Stocker v Stocker 
In Stocker v Stocker  EWHC 147 (QB) (29 January 2016) the matter before Mr Justice Nicol, concerned an application made by the Defendant. The Defendant sought to strike out the claim, concerning email publication, on the grounds that the Claimant did not have a reasonable cause of action. Mr Justice Warby previously reserved judgment in respect of the Claimant’s applications in this matter which had concerned him suing the Defendant, his former wife, in respect of statements she had made about 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.
With regard to the email sent to his then partner’s former boyfriend, the Claimant said this bore six defamatory meanings, as follows:
“(1) that he had tried to kill the Defendant by strangling her, (2) that he had threatened to kill her and harm her friends and their property, (3) that he was a vile, angry misogynist who was psychologically unwell and unfit to look after children, and (4) 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.
In this hearing, Mr Justice Nicol considered that the Defendant’s application would only succeed if it was apparent that the defence of absolute privilege could succeed. He considered that in his judgment, it would not do so.
He agreed with Claimant’s counsel that to decide if the publication is absolute privilege would be determined at the time when publication took place. He continued that
“In libel it is publication which is the tort. If when publication took place, the occasion was not privileged, I cannot see how it could retrospectively become non-tortious because of later events”.
He further agreed with Claimant’s counsel
“that it is a necessary condition of absolute privilege for statements made in advance of judicial proceedings by prospective witnesses that the statement is made for the purpose of such proceedings”.
Mr Justice Nicol examined the matters pleaded by the Defendant to support her claim for absolute privilege which he noted were all denied or not admitted. As he observed, ignoring the fact that this is an application to strike out rather than a summary judgment application, on the issue of absolute privilege he did not consider it clear enough to decide in favour of the Defendant before a trial which is where this matter should be examined, rather than in an application to strike out.
He referred to Defendant’s counsels reliance upon paragraph 9.5 of the Particulars of Claim where the Claimant had pleaded
‘As the Defendant manifestly intended or at least foresaw her communication with Mr Roche was deployed by him to prejudicial effect in the French custody proceedings.’
Mr Justice Nicol observed
“This is a pleading in support of a claim for aggravated damages. In that context, it may not matter whether the Defendant intended (on the one hand) or foresaw (on the other) the consequence of her email”.
Mr Justice Nicol noted that Defendant’s counsel had contended that either was enough to prove absolute privilege. He considered this far from obvious as, in determining absolute privilege in a pre-trial statement there must be a distinction “between an intention that the information it contained should be used in legal proceedings and foresight that it may be”. He noted that Claimant’s counsel had inferred there could be an amendment made to that section of the Particulars of Claim which Mr Justice Nicol observed did not affect his view of the matter.
He had an additional concern following an approach made directly by Mr Roche and, not through his lawyer, which Claimant’s counsel accepted was not a complete bar to absolute privilege. Mr Justice Nicol agreed
“It would be unjust if a lawyer could reassure a potential witness that his proof of evidence would be protected by absolute privilege but a litigant in person could not”.
He observed that when the gathering of evidence is not dealt with by a lawyer who has the knowledge of what is relevant and applicable then more consideration should be applied to what the boundaries are for privilege to apply. He referred to Lord Hutton in Darker v Chief Constable of West Midlands
“The predominant requirement of public policy is that those who suffer a wrong should have a right to a remedy, and the case for granting an immunity which restricts that right must be clearly made out”.
Mr Justice Nicol noted that Defendant’s counsel had relied upon the principles in Jameel, the email publication did not show that it was a real and substantial tort and therefore the claim should be struck out as an abuse of the courts process. He submitted that the publication had only been to Mr Roche and that the Claimant had no interest in how he viewed his reputation. Further it was clear from the judgment in the French court that the email played little part in the custody proceedings.
As Mr Justice Nicol noted, the application did not apply to the publications on Facebook and in this respect the Claimant could carry on with his claim.
He did not consider the email publication should be struck out on Jameel principles. He observed that in the Defendant’s Re-Amended Defence she alleged the whole claim was an abuse of process as it was instituted on an improper or collateral purpose. Mr Justice Nicol noted that for this to be decided the Court would have to investigate the nature of the claim regarding the publication of the email.
He noted that Defendant’s counsel accepted the email publications went further than the facebook publications and that should the Claimant be successful he might well expect an injunction to stop the “repetition of the same or similar words as those in relation to which he has succeeded”.
Defendant’s counsel contended that in the absence of the words being repeated then the Claimant could not give a reason for an injunction to be given. Mr Justice Nicol considered this to be an argument for trial. The Defendant had not proposed giving an undertaking not to repeat the email publication and he did not consider the matter was clear enough for him to say that the Claimant would fail to obtain an injunction.
He noted that Claimant’s counsel contended that relief should not be granted to the Defendant as correspondence had indicated that they were considering a Jameel style application, being part of the relief sought by her in an application notice of the 1st July 2015, which was not pursued.
As it was, Mr Justice Nicol considered that argument may well have been relevant to costs if that was the sole matter but not in respect of the matter being struck out. He continued that if it had been clear that the claim regarding the email publication had been an abuse of process and likely to have been struck out then there would have been no reason for the matter to go to trial
“whether or not the Defendant should have acted in a more timely fashion. As it is, I have found against the Defendant on other grounds”.