Apsion v Dilnot

The Claimant (“Mr Apsion”) is a retired barrister. By a claim form issued on 21 April 2010 he sued the Defendant (Mr Dilnot), a former client of his, for defamation and malicious falsehood. There are five sets of words complained of. The first two are respectively in a complaint and a covering a letter addressed to the Bar Council. These two publications are dated 28 May 2005. They were written before the Bar Council’s functions were transferred to the Bar Standards Board (“BSB”). I shall refer to both bodies as BSB, as does Mr Apsion in his Particulars of Claim. The remainder are in other letters to the BSB, dated respectively 16 September 2005, 22 March 2006 and 8 April 2006.

By order dated 21 July 2010, and sealed on 5 August 2010, Master Eyre struck out the claim form and dismissed the action. He gave permission to Mr Apsion to apply to set aside the order. This order was made on consideration of the claim form and Particulars of Claim and without a hearing. The Master had been informed by Mr Apsion that he would be unable to attend a hearing listed for 4 August by reason of ill health. The Master gave the following reasons:

“The action is for damages for defamation and malicious falsehood in respect of statements made as part of a complaint to the Bar Standards Board. Such statements are protected by absolute privilege. In any case the action amounts to a collateral attack on the Board’s ruling, which was based on grounds other than the statements alleged by the Claimant, and which was upheld on appeal to the Visitor. The action accordingly infringes on 3.4(2)(a) and (b) of the Civil Procedure Rules”.

On 11 August 2010 Mr Apsion applied to set aside that order, and on 13 August the Master refused. On 31 August Mr Apsion renewed his application to set aside. By order sealed on 8 December 2010 (but apparently made earlier) the Master refused to set aside his earlier order giving reasons as before.

Mr Apsion applied for permission to appeal. The application came before Sir Charles Gray on paper. On 22 December he refused permission and gave the following reasons:

“As I read the Particulars of Claim, Mr Apsion is claiming damages for libel and/or malicious falsehood for the publication by Mr Dilnot principally to the Bar Standards Board of a complaint against him (Mr Apsion) and in a covering letter which accompanied that complaint. The point is a short one. The grounds on which the Master struck out the claim is that the publications complained of were made on occasions protected by absolute privilege. I have had to decide whether there is a real problem in respect of the ruling being overturned. It has been clear law since Lincoln v Daniels [1962] 1 QB 237 that publications to a professional body charged with controlling the professional conduct of members of that profession are absolute privilege. It follows that proof of malice on the part of the publisher will not destroy or affect that privilege. Mr Apsion is wrong in his claim that such publications are protected only by qualified privilege. I am satisfied that the publications by Mr Dilnot to the various people listed at paragraph 25 of the Particulars of Claim are protected by absolute privilege. There is therefore no prospect of an appeal against the masters ruling succeeding”.

The publishees identified in paragraph 25 of the Particulars of Claim are 1) Mr Davey and his solicitors, 2) the BSB, 3) the High Court, 4) the COIC Tribunal, 5) The Bankruptcy Court, 6) Bar Mutual, and 7) Visitors of Lincolns Inn”.

In accordance with the CPR, Mr Apsion applied for an oral hearing of his renewed application. This came before Supperstone J who granted permission to appeal.

By emails dated 29 March and 30 March Mr Apsion invited me to recuse myself on grounds of apparent bias. The first ground relied on is that I was the trial judge in the trial of the libel action brought by Mr Davey against Mr Dilnot which was heard before myself and a jury between 26 and 28 June 2006. As to that Mr Apsion states:

“I have evidence that while you sat you heard many derogatory allegations about me some of which I know of and others of which I do not know but you do. At no time did you suggest that either of the parties to the action should give me the opportunity of appearing to defend myself or even knowing that the action was being heard so that I could attend”.

I have no recollection of what passed at the trial of that action, although I do recall that I was the trial judge. I have no recollection of Mr Apsion having been mentioned at all. I have of course seen in the present matter allegations to the discredit of Mr Apsion. In particular, a complaint was made by Mr Dilnot which was upheld by the COIC Tribunal and the Visitor. If I was told anything more in 2006 than what is the basis of the complaint which was upheld, then Mr Apsion has not identified what it was. Mr Apsion was not a party to the libel proceedings, and there was no reason why he should have been given the opportunity of appearing in that case to defend himself. Accordingly this ground of alleged apparent bias has no substance.

The next ground relied on as apparent bias is my involvement in one of the other libel actions which Mr Apsion has commenced arising out of the proceedings tried in 2006. Mr Apsion has sued Mr Butler of counsel who was retained by Mr Dilnot shortly after Mr Dilnot dispensed with the services of Mr Apsion. Mr Butler had given a statement in the proceedings before the COIC Tribunal. In his email of 29 March, Mr Apsion mistakenly said that I had given a judgment against him in that case. On 30 March he corrected himself. That judgment given against Mr Apsion was in fact given by Sharp J. She struck out the action Apsion v Butler [2011] EWHC 844 (QB) (23 February 2011).

However, Mr Apsion is correct that I have given a decision in a second action commenced by him (the third if the present one is counted). Mr Apsion sued Mr Davey for libel and that action was struck out by Deputy Master Rose on 29 November 2010. Mr Apsion asked for permission to appeal. That application came before me on paper on 14 January 2011. I refused permission and gave the following reasons:

“There is no real prospect of a successful appeal from the decision of the Deputy Master, who gave detailed reasons, as set out in the note set out by the counsel for the Defendant. Your reference to Lincoln v. Daniels [1962] 1 QB 237 at 263 does not assist. The functions of the Bar Counsel referred to there by Devlin J did not include the function of investigating a complaint, whereas the publications complained of in the present case were the complaint to the authority responsible for considering the institution of proceedings. Your reference to Darker v Chief Constable in the West Midland [2000] UKHL 44 does not assist. The complaint is in libel and the letter allegedly not disclosed formed no part of the cause of action”.

The email of 29 March continues (with substitution of the reference to the correct case) as follows:

“Were you to go ahead and hear the case scheduled for tomorrow you would be revisiting your [Davey] paper hearing which I respectfully suggest would hardly amount to a fair trial any more than I received a fair trial before Master Eyre, who was the master who equally heard derogatory remarks about me in connection with the Davey v. Dilnot [2006] case. On would have the identical judges trying a man whom they have already condemned. I suggest in hearing my case tomorrow you will be hampered by the manifest possibility of bias. I intend to appear tomorrow but without prejudice to my Article 6 (1) HRA 1998 rights”.

On 30 March Mr Apsion wrote:

“You are bound by your own previous decisions namely the ones you took on 14 January 2011 in Apsion v Davey in which you arrived at the following wrong assumptions as to fact and/or law”…

He then sets out the substance of the reasons I had given in that case. The email then goes on:

“As you have not by the close of business yesterday recused yourself I must take this case to the Court of Appeal without wasting everyone’s time in an action before you wherein you are bound by your own previous findings. I will nevertheless appear in case another judge has been assigned to the case”.

Mr Apsion did indeed appear and he made submissions and responded to questions from me. However, he is mistaken in saying that I am bound by my previous decision taken on 14 January 2011. As I explained to him I was not bound by that at all, although that did not mean that I would not in fact reach the same conclusion. Moreover, I remarked that any judge hearing this matter would regard as very persuasive the findings and reasoning of Sharp J. One of the objectives of judges is too ensure certainty and predictability in their decisions. Judges commonly follow decisions in other cases, whether those decisions have been made by other judges or by themselves. The fact that a judge has reached a particular in one case is no reason for recusing himself in a subsequent case in which the same or a similar point arises. I saw no reason to recuse myself and did not do so.

So far as appears from the papers that have been put before me by Mr Apsion, the following events occurred.

Between 29 March and 4 May 2005 Mr Apsion was counsel instructed by Mr Dilnot in connection with a libel claim brought against him by Mr Davey. Mr Apsion prepared a draft opinion and a draft defence (Particulars of Claim para 3). Mr Davey’s solicitors received a defence as drafted by Mr Apsion on 16 May 2005.

On 28 May 2005 Mr Dilnot sent to the complaints department of the General Council of the Bar the letter enclosing his complaint. The two passages which form the first and second sets of words complained of are as follows:

(1)

“I have lost time in dealing with the libel case and Mr Apsion’s defences may well have made matters worse” that was in the complaint itself” (Para 5 of the Particulars of Claim).

(2)

“… I paid Mr Apsion for an initial opinion that I never received” (Para 6 of the Particulars of claim).

On 21 July 2005 Mr Davey made a settlement offer to Mr Dilnot (para 12 of the Particulars of Claim). In a letter dated 26 August 2006 from Mr Davey to the BSB Mr Davey states that it was an offer under CPR Part 36 made by him after service of “the Apsion defence dated 30.4.2005”. Mr Davey’s letter is headed re “my complaint against Robert Apsion and complaint by Dilnot against him”. So there were two complaints made against Mr Aspion.

On 16 September 2005 Mr Dilnot wrote again to the BSB and that letter contains the third set of words complained of as follows:

“… it would clearly appear that his [Mr Apsion’s] efforts have made that difficult situation [his case] much worse”.

On 22 March 2006 Mr Dilnot wrote again to the BSB a letter containing the fourth set of words complained of. These are:

“ …The case [Davey v Dilnot] at the centre of this dispute has been quite frantic with us trying to settle (unsuccessfully) with the other side ”.

On 8 April 2006 Mr Dilnot wrote again to the BSB a letter containing the fifth set of words complained of (para 12 of the Particulars of Claim). These are:

“My assertion that his (Mr Apsion’s) incompetent pleading aggravated the case”.

On 26 August 2006 Mr Davey wrote the letter to the BSB already referred to. On 14 June 2007 (as set out in Particulars of Claim para 15) the COIC Tribunal upheld the complaint of professional misconduct made by Mr Dilnot against Mr Apsion. Mr Apsion was ordered to return all of the £5,875 fees which Mr Dilnot had paid to him, together with the costs of the tribunal and his appeal amounting to £4,456. The total was £11,401 (para 19 of the Particulars of Claim). On 10 October 2008 the Visitors dismissed Mr Apsion’s appeal.

Mr Apsion states that the COIC Tribunal described his work as “positively dangerous” and that the Visitors referred to the “potential for damage” of his work. He complains that neither tribunal was told of or shown Mr Davey’s offer to settle the case on 21 July 2005 “for £500 etc”. That is not correct. It is plain from the letter in the bundle dated 26 August 2006 from Mr Davey that the tribunal were told of Mr Davey’s offer to settle. Mr Apsion accepts that the letter was in the papers.

In his Particulars of Claim at para 7 Mr Apsion stated that he did not receive a copy of Mr Davey’s settlement offer until 10 October 2009.

Mr Apsion has told me that he has made an application to the European Court of Human Rights. And as already indicated, he has already issued proceedings against Mr Butler which were struck out by Sharp J, and on 21 April 2010 he issued the claim form and Particulars of Claim in this case.

The Particulars of Claim do not comply with the requirements of Practice Direction 53 para 2.3(1) which requires a claimant to specify in the Particulars of Claim the defamatory meaning which he alleges the words complained of conveyed. Whilst that is not relied on as a ground for striking the claim out, the fact that he has not done this makes it more difficult to understand the case. On reading the papers I had understood the defamatory meaning of which he was complaining to be an allegation of professional incompetence. The word “incompetent pleading” appears in the letter of 8 April 2006. However, Mr Apsion told me that was not so. He accepted he could not complain of that without the complaint falling foul of the principle that he is not permitted by these proceedings to make a collateral attack on the findings of the COIC Tribunal and the Visitors.

So what he is complaining of is a meaning or meanings as follows:

para 10 of the Particulars of claim:

“That Mr Apsion made a difficult situation worse”.

para 12 of the Particulars of claim:

“That Mr Apsion aggravated the case”.

The meaning in relation to the words complained of in para 6 are quite different:

“Mr Apsion was negligent or dishonest”.

I accept that there may be a distinction between the meaning that a claimant has acted incompetently as a barrister, and the meaning that a claimant has caused damage or difficulty to his client, close though those meanings are. In this case different words are used in the different publications complained of:

28 May: “may well have matters worse

16 September: “made that difficult situation much words”

8 April: “aggravated the case”

The reality is that in the present case the theoretical distinction relied on by Mr Apsion is without a real difference. There is nothing in any of the words complained of which gives any information as to the amount of damage or difficulty that Mr Apsion is alleged to have caused. Mr Apsion’s argument is an ingenious one, but it cannot realistically overcome the point that, as he recognised expressly, it is not open to him to mount a collateral challenge to the findings of the Visitors and the COIC Tribunal. His appeal from the Master on this ground must be dismissed.

Sir Charles Gray and the Master are clearly correct that absolute privilege applies to this case. See Lincoln v Daniels at p258 and 260-261, and Mahon v Rahn (No 2) [2000] 1 WLR 2150. Mr Apsion is confused by the developments that have occurred since the days of Lincoln v Daniels. That applies to all of the seven publishees identified. Publication in the case of all of them was in the course of the complaint to the BSB and its resolution by the courts, or to the Bankruptcy Court, to which the same principles apply.

Nor does Mr Apsion’s argument based on Darker take the matter any further. The reasons are fully set out by Sharp J at paras [91]-[93].

The Master did not mention that the proceedings had been commenced years after the expiry of the one year limitation period – nearly four years out of time in respect of the May 2005 publications and three years in respect of the latest complained of.

No explanation is given for this delay in any of the documents and witness statements put before the court. Mr Apsion’s argument is that there has been fraudulent concealment of the offer by Mr Davey made in July 2005. There are a number of answers to that point.

First, it cannot apply to the May 2005 publications, which preceded the offer. Second the offer was not concealed, because Mr Davey’s letter to the BSB, which is before the court, refers to it. So both Mr Apsion and the Tribunal knew of it. The fact that Mr Apsion had not seen a copy of it is immaterial. The effect of any professional failures was not an issue before the Tribunal. It did not assess or award any damages. It simply ordered the return of the fee paid and costs. Third, the offer, or the non-disclosure of it (if such there had been) are not part of the cause of action in libel. The cause of action is complete with publication, and Mr Apsion knew of each publication when it was made. See C v Mirror Group [1997] 1 WLR 131.

Mr Apsion makes wide ranging allegations of fraud. He relies on them as reasons why the statutory limitation period either does not apply, or should be disapplied. But the contention is hopeless. The reasons are similar to those fully set out by Sharp J at paras [36]-[53].

Mr Dilnot appeared at the hearing and submitted a skeleton argument. He also protested at the allegations of dishonesty made against him, and wished so far as possible to demonstrate their falsity. I cannot rule upon factual issues on an appeal against the decision of the Master to strike out the claim. But in fairness to Mr Dilnot I must add that there is no evidence that there is any truth in the allegations made against him by Mr Apsion.

Mr Apsion has made claims in which the points considered in this judgment have been considered before. These include my own reasons given in January and those of Sharp J in February this year in Apsion v Butler. This appeal is dismissed. It is wholly without merit.