Adelson v Associated Newspapers Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 09 July 2007 |
| Neutral Citation | [2007] EWCA Civ 701 |
| Docket Number | Case No: A2/2007/0903/QBENI |
| Court | Court of Appeal (Civil Division) |
| Date | 09 July 2007 |
[2007] EWCA Civ 701
the Lord Chief Justice of England and Wales
the Right Honourable Lord Justice Jacob and
the Right Honourable Lord Justice Moses
Case No: A2/2007/0903/QBENI
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
The Honourable Mr Justice Tugendhat
TLQJ/06/0677
Mr J. Price QC, Mr J. Rushbrooke and Mr G. Busuttil (instructed by Schillings) for the Appellants
Mr M. Warby QC and Mr W. McCormick (instructed by Reynolds Porter Chamberlain LLP) for the Respondent
Hearing dates : Monday 11th June 2007
Judgement
Lord Phillips CJ:
This is the judgment of the Court
Introduction
This is an appeal from an order made by Tugendhat J on 1 May 2007 refusing an application by the Claimants to join two further corporate claimants to this libel action. The application was made pursuant to provisions of CPR 19.5(2) and (3), dealing not with adding parties, but with substituting parties. The relevant provisions read as follows:
“(2) The court may…substitute a party only if—
(a) the relevant limitation period was current when the proceedings were started; and
(b) the…substitution is necessary.
(3) The…substitution of a party is necessary only if the court is satisfied that –
(a) the new party is to be substituted for a party who was named in the claim form in mistake for the new party…”
The action was commenced within the 12 month limitation period that applies to defamation proceedings, but this period had elapsed before the application was made to join the additional claimants. We will explain at the outset how it is that the claimants rely on provisions dealing with the substitution of parties when what they are seeking is the addition of two parties.
The First Claimant, Mr Adelson, is the Chairman and Chief Executive of the Second Claimant. The Second Claimant is the parent of a number of subsidiaries and, is essentially a holding company. The application seeks to join two of those subsidiaries to this action: Las Vegas Sands LLC (formerly Las Vegas Sands Inc) and Las Vegas Sands (UK) Ltd. For convenience we shall follow the example of the trial judge and refer to these as the Third and Fourth Claimants. The original Particulars of Claim alleged that:
“The Second Claimant predominantly trades and operates in the gambling industry, developing and running casino based gambling, entertainment and leisure resorts and their associated hotel, restaurant and retail facilities.”
It is common ground that this is not accurate. The true position has now been pleaded by amending the Particulars of Claim with the permission of the judge, to add “(through its operating subsidiaries)” after the words “Second Claimant”. It is the First and Second Claimants' case that the original pleading mistakenly claimed in the name of the Second Claimant relief in respect of a libel not merely of the First and Second Claimants, but of the Third and Fourth Claimants as trading arms of the Second Claimant. The pleading had, in effect, mistakenly rolled up into a single cause of action asserted in the name of the Second Claimant causes of action enjoyed by the Second, Third and Fourth Claimants. The Claimants submit that the application is, in effect, to substitute for the Second Claimant the Third and Fourth Claimants in relation to parts, but not the whole, of the claim originally pleaded in the name of the Second Claimant.
The judge rejected the application for two reasons. First, he held that the Claimants' application involved not merely the addition of new Claimants but the addition of new claims. In the law of libel, each Claimant had its own separate claim based on an allegation of damage to its individual reputation. The proposed amendments went beyond substituting Claimants in respect of part of an existing claim advanced by the Second Claimant. They asserted separate claims and causes of action, each one based on its own facts. Such amendments could only be made pursuant to an application under CPR 17.4. No such application had been made. Secondly, the judge held that no mistake had been established that fell within CPR 19.5(3).
Mr Price QC for the Claimants submitted to us that the judge adopted an unduly restrictive interpretation of CPR 19.5(3). He further sought to rely, should this be necessary, on CPR 17.4. Mr Warby QC, for the Defendant, made no objection to his seeking to do so.
When granting permission to appeal, Sir Henry Brooke remarked that CPR 19.5(3) is 'notoriously causing problems'. Indeed it is. There are conflicting decisions of this Court in relation to its effect. We propose by this judgment to clarify this difficult area of procedural law.
The background to the claim
The claim is made in respect of an Article published by the Defendant in the Daily Mail on 28 May 2005. This concerned the relationship between Mr Malcolm Glazer, a US businessman who had recently taken over Manchester United Football Club, and the First Claimant. It described the First Claimant as 'the ruthless casino baron who rules Las Vegas' and as having been described as 'perhaps the most vilified man in Nevada'. The article contained a critical account of the First Claimant's career and family life from the age of 12 up to his the present age, said to be 72. None of the companies controlled by the First Claimant was referred to by name, but there was specific reference to 'his Las Vegas Sands parent company'. The article alleged that the First Claimant was planning to build a vast gambling complex on land owned by Manchester United Football Club and there was reference to 'United's proposed joint venture with Las Vegas Sands'. The theme of the Article was that such a venture would be adverse to the interests of football and, in particular, of Manchester United.
A letter before action was sent on 2 June 2005 by Salans, solicitors who stated that they represented 'Las Vegas Sands Inc. and Mr Sheldon Adelson, the Chairman of the company'. Initially the complaint was directed to allegations of secrecy and collusion between the First Claimant and Mr Glazer in relation to dealings affecting Manchester United. In a subsequent letter dated 7 June 2005 headed 'Our Clients: Mr Sheldon Adelson and Las Vegas Sands Inc.' Salans stated that 'Both Mr Adelson personally and Las Vegas Sands Corporation have achieved very considerable success in the gaming entertainment and leisure business'. The letter went on to refer to establishments in Las Vegas and Macau and to the pursuit of gaming activities in association with Manchester United at Old Trafford. Salans threatened to 'issue libel proceedings… for Mr Adelson and Las Vegas Sands Corporation'.
When Salans wrote on 20 September 2005 the heading of their letter had changed to 'Our Clients: Mr Sheldon Adelson and Las Vegas Sands Corp.' This letter stated:
“Having carefully considered the position, our clients have decided that they cannot allow this gross smear on Mr Adelson and, by implication, on the company of which he is chairman, to go unchallenged. Accordingly you should understand that their complaint now extends to the other seriously libellous attacks made in this article. They complain of the entirety of the article, including headlines, photographs and captions, as the words and context conveying these libels.”
The claim
The Particulars of Claim issued by Salans on 19 October 2005 commenced as follows:
“The First Claimant is the Chairman and Chief Executive Officer of the Second Claimant, which is a public company incorporated in Nevada, USA. The Second Claimant predominantly trades and operates in the gambling industry, developing and running-casino-based gambling, entertainment and leisure resorts and their associated hotel, restaurant and retail facilities.”
The Defence was served on 12 January 2006. It did not admit paragraph 1 of the Particulars of Claim and set out its own case as to the position of the Second Claimant:
“It is admitted and averred that the Second Claimant owns, controls and directs the operation of a number of companies which conduct business of the kind described in that sentence. However, according to its own Annual Report filed with the United States Securities and Exchange Commission for the fiscal year ended December 21, 2004, the Second Claimant is, 'a parent company with limited business operations. Our main asset is the stock of our subsidiaries.'”
The paragraph went on to express confusion over the corporate structure of the group, but suggested that it was the subsidiary company Las Vegas Sands LLC (formerly Las Vegas Sands Inc) which operated the well known Venetian casino resort in Las Vegas, 'the best known operation with which the Claimants' names are associated'. So far as identification and reference were concerned, paragraph 4 of the Defence admitted only that the specific references to the 'Las Vegas Sands parent company' and to 'United's proposed joint venture with Las Vegas Sands' were capable of being understood to refer to the Second Claimant. There was a substantial plea of justification.
A Reply was served on 15 May 2006, shortly before the expiry of the 12 month limitation period. It joined issue with the Defence but did not plead specifically to the description of the Second Claimant advanced by the Defendant. It then responded in detail to the particulars of justification. In the course of so doing it made the following statements in relation to the role of various companies associated with Mr Adelson: The...
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