Iqbal v Mansoor & Ors

This is a libel action brought by Mr Mashood Iqbal, a solicitor with higher court advocacy rights, who represented himself ably and attractively on this application and cross-application.

The first to fifth defendants are solicitors. The first four defendants are or were at material times partners in the sixth defendant, Dean Manson, which is a firm of solicitors, and the fifth defendant was employed by the firm as an assistant solicitor. The defendants are represented by Miss Caroline Addy.

The claimant's application is to disapply the limitation period in respect of the first 19 of 21 allegedly defamatory publications on which he sues. The defendants cross-apply for an order that the claim be struck out under CPR 3.4(2) and/or for summary judgment under CPR 24.2 on the grounds that (1) publications 1-19 are statute-barred, (2) publications 1-3 are already the subject of an action in harassment, (3) publications 4-21 were made on occasions of absolute privilege, and (4) the claimant has failed, contrary to CPR 53 PD para 2.3, to plead the meanings of the words complained of. Finally, they seek an extended Civil Restraint Order. On an application for summary judgment, the question for the court is whether the respondent to the application has a real (as opposed to a fanciful) prospect of success. The case must be more than merely arguable.

Mr Iqbal was himself very briefly employed by Dean Manson during February and March 2006 as a part-time assistant solicitor. He left the firm on 31^st March 2006, and was in practice as a sole practitioner between December 2007 and January 2011.

He acted against Dean Manson in litigation brought by that firm against former clients. In one action brought in the Leeds County Court, Dean Manson sued a Mr and Mrs Tahir for non-payment of professional fees, and a Mr Abdul Majid Butt, who was alleged to have guaranteed the performance by the Tahirs of their obligations. His decision to represent the Tahirs was controversial because he had acted for those clients, or had had some dealings with them, when employed by Dean Manson. In another action, brought by Dean Manson in the Kingston County Court to recover unpaid professional fees, Mr Iqbal acted for the defendants Mr Ellahi and Mrs Chowdry.

There is a third relevant piece of litigation: Mr Iqbal issued a claim form in the Croydon County Court on 12^th March 2009 complaining of harassment arising out of three letters sent to him in the Leeds action (the first three letters complained of in the libel action, summarised at [8](1)-(3) below). It appears that on 4^th March 2009, before issue of the claim form, he lodged an application seeking an interim injunction against the defendants under the Protection from Harassment Act 1997. A defence was filed on 25^th March 2009, later described by Rix LJ in the Court of Appeal as “scandalous”: [2011] EWCA Civ 123 at [12]. It is certainly an inept piece of pleading, which contains a great deal of apparently irrelevant and offensive material. Dean Manson applied to Judge Ellis on 2^nd July 2009 for an order striking out the claim because it had been wrongly commenced as a CPR Pt 7 claim instead of under Pt 8. The judge took a very robust view, apparently concluding that he had no jurisdiction to hear the claim and that the three letters disclosed no credible cause of action, and struck the action out. The first appeal was dismissed by Teare J, who held that Judge Ellis had been wrong to conclude that he had no jurisdiction to hear the claim, given that an error of procedure does not invalidate proceedings, but that two out of the three letters had not been 'oppressive or unreasonable' (in the words of Lord Phillips MR in Thomas v News Group Newspapers [2002] EMLR 4 at [30]), and that although the third letter was arguably capable of being described as harassing, one letter did not give rise to the necessary 'course of conduct' under the Act. The claimant appealed again to the Court of Appeal, which allowed the appeal, holding that the three letters did arguably amount to a deliberate attack on the claimant's professional and personal integrity, in an attempt to pressurise him into declining to act for Mr Butt or advising him to meet Dean Manson's demands, and that the letters therefore did arguably evidence a campaign of harassment against the claimant. I was told by the claimant that there was about to be a case management conference in the harassment action and that the trial could take place between August and October 2011.

The claim form in this libel action was issued on 31^st May 2011. It complains of 21 allegedly defamatory instances of publication, dated between January 2009 and 3^rd February 2011, published by the defendants concerning the claimant. By the date of issue of the claim form, the one year limitation period for libel claims (s4A, Limitation Act 1980) had expired in the case of all but the last two publications.

It is necessary to summarise the dates, recipients and effect of the publications complained of, as pleaded in the Particulars of Claim (which for present purposes must be taken to be accurate). There are a number of obvious shortcomings in the pleading, which should be capable of being rectified. In breach of CPR 53PD para 2.3, the claimant has not pleaded the meanings of the various words complained of, although he has provided a gloss of the effect of many of the publications, which I have tried to summarise. I have not heard argument on the meaning of any of the words complained of, and am not to be taken to be determining either the meanings of which they are capable or their actual meanings, or to be accepting the correctness of any meanings for which the claimant contends. In many cases the claimant fails to set out the words complained of, which is a fundamental requirement of defamation pleading, and although he alleges that most of the documents were sent by post or fax to his office and read by staff, he does not identify the staff who are said to have read them, or even make clear how many read each document. That is plainly not acceptable. These are the publications complained of:

The 21 publications complained of appear to me to fall into the following categories:

The defendants' then solicitors, Kennedys, complained by letter dated 17^th May 2011 that the first 19 instances of publication were statute-barred. In response, the claimant issued an application notice dated 31^st May 2011 seeking an order disapplying the limitation period in accordance with s32A of the Limitation Act 1980.

It is convenient to consider first the defendants' cross-application on the issues of absolute privilege, which relates to all the instances of publication except nos 1-3, and the issue of abuse of process by re-litigating documents 1-3.

A convenient starting point is the Court of Appeal's decision in Lincoln v Daniels [1962] QB 237. The case concerned letters sent by the defendant to the secretary of the Bar Council alleging professional misconduct against the plaintiff. The defendant argued that the letters constituted a step in an inquiry before the Bench of the plaintiff's Inn of Court, so were entitled to the absolute privilege which attached to those proceedings. The argument failed because although an inquiry by Benchers of an Inn of Court was a judicial process to which absolute privilege attached, the Bar Council was not the agent of the Benchers and the letters sent to the Bar Council were not a step in the Inn of Court inquiry. However, the court considered the scope of absolute privilege in relation to judicial proceedings, and Devlin LJ at p257-8 considered that it fell into three categories:

As far as witnesses are concerned, it is not simply the evidence given in court which is protected by absolute privilege – or, rather, by immunity from suit, for the protection casts a net wider than defamation – but also proofs of evidence, affidavits and witness statements (see eg Beresford v White (1914) 30 TLR 591, Munster v Lamb (1883) 11 QBD 588 at 601, Lincoln v Daniels [1962] QB 237 at p260 and Darker v Chief Constable of West Midlands) [2001] 1 AC 435 at 468). The principle is stated in Gatley on Libel and Slander (11^th ed) at paragraph 13.11:

A witness will usually have to give a proof or a witness statement before he gives oral evidence. If he could be sued on the proof, the protection for evidence given in court could easily be outflanked: Watson v McEwan [1905] AC 480. Similarly, even a conspiracy to make false statements in court will be protected, not for the sake of the witnesses, but “for the benefit of the public, since the administration of justice would be greatly impeded if witnesses were to be in fear that any disgruntled and possibly impecunious persons against whom they gave evidence might subsequently involve them in costly litigation” (per Salmon J, the trial judge in Marrinan v Vibart [1963] 1 Q.B. 234 at 237, approved by the Court of Appeal [1963] 1 QB 528).

But the immunity for evidence, whether contained in proofs of evidence, witness statements and affidavits, or exceptionally even, it appears, orally in the court room, is not unlimited. It is clear from Smeaton v Butcher [2000] EMLR 985 that the contents of an affidavit will be absolutely privileged unless they have no reference at all to the subject matter of the proceedings, and that any doubt should be resolved in favour of the witness. In that case, an affidavit had been supplied by defendants to landlord and tenant proceedings, against whom the claimant alleged unlawful eviction, to a landlord who was also a defendant to an unlawful eviction claim brought by the claimant, and who used it for the purpose of applying to strike out that claim. The claimant sued in libel on the publication of the affidavit to the landlord, which was held to be absolutely privileged because the statements made within it had reference to the subject matter of the proceedings in which the landlord was a defendant. Referring to an earlier decision of the court in Samuels v Coole & Haddock [1997] C.L.Y. 4860, Clarke LJ followed that decision in rejecting a test of “no real relevance”, which Holman J in Samuels had described as “far too high a test” and as dangerously imperilling the vital public interest which witness immunity serves to protect. Although Smeaton v Butcher was concerned with an affidavit, the principle which it states was expressly applied to proofs of evidence and witness statements also.

The breadth of the principle is usefully illustrated by Seaman v Nethersclift (1876) 2 CPD 53, where a handwriting expert gave evidence against the validity of a will. The will was held valid and the judge criticised the expert's evidence. In a later case, counsel put this to the expert to attack his credibility, and despite being told in terms to say no more, he declared that he still believed the will to be a forgery. He was sued for defamation by one of the witnesses to the will, but it was held that his statement in the witness box was absolutely privileged, because it related to his credit as a witness. That may be thought an obvious result, since “related to” is no more than a synonym for “was relevant to”, but in the course of his judgment Cockburn CJ gave the example of a person in the witness box who took advantage of his position to say something which had no reference at all to the proceedings in order to damage another's character, as for instance if he was asked “Were you at York on a certain day?” and he replied “Yes, and AB picked my pocket there”. Bramwell JA doubted that a witness would be protected for anything that he said in the witness box without reference to the inquiry, and took the view that the words “having reference to the inquiry” ought to have “a very wide and comprehensive application”.

In this case, the area of concern is letters, pleadings and witness statements sent or filed in the course of legal proceedings. If the test of no real relevance sets far too high a test, it follows that any allegations which, although not on analysis relevant to the application or proceedings, nonetheless have some reference, however tenuous, to the proceedings in question, ought to be protected. It is plainly not desirable that litigants should be vulnerable to defamation claims if they misjudge, or lack the understanding to appreciate, the true ambit of the matter in dispute, and make allegations or include averments in the course of proceedings which are irrelevant to the issues but nonetheless have reference to the proceedings. Even malicious allegations must be protected, because otherwise honest witnesses would potentially be vulnerable to baseless litigation.

Miss Addy submitted that publications 4-7, 17 and 19-21 were either witness statements or statements of case brought into existence for the purpose of judicial proceedings to take place in a court of law, and were therefore straightforwardly protected by absolute privilege. She relied on the Smeaton v Butcher test that a witness statement will be absolutely privileged unless it has no reference at all to the proceedings in which it is made, a test which she submitted was plainly met. In his skeleton argument, Mr Iqbal did not advance any argument about those instances of publication except to say that while they were made during the course of litigation they had no reference to “the inquiry” at all, by which I take him to mean the matters in issue in the litigation.

I remind myself that this is an application for summary judgment. The defendants have to persuade me that the claimant has no real prospect of success in his contention that these publications are not absolutely privileged, in other words that he has no real prospect of success in his argument that the passages of which he complains have no reference to the proceedings in which the witness statements were filed.

Taking the matter as shortly as I can, in my judgment publications 5 and 6 (the Defence and Pt 18 Further Information) plainly fall within Devlin LJ's second category in Lincoln v Daniels and are in principle protected by absolute privilege. I do not regard the contrary as arguable, and indeed Mr Iqbal, as I understood him, conceded as much, confining his argument to the question of whether they had any reference at all to the proceedings. The draftsman of these statements of case shows little understanding of the rules of pleading, and I respectfully agree with Rix LJ's description of the defence, which is rambling and prolix, as containing matters of a “scandalous nature (which) could only be justified, if that were possible, by their truth”, but such shortcomings, grave as they are, do not deny them absolute privilege. Both were filed in the harassment proceedings, which will have been predicated on a course of conduct by the defendants which was oppressive and unreasonable, and will have called for a detailed account of the background of the relations between Mr Iqbal and the defendants. There are plainly passages in the defence which were irrelevant and which better judgment would have omitted, for instance the allegations of bigamy and immigration fraud. But in my view it cannot be said that they had no reference at all to the proceedings in which they were made.

As for the witness statements, publications 4, 7, 17, 20 and 21, all of them were served in the course of legal proceedings, and therefore, like publications 5 and 6, are in principle protected by absolute privilege. In his argument, Mr Iqbal did not appear to dispute that the witness statements were properly filed in the proceedings, but rather that they contained passages which he argued had no reference at all to the proceedings. The question is therefore whether any of them fail the Smeaton v Butcher test of having no reference at all to the proceedings in which they were made. Items 4 and 7 were filed in the Croydon County Court for the purpose of resisting a pending application for an injunction; item 17 was filed in the Leeds County Court proceedings; item 20 was filed in the Senior Courts Costs Office in support of an application to set aside an interim costs order; and item 21 was filed in the Wandsworth County Court, where it appears that costs questions arising from the Leeds proceedings were being considered, with a view to setting aside a costs order which seems to have been made on a default basis.

Most of Mr Iqbal's analysis of the documents complained of is to be found in his witness statement dated 28^th March 2011 and in his Particulars of Claim.

He complains of a number of passages in witness statements 4 and 7, both of which were filed in response to his application for an injunction in the Croydon County Court harassment proceedings arising out of three letters written by Dean Manson which made a number of allegations of improper conduct against Mr Iqbal. Those proceedings were predicated on conduct by the defendants which was oppressive and unreasonable. It seems to me that although witness statements 4 and 7 contain a good deal of damaging and offensive material of doubtful relevance to the application, it was necessary for the history and background to the proceedings to be set out, which required a fairly detailed account of Mr Iqbal's alleged behaviour. In my judgment, the material of which Mr Iqbal complains cannot be said to have no reference at all to the harassment proceedings.

In the case of witness statement 17, which was dated 15^th October 2009 and filed in the Leeds County Court proceedings in relation to costs matters, Mr Iqbal complains of allegations that he had used his clients, with the support of charitable funding, to make vexatious applications against Dean Manson to satisfy his personal grudges against the firm, and that he and his client the first defendant in those proceedings (Mr Abdul Majid Butt, the alleged guarantor of the debts of the other defendants) had used unlawful means to frustrate Dean Manson's right to recourse to justice through the courts. He also complains of a brief supporting witness statement by the first defendant in this action, Mr Mansoor, agreeing with the “full and truthful statement of Mr Ejaz Baig”. It appears to have been these defendants' contention that Mr Iqbal, by his behaviour, was seeking to frustrate Dean Manson's entitlement to recover costs against the defendants in the Leeds action. I do not see how it can be argued that the matters complained of had no reference at all to those proceedings.

The only witness statements to which Mr Iqbal referred in oral argument, as I understood him, were those numbered 20 and 21. Witness statement 20 is headed “In the Senoir (sic) Courts Costs Office” and dated 28^th June 2010, and was intended to support an application by Dean Manson to stay assessment of costs and to set aside an interim costs order in the Leeds proceedings in favour of the first defendant, Mr Butt. The witness statement reiterates the history of the relationship between Mr Iqbal and the defendants. Mr Iqbal told me that the most important paragraph was [17], which alleges that he had used the name of another solicitor, a Mr Ali, to establish his law firm, despite his having no permission to stay in the UK. I quite accept that paragraph 17, in common with many others in the witness statement, seems to be of no real relevance to the application. A better judgment would have omitted it. The test, however, is not “no real relevance”: as Holman J said in the case of Samuels, that would be “far too high a test”. The allegation at [17] is part of the deponent's account of Mr Iqbal's alleged professional misconduct, which appears to be designed to give the court a full picture of Mr Iqbal's behaviour in considering an application by the claimant for discretionary relief to which his conduct in the course of the proceedings arguably had some relevance. In my view there is nothing in the witness statement which can be said to have no reference at all to the proceedings.

As for witness statement 21, this was made by the fifth defendant on 5^th February 2011 in the Wandsworth County Court, to which it appears that the Leeds proceedings had been transferred. It was made in support of Dean Manson's application to set aside “the Default Costs Certification dated 30^th December 2010 in the sum of £12,384.00”. Its language is not entirely clear, but it appears to recount, in short, that the first defendant Mr Butt's costs had been agreed in the sum of £12000, an agreement recorded by a consent order, that despite that agreement Mr Iqbal had continued to advance arguments about costs, and had served on the defendants a default costs certificate, which prompted the application to set aside. Since the deponent had still not heard anything from Mr Iqbal's firm after receiving notice that the hearing would take place on 5^th January 2011, an employee of Dean Manson was instructed to attend Mr Iqbal's firm's address and deliver the Notice of Hearing by hand. Her report, according to the deponent, was that his firm was not to be found at that address and that his true professional address was not known. The deponent concludes that Mr Iqbal appears to be deliberately providing a false address for service knowing that he had no right to do so after the end of his lease on 30^th November 2010. Mr Iqbal complains that this allegation is defamatory of him. It may be, but in my judgment there can be no possible argument that it has no reference to the proceedings. Plainly it does.

Mr Iqbal appeared to place some reliance in oral argument on the fact that at least two of the witness statements had been published to his staff (he pleads such publication in the cases of statements 4 and 20, albeit without identifying the staff concerned, but his argument appeared to embrace all the witness statements). He referred to Theaker v Richardson [1962] 1 WLR 151, which is a case about liability for publication to an unintended publishee. In my judgment that does not assist him. As Miss Addy argues, if there is an absolute privilege for the witness statements served in the course of legal proceedings, there must be an ancillary privilege for publication of the witness statements to the claimant's staff in the ordinary course of business, analogous to that which applies to communications protected by qualified privilege which are made to the recipient's employees in the ordinary course of business: see generally Gatley on Libel & Slander (11^th ed), paragraphs 14.69ff.

Item 19 is a document headed “Reasons for Seeking Adjournment of the Detailed Cost Assessment Hearing on 19^th May 2010” and appears in reality to be a witness statement filed in the Senior Courts Costs Office. No publication is alleged, except (by implication) to court staff. Mr Iqbal complains of allegations which broadly concern the circumstances of his dismissal from Dean Manson, professional misconduct, conflict of interest and lack of integrity. In my judgment it enjoys the same protection as the other witness statements, and for the same reason.

I must now deal with the status of the party and party correspondence in the course of proceedings, copied to the courts in which the proceedings were taking place (items 11, 13, 15); letters to the courts where proceedings were taking place (9, 10, 12, 14, 18), and letters to the Solicitors' Regulation Authority (SRA) (items 8, 16).

This aspect of the application has been greatly simplified by Mr Iqbal's acceptance in the course of argument that all this correspondence was in principle absolutely privileged in so far as it was published to the courts and the SRA. He had not in fact argued otherwise in his skeleton argument, although it had not been clear until oral submissions just what the limits of his opposition to the application were. In the event, he only opposed Miss Addy's application to the extent of the issues of publication to the staff of his firm (as to which he relied on Theaker v Richardson, and to which he disputed that absolute privilege applied) and of what I have called the Smeaton v Butcher test, namely the question of whether the contents of the letters had any reference to the proceedings to which they related.

It is not very satisfactory to have to proceed on the basis of a concession by a litigant in person, but Mr Iqbal is an experienced and able solicitor with higher courts advocacy rights, and I cannot see that I can properly go behind the stance that he has taken, on which Miss Addy must be entitled to rely. That is not to say that I would necessarily have come to a different conclusion had the matter been argued out. I note, for instance, that Prof. Horton Rogers suggests in Gatley on Libel and Slander (11^th ed) at paragraph 13.15 that absolute privilege does extend to inter partes correspondence (citing the decision of the Hong Kong Court of Appeal in Wong Shui Kee v Chu [2002] HKEC 1570, HKCA), and in the admittedly short decision of Cave and Lawrence LJJ in Lilley v Roney (1892) 61 LJQB 727, a formal complaint to the Law Society about a solicitor was held to have been the proper way of setting in motion what were admittedly judicial proceedings and not to have been the proper subject of a libel claim.

It seems to me that I can deal very shortly with the publication to Mr Iqbal's staff of the party and party correspondence and letters to the court. If these were otherwise, as he concedes in principle that they were, properly to be regarded as absolutely privileged, then in my judgment publication of those letters to the staff of his firm in the ordinary course of business must be protected by an ancillary privilege. I have dealt with this point at [27] above.

The three letters at 11, 13 and 15 which form part of the party and party correspondence are dated 11^th June, 14^th August and 17^th August 2009. The first letter encloses a letter from the SRA and notifies Mr Iqbal that a wasted costs order will be sought against him in the Leeds County Court for making vexatious applications for what are described as his “personal reasons'. The second letter also warns that a wasted costs order will be sought arising out of Mr Iqbal's “vexatious applications” made for his personal reasons, and for not advising his client to comply with orders of the court. The letter apparently encloses a letter to Leeds County Court (item 14) in which Dean Manson set out a number of reasons why the court should decide that Mr Iqbal cannot properly act in the litigation, failing which it is said that Dean Manson intend to seek wasted costs orders. The third letter refers to (and apparently encloses) a letter to Kingston County Court, and is in very much the same terms as the second. I cannot see that there is anything in any of these letters, nor in the letter to the court enclosed with the 14^th August letter, which is not referable to the proceedings.

As for the letters to the court (apart from 14, with which I have dealt above), these start with that numbered 9, dated 26^th May 2009, to Leeds County Court. It is headed “Preliminary issue regarding conduct, independence and fitness of the Defendant's (sic) solicitor”, and is directed to an application to the court to decide whether Mr Iqbal can properly act against Dean Manson in the proceedings. Letter 10 bears the same date and makes very much the same points in support of the same application in Kingston County Court. The reasons for the applications are set out, and include a number of familiar allegations about Mr Iqbal's behaviour. Although the letters make their case very poorly and with a characteristically broad brush, although the applications may be misconceived and although much of the material has no obvious relevance to the proposed application, I see nothing in either letter which is not referable to the application and to the proceedings in the court.

Letter 12, which is a letter dated 11^th June 2009 to Kingston County Court, refers to a request for a wasted costs order for making vexatious applications. There is no possible argument that this letter was not referable to the application and the proceedings in the court. Initially, the parties thought that this letter was not in the bundles put before the court, because its text differed from that complained of by Mr Iqbal at paragraph 46 of his Particulars of Claim. However, Mr Iqbal confirmed that this was indeed the letter of which he complained.

Letter 18 is dated 13^th January 2010 and addressed to Leeds County Court. In the letter Dean Manson inform the court that they are in the course of negotiations to settle the action, that they have written to the other side (Mr Iqbal) seeking consent to withdraw all applications, but “in our experience the other party's solicitor does not respond to our letters and merely walks into court on the day of the hearing”. In consequence, they seek an adjournment of the trial, which they had been notified would come on for hearing on 19^th - 20^th January 2010. Plainly, the contents of this letter are wholly referable to the proceedings.

Finally, there are the two letters to the SRA. Mr Iqbal concedes that in principle absolute privilege applies to them, so I must proceed on the footing that it does. These are publications 8 and 16, dated 21^st May 2009 and 7^th September 2009. Miss Addy argues in the case of the first of these that the Smeaton v Butcher reference test does not apply, because the letter is an initiating complaint to a body exercising judicial functions, as the SRA plainly is (Gray v Avadis [2003] EWHC 1380 QB, Baxendale-Walker v Middleton and others [2011] EWHC 998 QB). It seems to me that Miss Addy is plainly correct, but in any event it seems to me that the letter as a whole is referable to the complaint. As for the second letter, this appears to take the form of an update to the SRA. Miss Addy submitted that it made no difference whether it was an update or a fresh complaint: in either event, it was wholly referable to the complaint. I think that is right.

However, Mr Iqbal complains (Particulars of Claim paragraph 41) that the first letter was copied to Leeds and Kingston County Courts and to his (unidentified) staff. I do not think that this was disputed by Miss Addy. He does not, as I have said, persist in the complaint of publication of the letter to the courts. However, he does not allege publication either to the courts or his staff in the case of the second letter (Particulars of Claim paragraph 50). It seems to me that this putative publication of the first letter to his staff does for the first time raise an issue which should not be disposed of on a summary judgment application. It is well established that the protection of absolute privilege will be lost if the protected material is shown to those unconnected with the relevant proceedings (see eg Gatley on Libel and Slander (11^th ed) paragraph 13.16). The complaint to the SRA concerned Mr Iqbal and no-one else. It was not sent in the course of judicial proceedings in which Mr Iqbal and his firm were involved. It does not seem to me to be appropriate to grant summary judgment in respect of this publication. I do not say that he will succeed on the point, but there is a strong argument that Dean Manson ought not to have copied the letter to his firm without ensuring that it was not read by his staff. That need only have involved sending a letter marked strictly for his attention only. I should add that the claimant would certainly not succeed without pleading the words complained of, the meaning of those words and publication of the letter to one or more named members of his staff. None of those essential elements is yet present in the Particulars of Claim.

I say nothing as to whether proceedings in respect of publication to (I assume) only one or at least a very small number of people in the claimant’s office, who might be thought unlikely to have any recollection of the matter over two years later, can properly be maintained, because the issues of abuse of process canvassed in Jameel v Dow Jones & Co Inc [2005] QB 946 were not argued before me.

It follows that the defendants succeed in their application for summary judgment in respect of publications 4-21, with the exception of publication of letter 8 to the claimant's staff.

The first three publications identified at [8] above, letters sent by Dean Manson to the claimant, represent the course of conduct relied on by the claimant in his harassment proceedings in Croydon County Court. I refer to that litigation at [6] above.

The defendants contend that for the claimant to sue on the same documents in the present defamation claim is abusive and vexatious, and apply to strike out the relevant parts of the Particulars of Claim or alternatively for summary judgment.

Miss Addy draws attention to the fact that the harassment action originally included a claim for defamation against the first defendant in this action, Mr Mansoor. In his witness statement dated 19^th July 2011, Mr Mansoor explains that the defamation claim was based on the same three letters as founded the claim in harassment, but that it was abandoned by the claimant on 2^nd July 2009, when HH Judge Ellis ruled on Dean Mansoor's application (ultimately unsuccessful in the Court of Appeal) to strike out the harassment action. The judge records the claimant as having made it clear at the hearing that he was not seeking to bring a claim in defamation, and observes that given that the Particulars of Claim were formulated so as to make an allegation of defamation against Mr Mansoor, the claimant should not have expressed himself as he did in his pleaded case. The judge also referred to the putative defamation claim at paragraphs 13 and 14 of his judgment. Miss Addy suggests, not unreasonably, that the claimant's behaviour in abandoning the cause of action over two years ago is hardly consistent with a desire for vindication in respect of these three letters.

It has long been a principle that when a matter becomes the subject of litigation, the parties should bring forward the whole of their case (Henderson v Henderson (1843) 3 Hare 100). Miss Addy submitted that if the claimant wanted to sue on the three letters he should have brought forward all his causes of action in one set of proceedings. However, it does not follow that because a matter could have been raised in earlier proceedings, it should have been, so that a later attempt to litigate it is necessarily abusive. Johnson v Gore-Wood [2002] 2 AC 1 shows that although there is a public interest in the finality of litigation and in a defendant not being vexed twice in the same matter, whether an action was an abuse of process as offending against that public interest should be judged broadly on the merits taking account of all the public and private interests involved and all the facts of the case, the crucial question being whether the plaintiff was in all the circumstances misusing or abusing the process of the court. In other words, a broad, merits-based approach should be employed. At p31 Lord Bingham, referring to the public interest in the finality of litigation and in a party not being vexed twice in the same matter, stated:

“This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.”

In Stuart v Goldberg Linde [2008] 1 WLR 823, the Court of Appeal explained that the 'broad, merits-based” approach prescribed in Johnson v Gore-Wood did not mean the substantive merits but the merits relevant to the question of whether the claimant should have brought his claim in earlier proceedings.

The merits relevant to that question seem to me to be as follows.

The claimant sued on the three identical letters in his claim in the Croydon County Court. He originally put his claim in defamation as well as in harassment, but he informed the judge at the hearing of the application to strike the claim out that he was abandoning, or did not seek to bring, a claim in defamation. He did not announce that he was resurrecting the claim in defamation until his pre-action letter of 28^th March 2011. What this amounted to doing was keeping the defamation claim up his sleeve while prosecuting the harassment claim on identical facts. As Sedley LJ and Sir Anthony Clarke MR observed in Stuart v Goldberg Linde, a claimant who keeps a second claim against the same defendant up his sleeve while prosecuting the first is at high risk of being held to have abused the court's process.

The harassment claim will require careful consideration of the three letters to determine whether by sending those letters the defendant (the firm of Dean Manson) pursued a course of conduct which amounted to harassment of the claimant (which by s7(2), Protection from Harassment Act 1997) includes alarming him or causing him distress) and which it knew or ought to known amounted to harassment of him. It would be for the defendant to show that in that in the particular circumstances the pursuit of the course of conduct was reasonable. In Thomas v News Group Newspapers Ltd [2002] EMLR 4 at [30], Lord Phillips MR said that harassment “describes conduct targeted at an individual which is calculated to produce the consequences described in section 7 and which is oppressive and unreasonable”. The decision shows that whether conduct is reasonable will depend on the circumstances of the particular case. The Court of Appeal hearing the claimant’s appeal from the striking out of his harassment claim considered that the letters complained of arguably amounted to a deliberate attack on his professional and personal integrity, in an attempt to pressurise him into declining to act for his client Mr Butt or else to advise Mr Butt to accept Dean Manson’s demands. It follows that the Croydon court will have to consider the reasonableness of the defendant's behaviour in sending the letters, the intention and state of mind of the author in sending them, the background to the sending of the letters, and very probably the truth of the words complained of, because that would be highly relevant to the question of the object of the author in sending them.

It is difficult at this stage of this action to predict what defences might be pleaded if the action based on these letters was allowed to proceed. But it is not fanciful to suppose that the most likely substantive defences (both in this action and in the Croydon action, had defamation remained a component of it) would be justification and qualified privilege. Given all the circumstances of the case, it would be surprising if, faced with a plea of privilege, the claimant did not plead malice in reply. In other words, it seems likely that any defamation action based on these three letters would explore very much the same areas as the harassment claim will do. I note also in this context the claimant's own concession, advanced at paragraph 73 of his witness statement dated 31^st May 2011 as an argument in support of his application to lift the limitation bar, that in his harassment claim “almost similar libellous statements were in issue albeit from harassment point of view”. (I do not think it relevant that in the Croydon claim the claimant sued Dean Manson alone whereas in this action he also sues four partners and an assistant solicitor in the firm. The claimant suggested in argument that he was entitled to bring in more defendants for the reasons canvassed by Eady J in Gentoo Group Ltd v Hanratty [2008] EWHC 627 QB. I see no advantage to him in suing partners when he is already suing the firm. If the partners added anything, he could have applied to join them in the harassment action).

Had the defamation claim proceeded in tandem with the harassment claim, there would therefore have been a very substantial saving of costs and time, which is a legitimate source of concern for the defendant Dean Manson. As matters stand, unless the claim on these three letters is stopped (and subject of course to the question of disapplying the limitation period) Dean Manson will have to face two trials in which the same three letters are examined at great length by the court. They potentially face two orders for costs, if they lose; and if they win, they have no guarantee of recovering their own costs of defending the claims. It is not immaterial to note that the claimant has obtained remission of the court fee for this application.

There is also a public interest in finality, in ensuring that litigants are not vexed more than once with litigation which could and should have been disposed of on one occasion, and in economy and efficiency in litigation (see eg per Thomas LJ in Aldi Stores Ltd v WSP Group Ltd [2008] 1 WLR 748 at [24]). There is no good reason that I can see why the time of the courts should be taken up with re-litigating questions which could have been determined once and for all in the Croydon proceedings. I should add (although the point was not argued) that I do not regard it as relevant that the claimant could not properly have brought defamation proceedings in the county court. He could have brought the claim in the High Court instead, and sought transfer to the county court, or have sought the defendants' consent to trial of the defamation claim in the county court.

It seems to me that it is proper to take into account the following further factors, which are relevant in a broader sense to the question of whether the claimant's conduct amounts to an abuse.

The letters were published as long ago as January and February 2009. They must have come to the claimant's attention immediately. The claimant must have regarded them as defamatory of him at the time or he would not have couched his original claim in terms which appeared to the judge to allege that they were. The letters are only alleged to have been published to unidentified staff members at the claimant's firm (presumably not more than one or two at the outside) and to unidentified persons at Leeds County Court (none of whom is likely now, after a two year delay, to have the smallest recollection of them, or any knowledge of the claimant). The claimant would, it seems to me, be vulnerable on those facts to an application to dismiss for abuse under the principles stated in Jameel v Dow Jones & Co Inc [2005] QB 946.

He did not send a pre-action protocol letter in respect of these publications until 28^th March 2011, over two years after the date of publication, and in that letter he offered no explanation for his behaviour or for why it was necessary for him to seek vindication at such a late stage. I am well aware, of course, of the reasons which the claimant has given for his delay in bringing defamation proceedings (discussed below in the context of his application to disapply the limitation period), but I find that unconvincing where he has already started an action in which the three identical letters are the subject matter of the cause of action.

In all the circumstances, I conclude that the claimant's attempt to sue in these proceedings on the three letters in question is an abuse of the process, and that to that extent his claim should be struck out.

Notwithstanding that the result of my conclusions so far is that there is very little left of the claimant's Particulars of Claim, I will deal with his application to disapply the limitation period in respect of the first 19 instances of publication (summarised at [8] above). Their dates range from 28^th January 2009 to 29^th April 2010. The claimant sent his letter before action on 28^th March 2011 (24^th in the case of the fifth defendant). He issued his claim form on 31^st May 2011.

So far as material, section 32A of the Limitation Act 1980 is as follows:

The claimant supported his application with a witness statement dated 31^st May 2011. The great bulk of the witness statement simply cuts and pastes the words complained of in the Particulars of Claim, but at paragraph 73 the claimant gives as his single reason for not issuing his claim in time the fact that on 26^th March 2010 (I think he must mean 2009) he issued his harassment claim in which “almost similar libellous statements were in issue albeit from harassment point of view”. He said: “Once the Court of Appeal had finally decided the issues in question I am now of my considered opinion (sic) that this is the right time to bring an action from libel perspective”. In fact, of course, the Court of Appeal had not “finally decided the issues in question”. It had done no more than allow an appeal against an order striking out the claim, and hold that the letters complained of were arguably capable of supporting a claim in harassment. The trial of the action has still to take place. In those circumstances, the claimant's explanation for his delay (which was repeated in his skeleton argument) is not at all easy to understand. Moreover, the Court of Appeal's decision was handed down on 15^th February 2011, yet the claimant did not issue his claim form in this action for another 3½ months, until 31^st May 2011, which had the result of allowing publication 19 to be statute-barred. He has not offered any explanation for that further delay.

However, he relied for the reasonableness of his decision to delay taking proceedings until after the Court of Appeal's decision on the case of Khalili v Bennett [2000] EMLR 996, where the claimant issued proceedings promptly over a newspaper allegation that he had himself stolen or dishonestly taken possession of a ancient Persian helmet, stolen some years before, but then took no steps for some three years because he faced criminal prosecution in France for handling stolen goods. He was tried in France and acquitted; the prosecutor appealed, and the appeal was finally dismissed. When those proceedings were over he sought directions for the future conduct of the libel action, and the defendants applied to strike it out for want of prosecution. The Court of Appeal held that where there were concurrent defamation and criminal or disciplinary proceedings, it was very much a matter of discretion as to which proceedings should be heard first, but it was a reasonable ground for delaying defamation proceedings to await the outcome of pending criminal or disciplinary proceedings which would affect the reputation which the claimant was seeking to protect. That being so, had the claimant applied for a stay of his libel action (which would have been a sensible precaution to protect his position) it was far from clear that it would not have been granted.

That is not the present claimant's case. This claimant did not issue proceedings promptly (as anyone eager for vindication might be expected to do) and then delay in prosecuting them: he simply did nothing at all. To protect his position, he should have issued his claim form promptly and then have applied for a stay pending resolution of the harassment appeal, if that was his reason for not wishing to proceed with the libel claim at that point.

The claimant contended for the first time in oral submissions that his reason for delay was pending SRA disciplinary proceedings. This was described by Miss Addy as an opportunistic and novel submission, and of course it was unsupported by evidence. The claimant pointed out that after his claim in harassment was first struck out by Judge Ellis at Croydon (on 2^nd July 2009), he was then investigated by the SRA at the instance of Dean Manson, as a letter of 28^th April 2010 shows. That letter refers to his file being 're-opened' so that further investigation could be carried out. The file (which concerned allegations of professional misconduct made against him by Dean Manson) had earlier been closed by direction of the SRA adjudicator on 17^th December 2009, on the basis that the allegations by Dean Manson arose from circumstances referred to in the claimant's harassment litigation, which was then the subject of a pending appeal. The adjudicator was satisfied that any decision by him would impact directly on that litigation.

Asked for his response to Miss Addy's criticism of his new reason for delay as opportunistic, the claimant insisted that that the harassment action and the Court of Appeal decision on the one hand, and the SRA investigation on the other, were linked. That is true to the extent that, as the adjudicator said, the SRA issues were the same as those raised in the harassment action; but the Court of Appeal had merely reversed the judge's order striking out the claim – it had not determined the issues which fell to be determined both by the SRA and by the court of trial in the harassment action. However, the claimant insisted that the only basis of the disciplinary proceedings had been remarks made by Judge Ellis at Croydon: since his ruling had been overturned, there was no longer a basis for disciplinary proceedings. I doubt that the claimant is right about this, since although the judge certainly did refer to “unreasonable conduct … to a high degree” on his part as justifying an order for indemnity costs, and although a letter to him from the SRA dated 20^th October 2009 appeared to regard the judge's remarks as the issue under investigation, Dean Manson's original letter of complaint to the SRA, dated 21^st May 2009, pre-dated Judge Ellis' judgment, and, as Miss Addy points out, there was a very full letter of complaint from Dean Manson to the SRA dated 7^th September 2009 which must have been the subject of investigation and appears to have nothing to do with any remarks made by the judge. More to the point, the decision of the Court of Appeal did not wholly invalidate Judge Ellis' observations about the claimant's unreasonable conduct.

However, I am prepared to accept for the purposes of this application that the claimant had two reasons for not starting libel proceedings earlier, one the harassment proceedings, and the other the SRA investigation. I do not regard either as a good reason for failing to notify his claim and his wish for vindication in a letter before action, nor for failing to issue a claim form and seek a stay pending resolution of the harassment and SRA matters. His stated reason for deciding that the time was now right to issue defamation proceedings seems to have been the decision of the Court of Appeal to reinstate his harassment claim. I find that hard to understand. The claimant still faces a pending trial of his harassment claim, just as he did in 2009. All that has changed is that his claim has been restored after being struck out.

The claimant's argument rested on balance of prejudice. He argued that the defendants would suffer no, or minimal, prejudice if the application was allowed, since the last two publications relied on, which were sued on within the limitation period, repeated “almost all” the allegations made in the earlier publications, and the earlier publications would in any event be disclosed, referred to and discussed. That argument, of course, cuts both ways.

The claimant cited Maccaba v Lichtenstein [2003] EWHC 1325 QB, where Gray J disapplied the limitation period in respect of two out of nine slanders which were prima facie time-barred, where the sting of all nine slanders was very much the same. In that case there was real prejudice to the claimant if he could not obtain vindication in respect of the two slanders, because they alleged adultery with a named woman, whereas the other slanders made general allegations of adultery and of having affairs. Mr Maccaba was justified in saying that he particularly needed vindication where there was a specific allegation involving a named woman.

The claimant argued that just as Mr Maccaba needed vindication in respect of a slander alleging adultery with a named woman, as opposed to the other slanders which made generalised allegations of sexual misconduct, so in his case he was particularly concerned by the allegations of criminal conduct made in the 5^th publication sued on (the defence in the harassment action), which he summarises in his Particulars of Claim as alleging that he committed immigration offences in relation to his second wife, and bigamy. That, he suggested, was a libel which required vindication, in respect of which he would be prejudiced if the court refused to disapply the limitation period. He also argued that particular prejudice would arise if he was unable to sue on the 3^rd and 6^th publications (respectively a letter to his firm which on the claimant's case makes allegations of immigration offences, and the Pt 18 further information served in the Croydon County Court action, the meaning of which the claimant does not plead in his Particulars of Claim but which may allege bigamy and the 'circumvention' of English law). The difficulty for the claimant in that submission is that on his own argument the 20^th publication, which has no limitation problems, repeats almost all the defamatory allegations made in the earlier publications, including the allegation which may arguably suggest the commission of an immigration offence relating to a Mr Ali who may have been held out as his partner. In so far as there is an allegation of bigamy in the 5^th and 6^th publications, which may be doubtful (the allegation seems to be directed rather to an allegation of breach of immigration law), that is not repeated in the 20^th publication, so the claimant would to that extent be unable to obtain vindication if he was not permitted to sue. The claimant argues, therefore, that if the limitation period remains in place he will suffer much greater prejudice than the defendants will suffer if it is lifted.

The claimant relied in his skeleton argument on the Court of Appeal's decision reversing the county court judge's order striking out his harassment claim, arguing that in the light of the comments made by the court about the nature of the defence in that action as throwing evidential light on the proper interpretation of the three letters constituting the course of conduct (the first three letters sued on in this libel action), he would suffer much greater prejudice if the limitation period was not disapplied than would the defendants. That argument, in so far as I understood it, seemed to me unpersuasive. The Court of Appeal's observations related to the harassment action, in which the claimant has been allowed to sue on the first three letters. His entitlement to sue on those letters will be wholly unaffected by my decision in this action, whatever I decide.

Miss Addy argued that the prejudice to the defendants if the limitation bar were lifted would be much more substantial than the claimant is prepared to accept. The claimant's argument that the court would still have to deal with documents 1-19, even if the limitation period stood, is correct to the limited extent that they would probably be disclosed, possibly in support of a claim for aggravated damages arising out of the repetition of charges culminating in documents 20 and 21, but it is difficult at this stage to predict what other relevance they would have to the issues in a truncated libel action. They might, of course, become relevant on malice. However Miss Addy submits, I think correctly, that if documents 1-19 remained as publications sued on in the action, the complexity and cost of the litigation would be very greatly inflated. That does seem to me to be almost inevitable. Even without considering the ramifications for substantive defences, the huge task of determining meaning and the extent and effect of publication of nineteen publications, as compared with the task if there were only two, needs no elaboration.

Moreover, Miss Addy warns against drawing superficial parallels between the different publications. For example, the letter to the SRA dated 21^st May 2009 (publication 8) complains of conflict of interest and the claimant's alleged grievances against Dean Manson, whereas their letter to Kingston County Court of 11^th June 2009 (publication 12) contends that a wasted costs order should be made against the claimant for making vexatious applications and wasting the court's time in those proceedings. Similar allegations (but in relation to a different action) are made in the letter of 14^th August 2009 to the Leeds County Court (publication 14).

I am not sure how cogent that argument is given that document 20, which is not statute-barred, seems to embrace most of the allegations complained of, but I do accept that the claimant very substantially underestimates the time and expense which would be involved in trying an action in which twenty-one, as opposed to two, publications are sued on. Given that, as the claimant himself maintains, almost all the defamatory material is contained in document 20, it seems to me that the balance of prejudice tilts very distinctly against him.

The effect of s32A, Limitation Act 1980 is to give the court an unfettered discretion (Steedman v BBC [2002] EMLR 17) to direct that the one year time limit should not apply to any specified cause of action. All the circumstances need to be taken into account. In exercising the discretion, regard should be had to the degree to which the operation of the section would prejudice either party. Of course, a direction under s32A is always highly prejudicial to a defendant; and the expiry of the limitation period is always to some degree prejudicial to the claimant, depending on the strength of the claim and any defence. I have already concluded that the balance of prejudice is in favour of the defendants. I have regard to the delay since expiry of the limitation period: that delay varies from a maximum of 16 months to a minimum of one. I do not regard the delay as very significant even at its maximum, given that the defendants do not, as I understood Miss Addy, argue that the impact of delay on the availability of relevant evidence is significant. The potential difficulty of proving publication to individuals who may no longer have any recollection of it, is a problem for the claimant, not the defendants. However, the claimant's reasons for his delay I find unpersuasive. His harassment claim is outstanding now just as it was in 2009 and 2010, and even if in 2009 there was a good reason not to prosecute a defamation claim until resolution of the SRA investigation, that was not in my view a justification for failing to send a pre-action letter setting out his claim, to issue proceedings and then to seek a stay. It is not acceptable for a claimant to take the conscious and informed decision to do nothing in answer to the publication of defamatory material and then to issue proceedings after the expiry of the limitation period when in his opinion it is the right time to do so.

It is important to remember that this is a defamation action. Parliament must have intended by reducing the limitation period from three years to one in July 1991 (following the recommendations of Sir Brian Neill's Supreme Court Procedure Committee) that defamation claimants with full knowledge of the facts should move quickly to obtain vindication. The introduction to the Defamation Pre-Action Protocol states that time is always of the essence in defamation claims. The effects of libel and slander can be very transient. That might be thought to be particularly the case here, where most of the publication relied on is to unidentified staff at the claimant's former firm and at two county courts, who are unlikely to have any recollection after this lapse of time of the documents which they are supposed to have seen. It is for the claimant to make out a case for the normal rule to be disapplied, and in my judgment he has failed to do so. It would not be equitable to allow the action on the first nineteen publications to proceed.

One of the grounds for the defendants' application was the claimant's failure to plead the defamatory meanings for which he contends, contrary to CPR PD53 2.3. That is certainly one of the flaws in his Particulars of Claim. There are others also, to which I have referred above – in particular, his failure to set out in most cases the words complained of, and his failure to identify the alleged publishees. I would not have struck out his claim on the ground of his failure to plead meaning. That is a matter which was capable of being rectified and in the first instance should have been dealt with by a Part 18 request for further information.

The defendants applied for an extended civil restraint order against the claimant in accordance with CPR 3CPD 3.1. For me to make such an order I would have to be persuaded that the claimant has persistently issued claims or made applications which are totally without merit. I do not see how I could in any event have reached such a conclusion on the basis of the information before me about the various pieces of litigation in which the claimant has been involved. However, Miss Addy told me that she had to satisfy me that the claimant's current application was wholly without merit. That I was certainly not prepared to accept. I therefore decline to make an order.