Dr Theodore Piepenbrock v London School of Economics and Political Science
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Heather Williams |
| Judgment Date | 30 September 2022 |
| Court | King's Bench Division |
| Docket Number | Case No: QB-2021-003782 |
[2022] EWHC 2421 (KB)
THE HONOURABLE Mrs Justice Heather Williams DBE
Case No: QB-2021-003782
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Garry Piepenbrock, addressing the Court as McKenzie Friend for the Claimant
Laura Johnson QC (instructed by DAC Beachcroft LLP) for the First – Eighth Defendants
Alexandra Marzec (instructed by ACK Media Law LLP) for the Tenth – Fifteenth Defendants
Hearing dates: 23, 24 June & 14 July
Approved Judgment
| Introduction | Paras 1 – 3 |
| The issues | Paras 4 – 10 |
| Orders made in the proceedings | Paras 11 – 18 |
| The course of the hearing | Paras 19 – 28 |
| The material facts and circumstances | Paras 29 – 59 |
| The claims made in these proceedings | Paras 60 – 118 |
| The 2020 Claim | Para 119 |
| Strike out and summary judgment: the legal framework | Paras 120 – 130 |
| Abuse of process and issue estoppel: the legal framework | Paras 131 – 134 |
| The pleaded claim in negligence | Paras 135 – 167 |
| Amendment to add a claim for intentional infliction of psychiatric injury | Paras 168 – 173 |
| The pleaded claim under the PHA 1997 | Paras 174 – 199 |
| The pleaded claim under the EQA 2010 | Paras 200 – 211 |
| The pleaded claim under the HRA 1998 | Para 212 |
| The Data Protection pleaded claims | Paras 213 – 223 |
| The CPR 3.4(4) applications | Paras 224 – 235 |
| Totally without merit | Paras 236 – 240 |
| The MAC List application | Paras 241 – 244 |
| Ancillary matters | Paras 245 – 247 |
| Conclusions and consequential orders | Paras 248 – 251 |
Introduction
The Claimant was employed as a Teaching Fellow by the London School of Economics and Political Science (“LSE”) between September 2011 and September 2014. After the termination of this employment he commenced High Court proceedings in negligence, breach of contract and under the Protection from Harassment Act 1997 (“PHA 1997”). In a judgment handed down on 5 October 2018, [2018] EWHC 2572 (QB), Nicola Davies J (as she then was) rejected the PHA 1997 claim and accepted some of the allegations of negligence and breach of contract but dismissed those causes of action as the psychiatric illness upon which the Claimant relied had not been reasonably foreseeable. I refer to this as “the 2018 Judgment”. Following this, articles about the Claimant's case were published in the MailOnline on 10 and 12 October 2018 and in the Daily Mail on 13 October 2018. The Claimant began a claim for defamation against Associated Newspapers Limited (“ANL”), as the publishers of the articles; and against the LSE and an employee, Joanne Hay, on the basis that she was the anonymous source referred to in two of the articles (“the 2020 Claim”). On 1 July 2020, Nicklin J declared that the Claim Form was not served during its period of validity and consequently the Court had no jurisdiction over the claim: [2020] EWHC 1708 (QB) (“the 2020 Judgment”).
On 7 October 2021 the Claimant commenced the current action, relying on claims in negligence and under the PHA 1997, the Equality Act 2010 (“EQA 2010”), the Human Rights Act 1998 (“ HRA 1998”), the Data Protection Act 2018 (“ DPA 2018”) and the General Data Protection Regulations 2018 (“GDPR 2018”). The Second to Eighth Defendants are sued on the basis of their relationship to the LSE. I refer to them collectively as “the LSE Defendants” and individually as “D2”, “D3” and so forth. The Ninth Defendant, HPN (“D9”) was formerly a graduate teaching assistant (“GTA”) at the LSE. She is separately represented in these proceedings and was not directly involved in the applications before me. The Eleventh to Fifteenth Defendants are sued on the basis of their relationship to ANL. I refer to them collectively as “the ANL Defendants” and individually as “D11”, “D12” and so forth.
There are three applications before me. Firstly, by an application notice dated 2 March 2022, the LSE Defendants applied for the Claimant's Particulars of Claim to be struck out in whole or part pursuant to CPR 3.4(2)(a), (2)(b) or (2)(c) and the claim dismissed and/or for summary judgment or for an order staying any remaining part of the claim pending payment of the costs ordered in the defamation claim and/or provision of a CPR compliant Particulars of Claim. Secondly, by an application notice dated 7 March 2022, the ANL Defendants made a similar application. The ANL Defendants also applied for the claim to be transferred to the Media and Communications (“MAC”) List; and by an Order dated 9 March 2022 Nicklin J transferred the case to the MAC list. By an application notice dated 4 May 2022, the Claimant applied to vary or discharge this Order, which is the third application that I am concerned with.
The issues
At the hearing Ms Johnson QC clarified that the LSE Defendants' no longer relied upon CPR 3.4(2)(c). The following contentions were maintained:
i) The Particulars of Claim disclose no reasonable grounds for bringing the claim against any of the LSE Defendant and thus should be struck out in their entirety pursuant to CPR 3.4(2)(a);
ii) The Particulars of Claim are an abuse of the Court's process in so far as they relate to the LSE Defendants and thus should be struck out in their entirety pursuant to CPR 3.4(2)(b). This submission rests primarily on the Henderson v Henderson (1843) 3 Hare 100 form of abuse, namely that in certain circumstances a party is precluded from raising in subsequent proceedings matters which could have been part of an earlier claim. Reliance is also placed on the form of abuse that may arise where a second claim is brought in relation to the same subject matter as a first claim which was struck out as an abuse of process or for inexcusable procedural failure;
iii) Alternatively, summary judgment should be entered in respect of the claims against all of the LSE Defendants pursuant to CPR 24.2, as these claims have no reasonable prospect of succeeding and there is no other compelling reason why the case should be disposed of at trial;
iv) Alternatively and in so far as any claims remain, they should be stayed pursuant to CPR 3.4(4) as the Claimant has not paid the costs he was ordered to pay following the 2020 Judgment and the current proceedings arise out of the same or substantially the same facts;
v) In the further alternative, the Particulars of Claim should be struck out and “unless orders” made directing that the claim will be automatically struck out unless a properly pleaded Particulars of Claim compliant with CPR Part 16 is provided; a CPR compliant medico-legal report in support of the claim for psychiatric injuries is served; and the outstanding costs are paid by a stipulated deadline.
In so far as the strike out and/or summary judgment applications are granted, the LSE Defendants invite the Court to certify that the claim or the relevant part of it is totally without merit. Further, the LSE Defendants ask the Court to: (a) order that the Claimant must correspond solely with their legal representative in relation to this claim and not email or contact the LSE Defendants directly; and (b) give case management directions as appropriate, including that the Claimant's son, Garry Piepenbrock, is not authorised to act on his behalf.
The ANL Defendants' application is based on equivalent contentions, save in two respects: (a) they also submit that the Particulars of Claim should be struck out pursuant to CPR 3.4(2)(c) because there has been a failure to comply with a rule, practice direction or order; and (b) the second form of abuse of process referred to in para 4 (ii) above is not relied upon.
The LSE Defendants' application is supported by a witness statement from Tom Walshaw, solicitor at DAC Beachcroft LLP dated 2 March 2022. The ANL Defendants' application is supported by a statement dated 7 March 2022 from Susan Aslan, a partner at ACK Media Law LLP.
The Claimant resists the applications. He filed a witness statement dated 3 May 2022 in support of his position. He submits that the pleaded Particulars of Claim do disclose claims with reasonable prospects of success. He emphasises that he is a litigant in person and that in so far as there are any deficiencies in the pleading, the proportionate approach is to permit him an opportunity to rectify this by amendment. He also suggests that strike out or summary judgment would be premature; the evidence should be heard and evaluated at trial. He disputes that there has been any abuse of process, contending that this claim has been carefully tailored to avoid raising issues which have already been litigated. He says that the 2020 Judgment did not strike out the 2020 Claim and nor was there a finding of abuse of process or inexcusable procedural failure. He submits that it would be an infringement of his rights under Article 6, European Convention on Human Rights (“ECHR”) to stay this claim until he has paid the costs ordered against him in the 2020 Claim. Whilst indicating a willingness to amend the claim, he resists the imposition of unless orders. He also takes issue with the ancillary orders sought by the Defendants.
In relation to his own application, the Claimant submits that it would be more appropriate for this case to be heard in the King's Bench Division's general list, given the central importance of the claim for psychiatric injury. The ANL Defendants...
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