Monks v Warwick District Council

Mr Eardley, appearing on behalf of the Defendant, submits it was initially unclear from the way paragraphs 5 and 6 of the Particulars of Claim were formulated, whether a separate cause of action was asserted at all in respect of the Article. The words complained of from the Article were not set out, there was no separate meaning pleaded in respect of that discrete claim and the pleadings consistently referred to the “publication” complained of. Though Mr Monks then confirmed he was making such a claim this was only for “the republication in the Article of the words or sting complained of in the email”. The problem which this gives rise to is this. One meaning is relied on for both publications. But Mr Monks has also said in terms that it is “not the Claimant’s case that the Article itself when taken as a whole conveys the same defamatory meaning as the email. The only conclusion that can be drawn from this is that Mr Monks is complaining of a very small portion of the Article, in order to advance a defamatory meaning which the Article, read as a whole, does not bear.

This, it is said, is a straightforward breach of the principle that a claimant may not artificially select passages of an article in order to assert a defamatory meaning which, read in the context of the article as a whole, they do not bear: see Gatley 11^th ed 3.30 and Charleston v News Group Newspapers Ltd [1995] 2 AC 65. It is plain it is said therefore that Mr Monks’ pleaded case in respect of the Article as currently formulated is defective and cannot succeed.

I agree. If Mr Monks wishes to found a cause of action on the Article, even if he wishes to rely only on a small part of it, the words complained of must be read in their context. An acceptance by Mr Monks that the Article, when read as a whole, bears a different defamatory meaning to that relied on for the Email (or the extracts from it in the Article) is thus fatal to a claim in which the meaning complained of is the same for both the Email and such parts of the Article as Mr Monks wishes to rely on.

Though Mr Monks has been on notice of this point for some considerable time before this hearing (including when he had the benefit of legal representation), he has not sought to amend the Particulars of Claim, for example to identify a different defamatory meaning for the Article which he wishes to rely on. The inescapable inference says Mr Eardley, is that he has not done so because he is not interested in suing on any lesser defamatory meaning, than “guilt”. During the course of the hearing, on a number of occasions I invited Mr Monks to consider whether he wished to rely on a lower defamatory meaning for the Article than that advanced in respect of the Email. He made it very plain that he did not wish to do so. His case was that the Article, if anything, was more defamatory than the Email. He said it plainly meant that he was a criminal, and was lucky to have been found not guilty of being a criminal. On the footing that this was the meaning which Mr Monks now wishes to advance, Mr Eardley invited me to rule whether the words were capable of bearing that meaning pursuant to CPR PD 53, para. 4(1) and it is obviously right that I should do so.

The proper role of the judge on a question of this kind, and the principles the court has to apply in relation to such a ruling, are well settled and were summarised by Eady J in his judgment in a passage which was described as “impeccable” by Lord Phillips MR in Gillick v Brook Advisory Centres [2001] EWCA Civ 130 at [20].

Bearing those principles and the requisite approach in mind, in my judgment, the meaning which Mr Monks wishes to rely on falls outside the permissible range of meanings of which the words are reasonably capable of bearing. Reading the Article as a whole (or the extract from it, repeating parts of the Email, in the context of the Article as a whole) the reasonable reader could not conclude that Mr Monks was guilty of the offence of which the jury had acquitted him, or that the jury had got it wrong and that he was lucky to have been found not guilty of being a criminal. That conclusion completely ignores the contextin which the extracts from the Defendant’s response to Mr Monks’ acquittal were placed, as is implicitly acknowledged so it seems to me from the case Mr Monks had hitherto advanced in pleadings. The relevant context was Mr Monks’ “resounding” acquittal in short order by the jury, and what Mr Monks himself had to say about the case and the Defendant’s conduct in bringing it. It would be utterly unreasonable in my view to draw the conclusion that Mr Monks was guilty in those circumstances. Indeed it might be thought in the light of the jury’s verdict, and the way in which the Article was written, that the reasonable reader could have simply concluded that the Council’s statement was no more than the reaction of a disappointed “litigant”. If Mr Monks had sought to rely on a lower defamatory meaning, Mr Eardley would have submitted that the Article was incapable of bearing any meaning defamatory of Mr Monks. But in the absence of an alternative meaning being advanced by Mr Monks, it is not necessary for me for present purposes to say what lesser defamatory meaning, if any, I think the words are capable of bearing. It is sufficient for me to rule that the words are incapable of bearing the only meaning which Mr Monks (as he has made very clear) wishes to rely on, and I do so.

In those circumstances, the claim in respect of the Article must be struck out, and Mr Monks is confined to his case to the publication of the Email alone.

In its Request for Information, the Defendant made a series of requests of Mr Monks, in order to ascertain whether, and on what basis, it was alleged that some specified employee(s) of the Defendant who was/were responsible for publication of the Email had the requisite state of mind. As I have already indicated, in his response, Mr Monks simply named 5 employees, but there was no explanation as to what their relevant conduct was, what they knew (and how), or how they were said to be involved in the publication of the Email.

Though the response was expressed to be “pending full disclosure and/or the provision of information by the Defendant” Mr Eardley submits that a claimant is not permitted to fish for a case of malice, but in any event, disclosure has now taken place and there has been no application to amend in the light of that disclosure.

It is said therefore that Mr Monks has failed to set out a case (or a sufficiently particularised case) against any individual employee of the Defendant who is alleged to have had the relevant malicious state of mind and to have been responsible for the publication of the Email.

In particular (i) the individual identified in the Particulars of Claim as having written the Email is Mr Brooker. There is no basis set out in the Particulars of Claim or the Reply for inferring that he knew the contents of the Email were false, or was reckless in relation to it. It is not alleged that he was involved in Mr Monks’ prosecution; (ii) the suggestion that (by implication) Mr Brooker was being spiteful by answering a journalist’s request without first “warning” Mr Monks, is self-evidently far-fetched and is incapable of supporting an inference of malice; (iii) no basis is put forward for alleging that Mr Perry, Ms Clues, or anyone else involved in Mr Monks’ prosecution was also involved in the publication of the Email; (iv) the fact that the Defendant has declined to justify the words complained of in the meaning relied upon by Mr Monks provides no support for an allegation of malice; (v) assertions as to what the Defendant (or even an identified employee of the Defendant) “ought to have known” are irrelevant to the issue of malice.

Mr Eardley submits the following principles are relevant:

On the application of those principles, which in my view correctly state the law, it is clear in my judgment that the plea of malice as currently formulated is defective and should be struck out. There is nothing in the current pleading which links any of the named individuals, apart from Mr Brooker, with the publication of the Email at all, nor are there any proper particulars as to their individual state of mind. It plainly necessary that a properly particularised case in respect of both aspects must be pleaded, and that the facts relied on in the particulars, if true, satisfy the test set out in paragraph 23 i) above.

Mr Monks does not now pursue the case on Ms Clues at all. But in the case of the other individuals identified he sought at the hearing before me to rely on matters additional to those already pleaded, in support of the case on malice. In the case of Mr Perry, his submissions concerned Mr Perry’s involvement in and responsibility for the criminal prosecution. Mr Monks also asserted that Mr Perry was the editor of what he described as the “Base Document”. This was a Planning Committee Report of 13 March 2006 made prior to the criminal prosecution, and on which Mr Monks suggested the Email was based. But in the absence of any evidence that Mr Perry was responsible for the publication of the Email (and there was none) in my judgment, neither of those matters raised an arguable case on malice against Mr Perry. In the case of Mr Archer, Mr Monks accepted there was no clear evidence of his involvement in the publication of the Email, but he suggested that he was malicious on the ground that he did not prevent its publication and because of his involvement in the prosecution. But, as with Mr Perry, those matters are irrelevant in the complete absence of evidence that Mr Archer knew that the Email was to be published, or of that he had the requisite state of mind in relation to its publication.

In the case of Mr Brooker and Mr Edwards, Mr Monks relies on a series of emails surrounding the preparation and publication of the Email. In my view, the emails clearly demonstrate that Mr Edwards was not responsible for the publication of the Email. Though he was involved in discussions which preceded its publication, its contents were composed by Mr Brooker, relying at least in part, it appears on the Base Document.

Mr Monks submits that the emails demonstrate that Mr Brooker was malicious. He says this because although Mr Brooker asked for Mr Edward’s assistance in composing the response to be sent to the journalist, in the end, he did so himself (basing it substantially on the Base document which predated the prosecution), and sent it to the journalist before receiving Mr Edward’s comments or approval as Head of the Planning Department. It is important to bear in mind however that an allegation of malice is akin to an accusation of fraud or dishonesty, and the higher threshold which a claimant must therefore satisfy before a claim can be allowed to go forward. “Dishonesty is not to be inferred from evidence which is equally consistent with mere negligence” (per Lord Hobhouse in Three Rivers DC v Bank of England (no 3) [2003] 2 AC 1 at [161]). In my view, the most that can be said of Mr Brooker on this point alone, is that he was careless, and this is not sufficient. Mr Monks’ case on malice cannot go forward therefore, either on the pleaded basis, or on the further matters which he relied on in the course of the hearing.

Finally, I turn to the application to strike out the claim for damages for general loss of custom and business. The claim obviously depended on the claim in respect of the Article, and it is not alleged, nor could it be, that such losses as Mr Monks may have sustained were the result of the publication of the Email to one person. In the circumstances, the pleaded claim for damages for general loss of business has no real prospect of success and will be struck out.

For the sake of completeness I should add that even if the claim in respect of the Article had not been struck out, I would not have permitted the claim for special damage to go forward as currently formulated for a number of reasons. First, the loss is alleged to have been the decline in operating profits sustained by a company, Choyce Survey Ltd (‘CSL’) a company of which Mr Monks is sole director, and which is not a party to this action. It may be that a claimant can identify an indirect loss to himself in such circumstances, but there is nothing in the pleadings which does so. Moreover, it is apparent from the financial documents I have seen, that there is a real difficulty in ascertaining what income Mr Monks actually derives from CSL and whether that income has necessarily declined because of a decline in CSL’s business. Mr Monks for example did not draw a salary in the year to the year before the publication of the Email and Article or in 2008. In addition, CSL appears to be one of a number of companies controlled by Mr Monks, and is ultimately owned by a holding company, Choyce Holdings Ltd, not Mr Monks personally. In the last 3 years dividends paid by CSL have been paid to Choyce Holding Ltd rather than Mr Monks. In any event it is not clear from the accounts that there has been the alleged loss of income to CSL. CSL’s pre-tax operating profit had been in the region of £40,000 in the three years up to the year ending 28 February 2006. In the year ending 28 February 2007 it dropped to £21,359 and then, in the following year (when the words complained of were published) there was a modest recovery to £25,406.

Though Mr Monks has some explanations for these matters, they could not have been put forward, in the absence of a proper pleading; and in relation to that, the court would have to consider the likely need for expert evidence, and the inevitable loss of the trial date.

Mr Monks has not provided any draft pleading in respect of his application to add a claim for special damages. From the brief details that have been provided however, the new claim appears to be very similar, if not identical to the existing claim for general damages as it is currently formulated, and it manifests the self-same defects. But in any event, in the absence of a claim in respect of the Article, the proposed claim has no real prospect of success for the reasons I have already given in paragraph 28 above.

So far as the claim for exemplary damages is concerned, there is no evidence whatever that the Defendant’s conduct (and for this purpose, that would mean Mr Brooker’s conduct, for which the Defendant is vicariously liable) fell into either of the two categories of conduct in relation to which exemplary damages may be claimed in libel actions, following the decision of the House of Lords in Rookes v Barnard [1964] AC 1129, 1227, namely (i) “oppressive, arbitrary or unconstitutional action by servants of the government”; or (ii) where the defendant’s conduct “has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff.” There is no basis in my view for suggesting that in answering an enquiry from a journalist, Mr Brooker was exercising official power (even assuming he is to be regarded as a government servant for these purposes).See in this context, Shendish Manor Ltd v Coleman [2001] EWCA 913 at [59]-[62]. Nor is there any evidence from which it could properly be inferred that Mr Brooker had made the necessary calculation.

But in any event there is no draft pleading before the court, nor any explanation as to why this matter is raised so late. In the absence of a properly formulated claim at this very late stage, or any explanation as to why it is raised so late, or any evidential support for it, the application for permission to amend to add a claim for exemplary damages is refused.