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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Dhir v Saddler  EWHC 3155 (QB) (06 December 2017)
Cite as:  WLR(D) 823,  4 WLR 1,  EWHC 3155 (QB)
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QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
(LEEDS DISTRICT REGISTRY)
1 Oxford Road, Leeds LS1 3BG
B e f o r e :
| Raj Dhir
- and -
John Samson (instructed on a direct access basis) for the Defendant
Hearing dates: 7-9, 13-14 November 2017
Crown Copyright ©
The Honourable Mr Justice Nicklin:
"Andrew came back in my sister's life in January 2014. He was and still is married to Ellie. I found out by accident about the relationship in July and confronted both my sister and Andrew by telephone… We have watched for 14 years as my sister has been abused, lied to and cheated by Andrew Saddler and it is very hard for a family as close as ours to watch. Time after time, Andrew has come back into my sister's life and led her on and then told her that he didn't really love her and never said he would marry her. Recently, when we had a meeting with the church elders after one elder had approached Andrew about his current extra marital affair, he simply said that he wanted out of his marriage with Ellie and to start a relationship with my sister: well as far as we, as Reena's family are concerned, this has always been to do with money and never to do with love. The evidence is staggering – apart from my sister's bank statements… showing payments over the years for his mortgage and other amenities, since July 2014, Andrew enjoyed two five star holidays paid for by my sister to Dubai and Thailand, staying in 7 star resorts… I have held back for fourteen years because, in my heart and religion, I believe people are and can be good. But I have stopped believing this in the case of Andrew Saddler and his mother. There is no care or love here, he has a habit. And he has a habit of manipulating women, be it my sister… or anyone else, for material gain…"
"(a) the claimant has criminal tendencies;
(b) in particular, that he was given to threats of violence, and
(c) specifically, murderous threats against the Defendant."
"the Claimant had threatened to slit the throat of the Defendant."
i) whether the publication complained of was actionable per se (i.e. without proof of special damage), or, put another way and on the facts of this case, whether the Claimant can show that the claim is in respect of an imputation that he had committed a criminal offence punishable by imprisonment ("Actionable per se");
ii) the number of people to whom the words complained of had been published ("Extent of Publication");
iii) whether the Claimant can demonstrate that the publication of the words spoken by the Defendant "has caused or is likely to cause serious harm to [his] reputation" (s. 1 Defamation Act 2013) ("Serious Harm");
iv) whether the claim is an abuse of process under Jameel ("Jameel Abuse");
v) whether the Defendant could demonstrate "that the imputation conveyed by the statement complained of [was] substantially true" (s.2 Defamation Act 2013) ("Truth"); and
vi) (if the Claimant succeeds on liability) the appropriate sum to award by way of compensation ("Damages").
Actionable per se
"A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out, to kill that other or a third person shall be guilty of an offence and liable on conviction on indictment to imprisonment for a term not exceeding ten years."
"Words which merely impute an intention or inclination to commit a crime are not actionable without proof of special damage, for criminal intention does not amount to a crime. But to impute an attempt to commit an indictable crime is actionable without proof of special damage, for an attempt to commit an indictable crime is an offence punishable corporally. Thus where the words were 'she would have cut her husband's throat and did attempt to do it', it was held that no action lay for the words, 'she would have cut her husband's throat', but that an action was maintainable for the remaining words which charged an attempt (Scot –v- Hilliar (1611) Lane 98). A fortiori therefore it is not actionable to state an opinion that the claimant will commit a crime in the future or that he would commit a crime if the opportunity presented itself."
i) The passage from Gatley does not assist the Defendant in this case. The s.16 offence is an offence of making a threat to kill. It does not require that the threat be carried out. If the threat had been "he threatened to steal my wallet", then Mr Samson's point would have been a good one. There is no offence of threatening to steal; the offence is only made out when the theft has taken place and therefore the statement is one as to future conduct and would not be actionable per se. However, with threats to kill, the offence is complete when the threat is made, providing that the prosecution establishes that the person charged intended that the other person would fear that the threat would be carried out.
ii) I also reject Mr Samson's second point; that the Claimant must establish all the elements of the offence. The authorities make clear that a slander can be actionable without proof of special damage even where the charge is one of general criminality, providing that, in context, the words impute some offence for which the claimant could be punished with imprisonment (see §4.7 Gatley): "The meaning of the words is to be gathered from the vulgar import, and not from any technical legal sense" (Colman –v- Godwin (1783) 3 Doug.K.B. 90, 91 per Buller J). Here the meaning is quite clear.
iii) Obviously, context is very important. "Words which prima facie impute a crime are not actionable without proof of special damage if it is clear from their context, or from facts stated by the speaker or known to the hearers, that they were in fact neither used nor understood to convey a criminal imputation" (§4.10 Gatley). There is no evidence of any surrounding context for the Defendant's words that could lead to them to be understood in any way other than imputing the commission of the offence of making a threat to kill. Had the Defendant said, as context for her remark, that the Claimant had not been serious or had been joking, then the position might be different. But here, she reported the threat made by the Claimant in all seriousness. Certainly, there was nothing in the context of her statement that would have given the hearer any reason to doubt that the threat was made by the Claimant with full menace.
Extent of Publication
i) The Claimant's pleaded case was that there were present "approximately 300 to 400 members of the congregation" (the same estimate that had been given in the letter of claim dated 15 July 2016).
ii) The Defendant's pleaded case (in the Amended Defence) was that "no more than 70" were present.
iii) The Claimant's witnesses said the following:a) The Claimant did not put a figure on the attendance in his witness statement for trial. When cross-examined, it was put to the Claimant that it was not true that there were 300-400 people present. The Claimant responded that he could not count the people, but it was a "full-house". He said that he could not comment on whether the figure was 70 people.b) Ms Tebbs-Ogutu did not give any estimate of attendance in her witness statement. When asked supplemental questions in examination-in-chief, she said that the capacity of the church (including the upper balcony) was around 500. When cross-examined she rejected the suggestion that the number present was below 70. She said that it was "definitely" above 70; "much above" 70.c) In her witness statement, Ruchi Dhir said that: "… it was a full Church. It was quite intimidating as there must have been in excess of 100 people present… Literally every pew was filled". When cross-examined, she maintained her evidence that every pew was filled, but confirmed that she was not aware that there were pews in the balcony.d) Rishi Dhir put the figure as "several hundred" in his witness statement. He maintained this estimate when cross-examined and added: "the Church was full because it was intimidating".
iv) The Defendant's evidence was as follows:a) The Defendant stated in her witness statement that "no more than 70 members were in attendance". In examination-in-chief, she said that "it is a large Church", which holds "a fair amount of people" (sic). Asked whether every pew was filled, she responded by saying that the 19 July 2015 meeting was a business meeting and not a service and not as many people came to business meetings. She estimated that there were between 60-70 people present, who were scattered around the pews. When cross-examined, it was put to her that the meeting was "particularly busy". She replied: "more than ever" and said that that was because the Pastor had called around. She denied that she had encouraged people to come to the meeting.b) Eleanor Saddler did not give a figure in her witness statement, but in examination-in-chief said that there "no more than 40 people".c) Clyde Saddler did not give a figure in his witness statement. In examination-in-chief, he said that there were "50 members or so" at the beginning of the meeting. As I have noted above (paragraph 18), Clyde Saddler played a significant role in helping his mother draft her Defence. When cross-examined he said, referring to the number of publishees pleaded in the Defence, that he decided, "we will give them 70". But he claimed in evidence that it was "nowhere near" that. He said that if there had been 120 people present, then "you would have known and noticed that". He said it was "40-50 more like". In re-examination, asked how many were present at the end of the Defendant's presentation to the meeting, he said it was around the "35—40 mark".
"There may… be cases where the evidence shows that no serious reputational harm has been caused or is likely for reasons unrelated to the meaning conveyed by the defamatory statement complained of. One example could, for instance, perhaps be where the defendant considers that he has irrefutable evidence that the number of publishees was very limited, that there has been no grapevine percolation and that there is firm evidence that no-one thought any the less of the claimant by reason of the publication. Whether such evidence is in truth unanswerable … is then for the court to determine. Alternatively, if subsequent events or evidence show that there has ceased to be a "real and substantial tort" then a strike out application, in accordance with the principles of Jameel, may also be available…"
(1) there was no evidence of the Claimant's reputation having been harmed in the eyes of the publishees; on the contrary
(2) of those who had read the allegations, the evidence demonstrated that none of the publishees believed them.
"… the Claimant will be unable to establish that the publication of the alleged slander caused any harm, let alone serious harm, to his reputation. Publication was confined to a private gathering of the 70 or so people present at the disciplinary hearing on 19 July 2015 none of whom had any dealings or connection with the Claimant… It is not [alleged]… that the claimant has a close relationship with any of the publishees, or that their attitude to him is a matter of importance to his personal or professional life. Nor are any particular facts about their treatment of him alleged, such as 'shunning or avoiding' him."
i) The oft-cited phrase (usually in the context of Jameel abuse applications) is that the assessment of harm of a defamatory publication has never been (simply) a "numbers game", a phrase that appears to have been coined by Eady J in Mardas –v- New York Times Co  EMLR 8 .
ii) A feature of the "sticking power" of a defamatory allegation that has potential relevance to the assessment of serious harm is the likelihood of percolation/repetition of the allegation beyond the original publishees ("the grapevine effect") (Slipper –v- BBC  1 QB 283, 300 per Bingham LJ). In Sloutsker –v- Romanova   EWHC 545 (QB);  2 Costs LR 321, Warby J said :"… It has to be borne in mind that the assessment of whether there is a real and substantial tort is not a mere numbers game, and also that the reach of a defamatory imputation is not limited to the immediate readership. The gravity of the imputations complained of… is a relevant consideration when assessing whether the tort, if that is what it is, is real and substantial enough to justify the invocation of the English court's jurisdiction. The graver the imputation the more likely it is to spread, and to cause serious harm. It is beyond dispute that the imputations complained of are all extremely serious."
iii) Perhaps of most significance to slander claims is whether the defamatory words really connect with the claimant in the mind of the publishee. In Haji-Ioannou –v- Dixon & Others  EWHC 178 (QB), Sharp J said :"Publication of a libel or indeed a slander, to one person may be trivial in one context, but more serious than publication to many more in another. Much depends on the nature of the allegation, and the identity of the person about whom and the person or persons to whom it is made. To that extent, the decision in each case is 'fact sensitive'…".It is one thing to be slandered (even seriously) in front of an unknown passer-by (e.g. in front of C, A says to B, "you stole that item from the shop"), it is quite another for a person to be slandered to his/her employer. In the first example, if the passer-by does not know the claimant, even though, in the circumstances, s/he has been sufficiently identified, then the harm caused to reputation will be limited because of the anonymity. Importantly, it would usually be impossible for there to be any grapevine effect, because the publishee cannot pass on the information in a way that has any damaging effect on the claimant.
iv) But it has never been a requirement in the torts of either libel or slander for a publishee to know the claimant. At common law, the torts require publication of defamatory words that refer to the claimant. In the passer-by example, reference to the claimant is supplied by his/her presence and the fact that the remark is addressed to him/her by the defendant. If the claimant is identified by name in the publication, then (excluding very common names like 'John Smith' where more by way of identification might be needed) that will be sufficient reference to sustain a defamation claim.
v) In Multigroup Bulgaria Holding AD –v- Oxford Analytica Ltd  EMLR 28 , Eady J observed that it could not seriously be suggested that "under English law an individual human being has to surmount a preliminary hurdle in order to bring defamation proceedings by showing an established reputation". Relying on this authority, the authors of Gatley summarise the law (correctly in my view) (§7.3) (footnote references omitted) in this way:"… Where the claimant is expressly identified by name, it is not necessary to produce evidence that anyone to whom the statement was published did identify the claimant. The question is not whether anyone did identify the claimant but whether persons who were acquainted with the claimant could identify him from the words used. Thus if a local newspaper in Cornwall publishes a false story to the effect that 'John Smith of 24 Acacia Avenue, Carlisle, has been convicted of fraud' that is actionable by John Smith even though no one who knew him read the story. However, where a common name and no more is included in an article, the name itself will not suffice to identify any individual who bears that name, though the context in which the name appears, coupled with the name may, however, do so."
vi) Reflecting the distinction between damage to reputation and the consequences of it (from Lachaux (see paragraph 41 above)), providing the words refer to the claimant, the fact that s/he is known to the publishees is relevant not to the assessment of the harm caused to his/her reputation by the publication, but the consequences of it. The prior knowledge may assist either the defendant (e.g. because of his knowledge of the claimant, the publishee disbelieves the allegation) or the claimant (e.g. the publishee acts on the publication to the claimant's detriment).
i) Once the trial has been reached, a fortiori after it has been completed, it would be a pretty extraordinary case in which a Court would be likely to conclude that there is so little at stake that the further expenditure of resources on the action is out of all proportion. If that argument in not apparent and pursued before the trial begins, the resources to be incurred after the trial are likely to be so trivial (relatively speaking) that it would be almost perverse to refuse to adjudicate on the claim on the merits but instead to dismiss it as Jameel abusive.
ii) In light of my findings as to meaning, publication and serious harm, I reject any suggestion that there was so little at stake in the claim that it could amount to an abuse of process. If the Claimant is successful with his claim, it would appear to me that vindication alone, particularly following a public trial at which a truth defence was steadfastly advanced, would weigh heavily against the contention that there was nothing of value at stake for the Claimant. This was a very serious allegation. Further, and in any event, the Defendant has adduced no evidence as to the scale of the costs of this action, so I have no basis even to begin to measure the suggestion of disproportionality.
iii) Cases where the Court dismisses a defamation claim as an abuse of process because of some impermissible collateral purpose are rare. Strong evidence is required that a claimant is in reality seeking something beyond the protection and vindication of his reputation before the court could stay his action as an abuse of process (Goldsmith –v- Sperrings Ltd  1 WLR 478, 500 per Scarman LJ). The hurdle is very high. In Broxton –v- McClelland  EMLR 485, 497-498 Simon Brown LJ extracted the following principles from earlier authorities:"(1) Motive and intention as such are irrelevant…: 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."
i) the common law principles that apply to the former defence of justification apply equally to the s.2 defence of truth; and
ii) the Defendant has the burden of showing that the defamatory imputation is substantially true, and he refers to Eady J's determination in Turcu –v- News Group Newspapers Ltd  EWHC 799 (QB)  that 'substantially true' means that "the court should not be too literal in its approach or insist on proof of every detail where it is not essential to the sting."
The evidence, parties' submissions and decision on the facts
(a) The Relationship between Reena and Andrew
"I am not brainwashed or groomed and cannot reiterate that enough. I am a 42-year-old woman, who has made some mistakes but learnt and believe me I am not a push over the way I am being made out to be… What my family think is happening in my life is untrue and it is so sad to see my father has let my younger siblings act in the way they have with a lack of respect for their sister".
(b) The immediate run-up to the September meeting
(c) The September meeting
i) In his evidence, the Claimant said that he, Ruchi and Rishi were invited into the Defendant's home. Ruchi then left and went in a car to collect Eleanor Saddler. Whilst she was gone, he said discussions were amicable and that he had stated to the Defendant that they (as parents) needed to help their children "out of the situation" (meaning their relationship). There was some chat, he said, about the Defendant's other children and he looked at some of the Defendant's photographs that were on the walls in the dining room. He said Rishi had talked to the Defendant about his work as an orthopaedic surgeon.
ii) Ruchi returned after about 5 minutes with Eleanor. The Claimant said that discussions continued about the relationship between Andrew and Reena. He said that the Defendant had stated that she only regarded Eleanor as her daughter-in-law, Reena she looked upon as a "mistress" and she would not accept the relationship between her and Andrew. The Claimant said that it was the Dhir family's preference that the relationship between Reena and Andrew should end.
iii) The Claimant said that he expressed his concerns about Andrew's alleged exploitation of Reena's financial position and he said the Defendant had said she was not surprised. She was however, he said, surprised at the amounts involved (alleged to be £20,000 to £30,000). It was alleged that the Defendant had said that she had been "trying to get Andrew to live his life honestly". Attempts were made, he said, by both the Defendant and Eleanor to get Andrew to attend the meeting, but he was said not to be available.
iv) The Claimant said that he thought that he and the Defendant "were on the same page" as the Defendant appeared to want the marriage between Eleanor and Andrew to work. That appeared to be the desire of Eleanor too, so the Claimant thought all parties shared the same objective. The Claimant thought that it would help if the Defendant could speak to Reena on the telephone to make her positon clear. She did so, and the Claimant said that the Defendant had told her that she would not accept her (Reena) and that she only had one daughter-in-law, Eleanor.
v) The meeting concluded, the Claimant said, with him and Rishi giving the Defendant their business cards and that there were hugs between those present. He said that the Defendant had agreed to discuss and resolve the matter with Andrew and Eleanor.
vi) Rishi Dhir gave an account of the meeting largely in the same terms as his father, but with some further details. He said that after Eleanor had arrived at the meeting there was discussion about Andrew's financial debt to Reena as a result of payment of Andrew's and the Defendant's mortgage. Rishi said that the Defendant had said that she had tried to teach Andrew 'right from wrong' and would help pay back any money owed. He said the meeting ended amicably with the Defendant telling him that she sometimes had joint pains and him responding that she could ring him for medical advice.
vii) At the commencement of her evidence, Ruchi Dhir told me that she had a conviction for insurance fraud and was currently subject to a suspended sentence order, which was due to end in March 2018.
viii) She too gave an account of the September meeting that was largely in the same terms as her father. In cross-examination, Mr Samson highlighted the fact that certain passages of her witness statement were word-for-word the same as her brother's witness statement. It was put (to both of them) that they had colluded in putting forward a (false) account. Both denied that. Having seen both give evidence, I am satisfied that these similarities are not as a result of improper collusion. If they were colluding, it would have been very foolish of them to produce statements that were so obviously the same in various sections because that would so easily have been discovered (as it was). It is, in my view, much more likely that the similarities arise because of the way in which witness statements are prepared in modern litigation. A solicitor takes the statement from the relevant witness and then draws it up for the approval of the witness. It appears to me much more likely that the solicitor who was responsible for this simply cut and paste sections of one statement into the other. If that is what happened, then it would demonstrate a rather lax and lazy approach (and one that risks undermining the credibility of the witness's evidence at a trial), but it was not done for any nefarious purpose. I am quite satisfied that neither Ruchi nor Rishi Dhir would have allowed something that they did not think was the truth to appear in their witness statements.
ix) When cross-examined, the Claimant, Ruchi and Rishi all denied that the Claimant had made any threat to kill the Defendant at the September meeting.
x) In her witness statement, the Defendant incorrectly stated that the September meeting was on 14 September 2014. It is not a material error; everyone is agreed that the meeting was on 29 September, and it is clear that the Defendant was in her statement talking about the September meeting.
xi) The Defendant said that the Claimant, Ruchi and Rishi had arrived at her home asking to speak to her about her son, Andrew. She said that she told them that she would not do so without having talked to her son first. She asked them to wait outside while she went to try and telephone her son. When she returned to the front door, they were not there. She said that she was then surprised to find them standing in her dining room "quite uninvited". The Defendant said that she again told the Dhirs that she would not discuss Andrew without having spoken to him first. Ruchi Dhir, she says, left saying that she was going to collect Eleanor, leaving the Defendant with the Claimant and Rishi.
xii) In her witness statement, the Defendant said this:"… the Claimant twice threatened to slit my throat, once in the presence of just Rishi Dhir, whilst Ruchi Dhir had gone to pick up Eleanor, and a second time when my daughter-in-law, Eleanor, and Ruchi Dhir were present. At the time when the Claimant made this second threat, Ruchi Dhir shouted, 'Dad! Dad!' and Rishi Dhir ushered his father out of my home…"
xiii) There is a striking lack of detail about the context within which those threats were alleged to have been made; there is no explanation as to how (or why) the Claimant had come to make the threats.
xiv) In examination-in-chief, she provided more information. She was asked to describe the meeting in her own words. My note of her answer is as follows:"I saw them in the dining room. I was surprised that they were in the dining room because I asked them to wait outside until I got Andrew. I was a bit shocked. I did not expect them to be in the room. For a couple of minutes, I did not say anything. I asked them why they were in the house. I did not want any confrontation. They came into the house and I did not want to confront them as there was three of them. I did not invite them into the house. After that, I said to them that I couldn't get Andrew and I didn't think I could talk about the situation, and as I mentioned Andrew's name, [the Claimant] said, I don't want him at my house. I don't want him as my son-in-law, he's no good. I said, "let us pray" to calm things down. I prayed and when I finished [the Claimant] started walking around the room looking at the photos. [Ruchi] said that she was going to get Ellie. I said to her. Why are you doing that? She picked up her phone and she went… As she left the room, [the Claimant] kept looking at the photos. There is a column where most of the graduation photos are and he looked at them and he kept looking at them. He said, "where is he, where is he?" I said, "who?". He said, "Andrew". I pointed up to another row. "There he is"; there was a picture of him standing next to Obama, and [the Claimant] said, "why is a nobody standing like that standing next to someone like that. Who does he think he is? I don't want him as a son-in-law." I said: "You cannot have Andrew as a son-in-law as he is married to Ellie. I promised her mum that I would look after her." Then [the Claimant] said: "You better look after her or I'll slit your throat." [The Claimant] then went back to his seat. I stayed where I was. Ruchi and Ellie came back and Ruchi went to where she had been sitting before. Ellie came in with her. Ellie was beside me, next to [Ruchi]… [When Ruchi returned] her dad was talking about Reena and how she had been with Andrew for 14 years. I said, "now Andrew is married she should have some self-esteem." ... Ruchi said, "if I phone Reena would you talk to her and tell her to get some self-esteem because she may listen to you." So, she phoned Reena and I spoke to Reena more a less telling her that this is what they were saying and asking whether she was having a relationship with Andrew. At first, she said that they were friends. I said that her sister had said that there is a relationship and she said, "yes". I said that I could not condone or sanction the relationship because he was married. I asked whether she knew if Andrew was married and she said she did… After the telephone call, [the Claimant] was still adamant that he did not want Andrew to be his son-in-law and that he was no good. He had nothing. Again, he said, "I don't want him as my son-in-law". Again, I said you cannot have him because he is married to Ellie. [The Claimant] got more worked up. Without any warning, he just flipped at me. Leant towards me. "You better look after her, or I'll slit your throat." His daughter said, "Dad! Dad!" and his son moved him away from me. They went outside. First to the hallway and as they were going out he said, "here's a card. Phone me when you are ready to talk." I took the card. I didn't look at it… I thought it was quite arrogant to behave like that and then to give me a card and say when you are ready call me. That was it. As far as I remember."
xv) I have set that out in its entirety because (a) it is the heart of the defence of truth; and (b) because it makes the lack of detail in the original witness statement all the more striking.
xvi) Mr Samson asked the Defendant why she did not call the police about the incident. She said: "He just got worked up and could not control himself and flipped and that was what I thought: he just flipped. I don't think he would have slit my throat. He could not control his emotion after he had worked himself up."
xvii) Mr Samson asked the Defendant whether she told anyone in her family about the incident. She said: "No. I didn't think that they needed to know… I normally let things drop. I wouldn't have said anything to them."
xviii) She told Mr Samson that she had not used the term "mistress" to describe Reena. She said that to her the term mistress is used as a form of respectful address: "Good morning, mistress Bell". The term she said she would use for an adulteress was "concubine".
xix) When cross-examined, the Defendant accepted that she had not raised the alarm with the two workmen who were present at her house and nor had she telephoned the police although she accepted she could have done. She denied that there was any discussion about money. She accepted that when Ruchi returned with Eleanor, she did not mention to Eleanor that she had been threatened and that when she spoke to Reena on the telephone she had not mentioned it to her either. She agreed that after the meeting was finished she did not tell anyone what had happened. She said that she did not know how Andrew would have got to find out about it.
xx) When asked about the gesture the Claimant had made of drawing his finger across his throat, she said the first time he made the threat he drew his finger over his own throat. On the second occasion, he drew his finger over her throat. She said he got up and walked around the table to do that.
xxi) In her witness statement, Eleanor said that she received a telephone call at home asking her to attend a meeting with her mother-in-law and members of the Dhir family to discuss issues relevant to her marriage. She said that she was picked up by Ruchi and taken to the meeting. She outlined the discussions and then said this:"During the discussion, [the Claimant] stated that should Andrew and myself divorce, and Andrew wanted to marry Reena, he would take them to wherever they wanted to get married and then he would cut Reena out of the family. Rishi at this point said words to the effect that they are Indians and they could take Reena to India, take away her passport and make her disappear. As the meeting was nearing its end, [the Claimant] said to my mother-in-law, "you had better look after her (referring to me), if you don't I will (he placed his finger on his throat and motioned a cutting action)". Ms Ruchi Dhir tried to stop him from finishing the sentence and then they all left."
xxii) When giving evidence-in-chief, she said this after having described where each person was in the room when she arrived (again I will set out my full note of her description of the September meeting):"We sat down. [The Claimant] was talking about Andrew and Reena's relationship saying that he was not happy and that he would not accept Andrew as his son-in-law; how Andrew and Reena had been in a relationship before Andrew and I were married. At the beginning, he seemed okay. But over time he got agitated. He was looking at me striking his hand. "If Andrew and Reena decided to get married. I would take them to the registry office myself and then I would disown her." Rishi joined in. "We are Indians we could take her away to India and make her disappear." A lot of the talking was done by [the Claimant]. [The Defendant] said that Andrew cannot be his son-in law. [The Defendant] said, "he is already married to Ellie. If you are saying that your daughter has been in a relationship for so long where is her self-esteem." That is when Ruchi said, "would you be happy to repeat that to Reena?". Ruchi rang Reena. [The Defendant] repeated what she said. She said that she would not accept her as her as her daughter-in-law and that she did not condone the relationship. That was the end of the phone call. At that point, [the Claimant] said, "you need to look after your daughter-in-law, she is a nice girl. If you don't look after her…" then he motioned. He was getting ready to leave, that was my assessment. He was getting his coat on to go. He and Rishi got to the door. All of us were going out. [The Claimant] hugged me at the door and then everyone went out. They went in their car and I walked home to my house."
xxiii) When cross-examined, she confirmed that the Claimant had not spoken any words threatening to slit the Defendant's throat; he had just gestured. Mr Mitchell put it to Eleanor that she did not do anything once she had seen the gesture and neither did she discuss the event with the Defendant after the meeting. Eleanor agreed to both points.
(d) Events after the September meeting
i) The first time that anything appears to have been mentioned about the threats alleged to have been made by the Claimant at the September meeting was in a telephone call from Reena to Ruchi on 25 January 2015 (almost 4 months later). In her witness statement, Ruchi says that she received a call from her sister who told her that she had spoken to Andrew and he had said that the Claimant was in danger. The reason given was that, during the September meeting, the Claimant had made a death threat to the Defendant. She said that Reena said to her that she should "silence [her] father as [he] was in danger as he should not have said those things to [the Defendant]."
ii) Reena did not mention this telephone call in her witness statement. When cross-examined about the call described by her sister, she accepted that there had been a call, but denied that she had told Ruchi that their father was in danger. She said that she had found out about the threat on that day when she was told by Andrew. She had telephoned Ruchi to ask whether their father had done what was alleged.
iii) In his witness statement, Andrew Saddler did not mention when he had first learned about the alleged threat to his mother by the Claimant or from whom. When cross-examined, he denied that he had told Reena that her father was in danger. He said that he had told her, simply, that there had been a threat to kill his mother. Mr Mitchell asked Andrew Saddler who was it that had told him about the threat. Mr Saddler said that he could not remember. Mr Mitchell asked him whether it was not a matter of considerable upset that the Claimant had twice threatened his mother. Mr Saddler agreed that it was, but pressed again he said he could not remember who had told him. He accepted that the police had not been informed of the incident and said that the Defendant "did not want any trouble. Nothing more was going to be said about it as I understood it."
iv) What happened next is of some importance. Having learned about the alleged threats made by her father, Ruchi Dhir sent a text message, on 25 January 2015 to Eleanor. The full exchange is ("the Text Messages"):Ruchi: Hi. Have you confirmed to Andrew that there was no threat made to your mother-in-law and I have never apologised to you for my father?Eleanor: I've confirmed that you have never apologised to me, that's what you asked of me.Ruchi: There was no threats made to your mother in law. Please confirm this to both of them. You were there and it was an amicable meeting.Eleanor: I have said I do not remember any threats, I've told Andrew that...
v) Eleanor did not mention the Text Messages in her witness statement. Asked about them in examination-in-chief, she gave what I regard as a highly implausible account. She started off by saying that she could see what the text messages said (which I infer was a way of acknowledging that they appeared to contradict her account that the Claimant had made a threat). She then began a very long purported explanation, the thrust of which was as follows: (1) she had learned that the Church had received a complaint (from the Dhirs); (2) Ruchi had been asking questions about Andrew's car and his movements that had concerned her and led her to fear for him; (3) there had been a telephone call between her and Ruchi in which Ruchi alleged that Eleanor's "gangster husband" (i.e. Andrew) had been making threats to her father. Ruchi had been irate. Eleanor told her to calm down or she would put the phone down. Ruchi did not calm down, so Eleanor terminated the call; and (4) it was after that call that she sent the text.
vi) That explanation did not, in fact, provide any reason for why she would have sent a text saying that she could recall no threats when (on her evidence) she knew a threat had been made. Perhaps recognising this, she sought then to expand her explanation and (from my note) said this, speaking about the telephone call immediately prior to the text message exchange:"She was angry and kept asking questions. I felt quite intimidated. I just wanted to be rid of her. My concern was that I wanted to speak [to the Defendant] to find out about the threat. She does not usually say. If something is bothering her she does not say unless it is really getting to her. I was thinking, 'let me give her a call to find out how she is'".She then turned to attempt to give what appeared to me to be an explanation of why the Defendant had not reported the threat to anyone. Referring to the September meeting she said:"… I perceived [the Claimant] as agitated and angry based on what was being discussed. It looked like he was not making progress. I saw he was angry. I did not think any more about [the threat]. [The Defendant] did not mention it afterwards. So, I thought 'okay, maybe it wasn't such a big deal', the way she had reacted to what he had said. She seemed okay at the time. I remembered the words but I had not considered it a serious threat because [the Defendant] didn't"
vii) The explanation did not improve in cross-examination. She accepted that, in the text message, she had told Ruchi that she did not recall any threats. When asked why she had not told Ruchi that a threat had been made, this was my note of her answer:"I have explained. The background was that there had been a very irate phone call prior to this message being exchanged. I had just learned about the threat at the time. I didn't want to talk to Ruchi again because she was rude and intimidating. Although I remember the gesturing [of the Claimant]. He was someone who had gone from being relatively calm… My perception of what he had said or done I put it down to him getting worked up."
viii) In examination-in-chief, Eleanor suggested that she needed to speak to the Defendant "to find out about the threat" and in cross-examination she appears to have said that she had "just learned about the threat". But on her account, she had witnessed it herself and so there would be no need to ask the Defendant about it.
ix) None of this provides any credible explanation for why she told Ruchi that she did not recall any threats if (on her evidence) she had witnessed one.
i) I am satisfied that the Text Messages show the true position. Eleanor Saddler was present at the September meeting at least to witness whether the second alleged threat was made. My conclusion is that when she told Ruchi that she did not recall any threats, she was telling the truth. I reject Eleanor Saddler's attempt to explain otherwise in her evidence as dissembling.
ii) I regard the Saddler family's response to the alleged threats as demonstrating that there were no such threats:a) It is not credible that, had the threats that the Defendant alleges were made at the September meeting by the Claimant actually been made, the Defendant would not have mentioned or discussed it at all following the meeting with her family. On her case, three members of the Dhir family had essentially barged their way into her home and the Claimant had made two threats – apparently seriously – to slit her throat. On the Defendant's account that was a shocking incident of some moment.b) Leaving aside that it is the Defendant's evidence that she did not tell anyone about the threats, it is not credible that Andrew Saddler cannot recall when or from whom he learned about the threats to kill that had been made against his mother by the Claimant. The making of a threat to kill is not a trivial matter the detail of which is quickly lost to memory. Had such a threat been made, it must be a near certainty that upon learning about it (if not from his mother), Andrew Saddler would have immediately contacted her and to find out what had happened. That is not the sort of thing a person forgets.c) Substantially the same points can be made about the response of Eleanor Saddler. On her evidence, she was a witness to one of the threats to kill. She says that she did not discuss that with the Defendant (or apparently anyone else). That is simply not credible. If she had witnessed the threat she would have told her husband, Andrew. Both he and she would be able to recall clearly when this happened and what they did with the information.d) By the end of January 2015, however, Andrew Saddler was clearly in possession of the information about the alleged death threats. Even then, he still did nothing about it (apart from, on Ruchi Dhir's evidence, sending a message via Reena that their father was in danger). In his witness statement, Andrew Saddler said: "over the last 3 years (i.e. dating back to July 2014), I have suffered constant/persistent harassment and abuse from the Dhir family particularly [the Claimant] along with his employees to the point that I have had to involve the police on a number of occasions". The Car Incident, for example, led to Mr Saddler making a complaint of harassment to the police. The idea that, had he received information that his mother had been twice threatened with having her throat slit by the Claimant, he would not have reported this immediately to the police is simply not credible.
iii) The Defendant's evidence of what happened at the meeting is not credible.a) On her account, despite the fact that three members of the Dhir family had made their way, uninvited, into her home, she did not ask them to leave. Even making allowance for the fact that she might have been too anxious to ask them to do so on her own, there were workmen present in or near her home upon whom she could have called for assistance. Certainly, after Eleanor had arrived, there was nothing to stop her from demanding that the Dhir family should leave. On the Defendant's version of events, the first threat was made, then Eleanor arrived, the Defendant did not mention anything to Eleanor, did not ask the Dhirs to leave, and continued the meeting. It is simply beyond belief that a person who had been seriously threatened with having their throat slit would countenance continuing a meeting with the person who made that threat.b) The account the Defendant gives of how the Claimant came to make the threat during the meeting is implausible. It was also presented, for the first time at the trial and not in her witness statement. The threat itself apparently came out of nowhere, and does not make any sense. Why would the Claimant threaten to slit the Defendant's throat if she did not look after Eleanor? On the Defendant's account, the Claimant was angry and making demands that the relationship between Andrew and Reena should come to an end. If he was going to make a threat to kill to achieve that objective, there was nothing to stop him from making that perfectly clear, for example by telling the Defendant that he would slit her throat if she did not put an end to the relationship.
iv) In contrast, the Claimant's account of the meeting is coherent and, importantly, supported by the events that immediately precede it. The Dhir family had held meetings prior to the September meeting the consistent theme of which was their effort to bring an end to the relationship between Reena and Andrew. The September meeting was simply the next in the series of those meetings and the Claimant's account of it is entirely consistent with what was plainly the object of those meetings.
v) In terms of witnesses, I found the evidence of Ruchi and Rishi Dhir to be consistent and credible. I have rejected the suggestion that they have colluded. Although Ruchi does have a conviction for serious dishonesty, this has not affected my view of her credibility. There is nothing similar in relation to Rishi Dhir upon which the Defendant can point to to attempt to undermine his credibility. He is an orthopaedic surgeon. If he were to be found to have lied to a court, that would likely be career ending. Why would he risk that and lie? If his father had made the threats alleged, in my view he (and Ruchi) almost certainly would have done everything they could to prevent the Claimant embarking on this litigation.
vi) I have asked myself the same question – why lie? – in relation to the Defendant and Eleanor, the two other people present at the September meeting. I have no clear answer to that question in their case. It has been suggested by the Claimant that the reason was to try and divert attention away from the Dhirs' complaint to the Church about the Saddler family or to deter the Dhirs from continuing with it. I am not persuaded by that argument. If that was the objective, it was a pretty extraordinary way to try and achieve it. I therefore have to leave unresolved the question of why the Defendant made this false allegation against the Claimant. As juries in criminal trials are reminded, people who lie may do so for many reasons. Not all of those reasons may make sense to an objective observer. I do not need to find a reason why the Defendant has lied; I simply need to be satisfied on the evidence that she has. For the reasons I have given, I am.
vii) Had I been more uncertain about the evidence, and reliant to a much greater degree on my assessment of the veracity of the Claimant's evidence, the evidence relating to the Flat and Car Incidents might have had some (limited) weight. For the reasons I have explained, I have arrived at the conclusions I have without having to place much reliance upon the Claimant's own evidence. I have accepted his evidence of what took place at the September meeting, but the support for doing so comes mainly from elsewhere in the evidence.
 The general principles were reviewed and re-stated by the Court of Appeal in John –v- MGN Ltd  QB 586… Sir Thomas Bingham MR summarised the key principles at pages 607 – 608 in the following words:"The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must  compensate him for the damage to his reputation;  vindicate his good name; and  take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation the most important factor is [a] the gravity of the libel; the more closely it touches the plaintiff's personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. [b] The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. [c] A successful plaintiff may properly look to an award of damages to vindicate his reputation: but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that [d] compensatory damages may and should compensate for additional injury caused to the plaintiff's feelings by the defendant's conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way. Although the plaintiff has been referred to as "he" all this of course applies to women just as much as men."
 I have added the numbering in this passage, which identifies the three distinct functions performed by an award of damages for libel. I have added the lettering also to identify, for ease of reference, the factors listed by Sir Thomas Bingham. Some additional points may be made which are relevant in this case:(1) The initial measure of damages is the amount that would restore the claimant to the position he would have enjoyed had he not been defamed: Steel and Morris –v- United Kingdom (2004) 41 EHRR , .(2) The existence and scale of any harm to reputation may be established by evidence or inferred. Often, the process is one of inference, but evidence that tends to show that as a matter of fact a person was shunned, avoided, or taunted will be relevant. So may evidence that a person was treated as well or better by others after the libel than before it.(3) The impact of a libel on a person's reputation can be affected by:a) Their role in society. The libel of Esther Rantzen [Rantzen –v- Mirror Group Newspapers (1986) Ltd and Others  QB 670] was more damaging because she was a prominent child protection campaigner.b) The extent to which the publisher(s) of the defamatory imputation are authoritative and credible. The person making the allegations may be someone apparently well-placed to know the facts, or they may appear to be an unreliable source.c) The identities of the publishees. Publication of a libel to family, friends or work colleagues may be more harmful and hurtful than if it is circulated amongst strangers. On the other hand, those close to a claimant may have knowledge or viewpoints that make them less likely to believe what is alleged.d) The propensity of defamatory statements to percolate through underground channels and contaminate hidden springs, a problem made worse by the internet and social networking sites, particularly for claimants in the public eye: C –v- MGN Ltd (reported with Cairns –v- Modi at  1 WLR 1051) .(4) It is often said that damages may be aggravated if the defendant acts maliciously. The harm for which compensation would be due in that event is injury to feelings.(5) A person who has been libelled is compensated only for injury to the reputation they actually had at the time of publication. If it is shown that the person already had a bad reputation in the relevant sector of their life, that will reduce the harm, and therefore moderate any damages. But it is not permissible to seek, in mitigation of damages, to prove specific acts of misconduct by the claimant, or rumours or reports to the effect that he has done the things alleged in the libel complained of: Scott –v- Sampson (1882) QBD 491, on which I will expand a little. Attempts to achieve this may aggravate damages, in line with factor (d) in Sir Thomas Bingham's list.(6) Factors other than bad reputation that may moderate or mitigate damages, on some of which I will also elaborate below, include the following:a) "Directly relevant background context" within the meaning of Burstein –v- Times Newspapers Ltd  1 WLR 579 and subsequent authorities. This may qualify the rules at (5) above.b) Publications by others to the same effect as the libel complained of if (but only if) the claimants have sued over these in another defamation claim, or if it is necessary to consider them in order to isolate the damage caused by the publication complained of.c) An offer of amends pursuant to the Defamation Act 1996.d) A reasoned judgment, though the impact of this will vary according to the facts and nature of the case.(7) In arriving at a figure it is proper to have regard to (a) Jury awards approved by the Court of Appeal: Rantzen 694, John, 612; (b) the scale of damages awarded in personal injury actions: John, 615; (c) previous awards by a judge sitting without a jury: see John 608.(8) Any award needs to be no more than is justified by the legitimate aim of protecting reputation, necessary in a democratic society in pursuit of that aim, and proportionate to that need: Rantzen... This limit is nowadays statutory, via the Human Rights Act 1998."
i) the award of damages should be nominal: Wallis –v- Valentine  EMLR 8;
ii) the Claimant's behaviour is relevant on the issue of damages. If a claimant behaves badly, "as for instance by provoking the defendant, or defaming him in return" (Broome –v- Cassell & Co Ltd  AC 1027, 1071g) damages could be reduced;
iii) wholly disreputable conduct in the course of litigation is of the "utmost relevance" to the assessment of damages: Campbell –v- News Group Newspapers Ltd  EMLR 43;
iv) the Defendant can rely on the circumstances of the wider dispute as, he submits, "tending to show the disposition of the Claimant" as directly relevant context in which the slander came to be published: Burstein –v- Times Newspapers Ltd  1 WLR 579; and
v) the Defendant can rely in mitigation of damages on the Flat and Car Incidents relying upon Pamplin –v- Express Newspapers  1 WLR 116, 120.
i) Houston was a slander case involving an allegation, spoken in a doctors' waiting room, suggesting that the claimant had sexually harassed another doctor and members of staff. A similar statement was made the following day by the defendant. There was no apology and the defendant relied upon and persisted with a limited plea of justification. The jury awarded £150,000. On appeal, the sum was reduced to £50,000 (equivalent Mr Mitchell submits to an award today of over £110,000). Hirst LJ held that the award was "at the very top of the range for a slander of this kind". It was only appropriate because of the "very grave and exceptional aggravating factors… Had the slander remained within the confines of the waiting room… the appropriate sum would have been a very small fraction of £50,000."
ii) The Claimant in Cairns was an international cricketer alleged, in some tweets, to be involved in match-fixing. No apology was published and a full defence of justification was advanced at trial. The original tweets had been published to around 100 people (although there had been some repetition to around 1,000 people). The Judge awarded £90,000 (equivalent, it is submitted, to an award today of nearly £105,000) of which £15,000 was aggravated damages for the way the defendant had conducted the case. An appeal against the award was dismissed.
"I was very upset by the allegations made by [the Defendant]. I am a very calm person and I was worried that her allegations would damage my reputation in the community. My business obtains employees from the very area in which a lot of the congregation live and indeed one of my staff members is a member of the Church… Whilst I would hope that many people may not believe the allegations to be true, I worry that some people may believe the false allegations made by [the Defendant]. This has not only been tremendously traumatic for me personally since my intention in contacting her was always resolution and she has used this to attack me. It is also extremely detrimental to my business which is part of the local community and upon which my family and staff rely. It does not make recruitment or retention of staff any easier. And will not until these false allegations are formally retracted."
"…[I]t cannot be right in principle for a defendant to embark on a wholesale attack on the character of a claimant in a libel action heard by a judge without having to face the consequences of the actual and potential damage done to the victim both in the forensic process and as a result of further publicity. There will be occasions when the judgment will provide sufficient vindication, but whether it does so is always a fact-specific question. The judge will be well placed to assess whether the terms of the judgment do indeed provide sufficient vindication in the overall context of the case. In the present case, we think it unlikely that cricket fans will have downloaded the judgment of Bean J and read it with close attention. It is more likely, as in so many cases, that the general public (or rather, interested 'bystanders' who need to be convinced) will be concerned to discover what might be called the 'headline' result. What most people want to know, and that includes those who read the judgment closely, as Mr Caldecott submitted, is simply 'how much did he get?'"
"[A] defendant is also entitled to rely in mitigation of damages on any other evidence which is properly before the court and jury. This other evidence can include evidence which has been primarily directed to, for example, a plea of justification or fair comment."
 … [I]t needs to be borne in mind that the principle of Scott –v- Sampson has never, before or since, been absolute. There have always been important exceptions or limitations to it, and to some extent these were reflected in Lord Denning's speech in Speidel's case. The essence of the principle remains, as May LJ stressed in Burstein's case, that generally a claimant cannot be subjected to a roving inquiry into aspects of his life unconnected with the subject matter of the defamatory publication and specific evidence relating to such aspects cannot be called in mitigation of damage. That was the gist of the majority judgments in Speidel's case, in so far as they dealt with general principles.
 But once one is dealing with matters which are directly relevant to the subject matter of the libel, even though they do not establish the truth of the defamatory words, the position has long been different. Perhaps the most obvious is the admission of evidence put before the jury on a plea of justification or fair comment which ultimately fails. It has long been established that evidence of specific acts properly admitted on such a plea may none the less be taken into account by the jury when assessing damages even though the plea has failed. This goes back to the early 19th century (see Chalmers –v- Shackell (1834) 6 C & P 475) and has been accepted in other common law jurisdictions for many years, as can be seen in Sutter –v- Brown 1926 AD 172. But it is also well recognised in modern English law. Perhaps the best known example is to be found in this court's decision in Pamplin –v- Express Newspapers Ltd (Note)  1 WLR 116.
 That was a case where the defendant pleaded, inter alia, a defence of justification and called evidence in support thereof. On damages, the trial judge directed the jury that they could take into account, in mitigation of damages, evidence of specific acts of misconduct put before them by the defendant as part of the unsuccessful defence of justification. That direction was upheld on appeal. Neill LJ summarised the principle laid down in Scott –v- Sampson, but then added, at p 120:"So much for evidence which is directed solely to establishing the plaintiff's previous bad reputation. But a defendant is also entitled to rely in mitigation of damages on any other evidence which is properly before the court and jury. This other evidence can include evidence which has been primarily directed to, for example, a plea of justification or fair comment."The other two members of the court adopted a similar approach.
 That case was followed in another Court of Appeal decision, Jones –v- Pollard  EMLR 233. There again the defendants had pleaded justification and called evidence to support that plea. At the close of evidence, the bulk of the particulars of justification were struck out by the trial judge. It was none the less held by this court that the jury had been entitled to take into account, when assessing damages, the evidence put before them concerning the particulars of justification eventually struck out, so long as the evidence related to "the relevant sector of the plaintiff's life": see pp. 251, 252, per Hirst LJ.
 It is, of course, important to recognise that such evidence is restricted to that which can "properly" go before a jury in support of a plea of justification or fair comment. With that in mind, one is bound then to seek to discern the principle which lies behind these decisions that such evidence can be taken into account in mitigation of damages if the defence fails. Patently it cannot be based upon the assumption that the jury would in any event be unable in practice to ignore such evidence. It is a fundamental proposition of English law that juries, when directed to ignore evidence which they have heard, will faithfully do so, a proposition which operates as much in the criminal context as it does in the civil, and where any doubts as to its validity would have far-reaching consequences. One must therefore seek some other rationale. It seems to me that it must lie in the fact that such evidence, "properly" admitted on a plea of justification or fair comment, is likely to have some direct bearing on the subject matter of the libel, even though it falls short of establishing such a defence. It may be that this court in Burstein was seeking to formulate a principle which provided the rationale for this well-established practice."