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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 >> Price v Watkins  EWHC 375 (QB) (22 February 2019)
Cite as:  EWHC 375 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| HAYDN PRICE
|- and -
|GWENDOLINE MARY WATKINS
(ACTING BY HER Litigation friend Dylan Watkins)
Victoria Simon-Shore instructed under the Public Access Scheme
Hearing date: 25 January 2018
Crown Copyright ©
The background to this action
The current proceedings
"The claim is for;
Defamation and breach of wider obligations of confidence and trust and to act in good faith, keep information confidential, duty of care and other written and implied obligations to the Claimant. The Defendant has breached the Claimant's privacy, acted in a grossly malicious and negligent manner and attempts to bring the Claimant into disrepute and ridicule. The Defendant has persistently failed to rectify these things and continues to maintain that her account of events is true. The Defendant has therefore acted with continued malice and negligence. The circumstances under which the Defendant first obtained information and interacted with the Claimant were plainly circumstances which imported an obligation confidence and trust and were supported by written contracts for which consideration was paid to and kept by the Defendant."
"IT APPEARS TO THE COURT THAT NEITHER PARTY IS REPRESENTED
THE PARTIES ARE REMINDED OF THE FOLLOWING MATTERS
1. This claim appears to a defamation claim.
2. The time limit applicable to actions for libel, slander or malicious falsehood is one year from the date on which the cause of action accrued, see the Limitation Act1980 section 4A
3. Part 53 of the Civil Procedure Rules applies to Defamation claims.
4. Practice Direction 53 sets out specific requirements for pleading defamation claims, see in particular paragraphs; 2.1, 2.2, 2.3, and 2.10
5. The Defendant's application is made under Civil Procedure Rule 3.4.(2) (a) and/or Rule 3.4 (2)(b).
6. In the circumstances the court will not be conducting a trial or reviewing large quantities of evidence. The court will consider whether the Claimant has brought his claim in time and if so whether he has set out in accordance with the Civil Procedure Rules.
7. The Court is also being asked to consider whether the statement made on or about the 27 September 2017 was made on an occasion of absolute privilege namely that the statement was made in the course of judicial or quasi-judicial proceedings.
THE ABOVE FACTORS ARE DRAWN TO THE PARTIES ATTENTION SO AS TO ENSURE THE PROPER USE OF COURT TIME AND RESOURCES AND TO ENSURE THAT ONLY MATERIAL WHICH IS DIRECTLY RELEVANT TO THE ISSUES BEING CONSIDERED BY THE COURT IS FILED BY THE PARTIES"
The Defendant's submissions
i) They fail to satisfy the requirements of para. 2.1 PD53 in that the Particulars of Claim do not provide the Defendant with information necessary to inform her of the nature of the case she has to meet. Most fundamentally, the claim does not contain proper particulars of publication;
ii) The publication the subject of the claim is not identified in the claim form, contrary to para. 2.2 PD53;
iii) Contrary to para. 2.3 PD53, the Defendant does not identify the defamatory meaning which he alleges the words complained of conveyed. The Claimant asks the court to consider jointly the purported meanings of the 2014 Letter and the 2012 Statement read together see paragraph 17 of the Particulars of Claim; and
iv) The Defendant has not given full details of the facts and matters on which he relies in support of his claim for damages, nor has he pleaded the information specified in rule 16.4(1)(c), namely his grounds for claiming aggravated and exemplary damages.
"… Publication must have occurred because the document was written in April 2012 and has now appeared 5 years later in Holland through a third party not connected to the Defendant. In between 2012 and 2017, the  statement obviously passed from the Defendant to other people before reaching Holland…"
She submits that this pleading does not disclose a permissible case on publication. It does not allow the Defendant to know the case she must meet.
"Unless there are good grounds for variance, the particulars of claim should allege, in respect of each publication relied on as a cause of action, that the words were published by the defendant on a specific occasion to a named person or person other than the claimant"
And at paragraph 26.7;
""…In very exceptional cases, particulars of claim may be permitted to stand notwithstanding that they fail adequately to identify the circumstances in which or the person or persons to whom the defamatory words are alleged to have been published. This may arise, for example, where the particulars of publication are essentially within the knowledge of the defendant and not of the claimant…. The court will not, however, entertain an action of a speculative nature and such a course will only be permitted where the claimant can show by uncontradicted evidence that publication by the defendant has taken place"
She submitted that the present case does not fall within that 'very exceptional category'. Despite the Claimant's optimistic assertion, nothing is 'obvious' about the circumstances of publication over the years 2012 – 2017.
i) the limitation period for publication to Ms Morgan expired on 30 April 2013, and
ii) any hypothetical publication in the period between publication to Ms Morgan and publication in the Dutch proceedings is almost certainly statute-barred.
i) It is for the claimant to make out a case for the disapplication of the normal limitation rule.
ii) The court is required to have regard to all of the circumstances and in particular the length of and reasons for the delay; the date when the facts relevant to the cause of action became known to the claimant & the extent to which he acted promptly and reasonably; and the extent to which, having regard to the delay, relevant evidence is likely to be unavailable/ less cogent than it would have been if the claim had been brought within time.
iii) Allowing an action to proceed will always be prejudicial to a defendant but, conversely, the expiry of the limitation period will always be in some degree prejudicial to the claimant. Accordingly, in exercising its discretion, the court must consider the degrees of prejudice to the claimant and the defendant, all of the other circumstances to which attention is directed by the section and any other relevant circumstances of the particular case in issue.
iv) It was plainly the intention of Parliament that a claimant should assert and pursue his need for vindication speedily.
v) There is high authority for the proposition that the delay to be considered in applying s32A is the delay subsequent to the expiry of the limitation period.
vi) A Court is entitled to treat some periods of delay as more relevant than others and, depending upon the circumstance of the case, to have particular regard to the period since the Claimant became aware of the facts and acted promptly and reasonably thereafter.
i) The Claimant attempts to litigate two defamation claims against the Defendant over substantially the same allegations. At the strike-out hearing of the defamation claim issued against the Defendant in the Dublin proceedings, the Claimant presented his case as necessary to defend his reputation over the allegation that he had taken advantage of the Defendant in respect of the sale of the copyrights, see transcript page 5 lines 15-32. The claim was struck out at that hearing for lack of proof of publication, but in addition to that ruling on technical grounds, Groarke J went on to make certain factual observations about the Claimant's conduct towards the Defendant's complaint (within the 2014 Letter) about how 'the deal was done': see transcript from line 5, page 51 to the end of the judgment overleaf. As that decision is subject to an appeal brought by the Claimant, it is clear that the Claimant does seek to have litigated in both the Irish and English courts the propriety of his conduct and the validity of the contracts and there is a possibility (albeit remote) that the Claimant will obtain judgment in the Dublin Court.
ii) The Claimant can obtain no tangible benefit in pursuing this claim to trial. At the very heart of the Claimant's complaint is his denial that he obtained the copyright title to the Photographs improperly. He contends that the existence of contracts apparently signed by the Defendant and certain emails which on their face demonstrate a cordial exchange between the parties are enough to prove that the Defendant was malicious when she wrote the 2012 Statement. He points to inaccuracies within the 2012 Statement as illustration of the deceit of the Defendant. However, this is misconceived in law as inaccuracies in and of themselves are not probative of malice; the Claimant would be required to prove at the very least that the Defendant had been indifferent to the truth when she wrote the words complained of: see Tse Wai Chun v Cheung  HKCFA 86  EMLR 31 at . Any claim that the Claimant could pursue against the Defendant would be defended on the basis that the words were protected by either absolute or qualified privilege or were an expression of the Defendant's opinion, honestly held at the material time. Inaccuracies within the 2012 Statement would not defeat any of those defences. It is therefore highly unlikely that the Claimant will ever achieve a judgment that would vindicate his reputation.
iii) Moreover, it seems likely that a considerable motivating factor for the Claimant in pursuing this litigation is that he hopes to achieve either a retraction of the 2012 Statement or a judgment in his favour which would facilitate his pursuit of other parties alleged to be infringing his copyright in the Photographs. This appears unnecessary: the Claimant does not need to be able to pursue his claim in the present case in order to challenge a case which relies on the 2012 Statement. The Claimant could adduce the same material he looks to rely upon in the present case in his attempt to prove the propriety of the transaction in each and every case where the validity of the assignment of copyright is put into dispute.
iv) The case that any hypothetical publication of the 2012 Statement has caused the Claimant or is likely to cause the Claimant serious harm to his reputation, pursuant to s1(1) Defamation Act 2013 is bound to fail. The Claimant has not been able to identify any harm which he has suffered in the intervening years and it would seem highly artificial for him to claim that he has so suffered if he were to discover that the words complained of were published to 1, 3, 5 or even 10 additional publishees in 2013 or the following 4 years. The scope of publication of a handwritten statement pertaining to events that occurred some 7 years ago is likely to be extremely limited. This is not a case of publication to the world at large or in the media.
The length of, and the reasons for, the delay on the part of the claimant.
i) The length of delay is impossible to calculate since any notionally time-barred publications upon which the Claimant seeks to rely are, at present, hypothetical. The earliest the 2012 Statement might have been published is the date on which it was written, 29 April 2012, and the latest notionally a couple of days before the 2012 Statement was filed in the Dutch proceedings – 28 September 2017. The Claimant claims that he was unaware of any publication until the 2012 Statement was filed in the Dutch proceedings.
The date on which the claimant became aware of any facts relevant to the cause of action
ii) On the Claimant's own case, this was 28 September 2017.
The extent to which he acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action
iii) The Defendant contends that the Claimant did not act promptly and reasonably once he became aware of the 2012 statement at the pre-action stage is set out at paras 38 – 44 of Gareth Watkins' witness statement. The Claimant has failed to explain why he waited 364 days, one day short of the limitation period for libel, before issuing the claim when the vindication of his reputation should have seen him act expeditiously upon learning of the allegedly defamatory material.
The extent to which, having regard to the delay, relevant evidence is likely to be unavailable or to be less cogent than if the action had been brought within the usual limitation period
iv) The Claimant seeks to prove that the Defendant published the 2012 Statement maliciously. The only available route for the Claimant to succeed in doing so would be for him to establish that at the time the Defendant wrote the words complained of (and at the time of any subsequent publication of which she was authorized) she lacked an honest belief in the imputations conveyed or that she was reckless as to the truth or falsity of the allegations contained therein. The written agreements for assignment of the copyrights upon which the Claimant places great reliance in this regard fall extremely far short of fatally undermining a belief that he took advantage of the Defendant or behaved towards the Defendant in an improper manner. If she did not communicate her concerns at the time of the sales to the Claimant's company, it does not follow that she did not honestly hold that belief in 2012, based on her recollection.
v) The contemporaneous email exchange between the parties suffers from very similar problems. The documentary evidence is not capable alone of proving malice on the part of the Defendant. In order to prove that she was malicious in drafting the words complained of, the Claimant would be required to cross-examine her. The deterioration in the mental faculty and physical capability of the Defendant in the intervening years (since the expiry of limitation in 2013) has been described in some detail by her son at paragraphs 9 and 10 of his witness statement. He plainly states his belief, based on his day-to-day care of her, that his mother would never be in a position to give evidence during any trial that were to take place. The Court has before it the evidence of the Defendant's General Practitioner, which is generally supportive of that conclusion. Dr Watkins has also addressed the further decline the Defendant has suffered in the period between the date on which the Claimant became aware of the 2012 Statement and the date of issue, at paragraph 50 of his witness statement.
vi) Furthermore, in the intervening period, the original email correspondence from the period covering 2011 and 2012 has been deleted from the Defendant's computer: see paragraph 14 of Dr Watkins' witness statement. While the Defendant's sons managed to extract the Defendant's emails as a collective file of emails exported from the mailbox from her then computer in 2015, the availability and the cogency of such evidence may very well have been affected. The earliest date of these emails was 19 December 2011, so nothing remained from the period of the contract signings, making it more difficult for the Defendant's Litigation Friend (and potentially the Court) to determine what really took place during that period.
i) There is no freestanding cause of action recognizable in law in respect of a defendant's failure to act in good faith.
ii) It is clear from the pleaded case that no contractual obligations of confidentiality were owed to the Claimant as all material contracts were made between the Defendant and Pablo Star Ltd.
iii) The Claimant has failed to plead or identify within his evidence any confidential information which he alleges was abused.
iv) The Claimant has failed to plead and particularise a properly arguable case that the Defendant owed the Claimant the requisite tortious duty of care.
The Claimant's submissions
"I am only too glad to write to you about that bad man Haydn Price, whose actions have blackened my otherwise serene old age."
"He made enquiries and found that I was 89, deaf and partially sighted, and lived alone. He wished to see the collection and plotted with someone I had thought a friend to visit my house."
"He stayed for 7 hours; I could not get him to leave."
"stood by wishing I had not done so, feeling very miserable and apprehensive because I sensed that he was a violent and unstable man and I was alone in the house with him."
"He got such a bad name that he eventually left the UK"
"11. The claimants' case is based upon the drawing of inference. They will rely on evidence of private communications between him and those now known to be responsible for the website. They rely on the elaborate steps that were taken to conceal the identities of those involved, including the applicant. The claimants also claim to have expert handwriting evidence which would help to show the applicant's involvement. However, Mr Price asserts, and I have no reason to think that he is wrong, that that handwriting evidence relates only to an article which is not one of the six articles complained of. Even though I accept what he says is true, it does not seem to me that the handwriting evidence will necessarily be irrelevant to the issue of involvement. The claimants also submit that there were other tell-tale signs from which an inference of the applicant's involvement could be drawn. "
12. I would accept that none of these items of evidence taken singly, assuming they can be proved, could of itself be said to demonstrate involvement in the management or control of this website. However, the judge held that, taken together it could not be said that the claim did not have reasonable prospects of success. It seems to me that in that he was plainly right, and despite all that Mr Price has said.
13. The claimants allege that it can be inferred that the applicant was involved with the other three men and the company, who have now admitted their involvement in the publications and in what the claimants would call a "campaign of defamation" against them. I accept that Mr Price does not for one moment accept that there was any such campaign. But that is how the claimants put it. The claimants argue that this campaign was, in effect, a joint enterprise and that that can be inferred from the available material. The judge expressed the view that, although its is unusual to base a defamation claim on joint enterprise, there is no rule of law which says that responsibility for publication could not be proved by demonstrating joint enterprise."
"29. The mere fact that a claim is small should not automatically result in a court refusing to hear it at all. If I am entitled to recover a debt of £50 I should, in principle, have access to justice to enable me to recover it if my debtor does not pay. It would be an affront to justice if my claim were simply struck out. The real question, to my mind, is whether in any particular case there is a proportionate procedure by which the merits of a claim can be investigated. In my judgment it is only if there is no proportionate procedure by which a claim can be adjudicated that it would be right to strike it out as an abuse of process.… When in future a judge is confronted by an application to strike out a claim on the ground that the game is not worth the candle he or she should consider carefully whether there is a means by which the claim can be adjudicated without disproportionate expenditure."
"… I will keep any/all confidential information obtained through or relating to this work (and or the company/its personnel) confidential at all times and will not make any public disclosures or reference to the foresaid of any kind …"
Clause 5 of the 18 July contract contained the following wording;
"I agree that I have acted in good faith in dealing with the company... I agree that I will sign any further reasonable paperwork that may be required to give effect to this assignment and provide adequate assistance to the same end..."
Discussion and decision
"The court may strike out a statement of case if it appears to the court—
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings;"
i) He has not identified the publication which is the subject of the claim in the claim form. Para 2.2 PD 53.
ii) He has not identified the defamatory meaning which he alleges the words complained conveyed. Para 2.3 PD 53
iii) He has not given full details of the facts and matters on which he relies in support of his claim for damages, not has he pleaded any grounds for claiming aggravated and exemplary damages. Para 2.10 PD 53 and r 16.4(1)(c).
i) The Claimant has not set out a viable case of publication to a third party.
ii) This is not a defamation claim which would fall within the "very exceptional" category of claims where the pleading of an inferred publication should be permitted.
iii) Any such publication the claimant has proved or is likely to prove would be covered by a form of absolute privilege.
iv) The defamation claim was commenced outside the one-year limitation period and there is no arguable case to extend the limitation period.
v) All remaining claims are incoherent and fail to disclose any recognisable claim against the Defendant.
vi) None of the above could be cured by permitting the Claimant to amend his claim.
"Now I am not going to go so far as to say that Mr Price took advantage of Mrs Watkins. I do not think I can come to that conclusion. But he certainly should have been an awful lot more careful in the way in which he was dealing with an elderly person with, apparently, such human infirmities. There are ways in which business should be conducted. And I put that as a lack of wisdom on his part because I don't want to use pejorative terms which might be unfair. I am not going any further. I don't have to. I'm dismissing the case."
[Parts in square brackets are added by transcriber]
STATEMENT BY GWENDOLINE MARY WATKINS
(born 31.12.1923) of 460 MUMBLES ROAD, SWANSEA SA3 4BX
I was 87 and 8 months when I was introduced to Hayden [sic] Price on August 23rd 2011 by the daughter of an old friend now dead. She told me that he was helping her with a podcast for the centenary of her father Alfred Janes the artist, who had been a close friend of my late husband Vernon Watkins, and whom I had known for until his death. Haydn Price was in charge of recording equipment as I talked about the Dylan Thomas circle for two hours. I have heard that he still possesses that recording, of which I have no copy, although I assume the material contained in it to be my copyright. M/s Janes said that H Price was helping her a great deal with her podcast, and was a serious collector of anything to do with Dylan Thomas. If I had not had this introduction, I should never have given him permission to visit me at my house.
He arrived at this address very early the next day, when I had only just finished lunch. He stayed for an immensely long time, talking mainly about his somewhat chaotic life in various countries, and ultimately began talking rather wildly, so I thought, about his relationship with Jesus Christ (evidently quite an intimate one!) I have visited patients in psychiatric hospitals many times, and I began to think he was mentally unstable. All at once he became quite serious, said that he collected anything to do with Dylan Thomas, and that M/s Janes had told him that I had a remarkable collection of photographs of Thomas and his friends and asked to see them. I hoped that he would leave when he had seen them as it was now about 5 p.m. He admired them, and began to talk quite seriously about copyright of photographs. He said he had a Law degree, and that he had studied that aspect in particular. Being an author I of course knew about literary copyright, but had assumed (if I thought about it at all) that the copyright of a photograph belonged to the owner. I now know that this is not so. H.P. selected about a dozen photographs of which he said I had the copyright and offered me £1000 for them. I explained that I had sold the originals to a friend, and that what he was looking at were only copies. He said that did not matter, that I still owned the copyright, if I had not assigned it to the buyer. I said that I had never done so, because I assumed that he had bought the copyright with the photographs, and that therefore he had every right to use or publish them as he pleased. In fact, most of those photographs had already been published, mostly without permission or attribution in literally hundreds of newspapers, magazines, programmes and other ephemera, and I told H.P. that I had folders of those reprints. He said that did not matter, he would like to buy the copyright. I was very dubious about this, and did not really have confidence in him. I was also very exhausted by this time, as it was nearly 7 o'clock. I had not eaten or drunk for 7 hours, as I did not want to offer him food or drink in case he should stay longer. He eventually left, after telling me that I should ask any member of my family about selling the copyright. I asked one of my sons (who naturally knew no more of photographic copyright than I did), and who said that as the photographs had been reproduced so often, that they were not likely to be much used in the future, and that it seemed to be all right to sell the copyrights.
My financial circumstances at that time were rather sparse. When I moved into this address, I became a tenant-in-common with a former colleague at the Universities of Washington and Reading, who had recently retired and wished to live by the sea. This was very advantageous for me, as it meant that many expenses were shared, such as Council Tax, electricity and gas bills, Water Rates, house insurance, cleaning, repairs, etc. But this lady had died some years before, which meant that my expenses were greater. I live on three small pensions, one a Civil List Pension, awarded for my husband's services to literature. I was particularly in need, at the time of HP's visit, of some money to help a granddaughter who had been seriously ill for years, and was finding it difficult to support herself. If it had not been for that circumstance, I should never have considered having any dealings with HP, as I thought him a very strange and possibly unreliable person. The fact that he had a Law Degree (if this was true) gave me some confidence that he could not behave illegally.
He came back the next day, at about 4 o'clock, with a contract.
I should explain that at that time (and of course still, plus the deterioration of two years) I was partially sighted. The left eye has only distorted and peripheral vision, the right eye needs glasses and has a latent cataract. I was and am very deaf, my left ear has no hearing at all, my right has none without a hearing aid at full volume. I also had and have osteo-arthritis in both knees. I can walk about the house with a stick or crutch, but need a wheeled support to go outside the house. I was also rather nervous to see H.P. again. He was not at all talkative, rather silent, cleared one of my desks and set up a scanner. He proceeded to scan the photographs he had chosen; it is possible that he copied some others, as my collection was on a large table nearby.
One of the photographs which he is now claiming that I sold the copyright can not be so. I would not have signed away the copyright of the photograph of Dylan and Caitlin with Wyn Lewis at Worm's Head, because I have always known that that photograph was a gift from Mrs J.C. Wyn Lewis, who owned the copyright. In my book Portrait of A Friend (Gomer Press, Llandyssul, 1983), I explicitly state in the Acknowledgements, "I am greatly indebted to J.C. Wyn Lewis for allowing me to reproduce the photograph on page 87. This is the photograph in the contract which I have allegedly signed (though not across the photograph). Either another photograph was there, or if not, my tired eye and mind betrayed me. I could not actually read the contract for my eye was watering, and H.P. read (so he said) and explained it to me. He also said that I and my family were still welcome to use the photographs whenever we liked, and that he would make an announcement that he now owned the copyright of 12 photographs, especially to the person he [sic] now owned the original photographs. (This he did not do.) He then gave me a cheque for £1000 pounds, which appears on my Bank Statement, as does the Standing Order for £100 which I was then enabled to make monthly to my granddaughter when she needed it. In spite of the financial benefit, I now profoundly wish that I had had no dealings with this man.
He later e-mailed me several times and asked me to read and correct a long commentary which he intended visitors to the D. Thomas house at 5 Cwmdonkin Drive to listen to as they passed through each room. I did not intend to do anything more for him, but it was so illiterate and so poorly researched and therefore incorrect, that I was impelled to correct it and send it back to him. Soon after he asked me to try to conciliate a man who was refusing to meet him or to be involved with him in any way. I emailed a definite refusal and intimated that I did not wish to see him again.
I deeply, deeply regret having had anything to do with Haydn Price. He has been harassing me recently with threats of legal action and has taken away all the peace of mind of my old age.
G M Watkins
29 April 2012