Clarke v Bain
| Jurisdiction | England & Wales |
| Judge | THE HON MR JUSTICE TUGENDHAT,Mr Justice Tugendhat: |
| Judgment Date | 19 November 2008 |
| Neutral Citation | [2008] EWHC 2636 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: IHJ/08/0785 |
| Date | 19 November 2008 |
[2008] EWHC 2636 (QB)
The Hon Mr Justice Tugendhat
Case No: IHJ/08/0785
IHJ/08/0796
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Miss Caroline Addy (instructed by Stitt and Co) for the Claimant
MrGodwin Busutil (instructed by Reynolds Porter Chamberlain LLP) for the Defendants
Hearing date: 24 th October 2008
Approved Judgment
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
There are three Application Notices in this libel action. In the first, dated 18 August 2008, the Defendants applied for declarations that this court has no jurisdiction to try the claims advanced in paragraphs 8, 9, 10, 18.2 and 18.3 of the Particulars of Claim, alternatively that they be struck out. All of these paragraphs relate to an e-mail dated 18 February 2008 sent by the First Defendant to a Mr Chung in China (“the Chung e-mail”). In the second Application Notice, the Claimant applies for leave to amend the Claim Form and Particulars of Claim, in part to meet the objections raised by the Defendants concerning paras 8, 9 and 10 of the Defence. In so far as the application is to delete those paragraphs, the Defendants do not object to the proposed amendment, but there are other proposed amendments to which they do object. Thirdly, by an Application Notice dated 5 September, the Defendants apply for rulings pursuant to CPR 53 PD para 4 as to certain of the meanings pleaded by the Claimant, and, if they are successful on that application, for an order that para 18.1 of the Particulars of Claim to be struck out on a related basis. In addition, in that Application Notice the Defendants apply to strike out para 18.7 of the Particulars of Claim, on the ground that it is not open to the Claimant to rely in aggravation of damages upon publications which are separate from those relied upon as causes of action.
In the Particulars of Claim the Claimant describes himself as an English national who resides in England and trades under the name Elumina Iberica UK. He acts as the UK agent of Elumina Iberica SA, a company which supplies golf course management systems employing Global Positioning System satellite technology to golf courses throughout Europe. He also states that he is a shareholder in Elumina Iberica SA.
The First Defendant is the Chief Executive Officer of the Second Defendant. Both are domiciled in Arizona. The Claimant states that until 31 January 2008 the golf course management systems supplied by himself and Elumina Iberica SA were manufactured by the Second Defendant and supplied under a distribution agreement between those two companies. The Second Defendant had commenced negotiations with Elumina Iberica SA with a view to a takeover, and Elumina Iberica UK Ltd had been formed for putting such a takeover into effect. The negotiations failed in about January 2008 and Elumina Iberica UK Ltd has been dormant.
The action was brought upon the following publications:
i) A press release headed “ProLink Holdings Files Suit against Elumina Iberica and its shareholders”
(Particulars of Claim paras 5 to 9) allegedly published on 4 February 2008 through two outlets on the internet available to be read within this jurisdiction and in an attachment to an e-mail dated 29 February 2008 and addressed to 105 golf clubs in the UK. The two outlets were PR Newswire (an internet news service) and Thomson One (a specialist financial new website, on which, it is said, the press release remains available);
ii) An e-mail written and sent by the First Defendant on 18 February 2008 to a Mr Chung in China, who was a representative of a client of the Claimant (Particulars of Claim paras 8 to 10);
iii) A letter dated 10 March 2008 written by the First Defendant, addressed and sent to the managers and owners of the 105 golf courses, together with a copy of a letter addressed to the Claimant dated 5 March 2008 (Particulars of Claim paras 11 to 14);
iv) Words spoken at a public conference call broadcast via the internet with a dial-in facility on 15 th April 2008 (Particulars of Claim paras 15 to 16).
On 3 July 2008 the Claimant obtained leave to serve the claim upon the Defendants outside the jurisdiction pursuant to CPR 6.20(2) and 6.20(8)(a) and (b) (claims in tort where damage was sustained within the jurisdiction or the damage resulted from an act committed within the jurisdiction).
The Defendants' objection to Particulars of Claim paras 8 to 10 is that an e-mail sent from the USA to an addressee in China does not come within CPR 6.20,(now paragraph 3.1 (9) of Practice Direction B to CPR 6) and that has been conceded in correspondence. In response to that objection the Claimant has put forward a draft Amended Particulars of Claim. In it the substance of what had been set out in para 8 of the Particulars of Claim (that is the allegation of publication of the e-mail) is substantially reproduced and inserted into para 18, which contains a plea of aggravated damages. The Defendants object to this attempt to rely upon the e-mail in aggravation of damages.
MEANING
I shall consider first the Defendants' applications for ruling on certain of the meanings. Under CPR PD 53 para 4.1 a judge may decide whether a statement complained of is capable of bearing any meaning attributed to it, or any meaning defamatory of the claimant. The principles applicable are not in dispute. Ms Addy for the Claimant reminds me of them as they are set out in Skuse v Granada Television [1996] EMLR 278, 285–7, Gillick v Brook Advisory Centres [2001] EWCA Civ 1263 and Berezovsky v Forbes Inc [2001] EMLR 1030, 1040. It is unnecessary to set them out in this judgment.
The press release of 4 February 2008 headed “ProLink Holdings Files Suit against Elumina Iberica and its shareholders” reads, so far as set out in the Particulars of Claim para 5, as follows:
“Chandler, Ariz., /PRNewswire —FirstCall/—ProLink Solutions, a wholly-owned subsidiary of ProLink Holdings Corp. (OTC Bulletin Board: PLKH) and the world's leading provider of Global Poisitioning Satellite (“GPS”) golf course management systems and on-course advertising, announced today that it has commenced litigation against Elumina Iberica, S.A., Elumina Iberica UK Limited, GPS ADS LTD and related parties (collectively “Elumina”) as a result of multiple breaches, including non-payment, under its distribution agreement. ProLink has also commenced legal action against Elumina in connection with the previously announced acquisition of Elumina. Effective February 1, 2008 the Company terminated its distribution agreement with Elumina Iberica S.A. On January 9, 2008 the Company terminated its agreement to acquire Elumina.
Pursuant to the terms of the acquisition agreement, ProLink is filing claims against Elumina with the International Chamber of Commerce Court of Arbitration, seeking a determination that it properly terminated the acquisition and damages for non-payment of $4.5 million in receivables generated from ProLink's sales of commercial equipment and other services to Elumina. The Company has also filed a complaint in U.S. District Court in Phoenix against Kevin Clarke d/b/a Elumina UK for non payment of goods sold and delivered, and has filed a claim against Elumina Iberica S.A. with the International Centre of Dispute Resolution (ICDR) for arbitration under the UNCITRAL Arbitration Rules for arbitration, for arbitration in Phoenix, Arizona as provided for in the parties' Exclusive Licensing and Distribution Agreement seeking damages for non-payment of goods sold and delivered, breach of representations and warranties, legal fees and consequential damages.
The Company expects to take undetermined non-cash reserve in its 2007 fourth quarter, in connection with the $4.5 million receivable from Elumina…”
The meanings pleaded in para 7 are that the Claimant:
“7.1 acting together with Elumina Iberica SA and Elumina Iberica UK Limited, had committed or enabled multiple serious and dishonest breaches of the distribution agreement an the acquisition agreement with Prolink Solutions, including non-payment for goods received, so that Prolink Solutions had been forced to terminate the agreements and bring litigation against them;
7.2 Had himself also dishonestly and inexcusably failed to pay Prolink Solutions for goods the company had sold to him and was being sued as a result.”
Mr Busuttil submits that these words are not capable of bearing any meaning referring to the Claimant beyond that there are reasonable grounds to suspect that he had failed to make payment to the Second Defendant in respect of goods sold and delivered to him. In particular, the words are not capable of bearing a meaning involving dishonesty. And in so far as they may bear the meaning that there were multiple breaches of the distribution agreement that is not capable of referring the Claimant personally. Mr Busuttil also submits that the Press Release is incapable of bearing the meaning that the Claimant inexcusably failed to pay for goods sold and delivered.
Ms Addy submits that the words are capable of meaning dishonesty, and that the Claimant is referred to in relation to the distribution agreement by the words “and related parties (collectively 'Elumina')”, and that he is named in relation to the allegation of non-payment of goods.
I am unable to see how any reasonable reader could understand the words to allege dishonesty. Breaches of a distribution agreement and non-payment of goods sold and delivered can in principle be accompanied by dishonesty, but that is neither...
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