Weston v Bates & Anor [2015]

In Weston v Bates & Anor [2015] EWHC 3070 (QB) (11 November 2015) before Sir Michael Tugendhat, the First Defendant appealed against an Order dated 9th March 2015 by Master McCloud where she had refused, under CPR 3.4(2)(b), to strike out the Claim. The three publications complained of were dated August, September and October 2009, all appeared in hard copy and not on the internet. The First Defendant, as Chairman, headed a business consortium running Leeds United Football Club (“the Second Defendant”) which interest he sold in 2012. The Claimant, via his Jersey Company, had provided credit card processing services to the Second Defendant during 2004 when his friend and business partner, Mr Levi, was a director.

The three publications consisted of a letter addressed to the Second Defendant’s season ticket holders and two articles within the match programmes. Each were written by the First Defendant. The defamatory meanings were summarised into three categories by Sir Michael Tugendhat: the Claimant “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”.

On 30th July 2010 proceedings were issued on the last day of the limitation period for the first publication and proceedings were served on the Second Defendant the 20th November 2010, the last day of the Claim form. The Particulars of Claim contained another publication after the issue of the Claim form in September 2010 and no application was made to amend the Claim Form. The Claimant made an application on the 8th September 2011 for that publication to be included, which was heard 9th March 2015 and refused, with no appeal made.

In December 2010 proceedings were issued by the Second Defendant against the Claimant and Mr Levi personally in Jersey, referred to as “the Second Jersey Action”.

On the 25th March 2014 the Claimant wrote to the Defendants inferring that the Claim had been stayed by Master McCloud on the 6th February 2012. Sir Michael Tugendhat observed “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”.

He noted CPR Part 3.4(2) “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”. He observed there had been no dispute between the parties on the applicable law. He continued “The decision of the Master which is challenged is not an exercise of discretion. There can only be one correct answer to the question of whether a claim is an abuse. The appellate court will be reluctant to interfere with the decision of a Judge below which involved the balancing of a number of factors, but it will interfere where the judge has taken into account immaterial factors, omitted to take account of material factors, erred in principle or come to a conclusion that was impermissible or not open to him (Aldi Stores Ltd v WSP Group pIc [2008] 1 WLR [16]) or come to a decision that was plainly wrong (Stuart v Goldberg [2008]”

He noted the court can strike out a libel matter if there has been a delay by the Claimant, which may include a breach of rules with grounds to strike out under CPR 3.4(2) (c). Delay could make it impossible for the Claimant to obtain worthwhile vindication and the case may be struck out. If proceedings appear they are being brought for collateral reasons, it would be an abuse of the court’s process.
He examined the grounds for appeal and considered “that the Master erred in not finding that Mr 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”.

He invited the parties to address him. Claimant’s counsel had submitted that the Master’s approach to issues relating to reputation were “cogent and founded on the evidence”. Sir Michael Tugendhat could not fault this but considered that “she erred in reaching her decision on the basis of there being no material before her to tell her that Leeds fans have forgotten all about it. In considering this she was quite rightly turning from the gravity of the allegation to the circumstances of the publishees in whose estimation Mr Weston alleged that his reputation had been damaged”. He noted the Master had erred in not taking into consideration, if the Claimant was successful, how damages by way of vindication would be assessed.

He considered that if the Claimant obtained judgment, there would be very little he could achieve by way of vindication. He observed that the costs of all proceedings in respect of the disputed sum were many times that amount, any investigation of the dispute and the Claimant’s conduct, would be substantial and time consuming.

With regard to the delays, the First Defendant’s Counsel submitted that the Master had erred as she had not examined the reasons given by the Claimant for the delay, where he considered there could be no good reasons put forward. Further, she erred in not taking into account whether the claim was being carried on for some improper reason or for the purposes of obtaining vindication.

Claimant’s counsel submitted that the Master’s view was consistent with Khalili v Bannett but accepted an application for directions should have been made to the court rather than delaying the action.

Sir Michael Tugendhat considered, with some hesitation, the Master was entitled to take the view expressed in her judgment. There was delay in waiting for the result of the Chancery proceedings. He noted the rules are stricter since Khalili v Bennett.

He considered the Master had erred “in failing to give to the delay in the first period of delay the weight that it deserved. In this case (as in the case of Grovit) that delay, and the absence of any explanation, gives rise to a strong inference, in my judgment, that Mr 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”.

He concluded that it followed the appeal must succeed.

He referred to other grounds of appeal and to Mr Levi, the Claimant’s witness, who had since died. Counsel for the First Defendant submitted there could not now be a fair trial as his evidence would be hearsay and could not be cross-examined. Sir Michael Tugendhat agreed and noted the court could deal with any unfairness arising. He allowed the appeal and the libel proceedings to be struck out.

Suite 205/206 Cotton Exchange
Bixteth Street, Liverpool L3 9LQ

T — 0151 541 2040
T — 0203 846 2862