Apsion v Butler

This is the hearing of the Defendant’s application for judgment in this libel claim on four grounds, which are independent of each other: first, limitation; second, absolute privilege or immunity from suit; and third, abuse (the case on abuse is put in two different ways). There is also an application by the Claimant for disclosure and for summary judgment in his favour.

It is said by the Defendant:

Mr Jacob Dean appears on behalf of the Defendant. The Claimant appears in person accompanied by Mrs O’Brien, who has assisted him in relation to the hearing.

It is necessary to refer first to the factual background of the claim, which is fully set out in Mr Dean’s skeleton argument and which I gratefully adopt.

The Claimant and the Defendant are both barristers. The Claimant sues the Defendant in respect of a witness statement which the Defendant provided to a mutual former client in July 2006 for the dual purpose of a Bar Standards Board complaint into the Claimant’s conduct, and threatened professional negligence proceedings against the Claimant. I shall refer to the witness statement as “the Statement”.

From March to May 2005 the Claimant acted directly for Mr Anthony Dilnot who was the defendant to a libel claim brought by Mr Roger Davey. The Claimant settled a Defence and Counterclaim, which was filed on 5 May 2005. The Claimant says that this document was only provided to Mr Dilnot as a draft and that it was served without the Claimant’s permission, but he accepts he was the author of its contents. He charged Mr Dilnot for the work, which included settling the Defence. See in this context the Visitors’ judgment at paragraphs 9 and 43, to which I refer below.

In mid-May 2005 Mr Dilnot instructed solicitors, Hugh James and Co. The Defendant was then instructed by them in or about the end of June 2005. He advised it would be necessary to amend the Defence and Counterclaim settled by the Claimant. On 2 June 2005 Mr Davey issued an application to strike out the Defence and Counterclaim settled by the Claimant on the ground, amongst others, that it was defective and an abuse. On 15 July 2005, in response, Mr Dilnot applied to amend his Defence. On 21 July 2005 Mr Davey consented (on terms as to costs) to the amendment of the Defence. Mr Davey also made a Part 36 offer to settle the libel proceedings for £500 in damages plus an apology and an undertaking. The Amended Defence settled by the Defendant was filed on 29 July 2005.

On 28 June 2006, Mr Davey succeeded in his claim against Mr Dilnot after a trial before Tugendhat J and a jury, and he was awarded £5,000 damages. Mr Davey claimed in the proceedings that the Defence and Counterclaim settled by the Claimant had “substantially aggravated” the damage which he had suffered.

Shortly after he was forced to amend his Defence Mr Dilnot threatened to bring a claim for professional negligence against the Claimant. Mr Dilnot also complained about the Claimant’s professional conduct to the Bar Standards Board, (“the BSB”).

After the trial in June 2006, Mr Dilnot sought to progress the claim and the complaint against the Claimant. For those purposes he asked the Defendant to provide him with a witness statement concerning the aggravation in damages caused by the Claimant’s Defence and Counterclaim. The relevant email exchanges between Mr Dilnot and the Defendant in relation to this matter are in evidence before me.

The Statement, provided by the Defendant as a result of Mr Dilnot’s request, is dated 24 July 2006. It was disclosed to the Bar Mutual Insurance Fund (BMIF) in the context of the negligence complaint made by Mr Dilnot (see Hugh James’ letter of 8 August 2006) and was in evidence in the BSB complaint against the Claimant.

The Statement provided by the Defendant pursuant to Mr Dilnot’s request as I have said, contains the words complained of in this libel claim. Extracts from the Statement which are complained of are contained in paragraphs 16 to 22 of the Particulars of Claim. No defamatory meaning is pleaded, but it is not disputed on behalf of the Defendant that the selected passages are critical of the Claimant in relation to his representation of Mr Dilnot, and that they are particularly critical of the Defence and Counterclaim drafted by the Claimant.

In the Statement the Defendant said, amongst other things, that “some of the language used [by the Claimant] went beyond forensic flourish and was inappropriate in a pleading settled by counsel…The general content of the pleading is improper.” He said it included “a hopeless and vexatious counterclaim in libel and malicious prosecution ... which would have been struck out if an application had been made”.

The Claimant’s central complaint about the Defendant’s statement is that it does not mention the fact that Mr Davey had made a Part 36 offer to accept £500 by way of damages in July 2005 (see for example paragraph 21 of the Particulars of Claim).

The Claimant makes various allegations about this omission. He says it is a fraud by the Defendant; that it is part of a criminal conspiracy with Mr Dilnot; that it amounts to concealment for the purposes of s32 of the Limitation Act 1980, and that it shows malice on the part of the Defendant. This part of the Claimant’s case is characterised by Mr Dean, correctly in my judgment, as follows. It is the Claimant’s case that (i) the offer showed that the Claimant’s work for Mr Dilnot put him in a good position to settle the case; (ii) the Defendant was at fault for not ensuring that Mr Dilnot accepted the offer; (iii) in omitting to mention the offer in his statement the Defendant sought to deflect blame from his conduct of the case on to the Claimant; (iv) the Defendant thus misled the Council of the Inns of Court (“COIC”) Disciplinary Tribunal into an unjustified finding of misconduct against the Claimant; and (v) thereby caused the Claimant the reputational and financial damage which flowed from the penalties imposed by the Tribunal.

Further allegations are now made by the Claimant in the course of his submissions before me today, which I shall refer to in due course.

A COIC Disciplinary Tribunal of the Council of the Inns of Court sat in May and June 2007 to hear charges of professional misconduct and inadequate professional service made against the Claimant arising out of his representation of Mr Dilnot. The Claimant was provided with papers for that hearing in January 2007. Importantly, for present purposes, those papers included a letter from Mr Davey which informed the Claimant of the fact and content of the Part 36 offer. See in this context the Visitors’ judgment at paragraph 28.

The Defendant’s Statement was in evidence before the Tribunal at the hearing and was referred to in the Report of the Chairman of the Tribunal, His Honour Christopher Barnett QC, dated 4 August 2007. It appears from the evidence before me that the Claimant himself had sent the Defendant’s statement to the BSB on 4 October 2006: see the letter from the BSB dated 6 February 2007 and the Visitors’ judgment at paragraph 12.

The agreed directions made for the COIC Disciplinary hearing dated 1 February 2007 record that the Claimant wished the Defendant to be called at the hearing. Accordingly the Defendant attended on the first day of the hearing, having been told that there was a possibility that he might be called to give oral evidence. When he attended the Defendant’s evidence is that the Claimant handed him a document entitled “Rupert Butler’s Statement” which took issue with much of his Statement, including a complaint that, “Mr Butler omits to mention that a Part 36 offer was made”. There is no reference to this document in the Tribunal report. However, at the hearing the Claimant declined to cross-examine the Defendant on the contents of the Statement having been warned of the consequences of not doing so: see the Tribunal Report at paragraphs 5 and 10 and the Visitors’ judgment at paragraph 16.

The Tribunal found the Claimant guilty of seven out of eight charges. It stated in relation to the Defence drafted by the Claimant that “It was wholly improper, prejudicial to the administration of justice, and likely to bring the profession into disrepute.” See the Tribunal Report at page 12. The Claimant was suspended from all practice for 18 months. He was prohibited from carrying out public access work indefinitely and he was ordered to repay or forego all fees charged to Mr Dilnot in addition to being required to pay the costs of £3,386: see the Tribunal Report at pages 14 to 15.

The Claimant appealed against the decision of the Tribunal to the Visitors to Lincoln’s Inn. This appeal was heard by a panel chaired by King J on 23 and 24 June 2008. In their judgment dated 10 October 2008 the Visitors dismissed the appeal against the Tribunal’s findings and the sentence imposed. The Visitors found that “The work carried out by [the Claimant] was substandard and its potential for harm was obvious.” See paragraph 79. They found that the evidence (including the evidence of the Defendant in the words complained of) as to the actual effect of the substandard work was not relevant to the issue of whether the Claimant should be subject to sanction for professional misconduct: see paragraph 27. They considered that if they were wrong about that, and the effect of the work was relevant, it was:

“Inconceivable that the application to strike out [the defence drafted by Mr Apsion] would have failed. The only way to avoid the order being made was taken: Mr Apsion’s Defence was withdrawn and replaced at the client’s cost.” (See paragraph 80).

The Claimant was ordered to pay BSB’s costs of the appeal in the sum of £1,070: see the order of the Visitors dated 17 December 2008.

On 14 January 2009 the Claimant commenced Judicial Review proceedings against the BSB, COIC, the Bar Council, the Visitors to Lincoln’s Inn and the Lord Chief Justice. These proceedings challenged the jurisdiction of the BSB and the Visitors and the way in which the proceedings before them were conducted.

During March and April 2009, numerous letters were sent by the Claimant and copied to the Defendant. The Claimant also threatened to apply to join the Defendant to the Judicial Review proceedings by letter dated 15 April 2009; and he issued an Application Notice for that purpose on 26 May 2009. In that application the Claimant alleged, amongst other matters, misfeasance in public office; and the Application Notice included reference to the July 2005 Part 36 offer made by Mr Davey and to a second Part 36 offer in April/May 2006. The Claimant continued to copy the Defendant into correspondence relating to the Judicial Review proceedings; and eventually the claim made by him was dismissed by Lloyd-Jones J on 1 February 2010.

On 7 October 2009 the Claimant intimated for the first time that he intended to sue the Defendant for libel. He did this by a telephone call to the Defendant’s solicitors: see the evidence of Mr Bird as in his first witness statement dated 4 May 2010.

On 14 January 2010 the Claimant sent the Defendant’s solicitors, Reynolds Porter Chamberlain (RPC), a letter before claim. He included within it a nine page document entitled “Analysis of Libels”, which is largely reproduced in the Particulars of Claim. On 22 January 2010 RPC asked for more than the 14 days allowed by the defamation pre-action protocol to reply. The Claimant refused that request.

On 25 January 2010, RPC replied on behalf of the Defendant, and said that the claim which the Claimant intimated he was bringing was time-barred. On 27 January 2010, the Claimant replied that the Defendant had “fraudulently concealed and continues to conceal the relevant evidence”.

On 19 February 2010, the Claimant sent RPC a document entitled “Pre-action Protocol in respect of Malicious Falsehood” making similar points to those made in relation to the threatened libel claim.

On 8 March 2010, these libel proceedings were issued. It appears from the claim form that a claim is made in defamation and malicious falsehood, with a value being put on the claim in excess of £300,000. Mr Dean submits that the Particulars of Claim are deficient in a number of basic respects; they do not specify with any precision the words complained of, or the meanings which are attributed to those words, or the case on publication. For the purposes of today’s application however he makes those points only insofar as they support his case on the four points upon which the Defendant asks for judgment.

On 4 May 2010, the Defendant issued this application. On 11 May 2010 the Defendant provided the Claimant with detailed evidence in support of the application, as well as a summary of the argument upon which the Defendant now relies. The Defendant also provided the Claimant with copies of the authorities referred to in the summary of argument.

The delay which has taken place between that date and this is a result first of the Claimant’s medical difficulties. These meant that the hearing did not take place until 24 November 2010. Second, it was necessary to adjourn the hearing part-heard to today, as it was not possible to cover all the ground which was raised during the time allotted to it by the parties.

Following the issue of these proceedings, the Claimant has pursued his complaints, arising out of the Davey v Dilnot proceedings, in various other fora. First of all to the European Court of Human Rights. In paragraph 31 of his skeleton argument for today, in addition to asking for directions in relation to this matter, he asks in the alternative:

“... for a stay of the proceedings pending resolution of the underlying matter by the European Court because of the prolific attempts to feed off the Visitors’ judgment against me. It is wrong to hold a hearing and make a final order that then has to be overturned because of a ruling by the ECHR in respect of a case which is already before it.”

In addition, there is before me a witness statement from Mr Castellani, a solicitor and partner at RPC, who has the conduct of this matter on behalf of the Defendant. He brings matters up to date so far as other litigation brought by Mr Apsion is concerned. There is a claim brought by Mr Apsion against Hugh James, as I have said, the solicitors who acted for Mr Dilnot in the libel claim brought by Mr Davey. Mr Castellani says that he understands from the solicitor acting on behalf of the defendant in that case that its application for summary judgment was successful before the Deputy Master. That is accepted to be accurate by the Claimant.

The second case is Apsion v Dilnot . Mr Castellani says that he understands that Mr Apsion has successfully obtained permission to appeal an order of the Master granting summary judgment, striking out its claim, which is listed to be heard at the end of March. He also refers to further disciplinary proceedings against the Claimant.

I turn now to the four grounds of the Defendant’s application for judgment.

Limitation

The Limitation Act 1980 section 4A provides that:

“The time limit under section 2 of the Act shall not apply to an action for (a) libel or slander, or (b) slander of title, slander of goods or other malicious falsehood, but no such action shall be brought after the expiration of one year from the date on which the cause of action accrued.”

In my judgment the evidence establishes beyond argument that the publications complained of by the Claimant in the Particulars of Claim are time-barred, assuming for this purpose that there is an arguable case that the Defendant was responsible for those publications.

The Particulars of Claim appear to complain of six publications of the Statement, see paragraph 28 of the Particulars of Claim: publication to Mr Dilnot; publication to the Bankruptcy Court; publication to Mr Davey; publication to Hugh James Solicitors, who it is said published it to the BMIF; publication to the BSB and to COIC, and in the COIC Tribunal Report; and publication in the BSB evidence bundle before the Visitors.

Although the dates on which the publications are said to be made are not stated in the Particulars of Claim, the evidence establishes, in my view, in relation to each as follows. First, that publication to Mr Dilnot took place on or around 24 July 2006 (see the witness statement of the Defendant at paragraph 27). Second, that publication to the Bankruptcy Court occurred some time before 26 August 2006. The Defendant’s uncontradicted evidence is that he knew nothing about the publication to the Bankruptcy Court (see his witness statement at paragraph 39). But the first paragraph of Mr Davey’s letter to Mr Turner of the BSB dated 26 August 2006 shows that the Statement was exhibited by Mr Dilnot to an application to set aside a statutory demand issued by Mr Davey against Mr Dilnot. Publication must therefore have occurred some time before 26 August 2006. In consequence, third, that the publication to Mr Davey (which the Defendant also says he was not involved in and knew nothing about) must have taken place before 26 August 2006 as well. Fourth, that the publication to Hugh James and the BMIF took place at the latest on 8 August 2006 (because the Statement was sent under cover of a letter from Hugh James to the BMIF on that date). Fifth, that publication to the BSB and the COIC Tribunal took place at the latest on or about 4 October 2006; and to the members of the panel hearing the complaint, when they were provided with the hearing papers. This is likely to have been a short time before the hearing began on 14 May 2007. See for example a letter from Ms Telfer of the BSB to the Defendant dated 6 February 2007 which says “During the Complaints stage of this matter, Mr Apsion submitted a statement in your name dated 24 July 2006”. See also the Visitors’ judgment at paragraph 12.

There is a further point as to the publications to the BSB, the COIC Tribunal (and its members). The evidence which has not been contradicted by the Claimant, is that the person responsible for these publications was the Claimant. As Mr Dean points out, as a result the claim for these publications fails at the first hurdle quite apart from the issue of limitation.

In paragraph 30 of the Particulars of Claim, the Claimant pleads that the Defendant knew the Statement was included in evidence before the Tribunal and the Visitors but “... made no attempt to remove it or correct it. Such omission amounts to acquiescence in republication and continued fraud.” In my view this aspect of the Claimant’s case is unarguable. In any event, there is no evidence that the Defendant had any control over the evidence before the Tribunal. As Mr Dean also points out, the Claimant made no objection at the hearing to the admission of the Statement in evidence (apart from an application to redact two sentences). Indeed he told the Tribunal he found much of the Statement “extraordinarily helpful” (see the Tribunal Report at page 3). He also declined to cross-examine the Defendant on its contents.

As to the Claimant’s case that the Defendant was responsible for publication of the statement in the COIC Tribunal Report and in the BSB bundle of evidence before the Visitors, this part of the Claimant’s case seems to me to be simply incoherent as currently formulated. But in any event, it is clear in my view that there is no arguable case in this respect on publication (or republication) at all. The Statement was referred to in the Tribunal Report on a number of occasions but no part of it was reproduced, whether directly or indirectly. Even if it was, this would not be a publication for which there is any arguable basis for holding the Defendant responsible: see McManus v Beckham [2002] 1 WLR 2982. Further, even if there was a coherent case on these publications, the date of publication of the Tribunal Report was 4 August 2007.

Sixth, as for the BSB bundle of evidence before the Visitors, publication must have taken place at some point before 23 June 2008 when the appeal before the Visitors began. But once again, in my view, the case on the Defendant’s responsibility for publication at all is fatally flawed. Since the statement was in evidence before the COIC Tribunal it was obvious that it should be included in the bundle of evidence before the Visitors: this therefore is not a publication for which the Defendant could justly be held responsible, either as a separate cause of action or as an event causing damage which flowed from the original publication to Mr Dilnot on 24 July 2006 (which it is asserted on behalf of the Defendant, was the only publication which the Defendant was directly responsible for).

I turn next therefore to the Limitation Act, section 32. This provides as follows:

“(1)

Subject to subsection (3) and (4A) below where in the case of any action for which a period of limitation is prescribed by this Act, either (a) the action is based upon the fraud of the defendant; or (b) any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant; or (c) the action is for relief from the consequences of a mistake; the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.”

In paragraphs 13 and 14 of the Particulars of Claim the Claimant appears to rely on the provisions of section 32 of the Limitation Act, although it is referred to as section 32A. He states that relevant evidence was “fraudulently concealed” and therefore “time has not begun to run”.

The Defendant invites me to find pursuant to CPR Part 24 that the Claimant has no realistic prospect of establishing under section 32 that the limitation period did not begin to run until sometime less than one year before 8 March 2010. Mr Dean refers to the cautionary observations of Tugendhat J in Taylor v Associated Newspapers Limited [2010] EWHC 2494 at paragraph 12; and what was said by Potter LJ in Easyair Limited v Opal Telecom Limited [2009] EWHC 339 at 15, and to Downtex v Flatley [2003] EWCA Civ 1282 at 31.

I bear the observations which I have referred to in mind. But in my view there are two points here. First, I do not consider it arguable that there was any deliberate concealment: see the observations of Park J in Williams v Fanshaw Porter and Hazelhurst [2004] 1 WLR 3185 at 14 and 21 to 23, Cave v Robinson Jarvis and Rolf [2003] 1 AC at 384 and McBride v Body Shop [2007] EWHC 1685 at 54, in which Eady J said this at paragraph 54:

“It is elementary that in this context there is a distinction between not revealing a confidential document (until disclosed until compulsion of law) and deliberately concealing it. It is implicit in the notion of ‘deliberate concealment’ that a document has been concealed from someone who would otherwise have a right of access to it.”

Second, it cannot be said, in my view, that the Defendant was under any duty to disclose a Part 36 offer made by Mr Davey (after the Defendant had taken over from the Claimant as Mr Dilnot’s counsel, and he had replaced the defective Defence with an Amended Defence) in a witness statement, which addressed the Claimant’s competence when he was instructed by Mr Dilnot.

Mr Apsion has said in his submissions this morning, and indeed in his skeleton argument, that both Mr Butler and Tugendhat J were under a duty to inform him of complaints made against him at the trial of Davey v Dilnot . In my view that submission is simply not relevant to any issue which arises.

Even on the hypothesis (which is denied by the Defendant) that there was deliberate concealment, the case that section 32 cannot, as a matter of law, on the facts asserted by the Claimant, prevent the limitation period running in relation to the libel claims is, in my view, an unanswerable one.

The undisputed evidence shows that the Claimant was aware of the facts relevant to the causes of action complained of long before 9 March 2009; that is one year before the claim form was issued.

The Claimant had seen the Statement by 4 October 2006 at the latest when he sent it to the BSB (see the Visitors’ judgment at paragraph 12). He was involved with the use of the Statement before the BSB, the Tribunal, and the Visitors, and he knew about any publications which might be complained of during that process at or shortly after the time they were made. As Mr Dean points out, as soon as the Claimant saw the Statement he was able to assess whether or not it referred to and was defamatory of him, and thus whether or not he had a cause of action.

The only act of concealment relied on by the Claimant (in paragraph 21 of the Particulars of Claim) is the omission by the Defendant of any mention of Mr Davey’s July 2005 Part 36 offer in the Statement complained of. This is relied on in support of an argument that the Defendant was motivated by malice and is therefore not protected by qualified privilege (see paragraph 12 of the Particulars of Claim). However, it is clear that facts relevant to malice are not facts relevant to the cause of action in libel (see Johnson v Chief Constable of Surrey , 19 October 1992, and C v Mirror Group [1997] 1 WLR 131 at pages 136C to 139B).

I turn next to consider the application of section 32 to the Claimant’s claims of malicious falsehood. It is necessary to consider this separately from the claim in libel, since it is arguable that what is said in the case of C v Mirror Group does not apply where malice is an element of the cause of action, as it is in malicious falsehood,.

In my view, this aspect of the Claimant’s claim falls foul of the provision in section 32 that the limitation period:

“Shall not begin to run until the plaintiff has discovered the fraud concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.”

The relevant date for this purpose is in my judgment, January 2007. The BSB’s bundle for the Claimant’s forthcoming Disciplinary Tribunal was served on him by January 2007, at the latest. It contained a letter dated 26 August 2006 from Mr Davey to Mr Turner, which referred in detail to the July 2005 Part 36 offer. In Mr Davey’s letter he referred explicitly to the Part 36 offer as the basis for disagreeing with some of what the Defendant had said in the Statement. Thus, the Claimant had discovered the alleged “concealment” at the latest, by then. If there was deliberate concealment, which as I have said is disputed by the Defendant, time began to run for this aspect of the Claimant’s claim at the latest therefore by January 2007.

I do not accept the relevance of the Claimant’s argument in response to these matters. pleaded in paragraph 13 of the Particulars of Claim (namely that he did not see the actual letter containing the Part 36 offer until October 2009; and that even then, he did not know to whom it was addressed or its content) given what the Claimant did know in January 2007, from the letter from Mr Davey, to which I have already referred. As I have said, this letter described the terms of the offer accurately and that it was sent in July 2005. It was obvious to whom it was sent and whether the Claimant knew the precise date of it does not matter for this purpose.

It is also to be noted in this context that the Part 36 offer has been relied on by the Claimant several times throughout the subsequent years in support of his case and the points he has made against the Defendant: see for example his BSB complaint about the Defendant on 22 January 2008, which is evidence before me. If further support is needed for the proposition that the Claimant did not need to see the Part 36 offer to formulate his claims (in either libel or malicious falsehood) it is provided by the content of that complaint, in which the Claimant said that in continuing to represent Mr Dilnot after Mr Davey’s July 2005 Part 36 offer “to settle for £500 on standard libel terms”, the Defendant provided an inadequate professional service (see paragraph 3), and in which he relied on the criticisms made of the Defendant by Mr Davey in his 26 August 2006 letter, see paragraphs 3 and 11.

Thus, in my judgment, the Defendant is correct in submitting that the Claimant knew all he needed to know in order to launch proceedings in libel or malicious falsehood in respect of the publications complained of by January 2007 at the latest, that is over three years before the claim form was issued.

I turn next to section 32A. Section 32A of the Limitation Act 1980 provides as follows:

“(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which (a) the operation of section 4A of this Act prejudices the plaintiff or any person whom he represents, and (b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents, the court may direct that that section shall not apply to the action or shall not apply to any specified cause of action to which the action relates;

(2)

In acting under this section the court shall have regard to all the circumstances of the case and in particular to:

(a)

the length of, and the reasons for, the delay on the part of the plaintiff;

(b)

where the reason or one of the reasons for the delay was that all or any of the facts relevant to the cause of action did not become known to the plaintiff until after the end of the period mentioned in section 4A

(i)

the date on which any such facts did become known to him, and (ii) the extent to which he acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action; and

(c)

the extent to which, having regard to the delay, relevant evidence is likely

(i)

to be unavailable, or

(ii)

to be less cogent than if the action had been brought within the period mentioned in section 4A.”

The Claimant does not rely upon section 32A of the Limitation Act specifically but Mr Dean invites me to consider its provisions on the basis that I can determine its applicability now without the need for a further hearing.

On such an application the court should, as Mr Dean submits, look at all the relevant factors and engage in the relevant balancing exercise. It is not exercising a summary jurisdiction and there is no need for the Defendant to establish that the Claimant has no realistic prospect of obtaining an extension under section 32A (see the approach set out in Steedman v BBC [2001] EWCA Civ 1534, and the guidance given by the Court of Appeal in that case as to the exercise of the court’s discretion. See also the recent decision of the Court of Appeal in Brady v Norman , 9 February 2011).

I shall deal with the factors as identified in section 32A (2) in turn. First, the length of and reasons for the delay. The delay in this case ranges from two years and seven months, that is one year after the first publication complained of in July 2006, to one of nine months. In my view these delays are long ones in the context of a claim for defamation where the limitation period is one year and where speed is of the essence. I do not know what the reasons for the delay are but if it were to be said that it was because the Claimant was involved in other proceedings that in and of itself is not a good reason. The Claimant could, in those circumstances, have issued proceedings and applied for a stay of them (see Hincks v Channel Four Television Corporation , 3 March 2009 at paragraph 37).

Next, the date of knowledge. In my view, for the reasons I have already given, the Claimant knew all the potentially relevant facts by January 2007 at the latest, when he was informed of the fact and substance of Mr Davey’s July 2005 Part 36 offer. Even if, contrary to the view I have already expressed, the Claimant needed to see the actual letter, there was still a delay of some five months after he did so, on his own case, before he issued proceedings.

Next, the effect of delay on the evidence. It is said by the Defendant in his witness statement that if the claim proceeds he intends to rely on the defences of privilege, comment and justification. No doubt there will also, in those circumstances, be a plea of malice, in particular in relation to the plea of privilege (see paragraph 12 of the Particulars of Claim).

It is true to say that even though the relevant events occurred more than five years ago now, the nature of the Defence and Counterclaim settled by the Claimant, as Mr Dean says, speaks for itself. Nonetheless, in my judgment, other detailed evidence will be relevant to the claim: see for example what is pleaded in the Particulars of Claim at paragraphs 1, 2, 16(a) and 19(3)). Notwithstanding that the burden of proving malice will be on the Claimant, the Defendant will nonetheless be required to remember why he did or said what he did in July 2006 when he wrote the Statement and, in my view, will suffer an obvious detriment as a result: see for example what is said in paragraphs 35 and 36 of his witness statement to which I have referred.

Next, the strength of the case. This is relevant to the exercise of discretion as it is a greater prejudice to lose a strong case to a time bar than a weak one. It is unnecessary in this part of my judgment for me to go through the reasons why if the case for the Claimant is not hopeless, it is in my view at the very least extremely weak, since that will be apparent from what I have already said about publication, and it will become apparent from what I shall turn to shortly when dealing with the issues of absolute privilege and immunity from suit. In addition, the case on malice in my view seems to be an extremely weak one as the failure to mention the July 2005 offer in the Statement does not, at least strongly arguably, create a probability of malice: see for the relevance of the threshold in this respect Turner v MGM [1951] All ER 449 and Blackwell v News Group Newspapers [2007] EWHC 3098 at 14.

Moreover, I also consider there would be a strong case of justification available to the Defendant having regard to the content of the Defence and Counterclaim drafted by the Claimant and/or the general conduct and propriety of his representation of Mr Dilnot: see in this context what is said in the judgments of the COIC Tribunal and the Visitors and their findings.

Finally, the Defendant has offered appropriate undertakings and there is nothing to suggest that there is any threat of repetition which would justify the court in granting an injunction. When considering the balance of prejudice I should have regard to the loss of the limitation defence, which is relevant for this purpose: see Steedman and Brady v Norman , and to the actual prejudice to the Defendant, to which I have already referred. As against that, in my view it is difficult to see what, if any, real prejudice the Claimant will suffer if he is not allowed to proceed with his claim.

As is apparent from the factual history I have set out, he has already had an opportunity to vindicate his reputation through proceedings which have followed his involvement in Mr Dilnot’s case. In particular, he has had the opportunity to challenge the Defendant by cross-examination at the COIC Tribunal in May 2007, when the Defendant made himself available for cross-examination. Moreover, there have been numerous attempts by him subsequently to vindicate his reputation: before the Visitors by way of judicial review and in the application of 14 January 2010 made in relation to the decision of the COIC Tribunal and the Visitors in which he sought to include the Defendant as a defendant.

Mr Dean submits that in the context of these and the other claims, to which I have already referred, this claim is simply a further step in the Claimant’s misguided attempt to avoid the consequences of being disciplined by his professional body. Be that as it may, I am satisfied that the Defendant is entitled to summary judgment on the claim on his first ground because each potential cause of action accrued more than a year before proceedings were issued, and the Claimant has no real prospect of success in establishing that the exception provided for by section 32 of the Limitation Act 1980 applies; nor would it be equitable to allow the action to proceed out of time, having regard to the matters set out in section 32A of that Act and which I have referred to above.

Absolute privilege/immunity from suit

I turn next to the application on absolute privilege/immunity from suit. The Defendant submits that the publications complained of are protected by absolute privilege and/or are immune from suit. The evidence establishes, as I have already said, that the Statement complained of was provided by the Defendant to Mr Dilnot for use in both his BSB complaint and his claim for negligence arising out of the Claimant’s provision of legal services to him in early 2005. On 13 July 2006 Mr Dilnot wrote to the Defendant as follows:

“I have written to the Bar Council asking them to go ahead with my complaint against Apsion that was suspended while we claimed from Bar Mutual. There is no reason why I should not continue with the claim to Bar Mutual however. In both cases I will need the statement so now is the relevant time, please.”

Reference should also be made in this context to the other emails passing between the Defendant and Mr Dilnot which I have referred to above.

Subject to what I set out below, the Claimant has not hitherto suggested that the Statement was provided for any other purpose. Indeed his complaint on malice in the Particulars of Claim appears to suggest the Statement was indeed used in this way in order to damage him.

The law in this area is well settled; evidence given to judicial tribunals is immune from suit, and a similar privilege applies to evidence given to tribunals which act in a similar manner to that in which courts of justice act (see for example Royal Aquarium v Parkinson [1892] 1 QB 431 at 451, and Trapp v Mackie [1979] 1 WLR 377).

In Lincoln v Daniels [1962] QB 237 it was decided that an inquiry by Masters of the Bench, at a time when Benchers of the Inns of Court exercised disciplinary powers over barristers, was a quasi judicial proceeding for this purpose. In my judgment, by parity of reasoning, the same applies to COIC, which exercises powers formerly exercised by the Benchers of the Inns of Court and to the Disciplinary Tribunals appointed by COIC, which conduct proceedings in accordance with the Code of Conduct: see in this context paragraph 14 of the Constitution of the Council of the Inns of Court. The position is a fortiori with respect to the Visitors.

A line of authority from Watson v McEwan [1905] AC 480, Lincoln v Daniels 258 and 260-261 to Mahon v Rahn (No 2) [2000] 1 WLR 2150 establishes that the privilege attaching to things said and done coram judice extends to what is said in a witness statement or proof of evidence, and to other statements which are practically necessary for the interests of justice in these proceedings. The public policy rationale for the privilege was identified by the Earl of Halsbury LC in Watson v McEwan at 487, where he said that if witnesses were at risk of libel claims for statements made in witness statements it would become:

“... impossible to administer justice because people would be afraid to give their testimony. A witness would only have to say, ‘I shall not tell you anything; I may have an action brought against me tomorrow if I do; therefore I shall not give you any information at all’.”

Two points in summary are made by the Claimant in response, both in the Particulars of Claim at paragraph 27 and in the correspondence, following the bringing of this application. First that no privilege attaches to the Statement because the Defendant in his 7 May 2010 witness statement at paragraphs 19 to 26 said that he wrote the Statement at Mr Dilnot’s request, when he was no longer acting for Mr Dilnot and for which he received no payment. Second, publications containing untruths are never “immune from suit”. In my judgment both points are unsustainable as a matter of law.

Having regard to the matters set out above and subject to the further point raised by Mr Apsion, which I shall come to shortly, it is unarguably the case in my view that publication of the Statement to Mr Dilnot and his subsequent use of it is, in all the circumstances, protected by absolute privilege.

It might be different if the Defendant had expressly authorised Mr Dilnot to use the statement in a manner not contemplated by the privilege and the public policy protection which underlies it, but I am satisfied there is no viable case to support any argument that he did so.

The only potential publications complained of which might fall into such a category are those to Mr Davey and the Bankruptcy Court. However, as I have already said, there is no evidence the Defendant was responsible for either. Moreover, the Defendant’s evidence, which is uncontradicted as matters presently stand, is that if any such publications were made, they were made without his knowledge.

I turn now to the further point made by Mr Apsion. Mr Apsion submits that a fraud has been committed or conspiracy to fraud has been committed by the Defendant. In these circumstances he submits: 1) by reference to the decision of the House of Lords in Darker and Others v the Chief Constable of West Midlands Police [2000] 3 WLR at 747 that no absolute privilege attaches to the Statement; and 2) this also undermines the Limitation Act points made against him.

He tells me that his claim in conspiracy and/or fraud relates, first, to a conspiracy to defraud the BMIF and/or the Inland Revenue amongst other matters by the fraudulent presentation of invoices by Mr Dilnot’s solicitors. He tells me he believes that the invoices relating to Mr Dilnot’s case were rendered by Mr Dilnot’s solicitors, to a company run by Mr Dilnot rather than to Mr Dilnot personally, and in the result, he says Mr Dilnot was able to perpetrate the fraud of some description either in relation to tax and/or VAT and/or in relation to his accounts. Second, Mr Apsion says, there was a fraudulent conspiracy by Mr Dilnot and the Defendant and possibly Mr Dilnot’s solicitors as well in that they conspired together to produce false evidence before the BSB, presumably, in this context, the Statement.

There are a number of problems in relation to this part of Mr Apsion’s submissions. First, the case as now presented by him forms no part of his pleaded claim. Second, there is no form of pleading even in draft in relation to the oral application made to me today by Mr Apsion for permission to amend to add it to the claim.

I have taken into account in this context evidence produced before me both by Mrs O’Brien and the Claimant on this point. But third, even taking those matters into account, there is, in my judgment, simply no evidence that the Defendant was involved in any way in what is alleged to have occurred. Insofar as I can understand it, what is said is that potentially the Defendant rendered an invoice to Mr Dilnot’s company rather than to Mr Dilnot personally. The only invoice I have seen from the Defendant however is headed with the case name Roger Davey v Anthony Dilnot . It describes in detail the work done in relation to the claim, and is addressed to Hugh James, Mr Dilnot’s solicitors. The Claimant referred specifically to an invoice from the Defendant, again addressed to Mr Dilnot, part of which has been redacted. That merely shows that the Defendant acted in the matter of Davey v Dilnot via the Public Access Scheme.

The Claimant complains that he has asked for fee notes, and not been given them. However, the Claimant is not entitled to documents to support a case that he is not able to formulate with any more precision than has been advanced in submissions before me. I am quite satisfied, on what he has told me, that it is at present merely speculative. His belief that he will obtain access to more documents cannot conceivably give rise to a case, in particular one of the seriousness that he advances, namely one of fraud.

I also fail to see, at least in respect of the alleged fraud against the BMIF and/or the Inland Revenue, precisely how this impacts on any of the issues that I have to determine, in particular as to privilege or limitation.

I cannot permit an application to be made now to amend the claim, as the Claimant invites me to do, having regard both to the way in which it has been made and the basis upon which it is made. I refuse the application accordingly.

It is submitted by Mr Dean that it is questionable, in any event, whether this is an application made bona fides rather than simply to avoid the difficulties, which Mr Apsion has now appreciated arise, as a result of the limitation points that are taken against him and, the case on absolute privilege, of which he has had detailed notice since 11 May 2010.

Be that as it may, as I have already indicated, these are not matters that I permit to be advanced in opposition to the Defendant’s application.

I should mention finally, that the case of Darker & Ors v Chief Constable of West Midlands Police Force [2001] 1 AC 435, which Mr Apsion has relied on to support this part of the case, is not authority for the proposition that he advances. There should be read into the transcript in this context what is said by Lord Hope at page 448 to page 449:

“The trial process would be inhibited if police witnesses and potential police witnesses were to be exposed to action for things said or done by them during the preparatory stage when they are undergoing this preliminary examination. The same approach can properly be taken to the preparation of technical reports by police officers with expertise in such matters as ballistics, explosives or fingerprinting. As in the case of other expert witnesses, it would unduly inhibit the trial process if they did not have the protection of the immunity in regard to the content of the reports which they had prepared with a view to giving evidence should the matter come to trial.

But there is a crucial difference between statements made by police officers prior to giving evidence and things said or done in the ordinary course of preparing reports for use in evidence, where the functions that they are performing can be said to be those of witnesses or potential witnesses as they are related directly to what requires to be done to enable them to give evidence, and their conduct at earlier stages in the case when they are performing their functions as enforcers of the law or as investigators. The actions which the police take as law enforcers or as investigators may, of course, become the subject of evidence. It may then be necessary for the police officers concerned to assume the functions of witnesses at the trial to describe what they did or what they heard or what they saw. But there is no good reason on grounds of public policy to extend the immunity which attaches to things said or done by them when they are describing these matters to things done by them which cannot fairly be said to form part of their participation in the judicial process as witnesses. The purpose of the immunity is to protect witnesses against claims made against them for something said or done in the course of giving or preparing to give evidence. It is not to be used to shield the police from action for things done while they are acting as law enforcers or investigators. The rule of law requires that the police must act within the law when they are enforcing the law or are investigating allegations of criminal conduct. It also requires that those who complain that the police have acted outside the law in the performance of those functions, as in cases alleging unlawful arrest or trespass, should have access to a court for a remedy….

…. I would hold, with respect, that Simon Brown LJ went too far when he said that the protection of the immunity must extend to such acts to procure false evidence as the planting of a brick or drug or the fabrication of a record of interview. He overlooked the distinction which I would draw between the act itself and the evidence that may be given about the act or its consequences. This distinction rests upon the fact that acts which are calculated to create or procure false evidence or to destroy evidence have an independent existence from, and are extraneous to, the evidence that may be given as to the consequences of those acts. It is unlikely that those who have fabricated or destroyed evidence would wish to enter the witness box for the purpose of admitting to their acts of fabrication or destruction. Their acts were done with a view to the giving of evidence not about the acts themselves but about their consequences. The position is different where the allegation relates to the content of the evidence or the content of statements made with a view to giving evidence, and not to the doing of an act such as the creation or the fabrication of evidence. The police officer who is alleged to have given false evidence that he found a brick or drug in the possession of the accused or that he heard an accused made a statement or a remark which was incriminating is protected because the allegation relates to the content of his evidence. He is entitled to the immunity because he was speaking as a witness, if he made the statement when he was giving evidence, or was speaking as a potential witness, if he made it during his preliminary examination with a view to his giving evidence.”

See also what is said by Lord Clyde at page 461.

In this case, the Statement was prepared for the purpose of its use in evidence in court and in disciplinary proceedings. It falls outside the ambit therefore of the decision in Darker , which distinguishes between the fabrication of evidence in the preparation of a case on the one hand and the preparation of evidence by way of a witness statement for use in judicial proceedings or quasi-judicial proceedings on the other.

The Defendant, accordingly, succeeds on its second ground of its application in circumstances where there are, in my view, no other compelling reasons why the case should be determined at trial.

Abuse: collateral attack

The third ground of the Defendant’s application is that the Claimant’s claim is, on its face, a collateral attack on the decision of the COIC and the Visitors. Reliance is placed on what the Claimant says at paragraph 31 of the Particulars of Claim, namely that the words complained of:

“... led to my suspension from practice for 18 months, denial of the privileges of Lincoln’s Inn for the same period and a ban for life from conducting direct or public access work.”

This, of course, was the penalty imposed on the Claimant by the COIC Tribunal, which was upheld by the Visitors.

Mr Dean submits that it is evident from the Particulars of Claim and from the Claimant’s claims advanced in correspondence that his central complaint is that both the COIC Tribunal and the Visitors came to the wrong conclusion because they were misled by the evidence of the Defendant in his Statement. He refers to what the Claimant has said in correspondence in relation to this aspect of the Defendant’s application. In a letter dated the 21 June 2010 the Claimant said:

“I did not attack the jurisdiction of the tribunals. I merely attacked their ability to determine matters based on [the Defendant’s] failure to render full disclosure, absent fraud and/or concealment and give the whole truth.”

The Claimant wrote subsequently on 16 October 2010 of:

“The possibility of my obtaining a pardon if it emerges that the fundamental evidence upon which I was convicted by the COIC Tribunal were the libellous untruths uttered by Mr Butler”

The Claimant disputes the proposition that the proceedings are a “collateral attack”. He says the only person who has committed a collateral attack in these proceedings is Mr Butler, who has attacked him to deflect attention from his own conduct.

In Hunter v Chief Constable of West Midlands Police [1982] AC 529, Lord Diplock said at 541 that it is an abuse of the process of the court to initiate:

“... proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.”

In Secretary of State for Trade and Industry v Bairstow [2004] Ch 1 at 38, the Vice-Chancellor said as follows:

“a)

A collateral attack on an earlier decision of a court of competent jurisdiction may be but is not necessarily an abuse of the process of the court ....

d)

If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge or jury in the earlier action if (i) it would be manifestly unfair to the party to the later proceedings that the same issues should be relitigated or (ii) to permit such relitigation would bring the administration of justice into disrepute.”

In my judgment, it is clear first that it is an important part of the public policy which gives rise to absolute privilege that judicial or quasi-judicial decisions should not be subject to attack through an attack on the evidence of a witness; and second that it is also a freestanding abuse to bring proceedings that amount to a collateral attack on a previous decision of a court of competent jurisdiction. This includes, in my judgment, both the COIC and the Visitors for the reasons I have given above.

Looking at the considerations identified in Bairstow , it cannot be disputed, in my view, that the Claimant had “a full opportunity of contesting” the original decision of the COIC Tribunal. This is obvious from the report of the Tribunal itself, which records in great detail the steps that the Tribunal took to ensure the Claimant obtained a fair hearing. The Claimant’s allegations of unfairness were carefully examined by the Visitors and rejected. See in particular what is said at paragraph 33:

“In our view the Tribunal gave Mr Apsion every opportunity to present his case in a fair and just manner.”

It is material, as I have already said, that the Claimant was offered the opportunity by the Tribunal to cross-examine the Defendant on the Statement, but declined, having been warned of the consequences. See the Report at page 8 and what is said by the Visitors at paragraph 16.

I consider it would be manifestly unfair now for the Defendant to have to defend himself four years after the Claimant had the opportunity, as I have said, to cross-examine him at the appropriate time, and when the events were much fresher in the Defendant’s memory than they would be now in circumstances where the Claimant, knew all the matters that were then material to his claim.

A trial of this action would inevitably involve the re-litigation of the facts and issues before the disciplinary tribunal relating to the circumstances in which the Defence was drafted and the manner in which the Claimant represented Mr Dilnot. Indeed it would also be necessary to re-litigate at least part of the Davey v Dilnot claim since it is part of the Claimant’s case in these proceedings that the Defendant made the Statement in order to deflect the blame for what happened at trial onto the Claimant.

I consider it would bring the administration of justice into disrepute to permit the Claimant to continue what is, in effect, a campaign by whatever means to overturn the findings of the COIC Tribunal by bringing this claim against the Defendant, who was a witness before that Tribunal, by dint of an attack upon his witness statement.

This is particularly so in circumstances where the decision of the COIC Tribunal has been challenged by the various means to which I have referred including by an appeal to the Visitors, a Judicial Review challenge of the Visitors’ decision and now, by a case that is being made before the European Court of Human Rights.

Mr Dean submits the nature of the collateral attack on the decisions of the COIC Tribunal and Visitors’ decision makes it clear that the Claimant’s true purpose in these proceedings is not to obtain vindication in relation to any damage caused to his reputation by the publication of the Statement to the publishees named in the Particulars of Claim, but it is rather to obtain a verdict which contradicts or at least seriously undermines the decisions of the COIC Tribunal and the Visitors; and to obtain remedies which compensate him for the effects of the penalties imposed by the Tribunal and the imposition of certain penalties on him (see paragraphs 34 and 35 of the Particulars of Claim). In my view, it is highly unlikely that this claim could achieve those aims as the Visitors stated expressly (as is obvious) that the opinions expressed by the Defendant in his statement were irrelevant to their decision as to whether the Claimant had misconducted himself. Nonetheless, it is apparent from the remedies sought in the Particulars of Claim that this is what the Claimant hopes to achieve.

In my judgment, it is clear that the Claimant’s purpose in bringing this action is collateral to the permissible purpose of pursuing a defamation action namely to vindicate and protect the claimant’s reputation (see Jameel (Mohammed) v Wall Street Journal Europe Sprl [2007] 1 AC 359 at paragraph 24). In Goldsmith v Sperrings Limited [1977] 1 WLR 478 at 503 it was said that bringing proceedings for a collateral purpose (but for which the claimant would not have sued the defendant) can itself be an abuse. The principle was explained by Bridge LJ in Goldsmith at page 503:

“...‘court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist; and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court and therefore disqualified from invoking the powers of the court by proceedings he has abused' [In re Majory [1955] Ch. 600, 623].

... what is meant by a "collateral advantage"? The phrase manifestly cannot embrace every advantage sought or obtained by a litigant which it is beyond the court's power to grant him. Actions are settled quite properly every day on terms which a court could not itself impose upon an unwilling defendant. An apology in libel, an agreement to adhere to a contract of which the court could not order specific performance, an agreement after obstruction of an existing right of way to grant an alternative right of way over the defendant's land − these are a few obvious examples of such proper settlements. In my judgment, one can certainly go so far as to say that when a litigant sues to redress a grievance no object which he may seek to obtain can be condemned as a collateral advantage if it is reasonably related to the provision of some form of redress for that grievance. On the other hand, if it can be shown that a litigant is pursuing an ulterior purpose unrelated to the subject matter of the litigation and that, but for his ulterior purpose, he would not have commenced proceedings at all, that is an abuse of process. These two cases are plain; but there is, I think, a difficult area in between. What if a litigant with a genuine cause of action, which he would wish to pursue in any event, can be shown also to have an ulterior purpose in view as a desired by product of the litigation? Can he on that ground be debarred from proceeding? I very much doubt it.”

See also the observations of Scarman LJ at 498G and 499F in Goldsmith that the burden on the party seeking to establish this type of abuse was a heavy one and that the claimant’s purpose must be objectively ascertained. See also what was said by Tugendhat J in Hays Plc v Jonathan Hartley [2010] EWHC 1068 paragraphs 36 to 40.

That the Claimant’s real purpose in bringing these proceedings relates to the penalties imposed by the Tribunal is demonstrable from the pleadings, the correspondence and most strongly, the chronology. Despite the Claimant being aware of the Statement since October 2006 at the latest and being aware of the facts, which he says show it to be false, by January 2007 at the latest., he did not issue these proceedings until the various attempts by him to overturn the COIC Tribunal’s findings had failed: viz his unsuccessful appeal to the Visitors in October 2008, the rejection of his complaint by the BSB in November 2008 and his application for permission to bring judicial proceedings against the Visitors had been refused in February 2010.

Even now as I have already said, but I shall repeat at this point, the Claimant in his skeleton argument, says in paragraph 31:

“... I ask for a stay of the proceedings pending resolution of the underlying matter by the European Court ... It is wrong to hold a hearing and make a final order which then has to be overturned because of a ruling by the ECHR in respect of a case which is already before it.”

In my view this demonstrates clearly that the Claimant has no pressing need for vindication in relation to the words complained of in the claim or for an injunction to prevent repetition, and that his purpose in bringing these proceedings is the collateral one to which I have referred above.

Real and substantial tort

I turn finally to the fourth application by the Defendant. It is in summary that if, after my findings in relation to the first three aspects of the Defendant’s application, there nonetheless remain issues of fact in relation to matters so far imprecisely complained of in the Particulars of Claim which might be fit to be tried, these constitute at best a rump of an action to which the Jameel abuse doctrine applies with full force (see Jameel (Youssef) v Dow Jones [2005] QB 946). In addition, Mr Dean submits that, having regard to all the matters relied on above, a full scale libel trial over what remained would not be worth the candle or the wick.

I have already said that I do not consider the claim can proceed and the Defendant is entitled to summary judgment on the claim. I am of the view, nonetheless, that if this were a case in which there remained something for the Claimant to complain about, if the matters which I have adjudicated on are stripped out, this would be a case in which the court would conclude in all the circumstances that continuing with a claim for what was left was a Jameel abuse. I say that bearing in mind the potential complexity of litigating this matter out, the lack of a basis for a claim for injunctive relief and that undertakings have already been offered by the Defendant to resolve the claim.

As to the latter point, it was submitted by the Claimant that that undertaking offered not to repeat the words complained of or any similar words defamatory of the Claimant constituted an admission for this purpose that the Claimant’s claim was well founded. As I explained at some length to Mr Apsion during the course of his submission on that point, that part of his case was misconceived.

In the event, having regard to the matters I have dealt with above, there will be summary judgment for the Defendant on the Claimant’s claim.

Finally, I should deal with two applications which were made, at least on paper, by the Claimant and which I have considered. First there was an application made for disclosure, which was made by way of an application notice which was issued on 23 July 2010. There is, in my judgement, no basis for the application. If this had been a case in which I was of the view that the applications made by the Defendant were “fact sensitive” and should await disclosure then I would have so determined and disclosure would then have occurred in the normal way. There was, however, no basis for ordering disclosure pending the resolution of the Defendant’s applications.

So far as the Claimant’s application for summary judgment itself is concerned, I need say no more about it than in my judgement it is misconceived. It should be recorded for the purposes of the order that both the applications made by the Claimant, to which I have just referred, were without merit.

In addition, if it is not already clear from my judgment, it is my view that the claim itself which has been advanced is totally without merit for the reasons I have given and my order will record that as well.

The Defendant has succeeded in his application for summary judgment and is entitled to his costs. The costs will be subject to a detailed assessment. Mr Dean asks for an order that they should be paid on an indemnity basis from 25 May 2010 having regard to an offer that was made in a letter dated 4 May 2010 to Mr Apsion, which was that if he discontinued his claim on or before 14 May 2010 each side would pay its own costs and an offer by the Defendant to undertake not to repeat any words in the witness statement dated 24 July 2006 unless he were to be under a duty to do so. The letter was marked “Without prejudice save as to costs”. I am invited in those circumstances to make an order for indemnity costs as against the Claimant from 25 May 2010. In my judgment the Defendant is entitled to that order having regard to the offer that was made.

I am also asked to make an order for interim payment on account of costs. I have before me two schedules of costs from the Defendant which show costs incurred in this matter of about £80,000. Mr Dean invites me to make an order that the Claimant should pay £40,000 within 14 days. The order I make is that the Claimant should pay the sum of £25,000 within 28 days (the time period asked for by the Claimant), that is by close of business on 23 March 2011. The remainder of the costs will be dealt with by way of detailed assessment as I have already indicated.