Frank Kofi Otuo v The Watch Tower Bible and Tract Society of Britain
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 21 February 2019 |
| Neutral Citation | [2019] EWHC 344 (QB) |
| Docket Number | Case Nos: HQ13M03735 |
| Court | Queen's Bench Division |
| Date | 21 February 2019 |
[2019] EWHC 344 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Warby
Case Nos: HQ13M03735
HQ14M02898
The Claimant in person
Shane H Brady (instructed by Legal Department, Watch Tower Bible and Tract Society of Britain) for the Defendants
Hearing dates: 11 and 15 February 2019
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.
Introduction
This is one of a series of rulings I have had to give during this prolonged Pre-Trial Review. It addresses two applications made by the defendants to these two actions for slander.
The first is an application, by notice filed on 1 February 2019, for an order dismissing all or parts of the claims on the grounds that the issues raised are not justiciable. That term means, in summary, that the issues are of such a nature that the Court cannot properly adjudicate. The grounds for so contending are, again in summary, that the claims require the Court to resolve issues of religious faith, doctrine or practice, which are matters which it is not institutionally competent to do, or on which it cannot objectively adjudicate. I shall refer to the overall issue raised by this application as the Justiciability Issue.
The second application was first intimated in a skeleton argument also dated 1 February 2019. It was later formalised in an extended form in an application notice filed on 12 February 2019. It is an application to strike out extensive passages in the claimant's Replies, pursuant to CPR 3.4(2)(a) and/or (c). I shall call this the Strike-Out Application.
The claims
The two actions, which are listed to be tried together over 5–7 days commencing on 11 March 2019, concern imputations of fraud against the claimant, Mr Otuo, conveyed by words spoken (1) on 12 July 2012, at a meeting of the London Wimbledon congregation of Jehovah's Witnesses, announcing that Mr Otuo was no longer a Jehovah's Witness (“the Announcement”) and (2) at a meeting just over a year later, on 22 July 2013, where Mr Otuo's application for reinstatement was under consideration. It is this religious context, and in particular the fact that both sets of words complained of concerned Mr Otuo's membership of the Jehovah's Witnesses, that gives rise to the Justiciability Issue.
The first action (“Claim 1”) relates to the Announcement. It is brought against a single defendant, a limited liability organisation which I shall call “Watch Tower”. The second action (“Claim 2”) is brought against Watch Tower and Mr Morley, who spoke the words complained of.
Procedural background
It is of course fundamental that an issue such as the Justiciability Issue cannot itself be determined until the issues in the case have sufficiently crystallised. That is why the Court has declined to deal with previous attempts by these defendants to have the claims dismissed for non-justiciability.
On 1 November 2013, before HHJ Moloney QC, the defendants applied for such an order. In a reserved judgment handed down on 5 December 2013, Judge Moloney dismissed the application, without prejudice to its renewal at a later stage. He reviewed the existing jurisprudence in some detail, focussing on a line of modern defamation cases in which, on the particular facts, the Court had stayed a claim on grounds of non-justiciability: Blake v Associated Newspapers Ltd [2003] EWHC 1960 (QB) (Gray J), Baba Jeet Singh v Eastern Media [2010] EWHC 1294 (QB) (Eady J), and Shergill v Purewal [2010] EWHC 3610 (QB) (Sir Charles Gray).
Judge Moloney's conclusions were these:
“25. In summary, my conclusion is that the application to strike out for non-justiciability has been brought prematurely and should be dismissed on that sole ground, with liberty to re-apply after the expiry of time for service of the Claimant's Reply. (Even then it may be better to await disclosure and/or exchange of witness statements.) I appreciate the reasons, financial, and otherwise, why the Defendant brought this application so soon after service of the claim. It is right to bring such applications reasonably early, and not leave them until trial as in the Sikh cases above, when they serve little useful purpose except to increase delay and expense. But, for the reasons given by Eady J and Gray J in the cases cited above, it is a grave matter to deny a trial or a remedy to a Claimant who, ex hypothesi, has been the subject of a defamatory publication and is presumed to have been injured thereby. It is insufficient for a Defendant simply to assert (in effect) that because of its religious status it is immune from suit. That would be to claim an absolute privilege which has never been recognised and could easily be abused. A ruling of religious non-justiciability has to be based on a close scrutiny of the specific issues arising on the pleadings in the particular case, and the burden is firmly on the religious body to put forward a clear and detailed case as to why the action must be struck out or stayed. As yet that burden has not been discharged here.”
Two years later, on 10 December 2015, the Justiciability Issue was raised again, this time as one of a number of issues argued before Sir David Eady, the former Judge in Charge of the Jury List. Sir David said this:
“2. The suggestion is that the claim gives rise to issues which fall outside the jurisdiction of the court because they are spiritual or religious in their nature. I recognise that there may be specific points arising in due course to which such concerns may legitimately be directed. It cannot be said at this stage, as a matter of generality, that the subject matter of the claim is bound to give rise to such issues; or that the claim cannot be resolved without going into matters which are, by their nature, non-justiciable.
3. It may emerge, for example, that there are issues of qualified privilege and malice, or it may be that the defence of truth or justification may be raised on the basis that the claimant is alleged to have committed “fraud”. Those are matters which the courts are used to resolving almost every day of the week.”
Another two and a half years passed before the Justiciability Issue was raised for a third time. On this occasion it was one of several issues dealt with over two days in June 2018, before a third defamation specialist, HHJ Parkes QC. (By this time, Judge Moloney and Sir David Eady had both retired). By a reserved judgment, handed down on 30 August 2018 (“the Parkes Judgment”), Judge Parkes determined that swathes of Mr Otuo's statements of case must be struck out, and his case re-pleaded. On 17 September 2018, Judge Parkes made an Order (“the Parkes Order”) giving effect to that conclusion, and setting out detailed and prescriptive directions for statements of case to be filed and served, together with disclosure and the exchange of witness statements and the fixing of a trial date and a PTR.
In the Parkes Judgment, this was said:
“67. Not until after the Reply has been served will it be appropriate for the court to hear argument that issues of church doctrine and procedure have been raised that are not justiciable by the secular courts. I am not prepared to rule on that question at a stage when the issues are still not properly identified in the statements of case.”
Noting the conclusions reached by HHJ Moloney QC almost 5 years earlier, Judge Parkes agreed with what had been said in paragraph [25] of Judge Moloney's judgment, concluding that the burden that lies on the religious body “to put forward a clear and detailed case as to why the action should be struck out” had still not been discharged.
The Parkes Order therefore provided that if the defendants wished to renew their strike out application they could only do so at the PTR, after close of pleadings, and the exchange of witness statements (paragraph 8 of his Order); and then only if the defendants complied with paragraph 19 of his Order, which directed them to serve a skeleton argument not less than 14 days before that hearing, with the claimant, Mr Otuo, serving his skeleton no later than 7 days after that.
This was an impeccably designed regime. But things did not go altogether smoothly. Amended Particulars of Claim were served, followed by Defences and Replies. Disclosure and inspection were given. But things began to go wrong when it came to the exchange of statements. This was delayed by agreement, through no fault of either side. But the consequence was that it was impossible to comply with both of Judge Parkes' directions. The first was complied with, but the second was not. The defendants' attempts to redesign the procedural timetable failed, their skeleton was four days late, and Mr Otuo's fell due on the day of the hearing itself, 11 February 2019.
That procedural bungle, in a case where the claimant is unrepresented, was important and led me to accept Mr Otuo's application to put off the hearing of the application. Indeed, when the matter first came before me on 11 February, on the first of what have proved to be three days of PTR, I concluded that the hearing to resolve the Justiciability Issue would have to be vacated for non-compliance with paragraph 19 of the Parkes Order, and that the defendants should be required to make an out-of-time application to extend the period for serving a skeleton argument and obtain relief from sanctions.
The Strike-Out Application was...
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