Brown & Anor v AB

The Claimants, Dr Ernest and Mrs Brenda Brown, are the founders and proprietors of Maple Hayes Hall, a specialist school in Lichfield for dyslexic children and children with special educational needs aged between 7 and 17. Their son, Dr Daryl Brown is the head teacher.

The Claimants claim an international reputation as a centre of excellence for the education of dyslexic children. Drs Ernest and Daryl Brown are the co-authors of a book entitled “Meaning, Morphemes and Literacy.” Dr Brown senior has presented at international conferences as an expert in his field.

The Defendant, AB, is the mother of a former female pupil. Her daughter, X, attended the school between September 2012 and April 2016.

While there are other allegations, this case is primarily concerned with an incident that happened in the school dining hall on 10 February 2016. It is common ground that it involved Mrs Brown and Ms B’s daughter. By this claim, Dr and Mrs Brown claim that Ms B has falsely and maliciously published statements between 2 March and 31 May 2016 that Mrs Brown verbally abused and beat X with a walking stick.

The Claimants’ version of events is that Mrs Brown “gently tapped the child in order to attract the child (sic) attention”: Particulars of Claim, para. 18. Ms B says that it was not a tap, but a “poke hit” to the child’s back: Defence, para. 2(c); Draft Amended Defence, para. 19(i).

There are three applications before me:

The applications came before me on 10 January 2018. At the outset of the hearing, Mr Gamson sought my permission to address the court. He is a solicitor but does not have higher rights of audience to appear before a judge in the High Court. He had believed that the applications were to be listed before a district judge. I granted permission for him to address me on these applications but made plain that he should not assume that he would be given permission to do so again.

There was insufficient time on 10 January to hear all three applications, but I did hear argument on the amendment application. I took that matter first since, in my judgment, it was essential that the court should determine which statements of case were in play before turning to whether they should be struck out or summary judgment entered. At the conclusion of the argument on 10 January, I indicated that I would in principle allow the Defendant to amend her Defence but that I was very concerned by the prolixity of the then current draft. I therefore directed that Mr Gamson should take a red pen to the Amended Defence and reduce its content as much as possible.

I expressly indicated that at the adjourned hearing I would hear Mr Howard as to whether:

Subsequently, Mr Gamson lodged a red-line version of the Amended Defence. I heard the strike out and summary judgment applications on 2 February 2018.

In the unreported case of Cobbold v London Borough of Greenwich, 9 August 1999, Peter Gibson LJ said:

“The overriding objective is that the court should deal with cases justly. That includes, so far as practicable, ensuring that each case is dealt with not only expeditiously but also fairly. Amendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon provided that any prejudice to the other party or parties caused by the amendment can be compensated for in costs, and the public interest in the efficient administration of justice is not significant harmed. I cannot agree with the judge when he said that there would be no prejudice to Greenwich in not being allowed to make the amendments which they are seeking. There is always prejudice when a party is not allowed to put forward his real case, provided that that is properly arguable.”

The editors of the White Book correctly caution, at para. 17.3.5 of the 2017 Edition, against the fallacious argument that might arise from a misreading of Cobbold to the effect that amendments should always be allowed where there is prejudice to the party seeking the amendment. As Peter Gibson LJ made clear, such prejudice must of course be balanced against the prejudice to the other party and the court must exercise its discretion in accordance with the overriding objective.

Where a party seeks to make a late amendment at or close to trial that would be likely, if granted, to cause the trial date to be lost, then there may of course be significant prejudice both to the other party and to other court users. In such cases, there is a heavy onus on the applicant to justify the late amendment (see, for example, Worldwide Corporation Ltd v GPT Ltd, (CA) 2 December 1998, unreported, and Swain-Mason v Mills & Reeve [2011] EWCA Civ 14; [2011] 1 W.L.R. 2735). This is not, however, such a case:

There is a further point. Where a party seeks to strike out a statement of case on the basis that it discloses no reasonable grounds for bringing or defending the claim, the court should consider whether any identified defect might be cured by amendment before acceding to the application: Kim v Park [2011] EWHC 1781 (QB). Accordingly, where, as here, a respondent to a strike out application seeks permission to amend in an attempt to remedy any perceived shortcoming in the original statement of case, the court should, in my judgment, certainly where the amendment application is not made at a late stage in the proceedings, be sympathetic to the application.

For these reasons, I consider that in principle the court should allow Ms B to amend her Defence and determine the strike out and summary judgment applications on the basis of her true case.

There are, however, limitations as to the amendments that ought properly to be allowed.

Rule 14.1(5) provides that a party needs the permission of the court before it can amend or withdraw an admission made in a statement of case. Here, Mr Howard submits that the Amended Defence seeks to withdraw three admissions.

At para. 13(iv) of the original Defence (albeit wrongly numbered 13(v)), Ms B pleaded:

“In the Facebook one-to-one communication … some wording was used to encourage participation in the same way as a salesperson might do. The use of the words ‘lots of children’ and ‘a group .. joined .. together’ are exaggerations and are not true.”

The Facebook communication is dealt with at para. 42 of the Amended Defence. After citing a number of statements from the communication including the statement that “lots of children have been treated badly”, the pleader continues:

“All of these statements are true or substantially true except that there was no group of parents joined together: this was an exaggeration.”

Further detail is pleaded at para. 42(iv) of the draft:

“There have been lots of children who have been treated badly by having to endure a 5½- to 6-day week plus ‘overtime’ homework with the addition of a long commute for some. Some commuted from outside the Midlands area. Others have had to endure a ‘flash-card’ system which did not suit their needs. The comparative pass rates are relevant …

Children had suffered from safeguarding and other issues: the child and one other safeguarding issues (sic) known to the Defendant. Other children had been pushed out of the school for inadequate reasons or disproportionately disciplined and otherwise treated badly. Witness evidence will be given. Ms [C’s] son is an example …”

Accordingly, the Amended Defence seeks to withdraw the earlier admission that the statement about “lots of children” having been treated badly was not true. This was a material admission in the context of this defamation claim.

It was therefore incumbent on Ms B to seek permission to withdraw the admission pursuant to r.14.1(5). The matter was not put before me in that way; rather Ms B simply sought permission to substitute her original Defence with the substantially new Amended Defence. The point under r.14.1 arises not from Ms B’s application, but from the objection taken by Mr Howard that the Amended Defence seeks impermissibly to withdraw an admission. Nevertheless, I consider that Ms B’s application to amend her Defence implicitly seeks permission to withdraw this admission.

Paragraph 7.2 of Practice Direction 14 sets out the principles to be applied when deciding whether to give permission for the withdrawal of an admission. The court should have regard to all the circumstances of the case, including:

“a)

the grounds on which the applicant seeks to withdraw the admission including whether or not new evidence has come to light which was not available at the time the admission was made;

b)

the conduct of the parties, including any conduct which led the party making the admission to do so;

c)

the prejudice that may be caused to any person if the admission is withdrawn;

d)

the prejudice that may be caused to any person if the application is refused;

e)

the stage in the proceedings at which the application to withdraw is made, in particular in relation to the date or period fixed for trial;

f)

the prospects of success (if the admission is withdrawn) of the claim or part of the claim in relation to which the offer was made; and

g)

the interests of the administration of justice.”

This guidance was described by Briggs J (as he then was) in Kojima v HSBC Bank plc [2011] EWHC 611 (Ch), [2011] 3 All E.R. 359, at [19], as “a useful and uncontentious distillation of earlier authority.”

Neither Mr Howard nor Mr Gamson made submissions by reference to the guidance in the Practice Direction. Nevertheless, I briefly consider their submissions by reference to each of the matters set out in paragraph 7.2:

For these reasons, I give permission to the Defendant to withdraw this admission.

More fundamentally, Mr Howard argued that Ms B admitted liability in her original Defence. He relied on two passages:

As to the latter passage, it is common ground that there was a typographical error and that the pleader intended to plead that the Defendant would like to agree a form of words. Mr Howard argues that there is an implicit admission of loss and that paragraph 29 was tantamount to an offer of amends.

I do not consider that these passages amount to a clear admission of liability:

Accordingly, I do not consider that these passages are at odds with the clear denials of liability elsewhere in the Amended Defence.

The court will not ordinarily grant permission to amend where the amended case is not properly formulated. However, in circumstances where, as here, there was an extant application to strike out the Defence, it would not, in my judgment, have been proportionate to hear full argument on whether the amendments should be disallowed on the grounds that the pleading was defective and then allow the Defendant to fall back on her original Defence and hear yet further argument as to whether that pleading fell to be struck out. Accordingly, the Defendant had effectively to elect which draft she sought to defend on the strike out application. Having elected to stand by the Amended Defence, I heard the amendment application without prejudice to the Claimants’ strike out application.

For these reasons, I give permission to the Defendant to withdraw the admission pleaded at paragraph 13(iv) of the original Defence that the statement that lots of children had been treated badly was not true.

Further, I give permission to amend the Defence, without prejudice to the Claimants’ application.

Although the Claimants’ application was first in time, it is necessary first to consider whether I should strike out the Particulars of Claim or give summary judgment against the Claimants. In so far as the Claimants’ case survives such applications, it is then appropriate to consider the Claimants’ own application to strike out the Defence or grant summary judgment upon the claim.

Before turning to consider the individual applications, I first consider the proper approach to these applications.

These cross-applications engage the first two limbs of r.3.4(2). The relevant parts of the rule provide:

“The court may strike out a statement of case if it appears to the court–

(a)

that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b)

that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; …”

Guidance on the exercise of the power to strike out is set out at Practice Direction 3A. Paragraphs 1.4 and 1.6 provide, by way of example, that a statement of case might be struck out if it is incoherent or where the pleaded facts, while coherent, do not disclose any legally recognisable claim or (in the case of a defence) do not amount in law to a defence.

The focus of the enquiry under r.3.4(2)(a) is upon the pleading (per Clarke LJ in The Royal Brompton Hospital NHS Trust v Hammond [2001] 1 Lloyd’s Rep. PN 526, at [106]) and, accordingly, the court must assume the truth of the party’s pleaded case. The court must be certain that the case is hopeless before it can be struck out.

The grounds upon which a statement of case might be struck out as an abuse are many. Two matters are argued on these applications:

I consider the proper approach to these submissions below when dealing with the relevant applications to strike out.

Rule 24.2 provides:

“The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if–

(a)

it considers that–

i)

that claimant has no real prospect of succeeding on the claim or issue; or

ii)

that defendant has no real prospect of successfully defending the claim or issues; and

(b)

there is no other compelling reason why the case or issue should be disposed of at a trial.”

While applications to strike out under r.3.4(2)(a) and for summary judgment have in common the core assertion that the other party cannot succeed on its pleaded case, there is of course a difference in approach. Whereas the focus of the enquiry under r.3.4 is upon the pleading, Part 24 requires analysis of the evidence. That said, the court should be wary of any invitation to weigh competing evidence and make findings upon the papers.

Cases should ordinarily be decided at trial and summary judgment should only be given in clear cases where there is no real, as opposed to merely a fanciful, prospect of success: Swain v Hillman [2001] 1 All E.R. 91, at 92J. The criterion that I must apply is not one of probability, but absence of reality: per Lord Hobhouse in Three Rivers District Council v Bank of England (No. 3) [2001] 2 All E.R. 513.

Rule 24.2 also requires the court to consider whether notwithstanding that a claim or defence has no real prospect of success, there might be some other compelling reason why the case should be disposed of at trial. It will be a rare case in which an otherwise bad claim or defence should be allowed to proceed to trial, and neither party argued the sub-rule as a fall-back position in this case.

While I have received substantial written submissions and heard full oral argument, very little evidence has been filed on these applications:

By paragraph 9 of the Particulars of Claim, Dr and Mrs Brown claim that Ms B, together with third parties including her solicitor, has “conducted a prolonged and sophisticated campaign against the Claimants and Maple Hayes amounting to a malicious, cynical, false and defamatory vendetta of harassment and attempted extortion motivated for pecuniary gain and the desire for misplaced revenge.” The alleged vendetta was said to comprise the publication of a series of false statements and innuendo.

Specifically, Ms B is said to have falsely and maliciously published statements between 2 March and 31 May 2016 that Mrs Brown verbally abused and beat X with a walking stick. Further, they claim that Ms B has falsely and maliciously published statements that:

The Browns claim that such statements have been published by social media, e-mail and letter, and further disseminated by “the grapevine.” They complain of publications:

Various causes of action are pleaded:

The Claimants claim that they have suffered loss of reputation, distress, anxiety, medical injury and financial loss. Letters from a GP were attached to the pleading seeking to establish a causal connection between, in Mrs Brown’s case, a stroke that she suffered in December 2016 and, in Dr Brown’s case, blood in his stools in January 2017. They plead that the school, which derives most of its pupils and therefore its revenue from local authority referrals and placements, has suffered significant loss of income by reason of Staffordshire County Council’s decision to terminate referrals to Maple Hayes.

Mr Gamson made a concerted and detailed attack on the claim both in writing and in his oral submissions.

Mr Gamson argues that the statements complained of in this case have not caused, and were not likely to cause, serious harm to the Browns’ reputations and, accordingly, the claim in defamation cannot succeed. He asserts that none of the recipients of Ms B’s statements thought any worse of the Claimants by reason of her actions. He argues that there has in fact been no loss of reputation and that the Claimants have not advanced any facts showing any loss caused by the Defendant’s actions.

Section 1 of the Defamation Act 2013 provides:

“(1)

A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

(2)

For the purposes of this section, harm to the reputation of a body that trades for profit is not ‘serious harm’ unless it has caused or is likely to cause the body serious financial loss.”

This section was considered by the Court of Appeal in Lachaux v Independent Print Ltd [2017] EWCA Civ 1334, [2018] E.M.L.R. 1. Davis LJ explained that the section raised the threshold for actionable defamation from the common law’s requirement for “substantial” harm, first identified by Tugendhat J in Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB), [2011] 1 W.L.R. 1985. The section thus raised the bar, but did not erect a further hurdle for the claimant to overcome: Lachaux, at [57].

In Lachaux, the Court of Appeal held, at [80]-[82], that the court should not ordinarily try the question of serious harm as a preliminary issue. Such question should be left to trial, although a defendant could in appropriate cases seeks summary judgment on the issue or apply to strike out the claim in accordance with the principles in Jameel v Dow Jones & Co. Inc. [2005] EWCA Civ 75, [2005] QB 946.

In Jameel, a foreign claimant issued defamation proceedings in England against the US publisher of a news website. The website was available to a small number of subscribers in England and the publisher demonstrated that only five of them had accessed the offending article. The Court of Appeal struck out Mr Jameel’s claim as an abuse of process on the basis that the minimal publication within the jurisdiction did not amount to a “real and substantial tort.” Lord Phillips MR said, at [69]:

“If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and the vindication will be minimal. The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick.”

Lord Phillips observed, at [70], that this was a particular problem in low value defamation claims which could not be dealt with under the small claims procedure.

In such cases, he added at [54]:

“An abuse of process is of concern not merely to the parties but to the court. It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice.”

In Ansari v Knowles [2013] EWCA Civ 1448, Vos LJ cautioned, at [27], against allowing a Jameel abuse argument to descend into a mini-trial upon incomplete evidence as to either liability or quantum. Indeed, Moore-Bick LJ observed, at [17], that the court should take the claim at face value unless it was obvious that it had very little prospect of success, as (for example) in Tesla Motors Ltd v BBC [2013] EWCA Civ 152.

Tugendhat J considered the application of Jameel principles in the education field in McLaughlin v London Borough of Lambeth [2010] EWHC 2726 (QB), [2011] E.M.L.R. 8. McLaughlin concerned three e-mails, two were sent to a civil servant within the Department of Education while the other was sent to one of the claimants and copied to the local MP and five Council employees. The e-mails made allegations that three men, being the head teacher and governor, the director for educational development and former head teacher and the chairman of governors of a primary school, were personally responsible for the mistreatment of and failure to give proper provision to newly qualified teachers.

In rejecting an application to strike out the claim for Jameel abuse, Tugendhat J said, at [112]:

“It is true that the number of addressees of the e-mail complained is small. But they are all persons who are or have been concerned with education and with the school. The words complained of are in electronic form. They may be stored indefinitely, and easily searched and republished, both generally to those concerned with education, and in particular to others in the Department for Education or in the (local education authority). The damage so far suffered by the claimants may be small. I express no view on that, but simply assume that Mr Caldecott may be right so to submit. But the main point of defamation proceedings is vindication. Vindication includes preventing, or reducing the risk of, future publications of the words complained of. The fact that the damage suffered so far may be small (if it is), is no indication of the extent of the damage which is prevented from occurring in the future, when a claimant in a libel action obtains a public retraction or judgment in his favour from the court.”

Here, the most serious allegation is that Mrs Brown hit a child with a walking stick. It is effectively an allegation of unlawful assault and battery. Such an allegation is in my judgment inevitably a serious matter against any professional involved in education. The allegation was made electronically and accordingly there is, as in McLaughlin, a risk that it might be stored indefinitely and republished.

In such a case, I consider that Mrs Brown is entitled to seek vindication through these proceedings and that the court should not shut out her claim either on the basis of s.1 of the Defamation Act 2013 or Jameel abuse.

While I have taken the Claimants’ case at its highest by focusing on the allegation of assault, I do not consider that it is appropriate to separate out this publication from the other statements relied upon.

The limitation period for claims of libel, slander and malicious falsehood is one year: Limitation Act 1980, s.4A. A late claim may, however, be allowed to proceed pursuant to the court’s power pursuant to s.32A of the Act to disapply the time limit.

Here, each of the publications complained of in paragraph 9 of the Particulars of Claim was made on or before 31 May 2016. There were, however, further publications on Facebook in July 2016 pleaded at paragraph 13(a).

The claim form was issued on 27 June 2017. Mr Gamson therefore argues that many, but not all, of the claims in defamation and malicious falsehood are out of time and should be struck out or summary judgment entered for the Defendant.

Mr Gamson goes on to argue that the Claimants have not sought a discretionary extension of time pursuant to s.32A. That is right. It is, however, necessary to keep in mind that limitation is a defence that must be specifically pleaded if a defendant intends to take a time point. It is only once the limitation defence is pleaded that a claimant must elect whether to seek a discretionary extension of time.

Here, no Reply has yet been filed because the Claimants instead sought to strike out the Defence or alternatively obtain summary judgment upon their claim. Accordingly, it is not yet clear whether the Claimants will respond to the limitation defence by seeking an extension of time pursuant to s.32A.

In such circumstances, I do not consider that I can properly rule upon the limitation defence at this stage. It is not, in any event, a complete answer to the claim since the claim includes allegations relating to some statements alleged to have been published less than a year before issue.

Mr Gamson submitted that in malicious falsehood claims it is necessary to prove that the claimant’s economic interests have been affected.

Gatley on Libel & Slander (12^th Ed.) states, at para. 21.1:

“At common law the claimant may maintain an action for malicious falsehood if he can show that: (1) the defendant published to third parties words which are false; (2) that they refer to the claimant or his property or his business; (3) that they were published maliciously; and (4) that special damage has followed as a direct and natural result of their publication.”

Section 3(1) of the Defamation Act 1952 provides:

“In an action for … malicious falsehood, it shall not be necessary to allege or prove special damage–

(a)

if the words are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form, or

(b)

if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication.”

Accordingly, the Claimants in this case must either bring themselves within s.3 of the 1952 Act or allege and prove special damage. Here they plead and therefore seek to prove actual pecuniary loss. Whether they can establish such loss, or properly fall back on s.3 of the Act is a matter for trial and not, in my judgment, suitable for summary determination.

This allegation is pleaded at paragraph 13(a)(vii). The allegedly defamatory publication reads in full:

“Just received some long awaited and justified news, well worth sitting up until 3 a.m. most mornings for the past five months researching laws, legislation and policies and then sending emails to every official I thought might listen. Off to celebrate with [X] at [X’s] favourite restaurant – power to parents all over the UK.”

Mr Gamson pointed to a defence exhibit that showed that on 7 July 2016 Ms B had heard that the local authority would fund a place for her daughter at an academy school from September. Although there is no formal evidence on the point, he submitted that that was the long-awaited news.

More importantly, Mr Gamson submitted that the post made no reference to the Claimants or to Maple Hayes. Nothing about it was defamatory, malicious or harassment. Mr Howard did not respond directly to these submissions.

In my judgment, Mr Gamson is right. Paragraph 13(a)(vii) does not even disclose an arguable claim for publication of a malicious or libellous statement, let alone amount to a part of any campaign of harassment that might be alleged. Accordingly, I strike out this sub-paragraph.

Mr Gamson asserts that the allegation at paragraph 13(g)(iv) that he shared a passage in his letter of 2 March 2017 with other parents is pure fiction. He asserts that the Claimants have not named the other parents or explained when they received such information from Mr Gamson.

There is a lack of clarity in the Claimants’ plea that could, should Ms B wish to do so, be clarified by a request for further information pursuant to Part 18. It is not, however, possible on the thin materials before me to determine the issue summarily.

Mr Gamson argued that the allegations pleaded at paragraphs 13(b)-(c) of the Particulars of Claim, that:

Mr Gamson may be proved right. In particular, it may well be that the Claimants will face a substantial hurdle at trial in overcoming the defence of qualified privilege or in establishing any causal link between the actions alleged against the Defendant and OFSTED’s independent professional judgment that placements should be suspended. These are, however, matters for resolution at trial and cannot be determined summarily on the very limited evidence before me.

Mr Gamson submitted that the harassment claim must fail because the Defendant did not intend to get the Claimants to do or not do something. Her intention was simply to get her child’s issue looked at. Further, the alleged conduct did not amount to the tort of harassment, which has to be of sufficient gravity to be a criminal offence.

In my judgment, the first submission is misconceived. Section 1 of the Protection from Harassment Act 1997 specifies two ways in which harassment might be committed:

“(1)

A person must not pursue a course of conduct–

(a)

which amounts to harassment of another; and

(b)

which he knows or ought to know amounts to harassment of the other.

(1A) A person must not pursue a course of conduct–

(a)

which amounts to harassment of two or more persons, and

(b)

which he knows or ought to know involves harassment of those persons, and

(c)

by which he intends to persuade any person (whether or not one of those mentioned above)–

i)

not to do something that he is entitled or required to do; or

ii)

to do something that he is not under any obligation to do.”

It is not therefore right to submit that the tort of harassment necessarily involves an intention that the claimant take, or desist from taking, some action. First, a claim under s.1(1) involves no such element. Secondly, a claim under s.1(1A) can be put on the basis of an intention that a third party take, or desist from taking, some action.

As I read the allegation of harassment at paragraphs 25-26 of the Particulars of Claim, this is a claim pursuant to s.1(1) of the Act. That is perhaps made clear by the reference to s.3, which only has application in respect of harassment contrary to s.1(1). I observe in passing that I am puzzled by the suggestion that the Defendant was in breach of some duty of care to the Claimants at paragraph 25, but nothing turns on that potential drafting infelicity for the purposes of this application.

There may be more substance in Mr Gamson’s gravity point. In Majrowski v Guys & St Thomas’s NHS Trust [2007] AC 224, Lord Nicholls observed, at [30]:

“Where … the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody’s day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2.”

Observing that both the tort and the criminal offence of harassment are defined in the same terms, Gage LJ said in Sunderland v Conn [2008] EWCA Civ 148, at [12]:

“In my judgment the touchstone for recognising what is not harassment for the purposes of sections 1 and 3 will be whether the conduct is of such gravity as to justify the sanctions of the criminal law.”

A similar observation was made by Jacob LJ in Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46, at [17].

Save where the allegations of harassment are obviously flimsy, this is, however, a fact-sensitive assessment that can only be made at trial. It cannot found the basis for a strike out and I cannot determine the issue on the very thin evidence before me on the summary judgment application.

Mr Gamson submits that there is no evidence to support a claim in respect of the tort of intimidation. I do not, however, read the Particulars of Claim as advancing any such claim. Paragraph 21 pleads:

“The Defendant together with her servants or agents has and is conducting the said vendetta with a view to financial gain by way of extortion by way of malicious threats upon the reputation and integrity of Maple Hayes as an institution and upon the characters and reputations of Dr and Mrs Brown in particular.”

Further particulars of the alleged attempts to obtain substantial payments from the Claimants are pleaded at paragraphs 22-24.

There is not, however, some freestanding plea of a claim in intimidation. Upon my reading of the Particulars of Claim, this material is pleaded as particulars of the Claimants’ case as to the Defendant’s malicious intent (her animus) and as grounds upon which the Claimants seek aggravated and exemplary damages.

Unusually Ms B’s solicitor features heavily in the Particulars of Claim:

Before hearing Mr Gamson on these applications, I asked Mr Howard whether it was intended to join Mr Gamson. I was told that it was not. This position might, however, have changed during the course of the hearing. By his written reply to Mr Gamson’s submissions on the Claimants’ application, Mr Howard said:

“Serious consideration is being given to an application to join Mr. Gamson as a defendant to these proceedings as much of his submissions are self-serving efforts to justify his own behaviour and involvement and it may be that the Claimants case will have to be put to him too in the witness box.”

There are at least two possibilities. Broadly, Mr Gamson was either acting within the scope of his instructions such that Ms B is in law responsible for his actions as her agent, alternatively, he went beyond the proper limits of his professional instructions and himself committed acts which are said to be tortious.

In view of Mr Howard’s original assurance that Mr Gamson was not to be joined in the action, it appeared that the former was the Claimants’ true case - namely that Ms B committed the torts alleged in part through her solicitor, rather than that there being any claim or relief sought against Mr Gamson personally. That position is now in doubt. On the conclusion of this judgment, I shall call upon Mr Howard to clarify the Claimants’ position and give such directions as may be appropriate.

Even if Mr Gamson is not joined as a party, I observe that there is some risk that he might ultimately prove to be a witness in this case, or that he might on fuller analysis have a conflict of interests with his client. If so, he might well wish to consider whether as a matter of professional conduct he is able to continue to represent Ms B in this litigation. That, however, is a matter between Mr Gamson, his client and his professional regulator.

As to this application, Mr Gamson sought to descend into the detail of his actions. In doing so, he trespassed well beyond the very limited evidence filed before me.

While I consider it important to clarify the Claimants’ position in respect of Mr Gamson, I do not consider that the court can properly determine the issues in respect of his involvement in this matter on a summary basis.

Mr Gamson made a concerted attack on the Claimants’ allegation that Dr Brown was caused stress, and specifically blood in his stools, by reason of Ms B’s alleged actions. He might be right, but I cannot possibly determine that issue on the papers.

Accordingly, I strike out the allegation at paragraph 13(a)(vii) of the Particulars of Claim. With that limited exception, I dismiss the Defendant’s application to strike out the claim and for summary judgment.

I should add that I have doubts as to the plea in nuisance, but the matter was not argued before me and I say nothing more about that aspect of the Claimants’ case.

While there are further points of detail, Mr Howard’s overarching submission is that the Amended Defence is an impediment to the orderly trial of this case. He argues that it is a woefully drafted and confused document, that it is impossible to plead a Reply to such a pleading and that neither the Claimants nor the judge will know at trial the case that the Claimants must meet. Swathes of the pleading are castigated as irrelevant or incoherent. Parts are said to amount effectively to a witness statement.

While Mr Howard recognises that it is a Draconian sanction, he seeks an order striking out the Amended Defence. He describes it as the fourth iteration and says that it should be the final bite of the cherry.

In response, Mr Gamson conceded that the Amended Defence might not be a pleasing document, but submitted that provided the judge could find Ms B’s defence within the document, that was all that was required. He submitted that in pleading the Reply, Mr Howard would be able to sift comments from facts just as, Mr Gamson argued, Mr Howard had very ably demonstrated in his analysis of the Defence in oral submissions.

In my judgment, the Amended Defence bears no resemblance to a professionally prepared statement of case:

Lord Woolf MR observed in McPhilemy v Times Newspapers Ltd [1999] 3 All E.R. 775, at 793A, that statements of case are required to “mark out the parameters of the case that is being advanced by each party.” A pleading should identify the issues and the extent of the dispute between the parties, making clear the general nature of the case being advanced, but the exchange of witness statements should avoid the need for extensive detail. A statement of the facts relied upon by a defendant is required but should be concise.

Lord Woolf MR cautioned as to the problems with excessive detail, at 793C:

“As well as their expense, excessive particulars can achieve directly the opposite result from that which is intended. They can obscure the issues rather providing clarification. In addition, after disclosure and the exchange of witness statements, pleadings frequently become of only historic interest.”

In Tchenguiz v Grant Thornton UK LLP [2015] EWHC 405 (Comm), [2015] 1 All E.R. (Comm) 961 Leggatt J observed, a [1]:

“Statements of case must be concise. They must plead only material facts, meaning those necessary for the purpose of formulating a cause of action or defence, and not background facts or evidence. Still less should they contain arguments, reasons or rhetoric. These basic rules were developed long ago and have stood the test of time because they serve the vital purpose of identifying the matters which each party will need to prove by evidence at trial.”

The usual expectation is that parties should be able to plead their cases within no more than 25 pages. Paragraph 1.4 of Practice Direction 16 provides:

“If exceptionally a statement of case exceeds 25 pages (excluding schedules) an appropriate short summary must also be filed and served.”

While the Practice Direction does not say never, it is plainly intended to discourage parties from filing longer statements of case. One might think that the 25-page rule would be most often flouted in complex multi-million-pound commercial litigation. However, the Commercial Court Guide draws attention to the usual limit and requires parties to seek permission before filing a statement of case in excess of 25 pages in length. A good draftsman can, in my experience both judicially and as a commercial barrister, plead even a very complex and high-value claim in no more than 25 pages.

I do not accept that this case is anywhere near as complicated as the detail in this Amended Defence suggests. As I indicated in argument, the Particulars of Claim are not, at least to my taste, as tightly drafted as they might be. Nevertheless, once one ignores the cover sheet, they succeed in setting out the Claimants’ case over 17 pages. I see no reason why Mr Gamson has not been able to plead Ms B’s case within the same number of pages, and certainly in no more than 25 pages.

What then should the court do about this? Mr Howard is right in my judgment to submit that this case cannot be allowed to go to trial on the basis of the current Defence. I know from my own involvement in this protracted interlocutory hearing that the document is unwieldy and that its very length and complexity tend to obfuscate rather than clarify the issues.

Having heard detailed submissions, I have given anxious consideration as to whether the court should itself undertake a line-by-line analysis of the pleading striking out the material that should not be there in the hope that it leaves an intelligible defence of an appropriate length. Ultimately, I have, however, concluded that it is not for the court to redraft a party’s pleading.

In Tchenguiz, Leggatt J struck out a 94-page pleading and ordered the service of compliant particulars of claim. I consider that the same approach is appropriate here. I therefore strike out the Amended Defence.

I acknowledge the force of Mr Howard’s submission that Ms B has already amended her pleading once, and that she failed properly to reduce the length of her pleading when I made clear that that was required at the end of the hearing in January. Nevertheless, I am far from persuaded that she does not have an arguable defence and I do not consider that it would be proportionate simply to enter judgment against her. In my judgment, the Defendant should be afforded one last opportunity to file a proper defence in this case.

I therefore direct that the Amended Defence stands struck out and that the Defendant do file a fresh Defence that is no longer than 25 pages in length. For the avoidance of doubt, I direct that the Defence should be printed on A4 paper in not less than 11-point font and 1.5-line spacing. Overall length is not to be achieved at the expense of legibility.

I shall hear Mr Gamson at the conclusion of this judgment as to the time that should be allowed for that exercise, but I shall direct that unless the Defendant complies with my order, the Claimants be at liberty to enter judgment for damages and other relief to be assessed.

In assessing the appropriate time, I consider that it is first necessary to learn the Claimants’ intentions with respect to any application for joinder and to take into account the possibility that Mr Gamson might decide that he cannot continue to represent Ms B.

Before leaving this case, I am concerned at the significant cost already incurred in these applications in a claim that, while it does not fall to be struck out as a Jameel abuse, is nevertheless likely to be modest in value. This case has the potential to be ruinous to the loser and provide little satisfaction to the victor.

Although I have not been shown it, I was told that there is a recording of the incident in the dining hall. I will direct that it should be disclosed forthwith. Thereafter the pleadings need to be got in order.

In my judgment, that would be a good time for the parties to engage in mediation. While I will not direct mediation against the parties’ wishes, I remind all parties that an unreasonable refusal to engage in mediation might well prevent the winning party from recovering costs at trial. Armed with intelligible pleadings and the CCTV footage and weary from the battle of these applications, I consider that that would be an excellent opportunity to seek to mediate their differences.

Thereafter, I shall direct the case be listed before an experienced district judge for careful case management.