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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Wallis v. Valentine  EWCA Civ 1034 (18 July 2002)
Cite as:  EMLR 8,  EWCA Civ 1034
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
His Honour Judge Previté Q.C.
London, WC2A 2LL
B e f o r e :
LORD JUSTICE POTTER
SIR MURRAY STUART-SMITH
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr. Jacob Dean (instructed by Messrs. Peter Carter-Ruck & Partners of London) for the Respondent
AS APPROVED BY THE COURT
Crown Copyright ©
Sir Murray Stuart-Smith :
“In paragraph 7 of the particulars of claim, Mr Wallis complains of publication of 20th March 2000 affidavit to ‘other persons’. I do not know who he is referring to, and he has at the date of this statement given no indication who he means. In the letter dated 12th July 2001 complained of by the claimant at paragraph 6 of the Particulars of Claim, I stated that I had sold Valentine House Hotel and that pursuant to my duty as a vendor the new owner has been advised with ‘Court documents’ of the ‘outcomes’ of the litigation with Mr Wallis and Ms Guesne. I was referring him to the fact that I had given a copy of the judgment of His Honour Judge Kennedy QC dated 16th December 1999 and the order for an injunction dated 29th March 2000 to my solicitor, Mr John Mills of Messrs Pitcher Mills, who I understand had in turn passed them to the new owner, Mr Eke. The claimant may have misinterpreted the letter as meaning that I had disclosed the said affidavit to Mr Eke. I have not. I have never published that affidavit in any way to Mr Eke nor to Mr Mills, nor to any other person. Nor to my knowledge have any other of the defendants. Nor have either Mr Eke, Mr Mills or any other person been given an opportunity to read the affidavit by any of us. The statements of Mr Eke and Mr Mills confirm this.”
“I am the new owner of Valentine House Hotel having completed the purchase from the second and third defendants, Mr and Mrs Valentine on 24th July 2001. I confirm that the only court documents I have ever seen relating to this purchase are the judgment of His Honour Judge Kennedy QC dated 16th December 1999 and the injunction order dated 29th March 2000.”
“The second and third defendants were therefore compelled to disclose to Mr Eke the judgment of His Honour Judge Kennedy QC dated 16/12/99 and the injunction order dated 29/3/2000. These were the only documents passed to Mr Eke in relation to the neighbour dispute between the claimant and the defendants. I confirm that I have received from the defendants no other affidavits or court documents in respect of the matter.”
“It is a legal requirement to notify the new owners of any disputes with neighbours and, therefore, they have been fully advised with the use of absolutely privileged court documents of our successful outcomes in relation to litigation affecting 38 Russell Square. The new owners have been advised in detail of your nailing of a fence over the window of room 9 and following judgment against you, filming the occupants in bed. I refer to paragraph 17 of the enclosed affidavit dated 20.3.2000.”
“On the issue of the extent of publication of the affidavit, my view is that Mr Wallis has no reasonable prospect of establishing that the affidavit was published to anyone other than Miss Guesne. That issue should, in my view, be determined now. I give summary judgment for the defendants on that issue under CPR 24.2. I see no compelling reason why that issue should proceed to trial.”
“There are of course a variety of possible circumstances in libel cases in which issues of law may arise for decision by the judge. In so far as questions of this kind properly depend on an evaluation of evidence so as to determine material questions of disputed fact, these are matters for the jury. But, as Mr Milmo accepted in the present appeal, it is open to the judge in a libel case to come to the conclusion that the evidence, taken at its highest, is such that a jury properly directed could not properly reach a necessary factual conclusion. In those circumstances, it is the judge’s duty, upon a submission being made to him, to withdraw that issue from the jury. This is the test applied in criminal jury trials: see R v Galbraith  1 WLR 1039, 1042C. In my view, it applies equally in libel actions. It is in substance the test which the judge set himself to apply in the present case.”
“39. As is evident from Otton LJ’s judgment, at p.1381, the first instance judge had decided that Mr Tate had no real prospect of success on the question whether the words complained of were defamatory. He had held that the power to give summary judgment was discretionary. He had accordingly made an evaluative decision on an issue which Otton LJ held should have been left to the jury. Safeway Stores plc v Tate is thus a decision binding on this court to the effect that, if there is a material issue of fact in a libel case, section 69 of the Supreme Court Act 1981 entitles a party to have that issue decided by the jury. It is, however, for the judge to decide whether there really is such an issue. In my view, just as it is open to the judge to decide that a publication is not capable of bearing a defamatory meaning, so it is open to the judge to decide in an appropriate case that a publication is not capable of not bearing a particular defamatory meaning and that a jury’s verdict to the contrary would be perverse. In those circumstances, there would be nothing ‘in issue’ on which section 69 of the Supreme Court Act 1981 could operate.
40. I agree with Mr Milmo that the principles to which I have just referred apply to questions of primary fact. I agree with Mr Shields that the crucial question in this case of the second defendant's subjective state of mind is a matter of inference. It was a question for the judge to decide whether available primary facts were capable of supporting the necessary inference.”
“In considering Otton LJ’s judgment, it is important to have in mind that, in Safeway Stores plc v Tate, the judge did not expressly ask himself the question whether the words complained of were only capable of having a defamatory meaning. Instead he appears to have given judgment having evaluated the issue himself. If the judge had asked himself that question and properly come to the conclusion that the words were only capable of having a defamatory meaning, then it is difficult to see what objection there could be to his giving summary judgment on an issue on which there was no room for argument. The judge would have been doing no more than what the trial judge could have done if the action had proceeded to trial. The court, that is the judge, would not be ‘satisfied that there is in issue’, whether the words were defamatory, as required by section 69 of the Supreme Court Act 1981.”
“All that said, however, the question for me at this stage is whether it is unarguable that the judge was precluded from making the decision on the question of fact as to publication that he did under Part 24 of the CPR: bearing in mind, of course, that he did not have the benefit, as I understand it, of having any of the authority that was put before me. I do not think it is open to me to say, in view of the general statements that are to be found in the two authorities that I have referred to, that it is unarguable that the judge was wrong in his view with regard to Part 24.”
“The court may strike out a statement of case if it appears to the court….. (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.”
“Against a background of disputes between them as neighbours, the first litigation arose out of the planting of trees and the positioning of a fence panel on the premises occupied by Mr Wallis and Miss Guesne, which obscured light to part of the Valentines’ premises. The Valentines issued proceedings against Mr Wallis in the Brighton County Court claiming a declaration of a right to light and an order for the removal of obstructions.
Following through the course of that claim, that claim came before His Honour Judge Kennedy. The learned judge made the requested declaration; the counterclaim of Mr Wallis and Miss Guesne was withdrawn by consent. The claimants, Mr Wallis and Miss Guesne, were ordered to pay the defendants’ costs in the sum of £16,000. That was in December 1999.
In March 2000, Mr Wallis and Miss Guesne submitted statements of means relating to the unpaid costs of that litigation. In his statements of means, dated 20th March 2000, Mr Wallis states he has an account with the Abbey National Building Society:
‘Miss Guesne and I also maintain a joint account at the Alliance and Leicester Building Society. I do not receive any state benefits. My present income is zero. I have no assets save for the joint account as above. I believe that Miss Guesne has kindly offered on behalf of us both and in respect of our joint and several liabilities the sum of £50 per month.’
Miss Guesne states in her statement of means, also of 20th March 2000:
Mr Wallis has no income because he is engaged in litigation full time against the claimants in another matter. For a very long time our income has been less than our expenditure. We have been using the last reserves of our cash.’
In June 2000 Mr Wallis served an application to the court for an interim order in respect of a voluntary arrangement. He stated:
‘My reasons for making this application to the court for an interim order are as follows. (1) That I am insolvent, being unable to pay my debts as and when they fall due and am eligible to present my own petition in bankruptcy.’
However in August of that year, Miss Guesne paid the outstanding costs incurred in that litigation.
The second piece of litigation between Mr Wallis and Mr and Mrs Valentine was that on 18th November 1999 Mr Wallis began proceedings for libel. The particulars of claim have been amended. For the purposes of this judgment I am referring to the amended particulars of claim served pursuant to the order of Master Rose, dated 22nd March 2000. Mr Wallis complained of words contained in four letters. He set out in his particulars the extracts of which he complains. The words complained of in letter one are, ‘He punched me three times in the chest.’ The words complained of in letter two, ‘Mr Wallis grabbed my shirt and said he would beat me up and kill me at the next opportunity, just like he would do to my father.’ Letter three, it was alleged that the claimant had used the words, ‘I’ll punch you to death.’ Letter four, the words complained of are, ‘And he then pushed the window fully open by bending the brass retaining stays. The window landed on my head causing some bruises, and Mr Wallis tried to climb in, punching at me on my right arm and chest.’ It is asserted that those words are defamatory of Mr Wallis.
There was an application in that case which came before Master Rose in March 2000. The Master ordered that Mr Wallis give further information in relation to this claim, namely that he should specify the precise nature of the criminal offences which he alleged the letters complained of accused him. That information was not given. Master Rose struck out the proceedings, with costs, for failure to provide the information. That was on 10th May 2001. On 11th May, Mr Wallis wrote to Mr Valentine saying:
‘I have today made an application to the judge in chambers to have the order of the Master set aside … Should that application fail, I will simply claim again.’
Mr Dean particularly drew my attention to that assertion of Mr Wallis.
With regard to enforcement proceedings, Mr Wallis said:
‘Neither of us [himself and Miss Guesne] has any intention of going bankrupt. We have today instructed an insolvency practitioner who will be contacting you shortly. In my case you may be aware that bankruptcy is not a bar to a libel action in any case nor are the damages subsequently recoverable by the creditor.’
Mr Wallis made an application on paper for permission to appeal the order of Master Rose. That was considered by Gray J on the documents that Mr Wallis provided. The learned judge gave permission because, as he stated in his reasons for that decision:
‘I can find no record of the reasons why the Master struck out this claim.'
There was then, approximately a month later, a hearing before Gray J. Both Mr Wallis and Mr Valentine appeared in person at that hearing. In his judgment Gray J stated:
‘The application of the claimant for permission to appeal that order of Master Rose came before me on a written application and I gave permission. As I made clear when giving permission, the reasons why the Master made the order that he did were not then before me, nor indeed was the order previously made by Master Rose on 22nd March 2000, the breach of which was the principal reason given by the Master, so I am told, for dismissing and striking out this claim. I simply make the comment that, whilst of course every allowance must be made for the fact that Mr Wallis is acting in person, it is regrettable that the full facts were not made available to the court when the application for permission was made. That said, of course, I must consider the appeal on its merits, which I now do.’
The learned judge came to the conclusion that the order should stand, so the case remained struck out.
Towards the end of his judgment, when Mr Wallis sought the judge’s leave to appeal to the court of appeal, the learned judge says:
‘I am going to refuse it because it appears to me that in the end the ground on which I have refused you leave is a simple and straightforward one, namely non-compliance with a prior order. I do not accept that there is a real prospect of an appeal against the ground of the decision succeeding.’
Then the question of costs arose. Mr Valentine asked for an assessment of his costs. The figure he asked for was £700. Mr Wallis was asked how long he would like for payment of that money. Mr Wallis said:
‘I would like you to allow me 48 hours, my Lord. That would be quite sufficient, thank you.’
The judge gave him over the weekend, until 5.30 on Monday the 24th. Those costs have not been paid. In consequence there was an oral examination of Mr Wallis on 1st November 2001 at Brighton County Court. There was before me a typed copy of the questions for examination of the judgment debtor on which District Judge Thompson had written Mr Wallis’ replies to questions. That document – it is in photocopy form – bears the signatures of Mr Wallis and of the district judge.
Amongst the questions that he was asked were, ‘What assets do you own?’ Answer, ‘None that I can think of.’ He was asked, ‘Are you financially dependent on Miss Grenegh?’ He said, ‘Yes’. He was asked, ‘State all sources of income to you from October 1999 until present, including gifts and contributions to any accounts.’ His answer was, ‘ I have had a nil income from October 1999, no state benefits. I have earned no money since October 1999. I have been given money, charitable donations from Miss Grenegh, for the purpose of pursuing my litigation in the High Court in respect of my first action for libel.’ It was pointed out to him that, ‘On 20th March 2000 you signed a statement of means that revealed that you have had no income for a long period of time as you were, and continue to be, a full-time litigant in person. Did Miss Grenegh sponsor your defamation claim against the defendants issued on 18th November 1999?’ Answer, ‘I am unable to answer that question, save for the answer to question 29,’ which is the question and answer to which I have just referred.
He was asked about the source of money for the issuing of the current proceedings, claim HQ 01/X03657. ‘Where did the money come from to pay for the £500 issue fee for that claim served on 3rd September 2001?’ Answer, ‘It is sub judice. Asked, ‘Where did the money come from to pay for the allocation questionnaire fee of £80 and other costs of this claim to date?’ Answer, ‘Paid by a third party.’ Then two supplementary questions, ‘Did you pay the sum of £500?’ Answer, ‘Yes, insofar as it was in my hand.’ Question, ‘Where did you get the sum of £500?’ Answer, ‘I am not able to answer that question. I had it in cash. It came from no other account’. I will be corrected by Mr Wallis if I do not have it right or by Dean. Question, ‘It was money paid by a third party?’ Answer, ‘Yes’.
Finally, in respect of those proceedings, on 19th November Mr Wallis applied to set aside a statutory demand based on the non-payment of costs in the first libel proceedings, stating in that application:
‘I have a cross-claim of equivalent or greater value.’
Also stating, ‘I am not in fact insolvent.’
The third set of proceedings between Mr Wallis and Mr and Mrs Valentine arose in an action for an injunction to restrain nuisance on the part of Mr Wallis. The nuisance alleged was the erection of a CCTV camera on the premises occupied by Mr Wallis and Miss Grenegh, the camera being trained at one of the bedroom windows of the defendants’ hotel. That matter came again before His Honour Judge Kennedy, who made orders that Mr Wallis and Miss Grenegh take down the camera and pay the Valentines’ costs of those proceedings.”
[Throughout this passage Miss Guesne is referred to as ‘Miss Grenegh’]
“It may be that after this process is partially or fully implemented that I will need to seek leave to approach the court again. The particulars of claim will be long, they may be well drafted. I am impecunious and you may not recover your costs, if any. I may well represent myself. I will then embark upon a period of sustained and extensive litigation.”
1.1.(1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.
2. Dealing with a case justly includes, so far as is practicable –
a) ensuring that the parties are on an equal footing;
b) saving expense; and
c) dealing with the case in ways which are proportionate -
i) to the amount of money involved;
ii) to the importance of the case;
iii) to the complexity of the issues; and
iv) to the financial position of each party.
d) ensuring that it is dealt with expeditiously and fairly; and
e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.
a. A dominant intention to cause expense and harassment to a defendant – even if proved – is not a reason for depriving a claimant from prosecuting a valid claim. It is only where the claimant seeks to cause additional expense and harassment to the defendant by deliberately litigating in an oppressive fashion that the action is an abuse. The judge did not apply himself to this question.
b. The judge approached the issue from the wrong perspective by stating that he had to be confident that the claimant’s motives were genuine. The question he should have asked himself was whether it was so obvious that the claimant’s dominant motive was improper that a contrary jury verdict would have been perverse.
c. In any event, he was not entitled to make such a finding, and certainly not without hearing the claimant cross-examined. The claimant had stated that his purpose in bringing proceedings was vindication in respect of serious defamatory allegations and to prevent further publication. Although it was not made explicit in the judgment, it was a corollary of the judge’s abuse finding that he rejected the claimant’s evidence as dishonest. He should not have done so without an application from the defendants to cross-examine the claimant.
d. The judge relied heavily on his earlier finding that there was no realistic prospect of the claimant proving publication to anyone other than his partner. In doing so he approached the matter from the wrong standpoint. He conflated the objective issue of whether there had been publication to other people with the subjective issue of the claimant’s motivation. Insofar as the extent of publication was relevant to the abuse of process argument, the issue should have been whether the claimant believed that there had been wider publication. It was only this question that could be relevant to his motivation to initiate proceedings. There was no finding made that the claimant did not believe that the allegations had been published more widely. Indeed, such a belief was entirely reasonable bearing in mind the terms of the letter of 12th July 2001.
e. The various factors on which the judge relied in support of his finding were matters that could have been put to the claimant had he been cross-examined. They were not, however, necessarily inconsistent with the claimant having a legitimate purpose.”
“(1) Motive and intention as such are irrelevant (save only where ‘malice’ is a relevant plea): the fact that a party who asserts a legal right is activated by feelings of personal animosity, vindictiveness or general antagonism towards his opponent is nothing to the point. As was said by Glass JA in Champtaloup v Thomas (1976) 2 NSWLR 264, 271 (see Rajski v Baynton (1990) 22 NSWLR 125 at p.134):
‘To impose the further requirement that the donee [of a legal right] must be actuated by a legitimate purpose, thus forcing a judicial trek through the quagmire of mixed motives would be, in my opinion, a dangerous and needless innovation.’
(2) Accordingly the institution of proceedings with an ulterior motive is not of itself enough to constitute an abuse: an action is only that if the Court’s processes are being misused to achieve something not properly available to the plaintiff in the course of properly conducted proceedings. The cases appear to suggest two distinct categories of such misuse of process:
(i) The achievement of a collateral advantage beyond the proper scope of the action – a classic instance was Grainger v Hill where the proceedings of which complaint was made had been designed quite improperly to secure for the claimants a ship’s register to which they had no legitimate claim whatever. The difficulty in deciding where precisely falls the boundary of such impermissible collateral advantage is addressed in Bridge LJ’s judgment in Goldsmith v Sperrings Limited at page 503 D/H.
(ii) The conduct of the proceedings themselves not so as to vindicate a right but rather in a manner designed to cause the defendant problems of expense, harassment, commercial prejudice or the like beyond those ordinarily encountered in the course of properly conducted litigation.
(3) Only in the most clear and obvious case will it be appropriate upon preliminary application to strike out proceedings as an abuse of process so as to prevent a plaintiff from bringing an apparently proper cause of action to trial.”
“No application has been made in these proceedings to cross-examine Sir James Goldsmith. He has not been confronted with the challenge direct. Instead, he has to meet a case based on adverse inference said to arise from surrounding circumstances. It is this circumstantial case which has, as I understand his judgment, impressed Lord Denning MR. In so far as the Master of the Rolls is saying that Sir James Goldsmith’s purpose must be objectively ascertained, that is, by reference to what a reasonable man placed in his situation would have in mind when initiating or pursuing the actions, I respectfully agree with him.”
Thirdly the Broxton and Goldsmith cases were prior to the Civil Procedure Rules. In Schellenberg v British Broadcasting Corporation  EMLR 296 Eady J, in an application to strike out for abuse of process, rejected the claimant’s submission that the overriding objective under the CPR was irrelevant. At page 318 he said:
“Even in a jury action it is regarded under the CPR as a judge’s duty to take a realistic and practical attitude. He or she is expected to be more proactive even in areas where angels have traditionally feared to tread.
I have seen nothing to suggest that the CPR are to be applied any less rigorously, or the judges are to be less interventionist, in litigation of the kind where there is a right to trial by jury. That important right is sometimes described as a ‘constitutional right’, although the meaning of that emotive phrase is a little hazy. Nevertheless I see no reason why such cases require to be subjected to a different pre-trial regime. It is necessary to apply the overriding objective even in those categories of litigation and in particular to have regard to proportionality. Here there are tens of thousands of pounds of costs at stake and several weeks of court time. I must therefore have regard to the possible benefits that might accrue to the claimant as rendering such a significant expenditure potentially worthwhile.”
Lord Justice Potter:
Lord Justice Peter Gibson: