Catherine Mary Parris v Olanrewaju Ajayi
| Jurisdiction | England & Wales |
| Judge | Richard Spearman |
| Judgment Date | 12 February 2021 |
| Neutral Citation | [2021] EWHC 285 (QB) |
| Date | 12 February 2021 |
| Docket Number | Case No: QB-2017-002619 |
| Court | Queen's Bench Division |
[2021] EWHC 285 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Spearman Q.C.
(Sitting as a Judge of the Queens Bench Division)
Case No: QB-2017-002619
Justin Rushbrooke QC and Richard Munden (instructed by Mills & Reeve LLP) for the Claimant
Christina Michalos QC (instructed by IRH Solicitors) for the Claimant
Hearing date: 4 December 2020
Approved Judgment
Richard Spearman Q.C.:
In these proceedings, the Claimant (“Ms Parris”) brings claims for libel and malicious falsehood based on the contents of a written statement (“the Statement”) which was published by the First Defendant (“Mr Ajayi”) to (at least) Mr David Gayler.
At the time when the Statement was published, Ms Parris, Mr Ajayi and Mr Gayler were all connected by work, although the precise relationship between them is not as clear as it might be. Ms Parris' Particulars of Claim (“POC”) in these proceedings are dated 6 November 2017, and include the pleas that: (a) from 3 June 1998 to 2 November 2016, she was employed by the Second Defendant (“SHCC”) and “its predecessors in title” as a physiotherapist (§2), (b) SHCC and the Third Defendant (“SHCR”) “have sought to conceal which entity was [Mr Ajayi's] employer” (§11), (c) Mr Ajayi “was employed by [SHCC] and/or [SHCR] as a Quality Assurance and Therapy Manager” (§13), (d) “At 9.25am on Wednesday 14 th September 2016, [Ms Parris] attended a meeting with [Mr Ajayi] (Quality Assurance and Therapy Manager) who was [Ms Parris'] line manager to discuss staffing issues” (§16), and (e) “On or about 15 th September 2016, [Mr Ajayi] acting in the course of his employment wrote and published [the Statement] to David Gayler (Human Resources Manager) of [SHCC and/or SHRC] and various other employees and officers of [SHCC and/or SHRC] (and/or other entities trading as Sussex Health Care) whose names are at present unknown to [Ms Parris]” (§18). The POC make no mention of any employer other than SHCC and SHCR. Ms Parris' pleaded case is that she was employed by SHCC, and that each of Mr Ajayi and Mr Gayler were employed by either SHCC or SHCR, the precise identity of the employer of Mr Ajayi at least being unclear to Ms Parris due to the attempts at concealment made by SHCC and SHCR.
The POC also make reference (at §10.1) to proceedings for unfair dismissal which Ms Parris commenced in the Employment Tribunal on 31 March 2017 (“the Employment Tribunal Proceedings”). It is clear from the papers in the Employment Tribunal Proceedings that (a) those proceedings were brought against (1) SHCC, (2) SHCR, (3) Mr S.N. Boghani, and (4) Dr S.H. Sachedina, (b) by Order dated 20 November 2018, Employment Judge Baron ordered that SHCC and SHCR be discharged from those proceedings, (c) on 28 January 2019, the Respondents in those proceedings admitted unfair dismissal and wrongful dismissal, following which the basic and compensatory awards for unfair dismissal were agreed, and (d) the remaining issues in those proceedings were determined as between Ms Parris on the one hand and “Mr S.N. Boghani and Dr S.H. Sachedina t/a Alpha Care” (hereafter “the Partnership”) on the other hand by a judgment of Employment Judge Ferguson dated 17 September 2019 following a hearing on 12–13 September 2019. That judgment records at §37:
“The Employment Tribunal proceedings were originally brought against “Sussex Health Care” and there was considerable correspondence about the correct identity of the Claimant's employer, culminating in a Preliminary Hearing on 20 November 2018, following which the two current Respondents, trading as Alpha Care, were found to be the Claimant's employers.”
On the face of it, therefore, decisions were made in the Employment Tribunal Proceedings, which are binding on Ms Parris, SHCC and SHCR, that Ms Parris was employed by the Partnership. This accords with the plea in the POC (at §10.2) that in the response in the Employment Tribunal Proceedings it was contended that Ms Parris “was employed by Alpha Care (a partnership)”. However, this is contrary to Ms Parris' case pleaded in the POC that she was employed by SHCC. It is also contrary to the Defendants' admission of that pleaded case (see Defence, §4). However, that admission accords with other aspects of the Defendants' pleaded case, viz. that Mr Ajayi (a) was employed by SHCC as Head of Quality and Compliance/Therapy Manager and (b) was Ms Parris' “direct manager” from November 2012 to November 2016 (see Defence, §5).
Regardless of the identity of the employer of Ms Parris and Mr Ajayi, it is common ground between the parties to the present proceedings that Mr Gayler was the Human Resources Manager of SHCC and/or SHCR (see POC, §18; Defence, §9.2 and §20; Reply, §17). At the same time, it is the Defendants' pleaded case that Mr Gayler was Mr Ajayi's “own manager” (see Defence, §17, read in conjunction with Defence, §§20–21). Because an employee and their manager are typically employed by the same employer, the implication of those pleas is that Mr Gayler (like Mr Ajayi) was employed by SHCC.
Be all that as it may, there can be no doubt, as discussed further below, that Mr Gayler played a significant part in the disciplinary proceedings which led to Ms Parris' dismissal. In particular, it is apparent from the contemporary documents that Mr Gayler asked Mr Ajayi to provide the Statement to him, and, further, that Mr Ajayi in fact provided the Statement to him, in connection with those disciplinary proceedings.
Whether there was any other publication of the Statement to Mr Gayler is an issue to which I return below. In addition, it is clear that Ms Parris' pleaded case puts in issue whether Mr Ajayi published the Statement to anyone other than Mr Gayler.
By application notice dated 21 September 2020, the Defendants seek permission to amend the Defence, and (on the premise that the amendments are allowed) an Order striking out the claim or granting summary judgment to them on the following grounds:
(1) Ms Parris consented, and/or granted leave and licence, to the publication of the words complained of, and the claim therefore fails in accordance with the principle established by the Court of Appeal in Friend v Civil Aviation Authority [1998] IRLR 253 (“ Friend”).
(2) The claim is barred by the principle in Johnson v Unisys Ltd [2003] 1 AC 518 (“ Johnson”) (hereafter “the Johnson exclusion principle”); alternatively, Ms Parris' claim for loss as a result of her dismissal is so barred; in the further alternative, Ms Parris has been compensated for her dismissal in the Employment Tribunal Proceedings and cannot seek compensation for the same loss in the present claim and/or such claim is an abuse of process in accordance with the principles set out in Jameel v Dow Jones [2005] QB 946 (“ Jameel”).
(3) The claim for special damages alleged to flow from the nature of the employment reference which was in fact provided by SHCC for Ms Parris, which is set out in §29.5 and §30 of the POC, has no real prospect of success.
Ms Parris contends that the application should be dismissed on the following grounds:
(1) The Defendants have already made one application for summary judgment and/or to strike out the claim. That application was dismissed by Master Davison in March 2019. That decision was not appealed. The current application should not be entertained given that the principle in Henderson v Henderson [1843] 3 Hare 100 (that a party should not be twice vexed) applies to interlocutory applications.
(2) The claim form was issued on 14 September 2017. This is a very late application to amend, and the Defendants need to satisfy the “heavy burden [that] lies on a party seeking a very late amendment to show the strength of the new case and why justice to him, his opponent and other court users requires him to be able to pursue it”: see Quah v Goldman Sachs International [2015] EWHC 759 at §38(b).
(3) There is no real prospect of the defence of leave and licence succeeding as: (a) in Friend, consent turned on contractual agreement to a disciplinary process, whereas in the present case the process was expressly stated to be non-contractual; (b) Friend concerned republication to a disciplinary tribunal, whereas what is in issue in the present case is the primary publication which started the disciplinary process; (c) the factual evidence is far from clear; and (d) Friend pre-dates the Human Rights Act 1998, and it would be incompatible with Article 8 of the ECHR for (in effect) absolute privilege to be accorded to allegations made by co-employees where malice is alleged and for a claimant to have no remedy at all.
(4) The Johnson exclusion principle is of no application in the present case because (a) the defamation claim is brought against different parties: judgment in the employment proceedings was against the Partnership (which employed Ms Parris), and neither of the individuals who were members of the Partnership is a party to the present claim, which are brought against Mr Ajayi and, vicariously, his employer (admitted to be SHCC); and (b) the claim in the present case is not for losses flowing from the manner of the dismissal, but is instead for losses flowing from a defamatory publication which is said to have caused the dismissal.
(5) There has already been an attempt to strike out the special damages claim which was dismissed; there has been no change of...
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