GG v YY & Anor

There are before the court the Application Notices by which the parties apply for the following, among other, orders:

The Claimant is a solicitor. The Second Defendant is a retired solicitor. The Claimant acted as the First Defendant’s solicitor in a boundary dispute (“the Boundary Dispute”) which was tried in the autumn of 2010. For this purpose the Second Defendant was for a short time engaged by the Claimant to assist the First Defendant in that litigation. Differences arose between the Claimant and the First Defendant as to the manner in which his firm and counsel were conducting the trial. In October 2010 his retainer was terminated during the trial, but soon re-instated. It was terminated finally be letter dated 17 December 2010. Judgment was given against the First Defendant, and permission to appeal was refused. The First Defendant is aggrieved by what she claims to be the misconduct of that litigation. She has made a number of allegations against the Claimant in relation to the conduct of that litigation and in relation to personal matters. The Second Defendant has supported the First Defendant against the Claimant.

On 21 January 2011 HHJ Hughes QC, sitting as a Deputy Judge of the High Court, heard an application by the Claimant for an interim non-disclosure order made on short notice to the Defendants. He heard counsel for the Claimant, a Mackenzie friend for the First Defendant and the Second Defendant himself. On the Claimant’s giving a cross-undertaking in damages (such as is normally required of an applicant for an interim injunction) HHJ Hughes QC ordered that, until 11 February (the return date) Defendants be prohibited from publishing certain personal information, or allegations of a personal nature against the Claimant, including allegations made in a number of letters and e-mails dated in December 2010 and January 2011 which are identified in the order. These include some sent by the First Defendant which were addressed to the Claimant and to his wife. They also include some sent by the Second Defendant, to a court official, to the Solicitors Regulation Authority and the Claimant’s wife.

HHJ Hughes QC gave a judgment. He stated that the applications before him were under the Protection from Harassment Act 1977 and for breach of confidence (these claims had been made in two separate actions between the same parties). He said that he found it quite extraordinary that this case had developed in the way it had, because its foundation was a straightforward and minor boundary dispute. I agree. And I find it even more extraordinary that it has developed as it has since then.

The Judge recited the evidence (the Claimant had submitted witness statements dated 17 and 18 January 2011) and his conclusion that, to the standard applicable to interim applications, he was satisfied

“that there was a good case the extremely personal nature of these allegations, the way in which they have been written, the people to whom they have been reported and the persistence with which this course of conduct has been engaged in constitutes conduct causing [the Claimant] alarm and distress and that [the Defendants] ought to have known that it would have that effect”.

By that time the First Defendant had become unwell, as certified by a medical certificate dated 19 January 2011.

The Particulars of Claim in what was then action 1WC 90002 were drafted under Part 8, and dated 18 January 2011. They recited the relationship between the parties, the letters referred to in the Order of 21 January, and the relief claimed under the Protection from Harassment Act. The only version of the document before this court is a draft amended version. The amendments are to include a claim for misuse of private information, and for the case to proceed under Part 7. But for reasons which will appear, no application for permission to amend has been pursued and the claim has not been amended.

Also on 22 January 2011 HHJ Hughes QC made an order in the Boundary Dispute litigation in which the judge trying that case had not yet handed down judgment. HHJ Hughes QC made an order disallowing the Second Defendant from acting thereafter as the First Defendant’s Mackenzie friend. The order records his criticisms of the conduct of the Second Defendant in both the Boundary Dispute action and the two actions commenced by the Claimant.

On 11 February 2011, the return date, an Order made was effectively in two parts, one relating to the Second Defendant and one to the First Defendant. By that time the First Defendant had made a witness statement dated 9 February and had filed an Acknowledgement of Service indicating that she wished to defend the claim.

As far as concerns the Second Defendant the Order of 11 February 2011 was made by agreement between the Claimant and the Second Defendant. The Second Defendant gave a permanent undertaking to the court. The Judge continued the injunction against the First Defendant, subject to qualifications permitting her to make disclosures to the legal ombudsman and the Solicitors Regulation Authority. It was ordered that there be no publication of the contents of the judgment of 21 January 2011 without the permission of the court and there were other derogations from the principles of open justice which are commonly made in non-disclosure orders. These included protection of the hearing papers pursuant to CPR 5.4(7). The two claims were consolidated and directed to be heard under CPR Part 7.

By para 18 of the Order of 11 February 2011 the claims against the Second Defendant were stayed upon terms set out in the agreement set out in the Confidential Schedule 3 to the Order. The stay was in the usual Tomlin form, that is to say, subject to the proviso that that the action could be continued for the purpose of enforcing the terms of the agreement. By para 19 it was provided that the Claimant and the Second Defendant were to be permitted to apply to the court to enforce the terms of the agreement without the need to commence new proceedings.

When judgment was handed down in the Boundary Dispute it was against the First Defendant. She applied for permission to appeal but that was refused.

On 2 March 2011 the Claimant wrote to the Second Defendant a letter in accordance with the Pre-Action Protocol in Defamation. It was stated to be in respect of publications made by the Second Defendant on 19 January 2011 and 21 December 2010 (as set out in a Schedule), but not to include other defamatory publications the subject of the settlement of the two actions recorded in the Order of 11 February 2011.

By an application notice dated 17 March 2011 the Claimant applied for summary judgment under CPR 24 against the First Defendant. On 13 May 2011 the First Defendant signed a form of draft Consent Order. It read that, by consent of the Claimant and of the First Defendant, it was ordered that the action be adjourned generally with liberty to restore. That order was not in fact drawn up.

Nothing material occurred for over two years. There then followed the application notices issued by the Defendants in this action. No notice was given by letter to the Claimant, and no explanation has been offered by the Defendants for making their applications at this late stage, or at all.

The grounds given for the Second Defendant’s application notice of 12 December 2013 are impossible to understand. They contain allegations against the Claimant in his conduct (both professional and personal) in relation to the First Defendant and to other individuals, none of which are of any concern of the Second Defendant.

After referring to the bringing of these proceedings the grounds given by the Second Defendant continue:

“Under duress the Second Defendant settled these proceedings at a hearing on 10 February 2011. However the Claimant subsequently threatened further proceedings for defamation against the Second Defendant based on the same facts. The First Defendant had suffered a stroke and was suffering from depression and so requested an adjournment of the proceedings until she was fit enough to attend any court hearing. The Claimant agreed to lodge a Consent Order at the Court to this effect. Despite the draft Consent Order being signed by the First Defendant it was never lodged at the Court and the Claimant has taken no further steps in the Claim”.

In the second of the sentences quoted the Second Defendant was referring to the letter of 2 March 2011. The remainder is true but immaterial. The order for an adjournment could be drawn up at any time.

The Application Notice issued by the First Defendant is stamped with notice of a hearing before the Master on 27 February. The grounds given by the First Defendant for her applications are:

“Because the bringing of these proceedings by the Claimant, a solicitor, against his own client was an abuse of the process of the court and a serious breach of the Principles of the Solicitors Regulation Authority”.

The First Defendant supported her application by a witness statement dated 2 February 2014. The witness statement sets out her grievances about the conduct of the Boundary Dispute litigation and the judgment entered against her. It contains very serious allegations of dishonesty against the Claimant and another solicitor in the same county (who appears to have no connection with this litigation), and recounts the advice and assistance she had received from the Second Defendant. It also contains personal allegations against the Claimant in relation to his conduct towards herself and against other persons whose connection with the present case is not explained. Her statement continues with many other allegations without explaining what connection they could have to the present litigation.

On 21 February 2014 the Claimant made an application to the court in another action, namely a libel action brought by the Second Defendant against three defendants in which the Claimant was acting as solicitor for one of the defendants in that action. In the application he was described as proposed third party.

Sir David Eady made an order on that application prohibiting the Second Defendant from disclosing certain information concerning the Claimant. The information was specified as including a letter to the court of 3 February 2014 and the like communications as those specified in the Order of HHJ Hughes QC dated 11 February 2011. Sir David Eady set aside the proceedings brought by the Second Defendant against the defendant represented by the Claimant, and he awarded costs against the Second Defendant on an indemnity basis.

On 25 February 2014 the Claimant sent to the First Defendant and the Second Defendant requests for further information of their applications, purportedly pursuant to CPR Part 18. There followed a hearing before the Master. There is a form of Consent Order which has not been signed, and no order has been drawn up. But there is no dispute as to the outcome. As set out in a letter dated 5 May 2014 from the Second Defendant to the Court, the Master made an order:

“1.

The Claimant having served Requests for further information on the First and Second Defendants under CPR Part 18 the Defendants, if so advised, shall file and serve their replying evidence to these Requests by 4:00pm on Friday 14 March 2014.

2.

the Claimant if so advised shall file and serve his replying evidence to the Applications of the First and Second Defendants by 4:00pm on Friday 28 March 2014. No further evidence shall be filed and served without leave.

3.

The Application shall be set down for hearing by a High Court Judge with a time estimate of one day…”

In that letter the Second Defendant went on to say that he declined to answer the Part 18 Request.

Nevertheless, on 14 March the Second Defendant purported to serve on the Claimant his evidence in the form of witness statements of each of himself and his wife.

In his witness statement the Second Defendant sets out matters relating to individuals who have no connection with this litigation, the relevance of which he purports to explain, but for which he gives no real explanation. He then sets out allegations of professional misconduct of the Claimant in relation to both the First Defendant and others. He repeats the First Defendant’s grievances about the Boundary Dispute trial and other irrelevant matters. His witness statement ends:

“In view of the extreme seriousness of the allegations which are being made against [the Claimant] I have determined to file this evidence at the Court today (the due date) and seek advice from the police and the SRA before serving any evidence on [the Claimant] …”

The witness statement of the Second Defendant’s wife contains a similar catalogue of serious allegations of misconduct against the Claimant. None of them are relevant to the order sought in the Second Defendant’s application notice. However at the end of her witness statement she states:

“I shall be sending this witness statement to the Solicitors’ Regulation Authority and the Police and Crime Commissioner for Hampshire …”

On 31 March solicitors for the Claimant wrote to the First Defendant. After setting out why they submitted her application could not succeed they wrote their proposals for the way forward:

“1.

that you discontinue your application …

2.

that if you still wish to contest the claim then the proper way of doing this would be in the context of responding to our summary judgment application, which can now be restored, seeing that you are now recovered from your ill health three years ago…”

I do not understand why the Claimant asked for an order that the Defendants file and serve proper replies to the Part 18 Request. The order they agreed was that the Defendants should give such further information “if so advised”. And the Second Defendant has made clear he declines to answer. In any event, I see no purpose in the Requests: whether the applications notices are good or bad is for consideration at the hearing. I consider the merits of the Defendants’ applications below.

I also see no purpose in the second order sought by the Claimant in his application notice. It is now clear that there is no dispute about what was agreed. But if there had been a dispute, I could not have resolved it on an interim application heard on the papers. Ms Shore did not press for this.

The real issue raised by the Claimant is his application for an order relating to the witness statements of the Defendants and the Second Defendant’s wife. I shall return to this below.

In his Skeleton Argument the Second Defendant submitted that the terms of the settlement recorded in the order of 11 February 2011 provided that no claim for defamation arising from the same facts could be brought. And he goes on to complain of the letter of 2 March which, he submits, did threaten defamation proceedings arising from the same facts.

Miss Shore points out that no defamation proceedings have in fact been brought against the Second Defendant arising out of the same facts, as is common ground.

And she submits that the letter of 2 March makes clear that no such claim was threatened. Miss Shore is clearly correct in this submission.

Even if the Second Defendant had been right in saying that the Claimant’s letter of 2 March included claims which had been settled by the agreement recorded in the Order of 11 February, that could not have given any arguable basis for an order striking out the claim, or releasing the Second Defendant from the undertakings he gave to the court, as sought in the Second Defendant’s application notice. The most it could have resulted in would have been a ground for staying any action that might have been brought by the Claimant following that letter. But no action was brought.

Notwithstanding the references to duress in his witness statement and that of his wife, the Second Defendant has not applied to set aside the settlement recorded in the order of 11 February 2011 on the ground of duress. It may well be that he and his wife were feeling under the stress that they describe. But nothing in their evidence could arguably be a basis for a successful plea of duress. Even if there were a case in duress, that would have to be determined at a trial, and not on an interim application. And even if the Second Defendant were to prove duress, the upshot would be the setting aside of the settlement agreement, so that he could then defend the action. A claim that he settled under duress could not lead the court to strike out of the claim.

There is simply no basis at all for the application by the First Defendant to strike out the action. None is stated in her application notice. It is not abuse of process for a solicitor to sue a defendant who is his former client. And there is nothing in the witness statement of the First Defendant to support her application to strike out the claim.

In fairness to the First Defendant I must state that she appeared to have little understanding of what she was doing. She appears to be acting on advice which is not given in her best interests. She said she had done nothing wrong, and that she only wanted to publish what was already in the public domain, which cannot harm him. But she did not explain what she hoped to achieve by publishing what she claimed was already in the public domain, if it is not to cause the Claimant distress and harm.

It is this application which has led to the matter being listed before myself rather than before the Master. The draft of the order now sought is:

“The Second Defendant must not, whether by himself or by any other person, publish, communicate or disclose to any other person (other than to legal advisers instructed in relation to the proceedings for the purpose of obtaining legal advice in relation to these proceedings) his witness statement or his wife’s witness statement dated 14^th March 2014 or any other witness statement filed or served in these proceedings”.

The grounds for the application for an injunction are that the witness statements of the Second Defendant and his wife are irrelevant and scandalous. Ms Shore submits that they are a continuation of, or similar to, the course of conduct which was held by HHJ Hughes QC to justify the interim injunction on the basis of harassment.

Ms Shore also relied on Iqbal v Dean Manson Solicitors (No 1) [2011] EWCA Civ 123. In that case the claimant was a solicitor advocate who had formerly been employed by the defendant firm of solicitors. He subsequently acted in proceedings in which the defendant firm was acting for the opposing party. The claimant brought proceedings against the defendant for harassment under the Protection from Harassment Act 1997. The alleged conduct consisted of letters written by the defendant to the court in which the defendant made very serious allegations about the conduct of the claimant, both professional and personal. The judgment of Rix LJ included the following:

“41.

The judge was perhaps concerned, and rightly so, not to set up every complaint between lawyers as to the conduct of litigation as arguably a matter of harassment within the Act. It must be rare indeed that such complaints, even if in the heat of battle they go too far, could arguably fall foul of the Act. However, in my judgment, these three letters, particularly when viewed in the light of each other, and especially the last two, arguably amount to a deliberate attack on the professional and personal integrity of Mr Iqbal, in an attempt to pressurise him, by his exposure to his client and/or the court, into declining to act for Mr Butt or else into advising Mr Butt to meet the demands of Dean Manson. It cannot, at any rate arguably, assist Dean Manson that such letters were written in the context of litigation and in an attempt to improve their position in that litigation, or in an attempt to raise even serious and proper questions as to possible conflicts of interest. Arguably, the letters go way beyond such concerns. Indeed, Mr Brown conceded in argument that if the above was, even arguably, the view which could be taken of these letters, as distinct from the view of them which he submitted was the correct one, namely that they were simply and solely raising legitimate queries as to conflicts of interest between Mr Iqbal and his client and as to breach of confidence between Mr Iqbal and Dean Manson, then Mr Iqbal's claim could not be struck out, at any rate subject to issue (iv).

42 In sum, in my judgment, each of these letters does, when considered side by side, arguably evidence a campaign of harassment against Mr Iqbal. They are arguably capable of causing alarm or distress. They are arguably unreasonable, or oppressive and unreasonable, or oppressive and unacceptable, or genuinely offensive and unacceptable. Arguably, they go beyond annoyances or irritations, and beyond the ordinary banter and badinage of life. Arguably, the conduct alleged is of a gravity which could be characterised as criminal. A professional man's integrity is the lifeblood of his vocation. If it is deliberately and wrongly attacked, whether out of personal self-interest or malice, a potential claim lies under the Act….

54.

Whatever the hardships involved in litigation, it is not the occasion for irrelevant and abusive dirt to be thrown as part of a malicious campaign. Just as even the freedom of the press may be abused in a rare case (Thomasv. News Group Newspapers Limited[2001] EWCA Civ 1233, [2002] EMLR 4), so even litigation, whose natural contentiousness also requires its own freedom of speech, can exceptionally be abused. I would, however, equally deplore satellite litigation.”

The Claimant’s application notice para (4) refers to the court’s general powers of case management under CPR r.3.1(2). These include that:

“…the court may … (m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.”

Ms Shore also invokes the jurisdiction under CPR r.32, which provides, so far as material:

“32.1

(1) The court may control the evidence by giving directions as to –

(a)

the issues on which it requires evidence;

(b)

the nature of the evidence which it requires to decide those issues; and

(c)

the way in which the evidence is to be placed before the court.

(2)

The court may use its power under this rule to exclude evidence that would otherwise be admissible….

32.12

(1) Except as provided by this rule, a witness statement may be used only for the purpose of the proceedings in which it is served.

(2)

Paragraph (1) does not apply if and to the extent that–

(a)

the witness gives consent in writing to some other use of it;

(b)

the court gives permission for some other use; or

(c)

the witness statement has been put in evidence at a hearing held in public.

32.13

… (2) Any person may ask for a direction that a witness statement is not open to inspection.

(3)

The court will not make a direction under paragraph (2) unless it is satisfied that a witness statement should not be open to inspection because of –

(a)

the interests of justice;

(b)

the public interest;

(c)

the nature of any expert medical evidence in the statement;

(d)

the nature of any confidential information (including information relating to personal financial matters) in the statement; or

(e)

the need to protect the interests of any child or protected party.

(4)

The court may exclude from inspection words or passages in the statement.”

The Claimant’s application also appears to be based on the assumption that it was appropriate to ask the court to rule on the admissibility of the witness statements of the Second Defendant and his wife in advance of the hearing of the applications of the Defendants. That was mistaken in my view. There was no need for a separate hearing of the application by the Claimant. After asking the parties for their submissions, and receiving no objection, I decided to hear and determine at the same time all the issues arising under the three application notices. That course was in my view necessary to meet the overriding objective.

Ms Shore submits that, pursuant to CPR r.32.13(3), I should be satisfied that the witness statements of the Defendants and of the Second Defendant’s wife referred to in this judgment should not be open to inspection in the interests of justice. The contents were irrelevant to any issue that arises on the application notices, and it was an abuse of the process of the court to include in the witness statements irrelevant material. Alternatively, she submits that I should strike out the witness statements.

I accept that submission and am so satisfied. In my judgment, whatever may happen in the future, looking at the applications now before the court, it is strongly arguable that the contents of the witness statements of the Defendants and of the Second Defendant’s wife are what Rix LJ referred to as abusive dirt thrown as part of a malicious campaign, and are irrelevant to the applications which are now before the court, and in support of which they are purportedly made and filed.

The question arises what order is appropriate in the light of that conclusion. In so far as parts of the Second Defendant’s witness statement include matters which are the subject of the undertakings he gave on 11 February 2011 (and I make no decision about that) then no further injunctive relief is necessary as against him. If the Claimant wishes to pursue any claim that the Second Defendant has acted in breach of the undertaking then the question whether he is in breach or not must be decided in proceedings for committal.

In so far as parts of the Second Defendant’s witness statement are, as I have found, arguably part of a course of conduct amounting to harassment under the Protection from Harassment Act 1997 (but outside the scope of the undertakings which the Second Defendant gave in February 2011, if that be the case), then Ms Shore refers in her Skeleton Argument to the possibility of the Claimant amending his claim for harassment and seeking an injunction in terms wider than the undertakings which the Second Defendant gave in February 2011.

In my judgment if the Claimant wants injunctive relief he will have to identify in a draft order the nature of the allegations further publication of which he asks the court to prohibit. It is not every word in the Second Defendant’s witness statement of March 2014 that seems to me likely to be found to be harassment if further published. And he will have to amend his claim for harassment.

An injunction in the terms set out in para 39 above would seem to me to be both too wide and too narrow. It is too wide, since not everything in the witness statements amounts to harassment. It is too narrow in that it would not prevent republication of the objectionable matter in some form other than the witness statement. And CPR r.32.12 does not seem to me to assist. CPR r.32.12(2)(a) contemplates that the witness can give consent to the use of the statement. Since the Second Defendant and his wife are the makers of the statements in question, the prohibition in r.32.12(1) would not prevent them disclosing their own statements.

Under CPR r.3.1(2)(m) I can and shall strike out the witness statements of D2 and his wife dated 24 March 2014, and the witness statement of the First Defendant dated 2 February 2014. I do so on the ground that I find them to be irrelevant to the matters in respect of which they are purportedly made, and so are an abuse of the court’s process and likely to obstruct the just disposal of the proceedings.

In the light of the conclusions that I have expressed, I will give the Claimant an opportunity to put forward appropriate drafts of amendments to the claim form and Particulars of Claim, and an injunction. Similarly, if an injunction is to be granted against the Second Defendant’s wife, she must be joined as a Defendant to the claim in harassment.

The Claimant is entitled to be concerned that the Second Defendant is using the occasion of this application to attempt to publish his complaints under the cover of absolute privilege or witness immunity. Whether the Second Defendant has achieved that is another matter. The law is explained in the other Iqbal case [2013] EWCA Civ 149 at paras [29]-[45]. I cannot in this judgment express a view on that point.

For the reasons given above:

For the avoidance of doubt I make clear that these orders do not stifle any complaints the Defendants could legitimately make to the appropriate authorities, or through the courts. The Defendants have had ample opportunity to make complaints, and have in fact done that. There is no good reason for them to persist in making further complaints to those authorities, whether or not those authorities have chosen to act on the complaints already made. The First Defendant has exhausted her legitimate remedy by way of appeal against the judgment in the Boundary Dispute. If she had claim against the Claimant in respect of his conduct of that action or in respect of any other matter, she has had over three years to bring an action, but has not done so.

If a form of order is not agreed the parties shall have permission to make submissions as to further provisions in the order to give effect to the conclusions I have reached in this judgment.