Stocker v Stocker [2015]

In Stocker v Stocker [2015] EWHC 1634 (QB) (10 June 2015) the Claimant sued the Defendant, his former wife, in respect of statements she had made concerning him on
Facebook in December 2012, during a conversation she had with his then partner and further in an email to his then partner’s former boyfriend, in January 2013.

In respect of the Defendant’s Facebook posting, the meaning attributed in the Claimant’s claim was that he had attempted to kill the Defendant by means of strangulation, was arrested by the Police on several occasions, breached an order, inferring overall that he was “a dangerous and thoroughly disreputable man”. He further contended that the posting was seen by 21 named persons on his former partner’s facebook page and could be seen by at least 110 others via friends.

With regard to the email sent to his then partner’s former boyfriend, the Claimant said this bore six defamatory meanings which included:

  • that he had tried to kill the Defendant by strangling her,
  • that he had threatened to kill her and harm her friends and their property,
  • that he was a vile, angry misogynist who was psychologically unwell and unfit to look after children, and
  • that he subjected the Defendant to sustained mental, sexual and physical abuse throughout their marriage.

It was further alleged that the email was used by the former boyfriend against the Claimant’s then partner in custody proceedings in France which caused both he and his then partner anguish.

The Judge considered that the features of the case appeared to suggest that the action would be a suitable candidate for a trial of preliminary issues. However, no such application was made by either party and he concluded that he should not force such a trial on the parties. He stated that he may however at a later date.

Mr Justice Warby was able to make a decision on most of the issues raised and his reserved judgment was given with his reasons for the principal decisions in respect of the Claimant’s applications:

  • to strike out the defence of consent;
  • to strike out part of the plea of justification in respect of the Email; and
  • for disclosure and inspection of the Defendant’s medical records.

The Claimant’s applications were made under CPR 3.4 (2) (a) and (c) where the defence of consent and plea of justification do not provide any reasonable grounds of defence and are in breach of a rule.

At paragraph 11.10 of the Defence it stated,

  • “In all the circumstances it is to be inferred that the Claimant procured or authorised Ms Bligh to initiate or continue communication with the Defendant in order to induce the Defendant to publish the allegations complained of (which were a foreseeable and foreseen consequence of the questions asked by Ms Bligh). He thereby consented to their publication.”

Mr Justice Warby considered the pleading point and whether there had been a failure to act in accordance with a rule he identified as a Practice Direction, CPR PD 16 8.2 which provided:

  • “The claimant must specifically set out the following matters in his particulars of claim where he wishes to rely on them in support of his claim: (1) any allegation of fraud, (2) the fact of any illegality, (3) details of any misrepresentation, (4) details of all breaches of trust, (5) notice or knowledge of a fact…”

He considered the above points and could not see that any of them related to the plea of consent with the only point applicable being that the Defendant alleged notice and knowledge and it could not be said that she had failed to plead notice and knowledge.

Mr Justice Warby considered what he observed to be

  • “the core of this application to strike out: the application for, in substance, summary judgment”.

He continued that CPR 24.2

  • “provides that an applicant for summary judgment on an issue raised by way of defence must satisfy the court that the defendant has no real prospect of success on the issue, and that there is no other compelling reason why the issue should be disposed of at a trial. A “real” prospect is one that is not fanciful. Where the issue is one of fraud, or malice, or some other allegation to which the probability test applies, these requirements are modified”.

Mr Justice Warby concluded that it could not be demonstrated

  • “that the defendant has no real prospect of success on the issue”.

Mr Justice Warby referred to the disclosure application pursuant to CPR 31.10 and CPR 31.12 relating to the Defendant’s medical records between 2001 and 2011 with the Claimant citing that the medical records were “important evidence in the case” that had not been shown. The Defendant had raised three points central to her case:

  • The Claimant blamed her for suffering from post-natal depression
  • She relied upon her allegations of sexual abuse and violence
  • Her allegations of mental abuse against the Claimant resulting in her losing confidence and feeling alone.

Mr Justice Warby noted that the Claimant contended the Defendant would have consulted her Doctor on these matters. However, Mr Justice Warby concluded that the applicable order was for specific disclosure and inspection under CPR 31.2 which would require the Defendant to search her medical records to identify those that would fall under standard disclosure and then disclose and give inspection of that document.

However he did make a reservation after Defendant’s counsel submitted that the Defendant was concerned about showing her medical records to the Claimant as, in the case of Serious Organised Crime Agency v Namill 2011, the Defendant might, like SOCA in that case, not rely upon certain documentation so as to keep the records confidential.

Mr Justice Warby concluded that the order should include liberty to make an application for such an order and he emphasised that any medical records that come within disclosure and inspection must satisfy CPR 31.6 and if one of the records say includes other records that do not come within that rule, that document be redacted.

Mr Justice Warby also dealt with the costs budgets where the Claimant’s budget total sum was agreed at £260,624.30 including various experts’ fees. The Defendants budget totalled £575,441.39 with £225,536 incurred and £333,145 an estimate.

Mr Justice Warby on his assessment considered that there was very little justification in spending any more time and money on these costly and considerable proceedings, incurring further expense. He found the estimate given for disclosure excessive and reduced it by about a half. Again the provision made for witness statements he was unable to justify and reduced the claim for expert evidence.

For Trial preparation he considered a reasonable allowance to be 10 hours a day for 8 days, the principal £40,000 and £23,000 for assistant and trainee reducing the trial preparation claim to £63,000 making it £9,000 per day of the trial. He reduced the estimated future costs to around £197,000 which exceeded the Claimant’s future costs estimate and observed that it showed the greater onus on the Defendant in a case like this one.

He concluded that it would be wrong to imply that such a sum was not enough to mount a proper defence as the sum he had approved for the future against the considerable costs sustained by the Defendant meant that the total budget would still be more than £420,000.

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