|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
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 >> Hays Plc v Hartley  EWHC 1068 (QB) (17 May 2010)
Cite as:  EWHC 1068 (QB)
[New search] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Hays Plc
|- and -
Mr David Price (instructed by David Price Solicitors & Advocates) for the Defendant
Hearing dates: 5 and 6 May 2010
Crown Copyright ©
Mr Justice Tugendhat :
i) The publications by the Employees to the Defendant
ii) The publications by the Defendant to the Journalist (a re-publication)
iii) The publications by the Employees to the Journalist
iv) The publications by MGN to the world in the Sunday Mirror (also a re-publication).
"[The Employees] spoke to [the Defendant] and [the Journalist] in order to provide them (and the public) with information about the proceedings they had brought against the Claimant under the Race Relations Act 1976. [The Employees] wanted the public to be made aware of the racial discrimination and harassment that they had been subjected to by employees of the Claimant and the failure of the Claimant appropriately to address the Defendant's concerns… In all the circumstances, [the Employees] had a common and corresponding interest in the subject matter of the words complained of. Further and alternatively, [the Employees] published the words complained of, if they did, which is denied, responsibly and in the reasonable protection of their own interests and [the Journalist] had a corresponding and legitimate interest in hearing and receiving the same".
The Agreed Public Statement
a. KS, RB and CD [ie the Employees] confirm they have withdrawn their claims at the employment tribunal without any money being paid to them by Hays Plc.
b. Hays Plc confirms it has withdrawn and discontinued its defamation claim at the High Court without any money being paid to it by KS, RB or CD.
c. KS accepts that there is no evidence to suggest that the spoken words or physical actions in a meeting dated July 2007 were motivated by racial discrimination.
d. KS, CD and RB accept that there is no evidence to suggest that either the words spoken by or the physical actions displayed by Hays Plc staff members and contractors at a meal dated 26th June 2008 were motivated by racial discrimination.
e. The parties acknowledge that whilst a viral email relating to President Obama (which entered Hays Plc email system from external sources on 5th November 2008) was racially offensive, the matter was fully investigated and properly dealt with by Hays Plc.
f. KS, CD and RB accept that there is no evidence to suggest that Hays Plc is an institutionally racist company.
g. The parties wish to express regret that their employment dispute entered the public domain via an article on the Sunday Mirror published on 11 January 2009."
THE EFFECT OF THE SETTLEMENT AGREEMENT
"… the Claimant chose not to [sue MGN] because there was a potential Reynolds defence available to the Sunday Mirror as well as a potential defence of neutral reportage. The Defendant has always known this … since it was set out in the witness statement of Ms Afia served on the Defendant on 22 July 2009…"
"Further the Claimant has made no complaint about the Article and has indicated through the witness statement of … [Ms] Afia that 'the Article, whilst defamatory of the Claimant, did at least include in part the Claimant's response to the allegations as a result of the Sunday Mirror having contacted it prior to publication'".
THE PRINCIPLE OF ABUSE OF PROCESS
"40 We accept that in the rare case where a claimant brings an action for defamation in circumstances where his reputation has suffered no or minimal actual damage, this may constitute an interference with freedom of expression that is not necessary for the protection of the claimant's reputation. In such circumstances the appropriate remedy for the defendant may well be to challenge the claimant's resort to English jurisdiction or to seek to strike out the action as an abuse of process. We are shortly to consider such an application.....
54 … An abuse of process is of concern not merely to the parties but to the court. It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice. …
55 There have been two recent developments which have rendered the court more ready to entertain a submission that pursuit of a libel action is an abuse of process. The first is the introduction of the new Civil Procedure Rules. Pursuit of the overriding objective requires an approach by the court to litigation that is both more flexible and more proactive. The second is the coming into effect of the Human Rights Act 1998. Section 6 requires the court, as a public authority, to administer the law in a manner which is compatible with Convention rights, in so far as it is possible to do so. Keeping a proper balance between the article 10 right of freedom of expression and the protection of individual reputation must, so it seems to us, require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant's reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged.
56 We do not believe that Duke of Brunswick v Harmer 14 QB 185 could today have survived an application to strike out for abuse of process. The Duke himself procured the republication to his agent of an article published many years before for the sole purpose of bringing legal proceedings that would not be met by a plea of limitation. If his agent read the article he is unlikely to have thought the Duke much, if any, the worse for it and, to the extent that he did, the Duke brought this on his own head. He acquired a technical cause of action but we would today condemn the entire exercise as an abuse of process....
69 If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and the vindication will be minimal. The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick.
70 … It would be an abuse of process to continue to commit the resources of the English court, including substantial judge and possibly jury time, to an action where so little is now seen to be at stake. Normally where a small claim is brought, it will be dealt with by a proportionate small claims procedure. Such a course is not available in an action for defamation where, although the claim is small, the issues are complex and subject to special procedure under the CPR".
"… 'court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist; and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court and therefore disqualified from invoking the powers of the court by proceedings he has abused' [In re Majory  Ch. 600, 623]….
… what is meant by a "collateral advantage"? The phrase manifestly cannot embrace every advantage sought or obtained by a litigant which it is beyond the court's power to grant him. Actions are settled quite properly every day on terms which a court could not itself impose upon an unwilling defendant. An apology in libel, an agreement to adhere to a contract of which the court could not order specific performance, an agreement after obstruction of an existing right of way to grant an alternative right of way over the defendant's land - these are a few obvious examples of such proper settlements. In my judgment, one can certainly go so far as to say that when a litigant sues to redress a grievance no object which he may seek to obtain can be condemned as a collateral advantage if it is reasonably related to the provision of some form of redress for that grievance. On the other hand, if it can be shown that a litigant is pursuing an ulterior purpose unrelated to the subject matter of the litigation and that, but for his ulterior purpose, he would not have commenced proceedings at all, that is an abuse of process. These two cases are plain; but there is, I think, a difficult area in between. What if a litigant with a genuine cause of action, which he would wish to pursue in any event, can be shown also to have an ulterior purpose in view as a desired by product of the litigation? Can he on that ground be debarred from proceeding? I very much doubt it."
"Neither wealth nor power entitles a man to censor the press. If, however, his purpose be to vindicate and protect his reputation, the use of all remedies afforded him by the law for that purpose cannot be an abuse of the court's process. It is never easy to determine a man's purpose. Ordinarily this task of judgment is tackled only after trial. In the instant case, we are being asked to pass judgment on the respondent's purpose upon a preliminary application, the effect of which, if successful, will prevent him bringing to trial actions in each of which (it was admitted in argument) he is pleading a cause of action recognised by the law. It is right, therefore, that to obtain before trial the summary arrest of a plaintiff's proceedings as an abuse of the process of the court, the task of satisfying the court that a stay should be imposed is, and should be seen to be, a heavy one: see Shackleton v Swift  2 K.B. 304, 311-312.
Unless the court is satisfied, a stay is a denial of justice by the court - a situation totally intolerable."
"If the true issue be, as upon the authorities it must be, what was (and is) the purpose of Sir James Goldsmith in pursuing the rights given him by law against the secondary distributors, Sir James Goldsmith is not putting the press in peril. If his purpose be illegitimate, his actions will be stayed. If it is not, he is exercising rights given him by law. If, therefore, there be in these proceedings a threat to press freedom, the threat comes, not from Sir James Goldsmith, but from the law itself, in that it provides a cause of action against distributors as well as publishers. That is a matter for Parliament, not the courts. So long as the cause of action exists, it may be invoked unless it can be shown that it is being used to secure a collateral advantage".
THE CLAIMANT'S PURPOSE
"[the Claimant's] purpose must be objectively ascertained, that is by reference to what a reasonable man placed in his situation would have in mind when initiating or pursuing the actions".
REAL AND SUBSTANTIAL TORT
DAMAGES FOR REPUBLICATION BY MGN
CLAIMANT'S APPLICATION TO STRIKE OUT QUALIFIED PRIVILEGE