Clynes v O' Connor

This is an unfortunate case in which an unseemly outburst, in a moment of frustration, directed by Ms Patricia O’Connor at her next door neighbour, has been allowed to escalate beyond anyone’s sensible notion of proportionality. One might be forgiven for thinking that there should have been some filtering process in the court’s procedures to prevent the matter reaching a hearing at all – let alone for a morning in the High Court. It could have been transferred to the county court, if a hearing was needed at all. It would seem, however, that a major problem has been the apparent unwillingness of Ms O’Connor, who told me that she does not read or write very well, to answer letters or to engage very much at all with the legal process.

The claim arises out of an incident lasting a few seconds on 24 October 2009, when some ill-tempered but undoubtedly slanderous allegations were shouted in the face of the Claimant, Mr Dennis Clynes. The parties lived, and for the moment still do, beside one another in an otherwise peaceful cul-de-sac in Hillingdon, Middlesex. Ms O’Connor hurled at him, groundlessly, what seem to have been the most insulting epithets that came into her head; namely to the effect that he was a “wife beater”, a “drug dealer” and either (depending on which version is preferred) a “paedophile” or a “perv”. (It perhaps makes little difference, since her suggestion was that Mr Clynes was having CCTV cameras installed for the purpose of watching the children at play.) She denies, however, calling Mr Clynes an “English bastard”.

The small audience standing nearby at the time consisted of a handful of bemused adults (none of whom appears to have believed what she said or taken it seriously) and a few small children aged between seven and nine years old. Estimates of the number of children varied between two and seven.

There seems little dispute as to how this unhappy incident came about. Mr Clynes had engaged the services of Mr Robert Day of Dyno-Secure to install CCTV at his premises. While he was upstairs, Mr Day noticed some children playing near the foot of his ladder. He therefore asked Mr Clynes, in their own interests, to ask them to play a little further away. One of them was a grandchild of Ms O’Connor, who was playing with his friend Dean. Mr Clynes left his living room, where he was busy moving furniture with a friend of his called Mr Darren Fitzgerald, to go outside and move the children on. He went over to Ms O’Connor’s front door, where it seems to be agreed that he put his hand on the grandson’s head. He says that he was “ruffling his hair”: she says that he was forcing his head backwards and making him look him in the face. At this she “saw red”, which led to her coming outside and shouting the abuse.

There was also evidence (disputed by Ms O’Connor) that shortly after this episode (15 to 30 minutes later) a number of children were gathered outside and one of them asked Ms O’Connor whether “the paedophile” was coming back. She is said to have responded to the effect that he would be back soon. As three witnesses stated that they heard this, I think it more probable than not that something of that sort was said. Again, however, it is not clear to me that it in fact caused any, or any additional, damage to Mr Clynes’ reputation.

The initial letter of complaint was sent by Mr Clynes’ solicitors a few weeks afterwards, on 14 December 2009, demanding a retraction, apology and undertaking. It did not ask for an immediate payment of damages, but made it clear that his rights were reserved in this respect. It was added:

“Evidence of our client’s damages is being collated and will be brought to the attention of the Judge at Court.”

The letter did ask, however, for indemnity costs, to be limited at that stage to £1,000 plus VAT. Unfortunately, Ms O’Connor did not respond in writing. She told me, on the other hand, that she did not have that sort of money. At some point, she said that she went across to discuss the matter with Mr Clynes. It is unclear exactly what she was hoping to achieve but, according to her, he waved her away with disdain.

I have seen a letter sent to the court on 29 October 2010 which was described as an “admission”. Apart from that, Ms O’Connor failed to engage at all with the court process. She said, “ … I did get extremely angry and said some things that I truly regret”. She explained too that she had been arrested and cautioned by the police, following a complaint by Mr Clynes, and that she found this so stressful that she has remained on medication ever since. She added that the police told her on 8 December 2009 that Mr Clynes had decided to take no further action – although his solicitor’s letter followed a few days afterwards.

Ms O’Connor also expressed her regret to the court, although not apparently directly to Mr Clynes, in these words:

“ … I do sincerely regret my actions on the day and would ask the court to take into account my remorse and the fact that this was a one off incident.”

She invited the court to make an assessment of the sum she needed to pay; that is, by way of damages. She enclosed details of her husband’s very modest disposable income (albeit irrelevant legally to an award of compensatory damages). Despite this, there does not appear to have been any sensible attempt to discuss the case between the parties or agree a fair and reasonable solution.

The matter came before me on 19 April with a view to assessing damages. By this time, no doubt, the costs will have escalated to a quite disproportionate level. In the light of the admissions made six months ago (admittedly rather late in the day), it is at least clear that some award of damages is appropriate. I do not believe it would be right to treat such specific allegations as “mere vulgar abuse”: nor am I invited to do so. It would seem to follow that Mr Clynes is also entitled to something by way of costs. Yet the court must try to achieve a proportionate outcome in litigation which, in itself, appears to be disproportionate and, arguably, to serve no useful purpose at all.

The sensible thing for Ms O’Connor to have done would be to respond positively to the solicitor’s letter when it arrived in December 2009 and to attempt to achieve a settlement at minimum cost. Yet the fact remains, according to her, that she has no familiarity with civil litigation and is not wholly at ease with the written word. Her husband accompanied Ms O’Connor to court and spoke up for her in a clear and articulate way. It is unfortunate that these neighbours could not have achieved a sensible disposal but, as always, it takes at least “two to tango”.

The purpose of damages for defamation, whether libel or slander, is threefold. They are to compensate for hurt feelings, as well as for any genuine injury to reputation and to serve, where needed, as an outward and visible sign of vindication. Here, it would appear that I am primarily concerned with the alleged injury to feelings, since I see no evidence of actual injury to reputation or any need for public vindication. Ms Victoria Shore, for Mr Clynes, urges that to achieve the legitimate purposes of compensatory damages a minimum of £15,000 is required. I think that most people would find that unrealistic, to say the least.

Mr Clynes went into the witness box and said that he now has to hang his head in shame as he walks about the cul-de-sac. I did not find this very convincing. He did not seem to me the sort of man to hang his head in shame. He denied calling Ms O’Connor a bitch or suggesting to her, although not in so many words, that he was going to “take her to the cleaners”. Nor did he seek to return to the witness box in order to deny her allegation that he waved her away when she made an approach. I am not in a position to conclude that these proceedings have been pursued out of vindictiveness, but equally I am not persuaded that Mr Clynes suffered any significant long term hurt to his feelings.

His partner gave evidence as to how his life had been affected ever since, and how the incident had led to mood swings which, in turn, had caused them to split up temporarily. His evidence is that he is taking anti-depressants as a result of the slander. His doctor confirmed that he began taking such medication in April 2010 as a result of being accused of paedophilia six months earlier. I concluded that there was rather more to this than met the eye. It is very difficult to understand how an unpleasant mouthful of abuse from Ms O’Connor could of itself have had such serious or lasting consequences.

I find myself in a somewhat difficult situation in attempting, at this late stage, to arrive at an appropriate disposal of this claim, bearing in mind the likely financial consequences for the parties. It should have been disposed of by a prompt apology at the outset and the parties should quite simply have got on with their lives. Nevertheless, there has been an admission that slanders were uttered and that they were heard by a few bystanders. The solicitor’s letters were ignored and costs will inevitably have been incurred in the interim.

In all the circumstances, it seems to me that a very modest sum of damages will serve the purpose and I award £1,500. It would appear that Mr Clynes is likely to be entitled to an award of costs, and I will hear the parties on that issue when judgment is handed down, but I should have thought that any such award would have to be correspondingly modest and proportionate to the sum of damages recovered.