Dr Theodore Piepenbrock v Associated Newspapers Ltd (DMG Media) of Daily Mail General Trust Plc
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin |
| Judgment Date | 01 July 2020 |
| Neutral Citation | [2020] EWHC 1708 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2019-003622 |
| Date | 01 July 2020 |
[2020] EWHC 1708 (QB)
THE HONOURABLE Mr Justice Nicklin
Case No: QB-2019-003622
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
The Claimant appeared in person
Alexandra Marzec (instructed by ACK Media Law LLP) for the First Defendant
Chris Buttler (instructed by Pinsent Masons LLP) for the Second and Third Defendants
Hearing date: 11 June 2020
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.
THE HONOURABLE Mr Justice Nicklin
This is another case about the problems that can arise when a claimant leaves service of a Claim Form until the last moment. A litigant who does so “ courts disaster” (Lord Sumption in Barton v Wright Hassall LLP [2018] 1 WLR 1119 [23]).
The Claimant is a former professor who, until early 2013, was employed by the Second Defendant. He also held the role of Deputy Academic Dean in the Executive Global Master's in Management programme.
The Claimant brought a claim against the Second Defendant seeking damages for psychiatric injury arising from alleged harassment during the course of his employment. The claim was dismissed by Nicola Davies J on 5 October 2018 ( [2018] EWHC 2572 (QB)). The Judge found that although the Second Defendant had been negligent towards the Claimant, the psychiatric damage caused to him was not reasonably foreseeable ([250]).
On 10 October 2018, the First Defendant published an article in the Daily Mail, under the headline, “ We must protect MEN in #MeToo era: Academic, 52, loses £4m claim against London School of Economics after an assistant, in her 20s, ‘ruined his life’ with false claims when he rejected her”, reporting, in terms that were broadly sympathetic to the Claimant, the outcome of his claim against the Second Defendant. It is not necessary for the purposes of this judgment, to set out the article in full. The headline gives a reasonable summary of its contents.
However, two days later, on 12 October 2018, the Daily Mail published a second article concerning the Claimant under the headline, “ ‘He's a master manipulator’: Professor who put himself forward as a MeToo martyr after being accused of impropriety by spurned assistant is not what he seems, associate claims”. Again, the headline gives a reasonable summary of the article, which is still available on Mail Online. The article reported comments from an unnamed “associate” of the Claimant from the Second Defendant. A similar article was published in the print edition of the Daily Mail on 13 October 2018.
The Claimant's wife, Professor Sophie Marnette-Piepenbrock, sought unsuccessfully to persuade the publishers not to publish the second article. She had emailed both the editor, Geordie Greig (and deputy editor, Tobyn Andreae), and the journalist, Antonia Hoyle, early on 12 October 2018, threatening libel proceedings if the second article was published. The emails went apparently unanswered (and unacknowledged) and the second article was published later that day.
Nothing further was heard from the Claimant (or his wife) until the arrival of a letter, sent by email to Mr Greig just before 7pm, on 8 October 2019. The letter was written by the Claimant's wife. In it, she referred to the threat, made almost a year before, to sue for libel if the article was published. The 11-page letter set out the Claimant's contention that the second article had seriously defamed him, and was untrue, and sought the immediate removal of the article, a public apology to be published online, damages and the Claimant's legal costs. The letter concluded:
“If we do not hear back from you by 6.00pm on Thursday 10 October 2019 regarding these terms, we will submit our lawsuit to the High Court on 11 October 2019, seeking damages for the Daily Mail's contributory role in Dr Piepenbrock's lost academic career…”
Letters in similar terms were emailed to the Second and Third Defendants, just before 5pm on 9 October 2019, requiring a response by the same deadline. The Claimant alleged that the Third Defendant was the unidentified “associate”, quoted in the second article, and was therefore liable for its publication. The Second Defendant was alleged to be vicariously liable for her actions.
Solicitors instructed for the First Defendant, ACK Media Law, responded on 10 October 2019. The solicitors noted that no correspondence had been received from the Claimant since his wife's email on 12 October 2018. They continued:
“Under the Defamation Pre-Action Protocol, a copy of which we attach, a Letter of Claim must be sent to a prospective Defendant providing the information set out (including remedies sought) and importantly setting out the defamatory meaning attributed to the words complained of. A reasonable length of time must be given to the prospective Defendant to allow them to respond, usually no less than 14 days, at which point the respective Claimant must then respond to the points raised.
It appears that your letter attempts to function as a Letter of Claim, but it does not fulfil the requirements of the Pre-Action Protocol… Failure to comply with the Pre-Action Protocol, particularly in circumstances where you have clearly been aware of the publication of the article for nearly a year, may result in sanctions by the court in relation to costs.
You will be aware that there is a 1 year limitation period in respect of libel actions. That is presumably why you have only given 3 days' notice to our client to respond to your letter, which is not sufficient, particularly in view of the new information that you now raise.
In the circumstances, given that your husband is not legally represented, we suggest that the best way forward is that both parties agree to a standstill agreement which freezes the limitation period for a minimum of 28 days and a maximum of 4 months so that we can investigate the points you raise, and you can produce a Pre-Action Protocol Compliant Letter of Claim and the parties consider whether the matter can be resolved without recourse to litigation.
We attach a draft agreement for your consideration which would need to be signed before close of business tomorrow if it is to be effective…”
On 11 October 2019, Pinsent Masons, instructed on behalf of the Second and Third Defendants, responded to the letter dated 9 October 2019. In the email, to which their letter of response was attached, Pinsent Masons said: “ We act for the LSE and Ms Hay. Please note our interest and refer further communications to us”. In their letter, the solicitors similarly complained that there had been no compliance with the Pre-Action Protocol. The letter denied that the Third Defendant had made the comments attributed to the “associate” in the article published on 12 October 2018 and, consequently, denied that the Second and Third Defendants were liable for the publication of the article. The letter concluded:
“If you continue to bring a claim we are instructed to vigorously contest the same and recover against Dr Piepenbrock all legal costs incurred and interest…”
The Claimant did not respond to ACK Media Law's letter of 10 October 2019 or to Pinsent Masons' letter of 11 October 2019. Instead, on 11 October 2019, the Claimant and his wife attended the Royal Courts of Justice and issued the Claim Form in this claim against the three Defendants. The following was stated under “ Brief details of claim”:
“The Claimant claims compensation for damages arising from defamation (slander and libel) in accordance with the Defamation Act 2013 and arising from malicious falsehoods in accordance with the Defamation Act 1952.
These arise from defamatory articles about the Claimant published in the MailOnline on 12 October 2018, and the Daily Mail on 13 October 2018 and which contain defamatory statements and malicious falsehoods made by Associated Newspapers Ltd and Ms Joanne Hay, the Deputy Chief Operating Officer of the London School of Economics and Political Science (LSE), while acting in the course of her employment with the LSE.”
On the reverse, the Claimant indicated that Particulars of Claim were “to follow”. One option, open to the Claimant, was to elect to have the Claim Form served by the Court. However, the Claimant chose to serve the Claim Form himself. Having done so, he was advised that he had four months to serve the Claim Form.
After issue of the Claim Form, the Claimant did not serve it immediately. Instead, on 11 October 2019, the Claimant's wife sent emails:
i) to Mr Greig and Mr Andreae (not to ACK Media Law):
“As we informed you last year on 12 October 2018, if you ran the defamatory story on Dr Piepenbrock containing malicious falsehoods as you had proposed, we would sue Associated Newspapers Ltd for libel. You have had one full year to investigate our serious concerns with your defamatory articles in both MailOnline on 12 October 2018… and the Daily Mail on 13 October 2018, and yet you have not engaged at all with our serious concerns.
Although we wanted to give you the maximum time possible to address our urgent concerns, time has run out and we have now reached the end of the limitation period. As you have not responded to the suggestions outlined in our letter to you of 8 October 2019 to sensibly settle this dispute, we were left with no choice but to...
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