Edo Technology Ltd ("Edo") & Anor v Campaign To Smash Edo & Ors

CAMPAIGN TO SMASH EDO (“SMASH EDO”) [struck out]

BOMBS OUT OF BRIGHTON CAMPAIGN (“BOOB”) [struck out]

MATHEW AXWORTHY

SIMON LEVIN

CHRISTOPHER OSMOND

ANTHONY PARKER

CYNTHIA SCHWARTZ

ELIZABETH WELCH

PENNY STEEL

LORNA MARCHAM

TOM DALY

JAYA NYANAJOTI

THOMAS GITTOES

JAMES FENN

PAUL FENN

RICHARD HOLLIS

CERI GIBBINS

Table of contents:

In this judgment I deal with the adjourned hearing of two applications. In circumstances noted below under the heading “Procedural History”, the applications in question were adjourned by me on 1.12.05, and now concern a reduced number of defendants. Of that reduced number only the 5^th and 10^th defendants have taken an active part in the proceedings. Both the 5^th and the 10^th defendants act as litigants in person. Mr Robert Englehart QC and Mr Clive Jones act on behalf of the claimants following the adjournment of the applications. They did not act for the claimants at any earlier stage.

The first application is set out in Application Notice number 953 issued by the 5^th defendant, Mr Christopher Osmond, on 4 November 2005. The formal application seeks orders in respect of the claimants’ disclosure and witness statements. As developed orally, however, the purpose of the application is to seek orders either that the claim should be struck out by reason of various alleged failings on the part of the claimants or that the claimants should lose the benefit of an interim injunction granted by Gross J on 29 April 2005 (“the April Injunction”). Although issued by the 5^th defendant alone, this application is supported by the 10^th defendant, Ms Lorna Marcham. Mr Englehart has indicated that the claimants have no objection to the 10^th defendant seeking similar orders to those sought by the 5^th defendant. I shall refer to this application as “the D5 Abuse of Process Application.”

The other application dealt with in this judgment is set out in Application Notice number 970. This was issued by the claimants on 9 November 2005, and seeks permission to amend the particulars of claim. I shall refer to this as “the Amendment Application.” A draft amended particulars of claim accompanied that application, and I shall call it “Draft 1”. It has been superseded by subsequent drafts, the latest of which I shall call “Draft 4”. Mr Englehart accepts that Draft 4 requires further revision.

I shall give summaries of the claimants’ case as originally formulated, of the issues arising from the defences, and of the procedural history, before turning to deal with the Amendment Application and the D5 Abuse of Process Application.

The first claimant ("EDO") is a company incorporated in this country. It has a factory in Brighton (“the Property”) where it designs and makes weapons and related equipment. The equipment made in Brighton is sold to the governments of the United Kingdom and the United States of America. The defendants allege that it is also sold to the government of Israel. Mr David Jones was the managing director of EDO and as second claimant brought these proceedings for and on behalf of the employees of EDO pursuant to CPR 19.6. He has now retired. His successor, Mr Paul Hills, has taken his place as second claimant. I shall refer to Mr Jones, Mr Hills and other employees of EDO as the “second claimants”.

The second claimants maintain that the defendants have, through a protest campaign conducted by themselves and other activists, pursued a course of conduct against the second claimants amounting to harassment under the Protection From Harassment Act 1997 ("the PHA 1997"). When issuing these proceedings on 22nd March 2005 they sought an injunction prohibiting certain future conduct. The cause of action for seeking an injunction was explained in this way in paragraphs 11 and 25 of the particulars of claim:

The particulars of past unlawful harassment promised at paragraph 11 included reference back to three events described in paragraphs 4, 5 and 6:

The remainder of the particulars at paragraphs 12 to 25 described objectionable conduct attributed to “unknown and unnamed protestors”. This included the targeting of directors’ homes, threats on websites, an invitation to protestors to conduct a telephone blockade, a “week of action” commencing on on 29 August 2004 involving a protest camp near the Property, the use of paint bombs and graffiti, assaults on security staff and the accosting and photographing of employees, aggressive and alarming conduct directed at employees driving to and from the Property, noisy and aggressive protests involving obscenities and shouts of “killers”, and repeated trespasses including criminal damage to the Property, the dumping of horse manure and ballast outside doors to the Property and the insertion of superglue into locks.

At paragraph 3 it was asserted that since about January 2004 Smash EDO and BOOB had been conducting a concerted “anti-war campaign” with the declared object of removing EDO from Brighton, and in support of this assertion various website publications were relied on. Paragraph 9 said that actions of the 3^rd to 16^th defendants had been carried out “in close association” with” the anti-war campaign against the claimants co-ordinated by Smash EDO and BOOB, and further website publications were relied on. However these paragraphs were not specifically the subject of reference back in the particulars at paragraphs 12 to 25.

The claimants relied on s 1(1) of the PHA 1997 when seeking the April Injunction. However, it has been held that s 1(1) does not confer rights of action on a company. It was accordingly stated on behalf of EDO at the hearing for the April Injunction that it participated in these proceedings on the basis that it was not seeking any relief in its own right.

As to the cause of action under the PHA 1997, the starting point is section 1 subsections (1), (1A) and (2), which are as follows:

I shall return to subsection (3). Section 1 is to be read with section 7 subsections (2) to (5) which state:

The criminal offence of harassment is created by section 2 in these terms:

A civil remedy is conferred by section 3. I need set out only subsections (1) to (3) as follows:

Returning to section 1(3), this disapplies section 1(1) and section 1 (1A) in certain circumstances. It reads:

The burden of proof of the matters set out in s 1(3) lies on the defendant. Accordingly it was not necessary for the claimants to deal with those matters in the particulars of claim, and they did not do so. However, as the claim for an injunction was founded on assertions of past breaches of s 1, it was to be expected that the defendants would seek to answer those assertions by relying on s 1(3).

No defences were served by the 1^st and 2^nd defendants. Nobody acknowledged service on their behalf, and they were struck out by order of Gross J on 29.4.05.

The defences of the 3^rd, 4^th, 8^th, 11^th, 14^th and 15^th defendants were set out in a single document served on 3.6.05. A separate defence of the 12^th defendant was served on 1.6.05. All these defendants were represented by Moss & Co, and I shall refer to them as “the Moss Defendants.”

Separate defences of the 5^th and 10^th defendants, each of whom was acting in person, were served on 3.6.05.

After the grant of the April Injunction Mr Ceri Gibbons was joined on his own application as 17^th defendant. His defence, served on 3.6.05, explained that as the April Injunction applied to all those with notice of it, he had joined the proceedings to defend his interest as a lawful protestor.

No defences were served by the 6^th, 7^th, 9^th, 13^th and 16^th defendants. They have taken no active part in the proceedings.

A primary head of defence emerges from the defences that were served. This is that, leaving aside s 1(3), the defendants deny that their actions, whether individually or taken together, contravened s 1(1). They say that their individual acts and the extent to which any defendant can be held responsible for the acts of others on the facts of this particular case will have to be determined at trial.

So far as this head of defence is concerned, it seems to me that it can succeed in one or other of two ways. One way is that if a defendant's acts, including deemed acts under section 7(3A), are not shown by the claimants to constitute a course of conduct amounting to harassment then the claim against that defendant will fail. The other way is that the claimants may be unable to show that a defendant knew or ought to have known that such course of conduct, as is proven by the claimants, amounted to harassment. In that case also the claim against such a defendant will fail. On this first head of defence it is the claimants who bear the burden of proof.

A second head of defence will only be needed if the claimants overcome the first head of defence. It relies upon section 1(3)(c) of the PHA 1997 as disapplying the operative parts of that statute. Here the defendants say that any course of conduct that the claimants may prove at trial was, in the particular circumstances, reasonable. This head of defence requires the court at trial to strike a balance between, on the one hand, legitimate protest involving a proper invocation of principles of freedom of expression and, on the other hand, interference with the rights of others.

It is common ground that the burden of proof under section 1(3)(c) lies on a defendant. If a defendant meets that burden of proof, establishing that the course of action in question was reasonable, then the claimants’ claim fails so far as that defendant is concerned.

A third head of defence would only have arisen if both the first and second heads of defence failed. It said that section 1(3)(a) of the PHA 1997 disapplies operative parts of the statute on the basis that any course of conduct that the claimants may prove at trial was pursued for the purposes of preventing crime. Pursuant to an order made by Simon J on 12th July 2005 a composite document particularising this head of defence was served by participating defendants on 4th August 2005. The essential thrust was that any course of conduct that the claimants might prove was pursued for the purpose of preventing (i) the crime of aggression, and/or (ii) offences under the Geneva Conventions Act 1957, and/or (iii) offences against the International Criminal Court Act 2001. In the light of this document at a case management conference on 9.9.05 Simon J identified questions that should be tried as preliminary issues. A trial of those preliminary issues took place before me on 1.11.04 to 3.11.04. I gave judgment on 4.11.05. My findings on the preliminary issues led me to conclude that the third head of defence was not open to the defendants, as the matters they relied upon did not fall within s 1(3)(a).

Thus, following my judgment of 4.11.05, the first broad issue arising at trial was whether the claimants could show conduct attributable to any particular defendant amounting to harassment and that the defendant knew or ought to have known that it amounted to harassment. If so, the second broad issue was whether that defendant could show that his or her conduct was reasonable.

At a hearing on 14 April 2005 Gross J gave directions to enable an application for an interim injunction to be heard later that month. At this hearing, and at all subsequent hearings until the end of last year, Mr Timothy Lawson-Cruttenden of the claimants’ solicitors acted as their advocate. On behalf of the claimants he put before Gross J on 14.4.05 a statement of Detective Constable Bialoszewski of Sussex Police. Exhibited to that statement were copies of the criminal records of certain of the defendants. Included in this material were records of conviction for offences committed in the course of protests against EDO at or near the Property. The records were not confined to such offences, however. Additional material included:

Detective Constable Bialoszewski’s statement said that it and the material exhibited to it had been supplied to Timothy Lawson-Cruttendon in his formal capacity as an officer of the court and were not to be released to the parties to this action without a formal order pursuant to section 35 of the Data Protection Act 1998 and CPR 31.17. The claimants sought such an order from Gross J, but they were only partially successful. By paragraph 2 of his order of 14.4.05, Gross J gave leave to the claimants to adduce in evidence at the injunction application records relating only to matters listed in a document annexed to the order. For the most part the list was confined to records of conviction for offences committed in the course of protests against EDO at or near the Property. The list did not include any of the items at paragraph 28 (1) to (5) above.

As noted earlier, on 29th April 2005 Gross J granted the April Injunction. This was an interim injunction until trial. It was granted on the basis that there would be a speedy trial, as issues of freedom of expression were involved. At that stage it was thought that trial could take place in the summer. Eventually a fixture for 10 working days starting on 21.11.05 was obtained.

Following service of the defences an application notice was issued by the claimants on 14 June 2005 seeking disclosure by Sussex police of:

This application, and applications against the West Midlands Police and the City of London police, came on for hearing before Simon J at a case management conference on 12 July 2005. The application against City of London police was withdrawn by the claimants. In a note for the court dated 6 July 2005 for the application against West Midlands police as regards the 4^th defendant’s conviction on 17 January 2005 for criminal damage, Mr Lawson-Cruttenden had referred to this as going to the issue of actual or anticipated harassment, referring to “the position concerning witness intimidation directed at Caterpillar”.

Determinations made by Simon J on 12 July 2005 included the following:

As mentioned earlier, following service of the composite document (in relation to the third head of defence) a case management conference was held before Simon J on 9.9.05, leading to the identification of preliminary issues. Simon J was concerned that at this stage disclosure had not yet taken place. The transcript includes the following at p.180:

The parties were due to complete disclosure of documents on 23.9.05. On that day a further application on the part of the claimants came before Royce J. The application sought reinstatement of Smash EDO and BOOB as first and second defendants. It was rejected by Royce J as too late. He noted that if the application were allowed it would change the position on disclosure, and described that position as “wholly unsatisfactory.” The proceedings could perfectly properly be determined with the existing parties.

Disclosure was made on 23 September 2005. The disclosure made by the claimants gave rise to many concerns on the part of the defendants. I shall describe some of those concerns in later parts of this judgment.

Oral argument of the preliminary issues began on 1.11.05. On the same day Application Notice number 946 was issued by the Moss Defendants. This was in terms which were to be echoed by the D5 Abuse of Process Application issued on 4.11.05, the day on which judgment was given on the preliminary issues. In the meantime Application Notice number 952 was issued on 3.11.05 by the 17^th defendant, also echoing the Moss Defendants’ application. The Amendment Application was then issued by the claimants on 9.11.05. Regrettably, in the first instance these applications were listed for half an hour on 10.11.05, despite the parties having indicated that a day would be required. On that day I adjourned the applications for hearing on 16.11.05, when a full day was made available. On 16.11.05, however, it became clear that the applications would require far more than a day and would have to be adjourned so that there could be an orderly presentation of further written evidence and skeleton arguments. This inevitably meant that the trial could not begin on 21.11.05 as had been scheduled. Among other directions given on 16.11.05, I required that an officer of EDO describe on affidavit which protests were said to form part of a course of conduct amounting to harassment, what visual or sound recordings were made of such protests, and what had become of them. Other directions required the claimants to respond to complaints about disclosure made by Moss and Co, in some cases nearly two months earlier.

Argument on the application notices began on 23.11.05, and as it was clear that the trial could not begin during the period that had been allocated, I gave directions that it should not do so. What ought to have been an efficient and focussed hearing of the applications became bogged down by a series of new points raised in succession soon after the hearing began. The details are set out in a judgment given by me on 5.12.05, having concluded on 1.12.05 that there had been a failure by the parties to identify the real matters in issue, and that the claimants’ legal team, by relying on Mr Lawson-Cruttenden to combine the roles of advocate and solicitor, was severely hampered in its ability to present the claimants’ case. I adjourned the hearing to the new legal term, having received from the claimants appropriate undertakings, including an undertaking to instruct counsel. I gave directions which among other things laid down a staged procedure designed to identify the real issues. During the course of the hearing a revised draft amended particulars of claim (“Draft 2”) had been proffered by Mr Lawson-Cruttenden, and this in turn had been the subject of proposed revision. In accordance with my directions a new draft of the proposed amendments, settled by counsel, was submitted on 19.1.06 (“Draft 3”).

The adjourned hearing of the applications was fixed for 13.2.06. It had become apparent on 1.12.05 that agreement between the claimants and the 12^th defendant could be reached, and one reason for the directions given on 1.12.05 was a hope that by focussing on the real issues other defendants might be able to reach agreement with the claimants. With the help of an independent mediator that hope was partially fulfilled. On 6.2.06 I was informed that the Moss Defendants had agreed terms of a settlement with the claimants, the details of which were to be contained in a consent order.

I approved the consent order at the start of the hearing on 13.2.06. It provided that, the Moss Defendants having given undertakings set out in Schedule A and the claimants having given undertakings set out in Schedule B, there should be no order against the Moss Defendants in these proceedings and the April Injunction should be modified so as only to apply to defendants other than the Moss Defendants and so as not to apply to un-named persons. Paragraphs 2 and 3 of Schedule A made it clear that there was no admission of liability by the Moss Defendants. The undertakings given by the Moss Defendants contained no restriction on protest outside the Property. It was said by Ms Harrison on behalf of the Moss Defendants that they drew the balance in an appropriate way under the Convention.

In accordance with these arrangements I made an order for a new interim injunction (“the February Injunction”) to replace the April Injunction. As the February Injunction was limited to named defendants not including the 17^th defendant, it had been agreed between him and the claimants that he should cease to be a defendant and his costs should be paid by the claimants. I indicated that I would make an order accordingly. This meant that the only defendants actively participating in the proceedings were the 5^th and 10^th defendants, and that of the four applications which had been adjourned on 1.12.05 only two, the Amendment Application and the D5 Abuse of Process Application, remained live.

An initial point arose for resolution. This was that, as indicated above, Mr Jones had retired and had been replaced as managing director of EDO by Mr Hills. The claimants applied to substitute Mr Hills for Mr Jones as the named second claimant suing on behalf of EDO’s employees. This was opposed by the 5^th and 10^th defendants on grounds which I found unpersuasive, and I allowed the claimants’ application accordingly.

It was in those circumstances that I heard argument on the Amendment Application and the D5 Abuse of Process Application from 13.2.06 to 15.2.06.

No party submitted that this case required any departure from established principles governing permission to amend. In general, the court will give permission to amend a statement of case so as to ensure that the real issues are resolved at trial, unless the grant of permission to amend would cause prejudice to another party that cannot be compensated by an order for costs.

There are, however, two matters of general principle which call for comment. The first concerns the approach advocated by Mr Lawson-Cruttenden at the abortive November hearing. Relying on the notes in Civil Procedure 2005 at paragraph 32.5.4, his submission was, in effect, that if an issue was raised in witness statements or documents served by a party then that party should have permission to amend. Mr Englehart QC and Mr Clive Jones rightly did not espouse a general proposition of that kind.

After the exchange of witness statements there may well be occasions when an issue of fact emerges which is minor - in the sense that there is no prejudice to other parties in permitting that issue to be raised. In such circumstances there may be little difficulty in securing permission to amend. The mere fact, however, that an issue can be said to arise from witness statements or documents served by one party should not in my view lead to any general presumption in favour of permission to amend. I do not read the notes in Civil Procedure 2005 as suggesting anything to the contrary. Parties who are preparing for trial should at an early stage be assembling draft witness statements, relevant documents and other material. They must be alert to the possibility that this process will lead to new issues of fact or law being identified. When that happens, the party in question must consider whether the potential new issue is a matter that it should seek to have resolved at trial. It is necessary to bear in mind the principle that multiplicity of legal proceedings is to be avoided. In that regard a broad, merits-based approach is now appropriate, taking account of public and private interests involved and the facts of the case: see Johnson v Gore-Wood (No. 1) [2002] 2 AC 1. If the conclusion is that the issue should be raised, then in general the appropriate course will be for that party without delay to formulate a proposal to amend its statement of case and to notify other parties of that proposal. Something less formal may of course be appropriate where the new issue is truly minor, or for other good reason, but a party who proceeds with less formality runs the risk that problems may later emerge.

The second matter of general principle concerns the approach to be taken where particular proposed amendments would delay trial. In the present case the trial date of 21 November has been lost. The claimants suggest that a new trial date should be fixed for a three day hearing. I suspect that double that period will be needed. Even so, I do not doubt that a new date could be given for trial in the summer term. Accordingly, if issues are raised by a particular proposed amendment which could not be tried at a hearing during the summer term then that amendment will need to be scrutinised particularly carefully, to examine whether the point raised is so important as to warrant putting back the proposed trial date. In the particular circumstances of the present case, the claimants said that they would be willing to forego a particular amendment if issues arising from it could not be dealt with at a trial in the summer term and the court thought it important to maintain such a trial date. Without in any way criticising Mr Englehart and Mr Clive Jones, I stress that I do not encourage those who are contemplating amendment of their statements of case to present the court with an option of this kind. In general, parties should rigorously evaluate their case on any proposed new issues which would be likely to delay trial. If the decision is taken that such an issue is so important that it ought to be advanced, then the application to amend should include an application for directions to enable a manageable trial date to be rearranged.

Turning to the position in relation to Draft 4, the 5^th defendant identified relevant new developments. These included:

A helpful overview of draft 4 was given by Mr Englehart in his oral submissions. In broad terms that overview was as follows:

I accept this overview as a broadly accurate summary of Draft 4. It was common ground that the revised structure found in Draft 3 and Draft 4 was helpful, at least in terms of presentation. The body of the pleading was confined to alleged acts of identified defendants. Alleged acts of unidentified people, forming part of the Campaign, had been put in schedules.

In support of the Amendment Application, Mr Englehart said that the essential factual allegations had not changed. Reliance was still placed on the three events. The only substantial change was to add conventional common law torts: claims were made for trespass, nuisance both private and public, and wrongful interference with goods. These claims did not introduce any new case as to the facts. Mr Englehart noted that it had been necessary to plead damage in order to have a cause of action in public nuisance, and for the tort of interfering with business. I asked why the claimants were asserting new causes of action at this stage. Mr Englehart replied that the reason was that there was a question whether what the defendants had done amounted to a course of conduct for the purposes of the PHA 1997. The claimants did not believe that the defendants would escape liability under that Act, but in case they were wrong they said that what had been done was unlawful at common law. Further, in relation to freedom of expression, the claimants’ case was that the law should draw the line at the commission of a tort.

I turn to analyse the objections as to Draft 4. I have been greatly assisted by the parties’ detailed written and oral submissions, which have enabled me to group the objections into a number of categories. My analysis for each category is as follows:

Thus the outcome of my analysis is that, subject to the “Fruits of the Poisoned Tree” argument which I shall consider in the context of abuse of process below, there is only one matter which could give rise to concern. This is the part of draft 4 which refers to events on 31 May 2005. If the 5^th defendant is still the subject of criminal charges in that regard, then I will not allow that matter to be introduced by amendment. If, however, the charges have been withdrawn then there is no cause for concern.

There are, however, a number of aspects of draft 4 which call for tidying up. These have been identified during the course of argument, and – again subject to the “Fruits of the Poisoned Tree” argument - I would therefore propose that the claimants lodge a revised version of Draft 4, limited to tidying up amendments, prior to any order being drawn up. The defendants will, of course, have an opportunity to comment on that draft.

The D5 Abuse of Process Application notice identifies a number of failings. For the purposes of this judgment I shall confine consideration to matters identified in paragraphs 2 to 5 of the application notice. I take them in turn.

Paragraph 2.1 of the Application Notice complained of the introduction into chronologies of incidents, witness statements and exhibits of matters which were not the subject of any pleading against any named individuals or indeed generally. The claimants’ skeleton said that the complaint appeared to stem from the contention that the claim pleaded against the defendants was limited to their own conduct. In fact the Particulars of Claim not only pleaded the “three occasions” but also harassment by the other protestors and alleged that the conduct of all of them together constituted a course of conduct. Mr Englehart added orally that it was a misconception to say that you cannot have evidence which is not a pleading against a named individual. These comments in my view miss the point. At the time the Application Notice was issued the defendants had been served with a welter of material which bore no obvious relationship to the claimants’ particulars of claim. It was later to emerge that Mr Lawson-Cruttenden would assert that because issues could be discerned from this welter of material the claimants would be entitled to amend their particulars of claim. In the event, his first attempt at an amendment on 9.11.05 and his revisions to it later that month had to be abandoned. In those circumstances it can hardly be said that the issues arising from this material were obvious. It is now accepted that the assertions as to responsibility for actions of others needed complete recasting. In these circumstances I regard the complaint made in paragraph 2.1 as well founded, and as particularly serious in the context of a claim that was due to come on for trial on 21 November 2005. The claimants ought to have identified the need to amend their particulars of claim long before that date in such a way as would enable the defendants to understand the relevance of the material sought to be relied on by the claimants.

Paragraphs 2.2 and 2.3 complained that the claimants relied on material for which the court refused to grant an order for third party disclosure on 12 July 2005. Material obtained from Sussex police in breach of that order related to:

The claimants’ skeleton argument observed among other things that the Judge made clear that although he only allowed the application in part, it did not preclude a renewal with proper evidence. This appears to have been construed by the defendants as being an order that the claimants were not entitled to any of the disclosure that he would not grant that day. This is not so. There was nothing in this judgment to prevent subsequent, further voluntary disclosure. Accordingly it was said that the allegation of breach of a Court Order should not have been made. Mr Englehart added that the police thought that everything they disclosed was pursuant to that order.

I consider that the key point here is that Sussex Police had from the outset plainly been concerned to have express approval from the Court for disclosure made to Mr Lawson-Cruttenden. This is abundantly clear from the passages in the statement of Detective Constable Bialoszewski described at paragraph 29 above. It must have been plain to Mr Lawson-Cruttenden that the material which in due course was disclosed went well beyond Simon J’s order, in particular in the respects identified in paragraph 2.2 of the Application Notice. Mr Lawson-Cruttenden said he was not going to “argue the toss.” This was not an acceptable approach. At the very least there was doubt as to whether Sussex Police had correctly followed the court’s order. As an officer of the court it was his duty to raise the matter. I regard this as a serious failing for which the claimants must bear responsibility.

Paragraph 2.4 of the Application Notice complained about material relevant to current criminal proceedings. Here I agree in principle with the contention by the claimants that a concern of prejudice to a criminal trial is a matter for an application for a stay. Moreover it seems to me plain that the civil court would be highly likely to grant a stay of any part of its proceedings which could prejudice a criminal trial. The difficulty facing the defendants, however, was that until the position was properly set out in a draft amendment there was no means of knowing that the claimants intended to rely upon matters which were to be the subject of a criminal trial. In those circumstances the defendants can hardly be criticised for not having made an application to stay. In the event, prior to receipt of the claimants’ draft amendment, the defendants had issued application notices complaining about the disclosure of this material. That was all that could properly have been expected of them at that stage.

Turning to examine the position from the point of view of the claimants, they knew that the parties were working towards a speedy trial to commence on 21 November 2005. As part of the disclosure of documents and witness statements the claimants produced material which could only be relevant if the claimants were to introduce at that trial new issues concerning matters which were to be the subject of criminal trials. It seems to me that there are only two logical possibilities. The first is that the claimants simply did not consider the possibility that the defendants would object to the introduction of such issues. The second is that the claimants gave consideration to that possibility, but decided to wait and see what happened. On any view the claimants were seriously at fault, for they either failed to consider an obvious problem, or if they did consider it they should have raised it with the defendants before reaching the stage of disclosure as it plainly had the potential to prejudice the trial date.

Paragraph 3 complained more generally that police material had been obtained without a court order or in breach of the Data Protection Act. Mr Englehart has persuaded me that it is at least arguable that where a police force has not sought a court order then such an order may not have been needed, and that the Data Protection Act may not have been infringed. In the absence of a legal representative to put the contrary view I do not propose to decide the point.

Paragraph 4 concerned reliance by the claimants on incidents concerning Caterpillar and Agrexco. In answer the claimants refer to the way in which the case is now put in Draft 4. However in assessing the merits of this complaint it is appropriate to consider the position at the time that it was made. At that time the trial was scheduled to take place starting on 21 November 2005. The claimants disclosed documents and witness statements relating to events concerning Caterpillar and Agrexco, none of which had been pleaded. There was no indication as to how they were said to be relevant. It would have been absurd to think that this disclosure alone could enable the defendants to prepare to deal with new issues in this regard at a trial scheduled to start on 21 November 2005. In the event a draft amendment referring to Caterpillar and Agrexco was put forward on 9 November 2005. This was far too late to enable the defendants properly to deal at a trial on 21 November 2005 with the issues sought to be raised. Moreover the draft proved to be seriously deficient, among other things by casting the net too widely, and had to be substantially recast in Draft 4. Added to all this, there had been very clear indications from the decisions and observations of Gross J on 14.4.05, Simon J on 12.7.05 and 9.9.05, and Royce J on 23.9.05 that in a context where a speedy resolution was important the court was anxious that the claimants should focus on the key questions as to what had happened in relation to them, as opposed to what had happened to others, and to avoid side-issues. In those circumstances the persistence by the claimants, during the period up to the loss of the 21 November 2005 trial date, in seeking to introduce these matters showed a wilful disregard of the importance of maintaining an early trial date.

Paragraph 5 of the Application Notice concerned failures on the part of the claimants to give proper disclosure of material relevant to the pleaded case. Here it seems to me that, putting other complaints on one side, there are grave concerns as to the way in which the claimants’ solicitors dealt with video material. On 21 September 2004 EDO had written to Mr Lawson-Cruttenden enclosing photographs from CCTV footage and a CD of CCTV footage. The letter asked him among other things to review this material, to indicate whether it was of interest, and whether he would like more such material. Mr Lawson-Cruttenden appears to have done none of these things. Instead, his firm prepared a list of documents dated 23 September 2005 which disclosed the existence of video evidence but stated that it was “voluminous but of little evidential value”. It could only have been proper to make this assertion if someone on the claimants’ side had some good reason to hold the view that the CCTV material was of little evidential value. So far as I can tell, the claimants’ solicitors had not viewed the material and had no basis on which to hold that view themselves, nor were they aware of anyone on the claimants’ side who held that view. Thereafter attempts by the defendants to view the CCTV material became bogged down in a dispute about proposed undertakings as to confidentiality. More importantly, nothing was done to safeguard or seek to identify the relevance of the complete CCTV material until my order of 16.11.05. This latter failing, and the inexplicable assertion that the video material was of little evidential value, reveal a worrying lack of focus on proper preparation for trial and proper disclosure in that regard.

At the hearing I drew particular attention to Simon J’s trenchant observations on 9.9.05. Mr Englehart’s response was that there were faults on both sides, and that if the proposed amendments had been disallowed the claimants were ready to proceed with the trial on 21.11.05 on the basis of the unamended particulars of claim. As to faults on the part of the defendants, he had earlier particularly identified the failure by the Moss Defendants to serve witness evidence in support of their application prior to 15.11.05. It is right to say that my decision to adjourn on 16.11.05 was strongly influenced by a desire to ensure that the claimants should have a proper chance to consider and reply to the very serious allegations made by the Moss Defendants in the witness statement served on 15.11.05. As against that however, in the period between issue of the application notice on 1.11.05 and service of the witness statement on 15.11.05 the defendants’ legal team had been involved in the argument on the preliminary issues, had then had to consider my judgment, and most importantly had received on 9.11.05 the Amendment Application enclosing a complicated proposed new pleading which they had to try to take on board in order to finalise the witness statement. If the claimants had not been guilty of the serious faults identified above I consider it highly unlikely that the defendants would have been in a position where they felt compelled to make an application to strike out, and if they had made such an application they would not have been held up in preparing their witness statement in support.

There is another respect where I consider that there is an element of fault on both sides. This lies in the failure to identify the real issues prior to my order of 1.12.05. In the absence, however, of the serious faults on the part of the claimant identified above, I do not think that this failure would have prevented a speedy trial starting on 21.11.05.

My overall conclusion from the above is that there was, to say the least, a woeful neglect on the part of the claimants to focus on the need to prepare for a speedy trial, and that at least in one respect there was a wilful disregard of the importance of maintaining an early trial date. Actions were taken to introduce new issues which, if they had been introduced, would have inevitably led to loss of the trial date of 21.11.05. Obvious steps that ought to have been taken to ensure proper preparation for trial on that date were not taken. The blame for loss of the trial date in my view undoubtedly lies with the claimants. It should not necessarily be assumed that fault in this regard is attributable only to the claimants’ then legal team. I note that Mr Jones was present at the hearings before Gross J on 14.4.05, Simon J on 12.7.05 and 9.9.05 and Royce J on 23.9.05. He must have been aware that the court was anxious that the claimants should concentrate on the real issues and not allow the case to become mired in side issues.

What should be the consequence of these failings? I consider that it is just and proportionate that the claimants be deprived of the benefit of the interim injunction as against the remaining defendants. The claimants secured that injunction on the footing that they would proceed to a speedy trial. The failings I have identified show that the claimants did not adhere to their obligations. It would be wrong to allow them to continue to have the benefits which were dependent upon compliance with those obligations. As regards the 5^th and 10^th defendants, I am bolstered in that view by the consideration that circumstances have changed so that they are now in a position similar to that of the 16^th defendant, against whom Gross J thought it inappropriate to grant an interim injunction. That consideration is not, however, crucial to my decision, which I believe is compelled by the need to insist that claimants who secure interim injunctions pending speedy trial must carry out their obligation to work diligently towards achieving that speedy trial.

The claimants must of course pay the costs of and occasioned by the Amendment Application, and in my view their failings make it appropriate that these costs should be on an indemnity basis. It also seems to me that the claimants’ failures should be marked more generally by an order for indemnity costs to be paid to the 5^th and 10^th defendants. I consider that real damage was done by the claimants’ conduct at latest from the time when disclosure was made on 23.9.05, but this damage did not include the costs of the preliminary issues. I shall therefore order that the costs of these proceedings, other than those of the preliminary issues, from 23.9.05 to today shall be paid by the claimants to the defendants on an indemnity basis.

I do not think it right to go beyond this and deprive the claimants of amendments which can be dealt with in time for a trial in the summer term. It is true that the ability to put forward these amendments can be said to be the fruit of a tree which the claimants have metaphorically poisoned. If, however, they had not sought and obtained an interim injunction then on balance I consider that there would not have been good reason to prevent the amendments in Draft 4 from being made. Now that the interim injunction is to be discharged, I regard this as sufficient penalty for the claimants’ failures, and I do not think that justice requires a more severe course.

I add that the discharge of the interim injunction does not mean that the remaining defendants can with impunity resume trespass or other tortious activities against the claimants. The question whether such activities should be restrained by order of the court is a matter to be determined at a trial in the summer term. A defendant whose actions prejudge that determination may well find that the court’s powers to act on an interim basis are exercised afresh.

For the reasons given above my broad conclusions are as follows. First, I conclude that the claimants should have permission, on appropriate terms, to amend the Claim Form and the Particulars of Claim substantially in the form now proposed, but revised to reflect what is said earlier in this judgment. Second, the 5^th Defendant’s complaints of abuse of process are in large measure sound and should lead, among other things, to the claimants being deprived of the benefit of the interim injunction initially granted by Gross J in April 2005 and replaced by me in February 2006. The parties are asked to seek to agree consequential orders which flow from this judgment.