alleged libel by the employee he named as Mark Downing. Morrison’s and Mr Downing’s case, as it developed, was that Mark Downing was not the publisher of the alleged libel or the person who had engendered it, but that it was another employee of Morrison, whom it did not identify before the judge, and only did so in this court after being pressed by the court to do so.

The claimant’s pleading of his claim was deficient in a number of respects, and, in the light of the case of Morrison and Mark Downing as to which of Morrison’s employees had published or caused to be published the words complained of, required proper particularising by an amendment of the pleadings, in particular, in his proposed reply. The reason given by the judge for his decision, in paragraph 18 of his ruling, refusing the claimant permission to amend his pleadings and dismissing his claim, was that, on the information finally put before him by Morrison and Mark Downing, the claimant had wrongly identified Mark Downing as the culprit, whereas on the evidence advanced at that stage by Morrison he was not, and so could not have been actuated by malice in the matter. On that basis, reasoned the judge, the claim could not succeed because the claimant could not overcome Morrison’s and Mark Downing’s pleaded defence of qualified privilege.

In my view, for the reasons given by Lord Justice Leveson, the judge was wrong so to conclude. This was a claim in defamation against Morrison, in respect of conduct by at least one of its employees, as well as the named employee, Mark Downing. It is yet for determination on evidence, and on a properly pleaded issue between the parties, whether the appropriate employee is included in the proceedings, as to his responsibility for publishing or causing publication of the libel, and as to his malice or otherwise in doing so.

The appeal is therefore allowed, the action is to be restored and the court proposes to remit the matter to the county court.