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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Sarah Pedder And Alan Dummer v News Group Newspapers Ltd [2003] EWHC 2442 (QB) (07 October 2003) URL: https://www.bailii.org/ew/cases/EWHC/QB/2003/2442.html Cite as: [2003] EWHC 2442 (QB) |
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QUEENS BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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Sarah PEDDER and Alan DUMMER |
Claimants |
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- and - |
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News Group Newspapers Ltd |
Defendants |
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Hearing dates: 11-12 September 2003
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Judgment
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Crown Copyright ©
Mr Justice Gray:
The issue on the application
Application for permission to amend the Defence
The issues in the action against Associated Newspapers
"…that the Claimants during an important army exercise in Oman indulged in an illicit and improper sexual relationship during which they had sexual intercourse.
…the Claimants lied as to when the sexual relationship had
started."
The Mail article was alleged to bear the meanings that:
"…the Claimants during an important army exercise in Oman indulged in an illicit and improper sexual relationship during which they had sexual intercourse.
…the Claimants had failed to carry out their duties during the exercise in Oman as they were distracted by their sexual relationship.
…the Claimants' behaviour was particularly reprehensible because the Claimants' unit could have been sent into action in Afghanistan.
…the Claimants had lied to their unit authorities in claiming that there was no sexual relationship between them while they were on exercise in Oman."
"…that the Claimants had, alternatively there were reasonable grounds for believing that the Claimants had:
(a) broken the Army's code of conduct while serving together on a training exercise in Oman by having an affair, and the Army was therefore conducting an investigation into the Claimants' conduct;
(b) claimed that their relationship had started only after they had returned from Oman, deliberately failing to provide a full account of what had happened".
Similar meanings were sought to be justified by the Mail.
"40. The Claimants say that whilst there were on operational duty in Oman, until they flew back on 28th November, no physical or sexual contact had taken place between them, although an emotional bond was at least beginning to develop. They say that the first time that physical contact took place between them was by that canal in Aldershot on the morning of 30th November, after they returned to the United Kingdom. According to the Claimants' case, sexual intercourse did not take place until the weekend in Derbyshire in mid-December, a month or so after they had got back to the United Kingdom. That is the Claimants' case in essence.
41. The Defendants' case [on justification], again in a nutshell, is that not only was there physical and sexual contact whilst the two of them were still in Oman, they say, as I understand it, that full sexual intercourse took place on those three occasions: in the Land Rover, at the barbeque party, and at the Hilton Hotel in room 407 on the night of the 27th/28th November.
42. It is for you to decide, members of the jury, which version of events is right, or whether the truth lies somewhere in between and, if so, where. You have to arrive at those decisions in order to decide whether, in whatever you find to be their meanings, the articles were substantially justified".
"It is for you to resolve the dispute as to what the articles conveyed by reference to the 'ordinary reasonable reader' test, about which I directed you earlier. Your decision on the issue of meaning will determine what it is that the Defendants have to prove in order to establish their defence of justification. I should remind you that even if you conclude that the articles bear the higher meaning for which the Claimants content, namely the meaning that they engaged in sexual intercourse, the Defendants still say they can justify that higher meaning".
The issues in the Sun action
First article "Desert Rats – married sarge and newlywed Captain Sarah face the sack for affair in Oman"
Second article "Arm in Army… Desert lovers' Paris trip"
Fourth article "Rat's it, I'm off – Army cheat Sarah killed our marriage with letter"
"1) the Claimants during an important army exercise in Oman indulged in an illicit and improper sexual relationship during which they had sexual intercourse;
2) the Claimants' behaviour was particularly reprehensible because the exercise was to be followed by an active service deployment in Afghanistan of British services personnel from the exercise;
3) the Claimants had behaved in a flamboyantly promiscuous
manner;
4) the Claimants had made improper use of military transport in furtherance of their illicit and improper sexual relationship during the exercise in Oman;
5) the Claimants had indulged in an illicit and improper sexual
relationship while on duty during the exercise in Oman;
6) the Claimants had lied to their unit authorities in claiming that there was no sexual relationship between them while they were on exercise in Oman;
7) the Claimants' colleagues did not believe them in their claim that there had been no sexual relationship between them while they were on exercise in Oman".
"Sgt Rat will desert you – Ex warns Army cheat's new love"
The ex-wife of Sergeant Dummer was said to have claimed that her former husband had been guilty of persistent and unrestrained infidelity during their marriage. The first defamatory meaning relied on by the second Claimant is the same as is attributed to the other articles, namely that "the Claimants during an important army exercise in Oman indulged in an illicit and improper sexual relationship during which they had sexual intercourse" but the second, third and fourth defamatory meanings asserted in relation to the third article are these:
"2) The Second Claimant would have sexual relationships with other women during his relationship with the First Claimant.
3) The Second Claimant was dishonest and promiscuous.
4) The Second Claimant had exploited women under his command or direction."
"…the Claimants formed a close emotional, sexual and adulterous relationship while deployed in Oman, despite each being married and despite being respectively an officer and a senior NCO in the same Army unit".
There was some discussion whether the inclusion of the word "adulterous" in the pleaded meaning necessarily connotes an intention on the part of the Defendants to allege that the Claimants had sexual intercourse together in Oman. I would think that it does. What is clear from the supporting particulars of justification is that the Defendants do allege that there was a sexual relationship between the Claimants whilst they were in Oman. The particulars do not in terms allege sexual intercourse. Nor, as the pleading stands at present, does News Group Newspapers rely on the events at the Salalah Hilton which formed a significant part of the case of justification advanced by Associated Newspapers. But I was told by Mr Richard Parkes QC, acting for the Defendants, that his clients intend to do so once they have been able to obtain from Associated Newspapers the documents on which that part of their case was based.
"(a) the Claimants formed a close sexual and adulterous relationship while deployed in Oman, despite each being married and despite being respectively an officer and a senior NCO stationed together in the Army; and that
(b) both Claimants thereby betrayed their spouses, and the Second Claimant cheated his wife Claire and behaved like a rat towards her".
Procedural history
The authorities on abuse of the process
"The rule of law depends upon the existence and availability of courts and tribunals to which citizens may resort for the determination of differences between them which they cannot otherwise resolve. Litigants are not without scrupulous examination of all the circumstances to be denied the right to bring a genuine subject of litigation before the court…"
I bear those words in mind on the present application.
"Thus, abuse of process may arise where there has been no earlier decision capable of amounting to res judicata (either or both because the parties or the issues are different) for example, where liability between new parties and/or determination of new issues should have been resolved in the earlier proceedings".
"In my judgment mere 're'-litigation, in circumstances not giving rise to cause of action or issue estoppel, does not necessarily give rise to abuse of process. Equally, the maintenance of a second claim which would have been part of an earlier one, or which conflicts with an earlier one, should not, per se, be regarded as an abuse of process. Rules of such rigidity would be to deny its very concept and purpose".
any tangible or legitimate advantage such as to outweigh the disadvantages to the parties in terms of expense and the wider public in terms of court resources. But Eady J went on to consider the question of abuse. His conclusion on that aspect was that, since the subject matter of the claim against the BBC could have been resolved in the context of the Guardian case and since Mr Schellenberg in settling the Guardian action had effectively abandoned the subject matter of his libel action against the BBC, it would be an abuse to allow a new proceeding to be started in respect of it.
"Of course, whether or not there is a real prospect that a jury might reach a different decision, with regard to the proper interpretation of two articles and the issue whether on a correct interpretation The Sunday Mail article could be justified, is not determined by examining either the allegations or the defence in either action. What is required is a realistic assessment, bearing in mind the substance of each article. The Judge concluded that the jury in the present action was overwhelmingly likely, judging by the decision of the jury in the previous trial, to find that in its natural and ordinary meaning The Mail on Sunday article was justified. Any other outcome, he concluded would be a verdict inconsistent with that of the first jury".
Mance LJ continued at paragraph 27:
"The jury, having reached that conclusion in respect of the Mirror article, there is nothing which could, in my judgment, lead sensibly to any different conclusion in respect of the Mail on Sunday article, which was the origin of the Mirror article in all probability albeit, as I have said, in somewhat fuller form. In those circumstances, in my judgment, the Judge was correct to conclude that there was no real prospect of success in relation to the Mail on Sunday article and that it would be an abuse of process to allow further litigation on this subject by permitting the matter to go to a fresh jury trial in respect of the Mail on Sunday article".
"The Claimant… has failed to demonstrate to me that, if this matter were to proceed to trial against Associated Newspapers, the essential facts and issues before the jury going to liability, arising from the matter contained in the Mail on Sunday article of 16 February 1997, would be other than those which have already been the subject of a jury's verdict in the action brought against Mirror Group Newspapers in respect of the similar matter published in the Mirror on the Monday following and almost certainly culled and appropriately re-jigged from the Sunday Mail article".
The funding of the claimants' case
The third Sun article
The additional element
i) the ability of the Claimants to pursue this claim at no risk to themselves in costs;
ii) the exposure of the Defendants, win or lose, to a considerable costs burden; and
iii) the consequent chilling effect on the Defendants' freedom of expression.
These features give rise in my opinion to a real unfairness to the Defendants if this action were to proceed. The necessary additional element is present. In the light of the history, I cannot accept that it is appropriate or consistent with the overriding objective to permit this action to proceed to trial.