Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR JUSTICE NICOL
Between :
Bruno Lachaux
Claimant
- and -
Independent Print Ltd
Defendant
- And Between -
Bruno Lachaux
Claimant
- and -
Evening Standard Ltd
Defendant
- And Between -
Bruno Lachaux
Claimant
- and -
AOL (UK) Ltd
Defendant
Godwin Busuttil (instructed by Taylor Hampton Solicitors Ltd) for the Claimant
David Price QC (of David Price Solicitors and Advocates) for the Independent Print Ltd and Evening Standard Ltd
Manuel Barca QC and Hannah Ready (instructed by Lewis Silkin) for AOL (UK) Ltd
Hearing date: 11th June 2015
Judgment
Mr Justice Nicol :
The Claimant has brought two libel claims against Independent Print Ltd (‘IPL’) the publisher of the Independent and i newspapers; two against AOL (UK) Ltd (‘AOL’) the publisher of Huffington Post UK website; and one against Evening Standard Ltd (‘ESL’) the publisher of The Evening Standard. Seven application notices were listed before me on 11th June 2015. In two of them, the Claimant sought to strike out or be given summary judgment in relation to certain parts of the defences filed by IPL and ESL. I adjourned those matters over to be determined at the same time as the trial of a preliminary issue presently listed for 20th and 21st July 2015. I heard the other matters and reserved my decision. After the hearing Mr Busuttil, on the Claimant’s behalf, drew my attention to Hallam Estates Ltd v Baker [2014] 4 Cost LR 660. I gave directions for him to provide a short note with the submissions he wished to make on the basis of this authority and for the Defendants to respond. I received these from Mr Price and Mr Barca. Mr Busuttil submitted a note in response. I have taken all of these into account.
The Claimant is an engineer. He lives in Dubai. Between 2010 and 2012 he was married to a British Citizen, Afsana Begum (‘Afsana’). In January and February 2014 the Defendants published a number of articles concerning the treatment of Afsana by her ex-husband. In some cases it is alleged that the articles continued to be available for a significant period after their first appearance. More specifically, the articles in question were as follows:
On 20th January 2014 AOL published an article in the Huffington Post UK by Rori Donaghy with the headline ‘British Victim of Domestic Abuse Faces Prison in the UAE’ (‘the 1st AOL article’).
On 25th January 2014 IPL published an article in the Independent with the headline ‘British mother Afsana Lachaux faces jail in Dubai after husband claims she kidnapped their son.’ The article also appeared on the newspaper’s website. It was written by Alastair Sloan (‘the 1st IPL article’).
Another article, also written by Mr Sloan was published by IPL on the same day in the i newspaper with the headline “Kidnap” mother abandoned by UK, family say’ (‘the 2nd IPL article’).
On 6th February 2014 AOL published another article in the Huffington Post UK. This was also written by Alistair Sloan. It had the headline ‘Distracted by a Big, Shiny Arms Deal – David Cameron has abandoned a British Citizen, Please Help’ (‘the 2nd AOL article’).
On 10th February 2014 ESL published an article by Susannah Butter in the Evening Standard with the headline ‘Dubai’s a small place – he took Louis in an instant’. It was also available on the Evening Standard website (‘the ESL article’).
It is not necessary to say more at this stage about the content of the articles except that the Claimant alleges that they all say that he has seriously ill treated his former wife in various ways.
On 28th August 2014 Taylor Hampton on behalf of the Claimant wrote to AOL to complain about the 1st AOL article. This was some 7 months after the article had been first published. It did not mention the 2nd AOL article (published on 6th February), although Mr Taylor of Taylor Hampton has said in his two witness statements in the AOL proceedings that his firm was aware of the 2nd AOL article from mid-February 2014. AOL took down the 1st AOL article from its website about three weeks after it received Taylor Hampton’s letter.
On 22nd September 2014 Taylor Hampton wrote to IPL about the 1st IPL article. It did not refer to the 2nd IPL article (the one published in the i newspaper). Mr Taylor said in his witness statement that the Claimant was not aware of the 2nd IPL article until November 2014. On 23rd September 2014 Taylor Hampton wrote a letter of complaint to ESL about its article. In late November 2014 ESL added an addendum to the online version of its article and IPL added an addendum to the online version of the 1st IPL article.
On 2nd December 2014 a claim form was issued against IPL in relation to the 1st IPL article (this is claim HQ14D05024 – ‘the 1st IPL claim’). The Claim Form and Particulars of Claim were served the same day. That day as well, a Claim Form was issued in relation to the ESL article (this is claim HQ14D05025 - ‘the ESL claim’). ESL was likewise served with the Claim Form and Particulars of Claim. Also on 2nd December 2014 Taylor Hampton applied for the meaning of the 1st IPL article and the meaning of the ESL article to be determined as a preliminary issue in those actions.
As I have said, it is Mr Taylor’s evidence that his firm was aware of the 2nd IPL article in November 2014. Nonetheless it did not feature in the 1st IPL claim issued on 2nd December. Mr Taylor’s first witness statement in the IPL proceedings says,
‘At this stage[referring to 2nd December 2014], counsel and this firm took the view that we should issue proceedings in respect of the ‘i’ newspaper in order to protect our client’s position regarding the expiry of the 1 year limitation period but that we should wait serving the claim pending the determination of meaning in the Independent action.’
On 19th January 2015 a Claim Form was issued against AOL in relation to the 1st AOL article (this is claim number HQ15D00253 – ‘the 1st AOL claim’). The Claim Form and Particulars of Claim were served on AOL. It is not entirely clear from Mr Taylor’s two witness statements in the AOL proceedings why the 2nd AOL article was not also included in this claim. Its existence had been discovered some 11 months earlier in February 2014. In his first witness statement in the AOL claim, Mr Taylor says ‘…at this stage [which seems to be after discovery of the 2nd AOL article in February 2014] we notified the Claimant which articles we were prepared to act on his behalf in relation to a conditional fee agreement. This did not include the second ‘Huffington Post’ article. It was agreed that we may review the position at a later date.’ Mr Taylor does say that a database search on 19th January 2015 (so the same day as the first Claim Form was issued against AOL) was carried out to identify any further articles that were potentially actionable before the expiry of the 1 year limitation period and the 2nd AOL article was ‘re-discovered’. Elsewhere in this witness statement Mr Taylor says that the Claimant is of limited means and had to be selective in whom he sued. It is not clear whether this is intended to explain why the 2nd AOL article was not included in the 1st AOL claim or whether this is given as a reason why the Claimant did not bring proceedings against publishers other than the three whom he has sued.
On 23rd January 2015 the Claimant issued a second claim against IPL in connection with the 2nd IPL article (this is Claim Form number HQ15D0344 – ‘the 2nd IPL claim’). Since that article had been published on 25th January 2014, the Claim Form was issued one day before the expiry of the ordinary limitation period in the Limitation Act 1980 s.4A. It was not then served on IPL.
On 23rd January 2015 IPL served a defence in the first IPL claim in relation to the 1st IPL article and ESL served a defence in relation to the ESL claim.
On 4th February 2015 a hearing took place before Sir David Eady to determine the issue of meanings in connection with the 1st IPL article and the ESL article. Mr Price QC for IPL and ESL said that the meanings advanced by the Claimant in those claims were not substantially disputed. However, IPL and ESL in their defences had said that if the words complained of had certain meanings they would defend them as true. There was some dispute about those meanings. Sir David Eady did therefore have to decide whether the words bore them. Sir David was not told about the 2nd IPL claim in relation to the 2nd IPL article.
On 5th February 2014 a second claim was issued against AOL in respect of the 2nd AOL article (this was claim number HQ15D00553 – ‘the 2nd AOL claim’). Since that article had first been published on 6th February 2014 this was also just 1 day before the expiry of the ordinary limitation period in relation to that publication. This Claim Form was not then served.
On 17th February AOL issued an application in the 1st AOL claim seeking an order that the issue of ‘serious harm’ under Defamation Act 2013 s.1 should be tried as a preliminary issue. On 4th March 2015 IPL in the 1st IPL claim and ESL made a like application.
Sir David Eady gave his judgment on meanings on 11th March 2015.
Nicola Davies J. heard the applications by AOL, IPL and ESL for the trial of a preliminary issue on 18th March 2015. She was not told about the 2nd AOL claim or the 2nd IPL claim. In a decision dated 1st April 2015 she agreed that there should be the trial of a preliminary issue of the claims of which she was aware. This would include the question of serious harm and whether the claims should be stayed as an abuse of process. She gave directions for the trial of these issues which would take place on 20th-21st July.
On 11th May 2015 Taylor Hampton wrote to David Price Solicitors and Advocates (‘DPSA’) and said
‘In January this year we discovered that your client [IPL] had published another article concerning our client in the i newspaper in similarly defamatory terms to the one complained of in the current action in respect of publication in The Independent.’
It said a protective Claim Form had been issued on 23rd January 2015 and the Claimant now intended to serve it. They asked DPSA to agree to Amended Particulars of Claim (a copy of which they enclosed) which would effectively serve for both actions against IPL. In his second witness statement, Mr Taylor has accepted that he made a mistake in this letter. The 2nd IPL article had been discovered in November 2014, not January 2015.
Taylor Hampton wrote in almost identical terms to Lewis Silkin for AOL on 11th May 2015 as well. This, too, said that the 2nd AOL article had been discovered in January 2015. That, too, was a mistake. Mr Taylor accepts that Taylor Hampton in fact learned of the 2nd AOL article in mid-February 2014.
Neither DPSA nor Lewis Silkin agreed to the course which Taylor Hampton had proposed.
The Claimant served the 2nd IPL Claim Form on 19th May 2015. By CPR r.7.5 the Claim Form must be served before midnight on the calendar day 4 months after the date of issue. Since the 2nd IPL Claim Form had been issued on 23rd January 2015, this was 4 days before the expiry of that time limit.
The Claimant served the 2nd AOL Claim Form also on 19th May 2015. That Claim Form had been issued on 5th February 2015 and so service was a little over 2 weeks before the expiry of the time in r.7.5.
On 22nd May 2015 the Claimant issued three application notices:
Against IPL (a) He sought to strike out parts of IPL’s defence in the 1st IPL claim and a postponement of the exchange of witness statements which Nicola Davies J had directed for the trial of the preliminary issue until the strike out had been considered. (b) He sought an order allowing it to serve Amended Particulars of Claim in the 1st IPL claim. The amendments would incorporate the Claimant’s claim in the 2nd IPL claim. In effect he therefore sought a consolidation of the two actions or an order that they be tried together and that there be a single, combined Particulars of Claim for the two of them, rather than separate (or parallel) Particulars of Claim in each. (c) He also sought an extension of time for serving any Particulars of Claim in the 2nd IPL claim until after the application in (b) had been decided.
Against ESL He similarly sought to strike out parts of ESL’s defence and postponement of the exchange of witness statements in very similar terms to the relief sought in (a) against IPL. There was no second action against ESL and therefore the relief sought in (b) and (c) against IPL was not relevant.
Against AOL AOL had not served a defence and so the relief sought in (a) against IPL was not relevant. There was a second claim against AOL and so the Claimant sought the comparable relief as in (b) and (c) against AOL.
I have explained above that I ordered the strike out aspects of the application notices against IPL and ESL to be heard at the same time as the preliminary issue. I will make directions for the exchange of witness statements to take place reasonably soon. So far as I am concerned, that disposes of the relief sought in (a) against IPL and ESL.
That left the relief sought in (b) and (c) against IPL and AOL which those Defendants opposed. Before considering the arguments in relation to them, it is convenient first to complete the chronology.
On 22nd May 2015 Taylor Hampton went before the Practice Master, Master Yoxall. They sought without notice to IPL or AOL an order that the time for service of the Particulars of Claim in the 2nd IPL claim and the 2nd AOL claim should be extended until 7 days after the determination of the Claimant’s applications on notice against those two defendants.
In his witness statement of 10th June 2015, Mr Taylor says,
“I informed the Master that we had just issued the Application Notices at court. I explained that these two Applications had been placed in the warned list for 2nd June 2015. I further explained that in relation to the ‘i’ newspaper the deadline for service of the Particulars of Claim under CPR 4.5/7.5 was the next day (Saturday 23rd May 2015), and in the case of second AOL article the deadline for service of the Particulars of Claim would almost certainly be before the hearing of the Application Notices before the court at this hearing. I therefore requested that he make the orders subsequently made. I cannot recall whether I discussed with the Master specifically whether I had put both Defendants on notice of my appearance before him, nor to the best of my recollection did he ask me. However, that must have been obvious to him given that I informed him that we had only just issued the relevant Application Notices; see the first sentence of this paragraph.’
On 2nd June 2015 IPL issued an application notice to set aside Master Yoxall’s order extending time for the service of Particulars of Claim in the 2nd IPL claim. AOL issued a like application notice on 3rd June 2015 to set aside Master Yoxall’s order extending time for service of the Particulars of Claim in the 2nd AOL claim.
On 4th June 2015 the Claimant issued application notices in the 2nd IPL claim and the 2nd AOL claim. He seeks orders that at the preliminary issue hearing on 20th July, the Judge should also determine any disputed issues as to meaning in the 2nd IPL and 2nd AOL claims and determine for the purposes of those claims as well whether the Claimant has suffered serious harm and/or whether the claims are an abuse of process.
The applications of IPL and AOL to set aside the orders of Master Yoxall
The parties’ submissions
Mr Barca for AOL and Mr Price for IPL argue first that the Claimant was not entitled to apply without notice to Master Yoxall. They note that CPR r.7.6(4)(b) expressly allows an application for an extension of time to serve the Claim Form to be made without notice. There is no equivalent provision allowing an application for an extension of time for service of the Particulars of Claim to be made without notice. Stuart-Smith J. drew attention to the distinction in Lincolnshire County Council v Mouchel Business Services Ltd [2014] EWHC 352 (TCC) at [21]. Mr Busuttil accepted that there was this difference and that there was no specific provision for applying without notice for an extension of time to serve the Particulars of Claim. However, he submitted that the Claimant could rely on the general provision in CPR r.23.4(2)(b) which allows an application to be made without notice if this is permitted by a Practice Direction. CPR PD 23A paragraph 3 provides that an application can be made without notice ‘where there is exceptional urgency’. That was the case here, they said, since the time allowed for serving the Particulars of Claim in the 2nd IPL claim would have expired on 23rd May 2015. The time for serving the Particulars of Claim in the 2nd AOL claim would have expired on 5th June 2015. There was extreme urgency in both cases.
Mr Barca and Mr Price respond by saying that there was no such urgency since, in the absence of agreement to the Claimant’s proposed combined Particulars of Claim, the Claimant could simply and swiftly have issued Particulars of Claim limited in the one case to the 2nd IPL claim and, in the other, to the 2nd AOL claim. Furthermore, any shortage of time was because of the Claimant’s own delay in deciding to proceed with these second claims.
Mr Barca and Mr Price also submit that the Claimant did not comply with CPR r.23.9(2) since the application notice was not served with Master Yoxall’s order, nor was the evidence relied upon in front of the Master served with his order. Further information as to what took place before the Master was given in Mr Taylor’s second witness statement, but that was only made on 10th June 2015, one day before the hearing of the present applications. In addition, the Claimant did not comply with CPR r.23.9(3) which requires an order made without notice to contain a statement of the respondent’s right to apply to set aside or vary the order under CPR r.23.10.
More generally, Mr Barca submitted that the Claimant had stolen a march on AOL. But for the Master’s order, time for serving the Particulars of Claim would have expired, the Claimant would have had to justify being granted relief from sanctions under CPR r.3.9 as interpreted in Mitchell v News Group Newspapers Ltd [2014] 1 WLR 795 (CA) and Denton v T.H. White Ltd [2014] 1 WLR 3926 (CA). The Defendants have been prejudiced therefore by his unjustified use of the without notice procedure. Mr Barca and Mr Price made wider criticisms of the pace (or rather lack of it) with which the Claimant has pursued his remedies for these publications, but it is more convenient for me to consider those later in this judgment.
In the note lodged with the Court after the hearing concluded (and to which I have referred above) Mr Busuttil submitted that Mr Barca’s argument was misconceived. If an application for an extension of time is filed with the Court before the existing time expires then it remains an application for an extension, even if it is heard after the deadline has passed. The lapse of time between filing and hearing of the application did not mean the applicant now had to ask for relief from sanctions – Robert v Momentum Services Ltd [2003] 1 WLR 1577 (CA) and Hallam Estates v Baker [2014] 4 Costs LR 660 (CA). It remained the case that the applicant was invoking the power in CPR r.3.1(2)(a) to have a time limit extended. In consequence, Mr Busuttil submitted, the order of Master Yoxall was strictly unnecessary. The Claimant was in no better position because it had been made and the Defendants were in no worse a position.
Setting Aside Master Yoxall’s orders: Discussion
This is largely an academic issue. Mr Taylor says that he went before the Practice Master ‘out of an abundance of caution (and with the benefit of hindsight, I recognise that it might not have been necessary to do so).’ His hindsight is correct. As Hallam Estates v Baker (above) shows, if an application for an extension of time is made in time, then, even if it is heard after the time limit expires, the Court will still approach the matter as an application under CPR r.3.1(2)(a). The applicant will not then have to satisfy the more stringent standards applied when relief is sought against sanctions.
Nonetheless, so far as it has any relevance, I consider that AOL and IPL were entitled to have Master Yoxall’s order set aside.
It is not significant that Taylor Hampton omitted the statement of the right of the Defendants to apply to have the order set aside. It is quite correct that this should have been included - see CPR r.23.9(3), but Lewis Silkin and David DPSA are extremely experienced solicitors. They did not need to be told that they had this right. They did indeed apply to have the order set aside even though the Claimant had omitted to give them notice of this right.
There are, though, other matters of more importance.
As I have observed, Mr Busuttil argued that the Master had jurisdiction to deal with the matter without notice to AOL or IPL because this was a case of extreme urgency. In the case of AOL, that was far from obvious since there was about 2 weeks before the time limit for serving Particulars of Claim expired. It is true that the deadline for service of the IPL Particulars of Claim was more imminent. But in both cases, there was a dearth of evidence as to why the Claimant had got so close to the wire. In his witness statements, Mr Taylor does say that the Claimant was of limited means and needed to find out if his lawyers would act on a Conditional Fee Agreement, but he says nothing about when the decision to proceed with the 2nd AOL claim or 2nd IPL claim was taken. The Master clearly did not have the witness statement of 10th June 2015. I assume that he had available Mr Taylor’s witness statements in support of his Application Notices, but they did not provide this information.
Mr Busuttil relies on the extreme urgency of the situation which did not allow the application to the Master to be made on notice. There is, in addition, though, some force in the arguments of Mr Price and Mr Barca that the Claimant had a draft consolidated Particulars of Claim prepared. The Claimant knew that AOL and IPL did not consent to Particulars of Claim in that form. It would have been a relatively simple matter to cut and paste that existing draft to provide a separate set of Particulars of Claim for the 2nd AOL claim and a separate set of Particulars of Claim for the 2nd IPL claim. This could have been done swiftly.
Even if Mr Taylor was justified in applying without formal notice to AOL or IPL, it is not clear why informal notification was not given to their solicitors that this was what he intended to do. The Practice Direction to Part 23A paragraph 4.2 urges litigants to do this unless the application required secrecy (which Mr Taylor’s did not).
Mr Taylor’s witness statements of 22nd May had another difficulty. There was a conflict between what the statements said about when the Claimant had first learned of the second articles and what had been said in Taylor Hampton’s letters of 11th May 2015 which were exhibited to the witness statements. Mr Taylor says in his 10th June 2015 witness statement that his letters were in error. He explains that he was ill for parts of 2014. Mistakes, of course, do happen, but the Defendants were entitled to find out what was the true position, and that only became clear with Mr Taylor’s witness statement of 10th June.
CPR r.23.9(2) requires the party who has applied without notice to serve the application notice and any evidence in support. I am not sure if Mr Taylor went through the stage of preparing an application notice to get before Master Yoxall. Certainly none was served on the Defendants. It does not seem as though any additional evidence was filed when Mr Taylor went before the Master. It is only with Mr Taylor’s witness statement of 10th June that AOL and IPL were provided with an account of what had taken place.
For all of these reasons I would set aside Master Yoxall’s order. It is a separate question as to whether the Claimant should be given an extension of time for serving his Particulars of Claim. I turn to that next.
Whether time for service of the Particulars of Claim in the 2nd AOL claim and the 2nd IPL claim should be extended
The parties’ submissions
Mr Busuttil reminds me that these claims were issued within the ordinary limitation period. The Claimant’s position is therefore different to that in Steedman v BBC [2001] EWCA Civ 1534, [2002] EMLR 17 where the Claimant was dependent on the Court exercising its power under the Limitation Act 1980 s.32A to disapply the ordinary period of limitation. In addition, the Claimant in the present case had served the Claim Forms in both the 2nd AOL claim and the 2nd IPL claim within the 4 month period allowed by the CPR. AOL and IPL had been sent a draft of the proposed combined Particulars of Claim on 11th May 2015. What the Claimant now proposed to serve was precisely the same. In the informal sense, therefore, those Defendants had received notice of the Claimant’s case within the ordinary period for service. They were in a combined form, but with causes of action which were so closely related that made good sense and was consistent with an economical and efficient way of conducting the various claims. AOL and IPL would suffer no prejudice in having the Particulars of Claim in this form. The Claimant accepted that he would still have to satisfy the test of ‘serious harm’ in s.1 of the Defamation Act 2013 in respect of each publication. There would be no difference and therefore no prejudice to AOL if the 1st and 2nd AOL claims were dealt with in a single Particulars of Claim and there would be no prejudice to IPL if the 1st and 2nd IPL claims were dealt with in a single Particulars of Claim.
Mr Barca and Mr Price emphasised the importance in defamation actions of swift action. Thus the Pre-Action Protocol for Defamation says at paragraph 1.4
‘There are important features which distinguish defamation claims from other areas of civil litigation, and these must always be borne in mind when both applying, and reviewing the application of, the pre-Action Protocol. In particular, time is always “of the essence” in defamation claims.’
The purpose (from the Claimant’s point of view) of an action in defamation was supposed to be vindication of his reputation. Yet this Claimant had not sent any letter before claim until several months after the publications complained of. If, as the Claimant now maintained, the 2nd AOL article was very similar to the 1st AOL article, no sensible reason had been advanced as to why complaint should not have been made about both at the same time and why both articles were not included in the same action. The Claimant had known about both in mid-February 2014.
According to Mr Taylor, the Claimant was unaware of the 2nd IPL article when a letter of complaint was written about the 1st article. However, he did learn of the 2nd IPL article in November 2014 and there is no good reason why that should not have been included in the 1st IPL action which was issued in December 2014.
Nor has the Claimant explained why nothing was said to Sir David Eady or Nicola Davies J about the existence of the 2nd actions when the hearings took place in front of them. The Claimant’s delay in serving the 2nd Claim Forms was again inconsistent with the usual expectation that a defamation Claimant would act expeditiously. He had waited without good explanation to serve his Particulars of Claim and, in the memorable phrase of Stuart-Smith J in Lincolnshire County Council at [1], he thereby ‘diced with procedural death’. His equivocation about pursuing his claimed remedies in libel was further illustrated by the Claim Form which he issued against Afsana’s son (Rabbhi Yahiya) but then never served.
As to the proceedings against Rabbhi Yahiya, Mr Taylor’s witness statement of 10th June 2015 says,
‘[5] There is a further set of proceedings against Rabbhi Yahiya issued on 30th January 2015. However, the Claim Form in these proceedings to my knowledge has not been served…
[12]…protective proceedings in relation to Rabbhi Yahiya were issued on 30 January 2015, again to ensure that the Claimant was not statute barred. These proceedings were never served by this firm. Manleys solicitors of Chester subsequently took over from this firm in acting for the Claimant in these proceedings.’
The importance of expedition in defamation cases is emphasised by the Defendants, but, they submit, that adds force to the general proposition that the overriding objective includes ensuring that a case is dealt with expeditiously – CPR r.1.1(2)(d). The Claimant has not complied with the requirement in CPR r.7.4(2) which is designed to achieve expedition and that is a matter to be taken into account – see Totty v Snowden [2002] 1 WLR 1384 (CA) at [36]. Furthermore, the Defendants submit, before granting an extension of time for service of Particulars of Claim, the Claimant will need to provide an explanation for why they could not have been served within the existing time limit. Absent such an explanation, an extension may be refused – see e.g. Frontier Estates v Berwin Leighton Paisner [2014] EWHC 4203 (Ch) especially [4] and [8].
Mr Busuttil observes that IPL’s solicitors were aware that a second Claim Form had been issued against their clients by the Claimant, as was apparent from their letter of 6th February 2015. They could have drawn this to the attention of Sir David Eady and Nicola Davies J, but they did not. Furthermore, IPL could have called for service of the Claim Form – see CPR r.7.7 and, had the Claimant not done so, IPL could have asked for the claim to be dismissed – see r.7.7(3)(a). The knowledge of Lewis Silkin (AOL’s solicitors) was not quite so clear. In their letter of 8th May 2015, they had said
‘Our client is aware that your client has issued proceedings regarding other publications/other parties concerning the same factual issues that form the subject matter of these proceedings; which claim forms have not been served.’
Neither in this letter nor in the witness statement of Jonathan Coad of Lewis Silkin is it explained what proceedings were being referred to, or when they acquired such knowledge. Mr Busuttil asks me to infer from Mr Coad’s witness statement that it was before the hearing before Nicola Davies J. It is not necessary for me to resolve this. In principle, AOL, if it had known of the 2nd action against it, could likewise have called for service of the Claim Form.
Mr Price makes a discrete argument that the application was to serve amended Particulars of Claim (in the 1st IPL claim). The Court has power to allow amendment under CPR Part 17, but the Claimant was seeking to add a further cause of action based on a discrete publication. The limitation period had expired and the publication in the 2nd IPL article did not arise out of the same facts or substantially the same facts as gave rise to the cause of action based on the 1st IPL article. I do not accept this argument. The Claim Form relying on the 2nd IPL article was issued within the ordinary limitation period. There is not therefore a limitation defence available to IPL. The amendments to the Particulars of Claim in the 1st IPL action are simply to bring about a combined pleading which sets out the Claimant’s case in one document in relation to the two articles. If the claims are consolidated (see below) there is no reason why that should not be done, and every reason why it should.
Extension of time for service of Particulars of Claim: discussion
In my judgment, there should be an extension of time for service of the Particulars of Claim.
As Hallam Estates v Baker (above) shows, the Claimant does not have to satisfy the criteria for relief from sanctions as set out in Mitchell and refined in Denton. The issue is whether the Court should exercise its discretion in CPR r.3.1(2) bearing in mind the overriding objective in r.1.
The Claimant has not served his Particulars of Claim within the time prescribed by CPR r.7.4(2) and, to that extent he has not acted expeditiously. But it was in anticipation that that would be the case that the Claimant made the present application.
I agree with Mr Busuttil that the starting point is that the Claimant has issued his second claims against AOL and IPL within the ordinary limitation period and served the Claim Forms in time.
Furthermore, I consider that it is significant that the Claimant did set out his case in relation to these second claims in draft Particulars of Claim which were sent to IPL and AOL on 11th May 2015 and so before the time for formal service expired. This was not, and could not, be formal service, but it did mean that they have known since then the case he wants to advance.
The Defendants are entitled to say that the Claimant has not moved in relation to these second claims with the expedition which is expected of a defamation claimant (even before his failure to serve the Particulars of Claim in time). On occasions the submissions of Mr Barca and Mr Price seemed to be inviting me to conclude that these were not serious libels and/or the proceedings were an abuse. However, those are arguments which they will be able to deploy when the preliminary issue comes to be tried.
In considering Master Yoxall’s order, I have already observed that the Claimant’s evidence is still unclear as to when he decided to proceed with these second claims. It is also unclear as to why, when AOL and IPL refused to agree to service of combined Particulars of Claim, separate pleadings were not immediately served in each of the actions. To that extent there is still no satisfactory explanation as to why an extension of time was needed. I understand that the Claimant believed that consolidation was the more economical way to proceed, but, as Mr Busuttil accepted, consolidation required an order of the Court. Serving separate Particulars of Claim did not. While the inadequacy of the explanation of the need for an extension is a factor which counts in the Defendants’ favour, it is not determinative.
The Claimant’s method of proceeding against AOL and IPL has been unfortunate. While I pay heed to the evidence of Mr Taylor as to the Claimant’s means, it is still something of a mystery as to why, if the 2nd AOL article was of so similar effect to the 1st AOL article and the 2nd IPL article was so similar to the 1st IPL article, the two articles by IPL were not both dealt with at the same time and the two articles by AOL were not dealt with at the same time. Of course, that assumes that the Claimant knew of the second articles. But Mr Taylor’s 10th June 2015 witness statement makes clear that the Claimant did know of both AOL articles when the first AOL claim was issued and did know of both IPL articles when the 1st IPL claim was issued. Each article was a separate publication. As Mr Busuttil accepted in the course of the hearing, in connection with each the Claimant will have to establish that it caused him serious harm. Each can in principle be the subject of a separate claim. But the overriding objective requires the Court to deal with cases ‘justly and at proportionate cost’ – CPR r.1.1(1). The Claimant’s chosen way of proceeding means that Sir David Eady could not deal with the meanings (if different) of the 2nd as well as the 1st IPL articles. It has meant that Nicola Davies J could not deal with the best way of proceeding with the 2nd as well as the 1st AOL and IPL articles. Although IPL knew of the existence of a second claim against it and AOL may have known of the second claim which had been made against it, primary responsibility for keeping the Court informed rested with the Claimant (whose claims, after all, these were).
Nonetheless, I have concluded, weighing all of these matters together, that it would not be just to refuse the Claimant an extension of time for service of his Particulars of Claim. Subject to any further submissions which the parties may wish to make, my provisional view is that the fair way of proceeding is to allow the Claimant this relief but to require him to pay the costs of the application.
Whether an order should be made consolidating the 2nd AOL action with the 1st AOL action and consolidating the 2nd IPL action with the 1st IPL action
As the notes to paragraph 3.1.10 of the White Book make clear, consolidation cannot be done simply through the agreement of the parties: an order of the Court is required.
Mr Busuttil submits that consolidation would be consistent with the overriding objective to dealing with the cases against AOL on the one hand and IPL on the other economically. It will mean that only one set of pleadings is necessary in each of that pair of actions.
Mr Barca argued that consolidation was neither necessary nor desirable. As a result of the Claimant’s efforts in relation to the second actions against AOL and IPL the time table for the exchange of witness statements for the preliminary issue trial had already been put back. The resolution of the preliminary issue in relation to the 1st AOL article is likely to point the way for how the same issue will be determined in the 2nd AOL claim. Consolidation could be considered after that.
It is sufficient for me to say that, now that I have agreed to extend time for service of the Particulars of Claim, I agree with Mr Busuttil on this matter. Combined Particulars of Claim and consolidation seems the sensible way to proceed.
Whether orders should be made for the preliminary issues due to be tried to extend to the like issues in the 2nd AOL claim and the 2nd IPL claim
Mr Busuttil argues that if the 2nd AOL and the 2nd IPL claims are to continue, it would obviously be convenient and economical for the Judge hearing the preliminary issue in July 2015 to decide whether the publications relied on in those claims had (as the Claimant contends) no different meanings from those in the 1st AOL and 1st IPL claims respectively. Likewise, it be sensible for the Judge who will anyway be determining whether the 1st AOL and the 1st IPL claims satisfy the ‘serious harm’ test and whether they are an abuse of process should conduct the same exercise in relation to the 2nd AOL and 2nd IPL claims. These extra tasks would only marginally extend the time estimate for the hearing. That trial date would not therefore be jeopardised.
Taylor Hampton had proposed this course in their letters to the Defendants’ solicitors of 11th May 2015 and it was only through inadvertence that this relief had not been sought in the application notices filed on 22nd May.
No separate objection to this relief was advanced by Mr Barca or Mr Price (separate, that is, from their opposition to an extension of time for service of the Particulars of Claim and consolidation). I agree that this makes obvious sense.