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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Mole v Hunter [2014] EWHC 658 (QB) (27 March 2014) URL: https://www.bailii.org/ew/cases/EWHC/QB/2014/658.html Cite as: [2014] EWHC 658 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
Susannah Mole |
Claimant |
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- and - |
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Angela Hunter |
Defendant |
____________________
Angela Hunter appeared in person and was not accompanied.
Hearing date: 26 February 2014
____________________
Crown Copyright ©
Mr Justice Tugendhat:
"No defence to the counter claim having been filed it is ordered that the Claimant must pay the Defendant an amount which the court will decide and costs…
List a Case for Management Conference for consideration of remedies before Master Leslie on 15 November 2013…"
"You by law must provide us with at least 24 hours notice of a specific visit and/or we must agree a suitable time that is convenient for both parties. Failure to do so constitutes harassment and you can be prosecuted for doing so. Us refusing you access to the house if you fail to give notice for specific occasions is not a breach of our contract and we are legally within our rights. If you let yourself or others in without permission it constitutes harassment. Having said all the above we are reasonable people and do not wish to make viewings hard for you…"
i) Attached to the e-mail dated 10 April 2013 is an e-mail from Ms Hunter dated 26 September 2012 to the operator of a website into which Ms Hunter has pasted copies of three snippets produced on a Google search. Each snippet has the address of her house, and one of them is dated 15 May 2012 and includes the words "crook, scam, liar". A third has no date, but includes the same three words.
ii) One of the three sheets produced by Ms Hunter does not appear to bear the date on which it was printed out, but it contains 10 snippets about the address of Ms Hunter's house, and one of these 10 snippets includes the words "crook, scam, liar".
iii) The second sheet produced by Ms Hunter bears the date "9/3/2012" and contains a photograph of the house and 14 lines of text. The text purports to be written by tenants who refer to themselves as "us" and it includes a number of complaints. These include complaints about Ms Hunter similar to those made in the e-mail of 2 February and a complaint that:
"she will refuse to return your deposit and you will have to take her to court to get it back. This has happened to us, and to the last 4 lots of tenants before us. She is a crook pure and simple…"
iv) The third sheet produced by Ms Hunter bears no date but contains a photograph of Ms Hunter while she was in a crowd at some event taking place in the street. There are four lines of text which are clearly incomplete. The text includes "Warning [the address of Ms Hunter's property] … We cannot warn you too strongly against not renting…"
"34 The claimant and her partner falsely and irrationally accused me of harassing them when I attempted to carry out my legal duties as a landlord under Section 11(6) of the Landlord and Tennant 1985 Act: in a lease in which the lessor repairing covenant is implied there is also implied a covenant by the lessee that the lessor or any person authorised by him in writing, may at reasonable times of the day and on giving twenty four hours' notice in writing to the occupier, enter the premises comprised in the lease for the purpose of viewing their condition and state of repair. [Ms Hunter explained to me that this was a reference to the letter of 2 February 2012 set out above].
35 The claimant and her partner telephoned the local housing department falsely claiming that I was harassing them when I had provided more than 24 hours written notice to enter the premises, and claimed that I required their permission to enter the property to carry out necessary works the law requires. The council housing department encouraged them to refuse me entry in breach of the tenancy terms and suggested they could change the locks also in breach of the tenancy terms. The same council tried to assert that I had not carried out my landlord management duties despite their knowing attempt to frustrate me…
38 The claimant and her partner also falsely accused me of entering the premises when I was outside waiting for a client. Ms Benfield flew into a rage in the presence of my client again falsely accusing me of harassment. As a result of Ms Benfield's outburst the client fled believing her outburst. This resulted in some financial difficulty for me. Ms Benfield then published her false allegation by email to other members of the household. When asked to provide evidence of her allegation Ms Benfield was not able to. She also refused to apologise for her false allegation in writing. Ms Benfield, the claimant and possibly others are therefore de facto defendants to a libel action in defamation, where they publish and repeat false allegations and untrue statements to third parties whether online, by email or in writing.
39 It is clear that the claimant and Ms Benfield have continued a campaign of harassment against me. They have no reason to harass me particularly since they voluntarily vacated the premises but continued to make false accusations with impunity. This claim is another example of their false allegations in which they contradict themselves.
40 The claimant and others influenced by them started and continued a hateful malevolent campaign against me by additionally publishing onto the internet a malicious and defamatory website designed to cause, which it did, distress and damage to my reputation and my business in May of this year. I can provide evidence of the malicious communications set up and distributed by or as a result of the claimant and her partner's false allegations, letters, emails and a website set up by themselves together with other former tenants they have influenced. I can provide evidence of malicious and threatening emails, evidence of a crime reference number provided by the police, their investigation into harassment against me and evidence against the company hosting the malicious website, when they were tracked down and notified almost five months after publication, removed the website immediately as they would themselves be held liable as publishers of false, defamatory and malicious statements. …
42 This defence and counterclaim requests that the court make an order to include the payment of a sum of money in compensation for the claimant and her partner's part in this ongoing campaign of harassment, defamation and malicious communications…
43 The house due to its condition and the extent and effort taken to make it attractive and comfortable to tenants, is not difficult to rent achieving in excess of £4000 per calendar month. However, due to the claimant's malevolent publications and statements about me and the house, on the internet, in the current age of Twitter, Facebook, Bebo and other social media sites, by email, letter or phone calls, letting the premises has been rather more difficult than usual. This is a direct result of, and can be traced back to the claimant and her partner's actions".
"I acknowledge that the evidence in the other case shows that someone set up a website complaining about Ms Hunter's deficiencies as a landlady and warning off prospective tenants. But Ms Hunter produces no evidence at all to show that I have anything to do with that website. Indeed she cannot do so for the simple reason that I did not have anything whatsoever to do with it, took absolutely no part in its construction, writing or publication and did not even know about it until sometime after it had happened".
"[Ms Hunter] has not identified this website, when, or how it appeared nor what it said. But my point is a simple one: I emphatically deny that any website concerning [Ms Hunter] had anything to do with me, directly or by helping or encouraging anyone else. I do recall that a fellow tenant said they had found a website about [Ms Hunter], and showed it to me. It suggested that [Ms Hunter] is a bad landlady. I did not read the website very closely and am not familiar with the content. I do not know if that is the website [Ms Hunter] means. I remember remarking that the website was not a sensible idea, but I did not dwell on the matter. The next I heard of it was Morgan Lewis telling me that [Ms Hunter] had accused him of creating a defamatory website. Because I had nothing to do with any website, [Ms Hunter] can have no evidence at all that I did. I have asked her for particulars. She says in her Counterclaim that she 'can provide evidence' in this case but has never done so."
"10. When I was in [Ms Hunter]'s house there were 8 tenants in total. To a greater or lesser degree all of them were unhappy with [Ms Hunter] as landlady. The tenants who occupied the house before them also complained about [Ms Hunter]'s conduct and had to threaten her with legal action before a compromise was reached on the partial return of their deposit…
12. [Ms Hunter] (and the court) might reasonably infer that a website saying she was a bad landlady was produced or contributed to by one or more of her past tenants. What is not a reasonable inference is that because I was one of her tenants therefore I must have had something to do with it…"
"… I have allowed for reasonable bills in the rent, but if the use of services is excessive, I may need to adjust the rent to accommodate this, make the rent exclusive of bills or take other cost saving measures. So it is best to work together to keep the rent and bills affordable…"
"Upon hearing the Defendant and no appearance by the Claimant:
1) By 4pm 23 August 2013 the claimant is to file and serve her Defence to the Counterclaim.
2) If the claimant fails to comply with paragraph 1 then without further Order but upon proof of default the Defendant has permission to enter Judgment for damages to be assessed with costs…
[There then follow alternative orders for the service of a reply, disclosure, inspection and exchange of witness statements]
7) On Tuesday 17 December 2013 at a time to be confirmed, there be a Pre-trialReview
before a Judge of the Jury List …"
"At the end I asked the court to dismiss the counterclaim. I take Ms Hunter's only complaint of any conceivable substance to be the one relating to the website. It will be seen that my defence is that I had absolutely nothing whatsoever to do with that…"
"On 30 September the High Court wrote acknowledging receipt of my application and on October 1 I received the order of [12 September]. The next day October 2 my father went to the High Court and appeared before Master Cook, putting my application to set aside the orders of Master Leslie and Master McLeod before him. The application was accompanied by a defence to counterclaim and request for particulars. …".
"Permission to Issue. Refer to Master Leslie to consider on the papers in the first instance… stay for an enforcement of judgment until this application has been heard".
THE APPLICATION TO SET ASIDE THE JUDGMENT IN DEFAULT
"12.3 (2) Judgment in default of defence may be obtained only … (b) in a counter claim made under rule 20.4 where a defence has not been filed, and … the relevant time limit for doing so has expired…
(3) The Claimant may not obtain a default judgment if
(a) the Defendant has applied (1) to have a Claimant's statement of case struck out under rule 3.4. and … that application has not been disposed of …
12.4(1) Subject to paragraph (2), the Claimant may obtain a default judgment by filing a request in the relevant practise form where the claim is for (a) a specified amount of money; (b) an amount of money to be decided by the court; … or (d) any combination of these remedies…"
"s.15(2) A county court shall not, except as in this Act provided, have jurisdiction to hear and determine - … (c) any action for libel or slander."
"(5) Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant – (a) acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him; (b) had a good reason for not attending the trial; and (c) has a reasonable prospect of success at the trial."
"3.8 (1) Where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction….
3.9 (1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need – (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders."
"... courts at all levels have become too tolerant of delays and non-compliance with orders. In so doing they have lost sight of the damage which the culture of delay and non-compliance is inflicting on the civil justice system. The balance therefore needs to be redressed."
"These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost."
"c) I believe I have a good prospect of success at trial. As my defence to counter claim makes clear I say (and my draft defence to counterclaim shows I have always said) the allegations of defamation against me have no substance. In summary, the first allegation is that my flatmate (not me) protested to the defendant that she had entered the house without proper notice while a prospective tenant was in earshot. That is trivial and cannot amount to defamation. The second allegation concerns a website that (it seems) said the defendant is a bad landlady. I do not deny that the defendant is a bad landlady but I do emphatically deny that the website had anything to do with me. Since it did not, the defendant can have no evidence at all that it did. I have asked more than once for particulars of her allegations, but received no answers."
"1…the claimant and Ms Benfield did protest to [Ms Hunter] that she needed their permission to enter without that notice. The Claimant and Ms Benfield did complain to the local council housing department. The complaint was true and justified. The Claimant and Ms Benfield had a proper lawful right to complain to the Council and the Council had an interest in hearing the complaint [I interpose to say this is a plea of a defence of qualified privilege].
…
4. Ms Benfield did challenge the Defendant about her conduct on an occasion when the Defendant was outside the house and, apparently, proposing to enter it. It's not admitted that the Defendant was "waiting for a client" nor that any third party heard what was said. Ms Benfield did not address any remarks to anybody but the Defendant… Ms Benfield did tell the Claimant and other tenants of the house directly and by email what had happened. They had an interest in knowing and she gave them an honest account of what had happened… [This too is a plea of a defence of qualified privilege].
5. It is admitted that there was a website which made a number of criticisms of the Defendant. It is admitted that in broad terms the website said the Defendant was a bad landlady. The Claimant does not know the particulars of the specific criticisms that were made against the Defendant. This website had nothing at all to do with the Claimant or Ms Benfield. The Claimant and Ms Benfield took no part whatsoever in setting up or contributing to any such website in any way. Neither did the Claimant or Ms Benfield encourage or influence anybody else to do so.
6. The allegations of harassment and defamation are without substance and unsupported without any evidence…"
THE COUNTERCLAIM
"2.2(1) In a claim for libel the publication the subject of the claim must be identified in the Claim Form
(2) In a claim for slander the Claim Form must as far as possible contain the words complained of and identify the person to whom they were spoken and when.
2.3(1) The claimant must specify in the particulars of claim the defamatory meaning which he alleges that the words or matters complained of conveyed, both (a) as to their natural and ordinary meaning; ....
2.4 In a claim for slander the precise words used and the names of the persons to whom they were spoken and when must, so far as possible, be set out in the particulars of claim, if not already contained in the claim form….
2.10(1) A claimant must give full details of the facts and matters on which he relies in support of his claim for damages."
The website
"It is true that actions of defamation can be made out against the following named individuals being Susannah Mole, Kay Benfield, Morgan Lewis, Lee Northam. They were tenants at [the] property and moved out together to [the address in London in N8] where they again lived together. The quote in the counterclaim at paragraph 40 refers to them: "the claimant and others influenced by them started and continued a hateful malevolent campaign against me by additionally publishing onto the internet a malicious defamatory website…" The "others" are the named individuals above.
"17. The tenancies that were secure during the material time amounted to £4875 per calendar month. The house is a well presented house providing above average amenities and comfort which normally attracts a great deal of interest and secures applicants and tenants extremely easily a period during the website publication over several months showed a marked drop in interest directly attributable to the website. [Ms Mole] is responsible for this.
18. The counterclaim is for a modest amount of £1580. However, the court may use its discretion to award a higher amount more in keeping with the actual losses over the period".
The other alleged publications
THE PROCEDURE ADOPTED
"Introduction of a specific power into CPR Rule 3.1 that would allow the court to direct that, where at least one party is a litigant in person, the proceedings should be conducted by way of a more inquisitorial form of process in civil proceedings where both or at least one party is represented"
EVENTS FOLLOWING THE CIRCULATION OF THIS JUDGMENT IN DRAFT
CONCLUSION
i) Ms Mole's application to set aside the judgment entered against her on 12 September 2013 will be granted. The Counterclaim will be struck out unless permission is given to amend it.
ii) Any application for permission to amend must be supported by a draft Amended Counterclaim to be sent by Ms Hunter to Ms Mole no later than 30th April. If Ms Mole does not agree in writing that permission to amend be given, Ms Hunter must (if she wishes to pursue the matter) issue any application notice seeking permission to amend by no later than 14th May 2014.
iii) Although a litigant who applies to set aside a judgment in default must normally pay the costs, since it was not Ms Mole's fault that she was not informed of the CMC on 7 August 2013, I am minded to order that there be no order for costs on this hearing.