MR JUSTICE GRAY: This is an application by the defendants in this libel action, Associated Newspapers Limited, to strike out the claim of the claimants, who are Miss Sarah Pedder, formerly an Army Captain (I am using her maiden name), and Sergeant Allan Dummer, who is still serving in the Army. The grounds of the application are that the claimants’ statement of case discloses no reasonable grounds for bringing the claim and/or is an abuse of the process of the court within the meaning of CPR 3.4, or, in the alternative, that the claimants have no real prospect of success so that summary judgment should be entered for the defendants under CPR 24.2. If the claimants survive both applications, there is an alternative submission by the defendants that the trial of this action should be stayed until after the trial of another libel action brought by the claimants against the Sun, which had published broadly similar allegations about them.

There are two publications sued on in this action. The first appeared in the issue of the Evening Standard for 21^st February 2002. It is relatively short, so I will read it in full. It is headed, “Army Captain faces sack over her ‘affair.’” The text of the article is as follows:

The second article complained of was published by the same defendants in the issue of the Daily Mail for 22^nd February 2002, the next day. It is rather longer and so I will not lengthen this judgment by quoting it in full. Suffice it to say that it is headed, “Desert manoeuvres.” The subheading reads, “Woman captain admits affair with married junior on war exercise.” It is in broadly similar terms to the article in the Evening Standard. There are, however, two sections which I should read. The article commences as follows:

A letter of complaint about the Daily Mail article was written to the defendants by the solicitor acting for the claimants on 4^th March 2002. It identified the defamatory imputations as being (1) that the claimants had an illicit and improper sexual relationship during an important Army exercise; (2) that the claimants made improper use of military transport to further an illicit and improper sexual relationship and (3) that the claimants lied about their relationship.

According to the letter, the correct account of the claimants’ relationship was this: (1) Sarah Pedder joined 261 Signals Squadron in May 2000. Allan Dummer was already with the squadron as staff sergeant in charge of transport and movements. (2) Between May and November 2000 the claimants were on exercise with their unit in Oman. Each returned to the UK at times during this period. (3) The friendship between Sarah Pedder and Allan Dummer only became an emotional one on or around 26^th November 2001. At this stage there was no sexual relationship between them. (4) On 29^th November 2001 Sarah Pedder and Allan Dummer returned to the United Kingdom from exercises in Oman. (5) On 3^rd, 4^th and 5^th December 2001 Sarah Pedder and Allan Dummer discussed their future at length and came to the decision that they would each leave their spouses and enter into a relationship together. (6) On 6^th December 2001 the claimants informed their unit authorities of this decision. (7) On the weekend of 15^th/16^th December 2001 the relationship became a sexual one for the first time. Since then the claimants have continued their relationship. (8) The claimants quite deliberately did not allow their relationship to become sexual until after they had informed the unit authorities.

Proceedings were commenced. The defamatory meanings alleged to have been conveyed to readers of the Evening Standard were (1) that the claimants during an important Army exercise in Oman indulged in an illicit and improper sexual relationship, during which they had sexual intercourse; (2) that the claimants had made improper use of military transport in furtherance of their illicit and improper sexual relationship during the exercise in Oman and (3) that the claimants lied as to when their sexual relationship had started.

As regards the Daily Mail article, the pleaded meanings are (1) that the claimants during an important Army exercise in Oman indulged in an illicit and improper sexual relationship during which they had sexual intercourse; (2) that they failed to carry out their duties during the exercise in Oman as they were distracted by their sexual relationship; (3) that the claimants’ behaviour was particularly reprehensible because the claimants’ unit could have been sent into action in Afghanistan and (4) that the claimants had lied to their unit authorities in claiming that there was no sexual relationship between them while they were on exercise in Oman.

Whether the articles did in fact convey those meaning to the readers of the newspapers will, subject to the outcome of the present application, of course be a matter for the jury to determine at trial. The point is made on behalf of the claimants that the defendants have not hitherto sought a ruling from the court pursuant to CPR 53 PD paragraph 15 that the words are not capable of bearing the meanings alleged. The Defence does, however, deny that the words bore the meanings for which the claimants contend.

In the alternative, the defendants plead justification, asserting that the Evening Standard article was true in the meaning that:

The same particulars are relied on in support of the defence of justification advanced in relation to the Daily Mail article. In the case of that article, the meaning sought to be justified is somewhat different, namely (a) that the claimants had, alternatively there were reasonable grounds for believing that they had, broken the Army’s code of conduct whilst serving together on a training exercise in Oman by having an affair, had thereby acted in an unacceptable manner and the Army was therefore conducting an investigation into the claimants’ conduct; and (b) claimed that their relationship had only started after they returned from Oman, deliberately failing to provide a full account of what had happened between them in Oman. So in the case of the Daily Mail article, but not the Evening Standard article, the defendants are maintaining that the claimants had had an affair in Oman, i.e. they seek to justify a higher meaning than in the case of the Evening Standard article.

Miss Adrienne Page QC, who appears for the defendants, tells me that the defendants rely, for the purposes of the present application, on matters and on documents which were disclosed in the action but which have not yet found their way into the defendants’ statement of case. (I will refer to them in due course.) There is also pleaded a defence of Reynolds-type qualified privilege, but for present purposes nothing turns on that.

The Reply served on behalf of the claimants sets out, at paragraph 2, what they say was their relationship at the material time, it being accepted that they now cohabit as partners in a sexual relationship and are intending to get married. It will suffice if I paraphrase what is set out in the Reply. It is pleaded that during a beach party on 24^th November 2001 the claimants spent most of the time in each other’s company, but there was no sexual contact between them. It is then said that the friendship between the claimants became an emotional one on or around 26^th November, but again at this stage there was no sexual relationship between them. Following the claimants’ return to the UK, it is pleaded that at a meeting with Major Fenson, the Commanding Officer, he enquired about a rumour that the claimants had had sexual relations together, but the first claimant, Miss Pedder, said that such a rumour was untrue. On 3^rd, 4^th and 5^th December 2001 the claimants discussed their future and decided to leave their spouses and enter into a relationship together. Sexual intercourse took place for the first time over the weekend of 15^th/16^th December 2001.

Such are the statements of cases in the action. The trial is due to take place at the end of June 2003. The present application comes very late in the day, but if the ground of either limb of the application is made out the action must be struck out, notwithstanding the lateness of the application.

Miss Page referred me to the notes in the White Book to CPR 3.4 and 24. She places reliance, in particular, on two authorities, Wallis v Valentine [2003] EMLR 175, and Schellenberg v BBC [2000] EMLR 296, to which authorities I will return. The defendants’ primary contention is that even if this case is taken at its highest from the point of view of the claimants, the claim should be struck out, either on the basis that there is no real prospect that the action will succeed as to liability, or because the claimants have no real prospect of obtaining either an injunction or anything more than nominal damages. It is submitted that the game is not worth the candle.

In the alternative, the defendants contend that they can satisfy the limited burden of proof which lies on them under CPR Part 24, but that the claimants cannot discharge the burden which, according to the notes in the White Book at page 493, lies upon them to show that their case carries some degree of conviction. The court can and should dismiss the claim on the ground that no reasonable jury, considering the claimants’ evidence, would accept it.

Finally, the defendants argue that even if, contrary to their primary contention, the claim is not otherwise doomed to failure on its merits, it should nevertheless be struck out as an abuse of the process, as happened in the case of Schellenberg. In this connection, the defendants rely strongly on the findings of the Army Board of Enquiry about which it is suggested the jury would be bound to learn in the course of any trial.

Miss Page’s skeleton argument runs to 19 pages and deals with the facts of the case in considerable detail. I hope I do no injustice to the defendants’ argument if I summarise the points made as follows. First, it is said that it is apparent from the documents which have subsequently come to light and from statements subsequently made that Miss Pedder was lacking in candour in her answers to questions asked of her by her commanding officer on 30^th November 2001 about rumours of her relationship with Sergeant Dummer. Next, the defendants draw attention to the letter which Miss Pedder wrote to her commanding officer on 5^th December 2000, the opening paragraph of which reads:

In relation to the Evening Standard article, the defendants say that the statements in the article were true, in that Miss Pedder was facing the sack amid claims that she had an affair with Sergeant Dummer during a desert training exercise; Miss Pedder and Sergeant Dummer admitted to an affair to their superiors; and Miss Pedder and Sergeant Dummer told their respective spouses that their marriages were over. The defendants further say that it is correct that both the claimants claim that their relationship began after their return to Britain, but there were contrary claims from colleagues.

As to the Daily Mail article, the defendants point out that the sub-headline, “Woman Captain admits affair with married junior on war exercise” was correct. The defendants say they reported correctly the confession made by Miss Pedder to her commanding officer on her return to Britain. The Daily Mail article is correct also in saying that the claimants told senior officers that their physical relationship only began after they returned to Britain, but that there were contradictory accounts from others about when the physical relationship began. The article was also correct, say the defendants, in stating that Miss Pedder faced being thrown out of the Army and that both claimants could lose their jobs.

Reliance is also placed by the defendants on the proceedings brought against the claimants before the Army Board of Enquiry. The outcome of that enquiry was that it was determined by the Board that:

Miss Page accepts that the defendants cannot rely on those findings in support of the defendants’ plea of justification, although she contends that the findings would be admissible and damaging to the claimants on the issue of damages if it were to arise.

For the claimants, Mr Mackenzie submits that if the Galbraith test of asking whether a jury, properly directed, could properly conclude the issue of liability in favour of the claimants, the answer would be affirmative. The same, he submits, applies to the issue whether the claimants were entitled to more than nominal damages. As to the articles themselves, the claimants’ case is that the references in that context to an “affair” can only mean that there was a sexual relationship between them whilst they were in Oman. The claimants underline the numerous references in both articles to the fact that the alleged affair took place whilst the two of them were participating in a major Army exercise. An important aspect of the defamatory sting alleged by the claimants is that to embark on such an affair in such circumstances is particularly irresponsible. The articles, it is said, are an attack on the claimants’ professional integrity.

As to the Army Board of Enquiry, it is submitted that its findings would not be admissible at all at the trial. Use could, it is conceded, be made in cross-examination of the answers given by the claimants, but those answers must be considered in the light of what are said by Mr Mackenzie to be the deficiencies and unfairness in the way in which the enquiry was conducted.

I am now in a position to state my conclusions, starting with the law which is applicable on applications on this kind. As regards the application to strike out on the ground that the claim has no real prospect of success and the alternative submission that there should be summary judgment for the defendants, it was at one time thought that such powers would not ordinarily be available in cases such as the present, where the trial will be with a jury -- see Safeway Stores plc v. Tate [2001] EMLR 13. This notion was effectively scotched by the Court of Appeal in Alexander v. Arts Council of Wales [2001] EMLR 27, in which case May LJ said at paragraph 37:

That the power to give summary judgment or to strike out in a libel case to be heard with a jury should be sparingly exercised is, to my mind, illustrated by Wallis v. Valentine. That was a claim where there was an issue as to the extent of the publication of the libel. The evidence on that issue for the defendants was overwhelming. The Court of Appeal upheld the decision of the judge to rule that such publication had not taken place, stressing that in a defamation case, where the claimant had a right to trial by jury, the court could only give summary judgment under Rule 24 if there was no evidence fit to be left to a jury on the essential issue. If there was some evidence which the jury might properly accept, then the court ought not to give summary judgment. In other words, the test to be applied is the Galbraith test.

In this connection I note that in Spencer v. Sillitoe, to which Miss Page made passing reference in the course of her submissions, the Court of Appeal underlined the limited entitlement of the judge to encroach upon areas which fall for decision by the jury. At paragraph 26 of his judgment in that case Buxton LJ said:

A further point which appears to me to emerge from Spencer v Sillitoe is this. In the passage already cited from the judgment of Buxton LJ, he endorses the approach adopted by Eady J in Schellenberg to the defendant’s argument that the claim should be struck out as an abuse of the process. But as I read his judgment he cautions against the adoption of so robust an approach on an application in a jury action either to strike out on the ground that the claimant has no real prospect of success or for summary judgment.

In these circumstances, it seems to me that in actions which are due to be tried with a jury, the notes to CPR 3.4 and 24.2, to which Miss Page referred me in the course of argument, have to be read with it well in mind that the scope for interlocutory judicial intervention is markedly more limited in cases due to be heard with a jury. The notes which appear at 24.4.4 under the rubric “No other compelling reason for a trial” are very much in point.

As to the defendants’ alternative ground of application, namely that the action should be struck out as an abuse of the process, they rely heavily, as I have already indicated, on the case of Schellenberg. Eady J said in that case at pages 321 to 322:

It is a trite observation that the question of whether or not a particular case can be regarded as an abuse of process is acutely fact-sensitive. Abuse may take many forms. In cases such as the present, where it cannot be said that the doctrine of res judicata or even issue estoppel applies, the words of Sir David Cairns in Bragg v. Oceanus Mutual [1982] 2LlR 132 at 138 are in point:

The defendants invite me to follow the course taken by Eady J in Schellenberg. In considering that invitation I have to bear in mind the special circumstances which obtained in that case. The claimant had previously brought another libel action against different defendants, but in relation to broadly the same subject matter. After that action had proceeded at trial for three weeks, and the trial judge had made clear in the absence of the jury his unfavourable view of the merits of the claim, the claimant settled the action on terms which were highly unfavourable. The defendants sought to dismiss the second action as an abuse of process. As Eady J put it:

It is convenient to consider, first, the overlapping questions whether the statement of the claimants’ case discloses reasonable grounds for bringing the claim and whether the claimants have a real prospect of succeeding in the action.

The first issue which would arise at trial is whether the claimants have a real, as opposed to a fanciful, prospect of establishing the meanings on which they rely, as set out earlier in this judgment. That depends largely in relation to both articles on what the jury might consider to be the connotation of the word “affair” when used in articles such as those published in the Evening Standard and the Daily Mail. As to this, I will say no more than that I am satisfied that the claimants do have a real prospect of establishing the meanings for which they contend.

Before passing from the issue of meaning, I should add that I also accept that the claimants have a real prospect of establishing at trial the meaning that the illicit and improper sexual relationship took place in circumstances where both claimants were engaged upon an important Army exercise in Oman. The timing of the relationship might not unreasonably appear to the jury to be a material part of the sting of what was published about them by the defendants. I further take the view that the claimants have a reasonable prospect of establishing that both articles bore the further meaning that they had lied to senior officers about the time when the sexual relationship started -- see paragraph 8 of the Evening Standard article, and paragraphs 8 and 9 of the Daily Mail article.

The next live issue for the jury if the matter were to go to trial would be whether the claimants have a real prospect of defeating the plea of justification. I have set out at some length earlier in this judgment the various matters relied on by the defendants in support of their contention that the claimants’ claims to have been libelled are wholly lacking in merit. Given the possible imminence of the trial of this or another related action, it would not be right for me to engage in an elaborate analysis of the merits or otherwise of the plea of justification. Suffice it to say that it appears to me, applying the Galbraith test, that a properly directed jury could, not unreasonably, reject the defence of justification. I accept that the defendants do have some formidable points to make on the facts, such as the evidence of Signalman Choudray, the terms of the claimants’ letters of 5^th May to Major Fenson, the answers given by the claimants in the course of their evidence to the Army Board of Enquiry, and so on. But I cannot say that a jury would be unreasonable to accept the claimants’ explanations of those and other points. The jury might, not unreasonably, take the view that there is a material difference between an affair between soldiers in the same chain of command during a serious military exercise and an affair after their return to the United Kingdom, when they had been transferred to separate units and when one of the claimants appears to have accepted that her career in the Army was effectively over. Moreover, if the jury accept that the sexual relationship did not start until after the claimants’ return to the United Kingdom, there would appear to be no answer to the complaint that the articles accused the claimants of mendacity on that point.

I come finally to the issue of damages. I accept the proposition that if I were to take the view that no jury, properly directed, could award more than nominal damages, it might well be appropriate to strike out the claim and/or to enter summary judgment for the defendants. But that is not my view in the circumstances of this case. If the jury were to find in favour of the claimants on meaning and justification, as I consider a jury reasonably might find, then it appears to me to be open to a reasonable jury, properly directed, to award more than nominal damages against the newspaper. I cannot accept the defendants’ contention that the finding of the Army Board effectively rules out any significant award of damages. It is a moot point whether the Board’s findings would be admissible on the issue of damages. I put it this way, because Miss Page has urged me not to make any finding on the point and I do not do so. Even if the findings were to be held to be admissible, it has to be borne in mind that the hearing took place in private and in circumstances of confidentiality, and the findings have received virtually no publicity. Moreover, the jury might be impressed with the criticisms which Mr Mackenzie has had to make of the procedures adopted by the Board and the matters to which the Board paid regard in arriving at its conclusions

For these reasons, I do not accept that this is a case where I should strike out the claim on the ground that the statement of case discloses no real prospect of success for the claim, nor is it in my judgment a case where I should enter summary judgment for the defendants.

There remains to be considered the defendants’ contention that the claim should be struck out as an abuse of the process. The cornerstone of that contention is the conclusion of the Army Board of Enquiry, which I have already quoted. It is not of course suggested that it gives rise to any form of estoppel. Nor is it claimed that there is any collateral objective or motive underlying the bringing of these proceedings. Reliance is, as I have said, placed on Schellenberg. But it will be readily apparent from my earlier summary of the facts of that case how far removed it is from the facts of the present case. There has here been no prior litigation. It cannot be said of these claimants that they are engaged in an exercise of damage limitation. As I have found, there is a real prospect of the recovery of more than nominal damages. In those circumstances, I am not satisfied that the prosecution of this claim amounts to an abuse of the process. I decline to strike out the claim on that ground.