Ayodele Adele Vaughan v London Borough of Lewisham and Others

Approved Judgment

Hearing dates: 28 and 29 November 2013

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

The applications before the court

Over 28 and 29 November 2013, I heard applications by the Defendants to strike out this action, which is primarily a claim for libel, as an abuse of process and/or for summary judgment on the issues of qualified privilege and malice. I also heard an application by the Claimant, acting in person, to strike out the defences in their entirety. An application by the Defendants for an extended civil restraint order was to have been advanced in the event of their strike-out succeeding but, in the course of the hearing on 28 November, Mr Bennett indicated that it was not going to be pursued, for the time being at least, in the light of assurances given by the Claimant during her submissions, to the effect that she had no intention of launching any further claims arising out of the same subject-matter; that is to say, the circumstances leading up to dismissal from her employment by the First Defendant ("the London Borough") on 13 April 2012. (She had been suspended originally on 10 August 2011.) Furthermore, at the conclusion of the hearing, she also made clear, although she alleges that some or all members of the Defendants' legal team should be regarded as being in contempt of court, by reason of their conduct of the case in certain respects, that she has no intention of launching contempt proceedings herself. She was simply registering her complaints in this regard, with a view to the court drawing the matter to the attention of the Attorney-General if it was thought appropriate.

The background to the dispute

Before turning to the substantive issues before me, it is necessary to set out a brief history of the background which has led to the present applications. It can conveniently be taken from the evidence of Mr Milivojevic, a solicitor employed by the London Borough. This was contained in a witness statement dated 13 November. He explained that the Claimant had been an employee of the London Borough, with effect from 1 April 2011, and that the personal Defendants in these proceedings were also employees during the same period. Her employment had effectively been transferred to the London Borough from Careers Enterprise Ltd ("CEL"), which was a subsidiary of Babcock Education and Skills Ltd ("Babcock") in accordance with the Transfer of Undertakings (Protection of Employment) Regulations (2006/246). Thus she came to be treated, thereafter, as though she had been employed by the London Borough during that earlier period.

Prior to 1 April 2011, she had commenced three claims in the London South Employment Tribunal ("ET") against CEL, Babcock and some individuals employed by them. They were based upon allegations of race discrimination, harassment, victimisation and "public interest disclosure detriment". In due course, the London Borough became a defendant to those pre-existing claims by reason of the 2006 Regulations and, thenceforth, became responsible for the costs of defending them (which amounted in the event to some £260,000). They were eventually dismissed on 2 March 2012, following a long hearing which had commenced on 9 January and concluded on 1 March 2012. (There were 20 days of formal sitting and more than another five days in deliberation.) On 23 April 2012 the Claimant was ordered to pay one third of the Defendants' costs. The ET concluded that the Claimant's pursuit of "an allegation of mass conspiracy with no evidence to substantiate it" had been unreasonable. Indeed, the claims were said to have been "misconceived from the outset". An appeal to the Employment Appeal Tribunal on the costs order was dismissed on 6 June 2013.

It had become necessary to go through the further expensive process of a detailed assessment. After a two day hearing over 18 and 19 March 2013, the assessment was adjourned for a further four day hearing to take place in November. In the meantime, however, on 13 August 2013 the Claimant was declared bankrupt following the issue of a bankruptcy notice by Babcock in respect of a different set of ET costs (relating to a ninth claim). After that had been issued, she finally agreed with the London Borough to quantify the outstanding costs order in its favour, in respect of the first three claims, at £69,000 (including VAT and interest). None of this debt has been paid.

Meanwhile, on 9 August 2011, the Claimant had commenced a fourth set of ET proceedings against the London Borough (by this time her employer), Babcock, CEL and Marina Waters (a nurse who had been engaged by the London Borough to carry out an occupational health assessment of the Claimant). The claim against Ms Waters was struck out on 19 April 2012. The Claimant withdrew parts of her claim against Babcock and CEL, which were accordingly dismissed. In March 2013, the remainder of the fourth ET claim was withdrawn (together with all other outstanding ET claims) in circumstances which I shall shortly recount. Thereafter, it has been her wish to pursue her complaints through the medium of these High Court proceedings, which had been launched by claim form dated 19 December 2012.

The background narrative does not end there, however, since there were by this time no less than five other sets of ET proceedings which had been brought by the Claimant (her the fifth to ninth claims). The fifth to eighth claims concerned incidents alleged to have taken place after she transferred to the London Borough. It was, therefore, itself a Defendant but alongside a number of its other employees. The Defendants to the present High Court proceedings have all been made parties to ET proceedings except for Kate Parsley (the Seventh Defendant). This came about because an internal enquiry had been carried out following the Claimant's suspension on 10 August 2011, in order to see whether it was appropriate for her employment to be continued or whether, on the other hand, she should be dismissed. That hearing took place during February and March 2012.

The decision to dismiss her was taken against the statutory background of the Employment Rights Act 1996. This provides for five grounds on which a dismissal may fairly be made. The only one relevant for present purposes is known as "some other substantial reason". It is on that account that the internal enquiry has been referred to throughout as the SOSR hearing. As had been explained in a letter of 5 April 2012, the "substantial reason" relied upon by the London Borough here was that there had been a breakdown in the working relations between the Claimant and her colleagues.

In the fifth to eighth claims, the Claimant was alleging that she had not been treated properly during that hearing and that, accordingly, her dismissal thereafter should be held to have been unfair. That complaint lies at the heart of her claims for defamation also, since she relies upon many of the statements that were made, both orally and in writing, in the course of the SOSR hearing. It thus immediately becomes apparent that there is, to say the least, a very substantial overlap in the underlying subject-matter of the current proceedings with that of the fifth to eighth ET claims. Indeed, the Claimant herself in an email of 23 February 2013 described the High Court proceedings as "arising from the same facts" with a view, at that stage, to persuading the ET to stay her pre-existing claims in that jurisdiction while she pursued her libel remedies.

Finally, to conclude the narrative, I need to mention the ninth ET claim. This was launched on 5 November 2012 against not only the London Borough but also Babcock and Babcock Careers Guidance Ltd. Remedies were sought against those companies in respect of alleged victimisation on grounds of race and disability although, rather curiously, arising out of incidents occurring after she had transferred to the London Borough. Accordingly, those claims were struck out on 21 March 2013 and the Claimant was ordered to make a contribution of £2,000 towards their costs (which, I was told, actually totalled £8,381). Again, the claims were held to have been "misconceived" (the detail matters not in the present context). As to the London Borough, the ET stated its intention to call upon the Claimant to show cause why that part of the claim should be allowed to continue. Shortly thereafter, however, on 26 March, she discontinued all outstanding ET claims.

The subject-matter of the High Court claim

The nature of the High Court proceedings, now before me, emerges from the re-amended particulars of claim, which are dated 31 July 2013 and run to some 42 pages. (The original particulars of claim had been served in February 2013, and were amended pursuant to an order of Master Leslie.) The Claimant's complaints relate to a multiplicity of statements made in the course of the SOSR hearing, which are said to be defamatory. Mr Bennett emphasises, however, the technical nature of the relevant publications. At the hearing, in February and March 2012, publication is relied upon to the two professional note-takers employed to make a record of the proceedings. They were Susan Funnell, who...