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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Weston v Bates & Anor [2015] EWHC 3070 (QB) (11 November 2015) URL: https://www.bailii.org/ew/cases/EWHC/QB/2015/3070.html Cite as: [2015] EWHC 3070 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
On appeal from Master McCloud
Between :
Robert Lawrence 
Weston
- and -
Kenneth William Bates
and
Leeds United Football ClubSecond
____________________
| Robert Lawrence Weston |
Claimant/ Respondant |
|
| - and - |
||
| Kenneth William Bates |
First Defendant/ Appellant |
|
| and |
||
| Leeds United Football ClubSecond |
Defendant/Responde |
____________________
Mr Justin Rushbrooke QC and Mr Jacob Dean (instructed by Messrs Carter-Ruck) for the First Defendant
Mr Daniel Lewis (instructed by Chadwick Lawrence Solicitors LLB) for the Second Defendant
Hearing dates: 8th October and 11th November
____________________
Crown Copyright ©
Insert Judge title and name here :
Introduction
Weston".
Factual introduction
Weston, through his Jersey company The Phone-in-Trading-Post Ltd trading as Admatch ("Admatch"), had provided credit card processing services to the Second Defendant's predecessor in title, Leeds United Association Football Club Ltd ("LUAFC") for a period in 2004. At that time Mr Weston's friend and business partner, Mr Levi, was a director of the Club. In January 2005 a consortium led by Mr Bates took control of LUAFC, and Mr Bates became Chairman.
Weston in person. Admatch's defence was that it was entitled to set-off the sum claimed against sums which another company linked to Mr Weston was said to have advanced. The card processing agreement had been the subject of a number drafts, and this defence was based on a draft ("The Fourth Draft Agreement") which Mr Weston alleged had been entered into by agreement between himself for Admatch, and Mr Levi for the Second Defendant.
Weston nor Mr Bates reside, or has resided, in this jurisdiction at any time material to this action. Mr Weston resides in Jersey and Mr Bates in Monaco.
Weston complains of the following:
"On a related note, Levi's business partner, Robert
Weston complains of (amongst other words) the following:
"One would have thought that Mr
Weston was personally liable for the costs of the First Jersey action; that there are grounds to believe that he acted in breach of trust by dissipating monies owed by Admatch to the Second Defendant; and he had invented or exploited illness in order to delay progress in the First Jersey action. The court has not been asked to determine the meanings of the words complained of, but it is common ground between the parties that the meanings are not within what is commonly called Chase Level 1 (actual guilt), but fall into one or other of the lower two levels, namely there being reasons to believe that he acted in this way.
Weston and Mr Levi personally in Jersey, seeking payment of the sum said to be due from Admatch, by reason of Mr Weston's alleged breach of trust in relation to the monies owed under by Admatch ("the Second Jersey Action").
Weston's application, on the basis that England was a more appropriate forum for the claim than Jersey.
Weston issued an application to amend his Claim Form in these libel proceedings, seeking to introduce the September 2010 publication. However, that application was not heard until 9 March 2015. The interval between those dates includes a two year period, March 2012 to April 2014, relied on by Mr Bates as a delay constituting a breach of the CPR by Mr Weston. When that application was ultimately heard, it was refused, and there was no appeal against the Master's decision to refuse the application. The action is therefore proceeding on the 2009 publications alone.
Weston (and Mr Levi) in England, seeking payment of the sum said to be due from Admatch, by reason of Mr Weston's alleged breach of trust ("the Chancery Division proceedings").
Weston's Reply, be extended to 14 days after the determination of Mr Weston's outstanding application to amend his Claim Form. But the order contained no time limit, or other directions, as to when the application to amend was to be heard.
Weston, on conditions as to costs. These conditions were never met. Mr Bates chased for a response to that letter on 17 August 2012, and again on 3 September 2012, none was forthcoming.
Weston wrote to the Defendants suggesting that the claim had been "effectively stayed" by Master McCloud on 6 February 2012. He referred to Mr Bates's letter of 10 July 2012 and asked for consent to the amendment to the Claim Form. Mr Bates replied on 17 April 2014 disputing that the clam had been stayed, inviting Mr Weston to discontinue given his delay, and indicating an intention to apply to strike out the claim should it be pursued. Mr Weston sought a date for the hearing of his application to amend, and this marked the end of the two year period of delay relied on by Mr Bates.
Weston) of about one year. By then it was five years and seven months after the first publication complained of. Mr Bates had issued his application to strike the claim out as an abuse and for failure to comply with the rules on 10 February 2015.
Weston would not seek trial by jury, and it seems unlikely that the case would be tried by a jury. There has been no cost budgeting.
The outcome of the proceedings in Jersey
"47. I accept that [Admatch] has a history of being late in complying with orders of this Court, although the plaintiffs are not without fault in this area either. Furthermore, [Admatch] has twice failed to comply with unless orders [for discovery]. However, its failures have in the end been remedied and there are only two respects in which the defendant is in default at present. They both arise out of the order of this Court dated 17th December 2009. In the first place [Admatch] has failed to file its re-amended answer to the re-amended particulars of claim. That should have been filed by 1st February 2010 but was deliberately not filed, as was made clear by Mrs
49. … I propose to order that, unless [Admatch] files its re-amended answer to the re-amended particulars of claim (as described in paragraph 2 of the Act of 17th December 2009) and the revised affidavit of discovery (as described in paragraph 5 of the said Act) on or before 23rd February 2011, (being 5 weeks from the date that this judgment is formally delivered), the answer of [Admatch] shall be struck out without further order and the plaintiffs shall be entitled to judgment…."
Weston against an order and judgment of the Royal Court both dated 5 September 2014. That judgment dealt with issues as to costs arising out of the litigation between LUAFC and Admatch. Mr Weston was ordered to pay two thirds of the costs. The Court of Appeal said (Weston v Leeds United Association Football Club Ltd [2015] JCA 159A):
"11. The learned Bailiff found that Mr
23. … We note that … the court had observed that Mr
52. … The conduct of this litigation has effectively shielded Mr
Weston could ever achieve in this action, if he were to win it at a trial.
Weston for security for costs. The order was made but was not satisfied.
Mr Bates 's Application to strike out
Weston and the Defendants and/or; any remaining value to Mr Weston in the claim is disproportionate to the expense of trying it, such that it is no longer worth the candle; and/or there has been inordinate and inexcusable delay by Mr Weston rendering a fair trial no longer possible.
Weston, for which the only appropriate sanction is the striking out of the claim. It is said that he is in breach of the requirement placed on the parties by CPR 1.3 to help the court to further the Overriding Objective, including as it does, saving expense, ensuring that cases are dealt with expeditiously, and that an appropriate share of the court's resources are allotted, taking into account the need to allot resources to other cases.
Decision of the Master
"12. ... I am satisfied that the reason for not progressing this case was the parallel deceit claim first in Jersey but then latterly and primarily in the Chancery Division. What is clear is that, at least as regards the Jersey claim and logically as an extension the Chancery claim, it was being said in Mr. Yell's witness statement [he was acting for the Defendants] and the pleaded case of the Second Defendant that the proper forum for resolution of the trust dispute was the Jersey court. It later became the Chancery Division case, of course, but the same reasoning must, surely, apply. We had the Second Defendant very clearly arguing that a stay of these proceedings would be appropriate if they were proceeded with, because that venue and not this was the appropriate forum.
13. In that context, it seems to me perfectly reasonable, whether or not that was in fact a shared understanding between the First Defendant and the Claimant, for the Claimant to have taken the view that, if he had pressed on with this whilst the trust issues were being resolved in the Chancery case, he would be at risk of some sanction, stay or striking out given the Second Defendant's position. Even leaving that aside, it is my view that that was indeed the right forum for dealing with that issue and the fact that that did not lead to a judicial determination is not in fact down to Mr.
14. I turn to deal with the periods of delay in this case. There were two periods of delay that were referred to. The first period was the simple fact that this claim was issued hard up on the limitation period and then served at the end of the point where one had to serve. I see that, I understand it and it is relevant and I must take it into account. It would certainly have put this Claimant at risk had the service point, for example, gone against him. However, in terms of culpability, it is of less relevance than the period focused on more, which is the second period of what is referred to as delay, which is the delay after the claim had been issued and served.
15. As regards that second period, there was a drawn out fight over the validity of service and then an appeal from my decision, which [ie the appeal] was not upheld. As of March, once the service point was out of the way, if this was standing alone as a case,that would be the point at which one would say "Right now, we have to get on with this case." However, that is where the Chancery proceedings intervened. The Chancery proceedings were then afoot. As I have already said, it was reasonable for the Claimant and indeed reasonable for the Second Defendant to have expressed the view that the Chancery Division was the forum to deal with those, by then, pleaded issues, i.e., the trust issues. I accept, as I have said, that the degree of overlap between the issues in the Chancery Division and the pleaded meanings in this case that I was taken to justifies that...
18. I turn to the question of whether or not there was an understanding between the parties. I have already said that it was reasonable, even leaving aside any understanding, for Mr.
19. I return to the Jameel point and whether this is a case where one would get a real degree of vindication if this matter was litigated. The content of the publications is in really quite strong terms. This is a case, as Mr. Myerson said, where it will be necessary for a court to reach a conclusion as to truth or falsehood and, even at this distance in time, where publications have been circulated, it does not seem to me to be established that one would expect the sting of that to tail away to such an extent that such strong allegations have fallen down below the Jameel threshold. I do not have material before me to tell me that Leeds' fans have forgotten all about it and the mere fact that this would be adjudicated upon and that the public's attention would be drawn to a justification of Mr.
20. In terms of the submission in relation to collateral purpose, I do not accept the point. The decision in Goldsmith v Sperrings [1977] 1 WLR 478 is important here. Goldsmith stresses a "but for" test as to collateral purpose: but for the collateral purpose, would these proceedings have been brought? The question was raised hypothetically when talking about the situation where a litigant with a genuine cause of action which he wishes to pursue in any event also has an ulterior purpose, whether a claimant could, on that ground, be debarred from proceeding and the judge very much doubted it.
21. I agree with that view. Even if some element of this were to be about teaching Mr. Batess a lesson (and I do not necessarily accept that it is) and if these proceedings would have been issued in any event for vindication, then it simply does not satisfy the "but for" test in Goldsmith. There are probably virtually no defamation proceedings where there is not some element of collateral purpose. Very many of these proceedings involve people falling out with one another and wanting to get back at each other and, if the mere presence of some collateral purpose was sufficient to defeat a claim, then they would almost always be defeated. So I do not accept that that is the case. For all those reasons, it seems to me that the question of abuse falls away.
22. There is then the question of cogency of evidence. Can there be a fair trial due to delay? It was said, on the question of malice, which is likely to need to be pleaded in response to a plea of qualified privilege that the cogency of the evidence may have declined due to the delay.
23. I do not accept that the delay here has been such as to prevent a fair trial. The likelihood of ultimately the question of malice being pleaded would have been apparent to both sides from the contents of the Particulars of Claim in the first place. If a Defendant is going to be likely to plead qualified privilege and he knows that at the start and can foresee that malice is likely to be raised, that is not something that is being sprung on him. He has had plenty of time, indeed both sides have had plenty of time, to give instructions to their lawyers and to make sure their cases are firmly recorded. I do not, therefore, accept that such delay as there has been, albeit as I have found justified delay, could in any event lead to such lack of clarity as to render this matter an abuse due to delay,
24. As regards the plea of justification that is likely to be made, I note and accept the point that the Chancery case was litigating over much of those issues - not over the heading of justification, but the heading of, in effect, a breach of trust - and that the First Defendant, right up until December 2012, was running the litigation. He headed up the club and it cannot, in all seriousness, given that the club was the Claimant, be said that he lacks the evidential ability to pursue the case which the club in any event had sought to pursue some time ago and elected, for whatever reason, not to pursue. I do not, therefore, accept the evidential cogency point either".
Applicable law
"The court may strike out a statement of case if it appears to the court … (b) that the statement of case is an abuse of the court's process or (c) that there has been a failure to comply with a rule, practice direction or court order".
"1.1… (2)… (c) dealing with the case in ways which are proportionate (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; … (d) ensuring that it is dealt with expeditiously and fairly; (e) allotting to it an appropriate share of the court's resources whilst taking into account the need to allot resources to other cases and (f) enforcing compliance with rules, practice directions and orders.
1.2 The Court must seek to give effect to the overriding objective when it (a) exercises any power given to it by the rules…
1.3 The parties are required to help the court to further the overriding objective".
"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 the judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice".
"The purpose of a libel action is to enable the Plaintiff to clear his name of the libel, to vindicate his character. In an action for defamation in which the Plaintiff wishes to achieve this end, he will also wish the action to be heard as soon as possible. If the Plaintiff delays in prosecuting such an action, and gives no valid explanation for his delay, the court is entitled to infer that his motive for the delay is not a proper one. Whether or not the Judge's suggested explanation for the delay is correct, we are entitled to infer that [the Plaintiff's] motive in delaying is not a proper use of a libel action and this constitutes an abuse of process ".
Grounds of Appeal
Weston was in breach of the CPR r1.3 in failing to progress the action and that the action was an abuse of the process for a number of reasons, which I paraphrase as follows. The remaining value to Mr Weston of the claim was disproportionate to the expense of trying it, such that the game was not worth the candle. A fair trial was no longer possible. The action was being pursued as part of a long running quarrel with Mr Bates, to "teach him a lesson", and/or for the benefit of lawyers acting on a no win no fee basis, and not for vindication of Mr Weston's reputation.
What is at stake in this action
Weston lives abroad and adduces no evidence of any continuing connection with Leeds or football, and the publications were ephemeral. They were in the form of written documents only, which had been distributed to Members of the club and all those attending the matches for which the programmes had been prepared, and more than six years ago. There was no dispute that that Mr Weston had three convictions in Jersey for perverting the course of justice and one for larceny, and that, as recited above, the claim against Admatch for £190,400 had succeeded, and Mr Weston had been ordered to pay costs on the basis that he had conducted Admatch's defence, not for Admatch's benefit, but for his own. He was responsible for the failure to comply with the unless order for disclosure in relation to the agreement on which he had relied as giving rise to the set-off which was his defence. Finally, it is not suggested that this is a case in which any injunctive relief could be granted.
Weston had been entitled to take the money was still a live one. The fact that judgment had been entered in default against Admatch does not affect Mr Weston's reputation.
Weston are, if viewed in isolation, sufficiently serious, and sufficiently widely published, to justify the pursuit of a libel action, albeit that they are below Chase Level 1. Thus the issue in the libel proceedings would not be whether Mr Weston had acted dishonestly or in breach of trust, but whether there were the relevant grounds (in accordance with the actual meaning which the court found the words to bear) for believing or suspecting that he had acted dishonestly or in breach of trust.
Weston alleged that his reputation had been damaged. But there is no basis in the authorities for a requirement that there be such evidence on this point, whether at trial, or at the stage of an application to strike out. On the contrary, the courts have repeatedly placed emphasis upon the need for libel claimants to pursue their claims expeditiously. This is in part because publications in hard copy in newspapers are ephemeral. The leaflets of the kind here in question were no less ephemeral than a newspaper. While a libel claimant may continue to suffer distress from such a publication (as Mr Collins states is the case of Mr Weston), it does not follow that he continues to suffer any harm to his reputation which is serious enough to tip the scales in his favour when a court is considering whether the action should be struck out.
Weston of the litigation brought against Admatch.
Weston could achieve by way of vindication, if he were to obtain judgment in his favour at a trial which would take place, if at all, only some seven or more years after the publications complained of. The costs already incurred in all the proceedings relating to the disputed sum of £190,400 are already very large indeed (many times the sum of £190,400), and there can be no doubt that an investigation of the dispute, and Mr Weston's conduct both in relation to the disposal of that sum, and in relation to the litigation about that, would be very substantial indeed, and very time consuming.
The Delay in the proceedings
Weston advanced for the delay in leaving till the last possible time the issue and service of the proceedings. He submits that there was no good reason that was, or could be, advanced for this delay. However, she did state that it counted against him, at least in so far as she said that "it would certainly have put [Mr Weston] at risk had the service point, for example, gone against him". Mr Rushbrooke submits that she erred in not taking it into account in deciding whether the claim was brought, or was being pursued for some improper purpose, whether or not it was also being brought for the purposes of obtaining vindication.
Weston as an excuse for this delay, but this was demonstrated to be untrue by Mr Yell in his witness statement of June 2011 at paras 12-15. This explanation has not been repeated.
Weston to bring the matter before the court for the court to decide whether or not, and if so on what terms, the libel proceedings should be stayed. He submitted that she further erred in failing to have regard to the case management alternatives that the court would have ordered, had Mr Weston asked for such directions in seeking a stay of the libel action pending the resolution of the Chancery Division proceedings. On 28 February 2014 the court gave directions in the Chancery Division proceedings, towards a trial to take place in July 2014. It would have been possible to give parallel directions in the libel claim. For example, disclosure of documents on the issue of whether the disputed money had been held on trust might have been ordered to stand in both actions, and the issues in the two actions which overlapped would have been defined. Further Mr Rushbrooke relies on Mr Weston's conduct in causing Admatch not to comply with the Jersey court's order the breach of which led to judgment being entered against it in default.
Weston was entitled to, and it was reasonable for him to, apply for security for costs in the Chancery Division proceedings.
Weston was abusing the process of the court, whether or not he might also have had it in mind to seek vindication of his reputation. His subsequent conduct of the libel action and of the proceedings in Jersey might, if it had been different, have led the court to draw a different inference. But the conduct by Mr Weston of Admatch's defence of the proceedings in Jersey is consistent with the inference that I find must be drawn.
Other grounds of appeal
Weston on the issue of whether it had been agreed between them, acting for their respective principals, that Admatch would have the right of set off upon which Mr Weston relied. Mr Rushbrooke submits that no fair trial would now be possible, because Mr Levi's evidence could be adduced as hearsay, but could not be the subject of cross-examination.
Conclusion