Frank Kofi Otuo v Watch Tower Bible and Tract Society of Britain
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 12 February 2019 |
| Neutral Citation | [2019] EWHC 571 (QB) |
| Docket Number | No. HQ13D03735 |
| Court | Queen's Bench Division |
| Date | 12 February 2019 |
[2019] EWHC 571 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
London, WC2A 2LL
Mr Justice Warby
No. HQ13D03735
HQ14D02898
THE CLAIMANT appeared in person.
Mr S. Brady (instructed by Legal Department, Watch Tower Bible and Tract Society of Britain) appeared on behalf of the Defendant.
The claimant, Mr Otuo, began these two claims for damages for slander in 2013 and 2014. The first action (“Claim 1”) arises from an announcement made on 12 July 2012 at a meeting of the London Wimbledon Congregation of Jehovah's Witnesses that Mr Otuo was no longer a Jehovah's Witness. The second action (“Claim 2”) concerns words spoken at a meeting just over a year later on 22 June 2013, a meeting to consider his application for reinstatement. The case has a long and complex procedural history. Mercifully, only some of that history needs to be related in order to explain the decisions that I now have to make.
The matter was last before a judge in August 2018. That was His Honour Judge Parkes QC. On 30 August 2018 he gave judgment on various applications — [2018] EWHC 2304 and 2305 (QB) — which sets out much more of the detail than it is necessary to deal with today. On 17 September 2018, Judge Parkes made an order (“the Parkes order”) consequent on his decisions of 30 August. The Parkes order struck out various parts of the statements of case and set directions for the case to progress towards trial. As a result, both actions are now, finally, fixed for trial concurrently over five to seven days commencing on 11 March 2019.
The Parkes order gave directions for disclosure and the service of amended statements of case, and provided that there should be a pre-trial review not less than a month before the trial date. I have been conducting that pre-trial review.
The Parkes Order has been complied with, in the sense that disclosure is complete and amended statements of case have been served. There is an outstanding dispute about the Reply in Claim 2, but it is not necessary to resolve that at this stage.
There is also a pending application or, failing that, a Defence which asserts that neither of the claims can be adjudicated on by the Court as they are non-justiciable, because the words complained of related to membership of a religious organisation and were spoken in that context. The defendants' contention invokes the protection afforded by the Convention rights to freedom of religion, speech and assembly. That, as the defendants concede, raises some novel issues of law. For that and other, procedural reasons, I have deferred consideration of the issue. I have, however, heard enough of the argument on the non-justiciability issue to conclude that by giving this judgment I am not trespassing on any immunity enjoyed by these defendants.
This judgment deals with the defendants' application for an order that both claims should be dismissed as an abuse of process on more familiar, Jameel grounds.
The law
That shorthand is by now very familiar to defamation lawyers, as it is to others. It refers to the undoubted jurisdiction of the Court to dismiss as an abuse of process an action in which the claim represents an interference with the Convention right to freedom of expression which cannot be justified as necessary or proportionate in the pursuit of any of the legitimate aims specified in Article 10(2) of the Convention. On a proper analysis it would seem that, where that is the case, the Court is under a duty to dismiss the Claim pursuant to section 6 of the Human Rights Act 1998.
The test has been expressed in a variety of ways in the authorities. One often-cited passage comes from the decision of Eady J in Schellenberg v British Broadcasting Corporation [2000] EMLR 296, where he said (at p.319) that the overriding objective's requirement for proportionality meant that he was bound to ask whether in that case “the game is worth the candle”, and concluded:
“I am afraid I cannot accept that there is any realistic prospect of a trial yielding any tangible or legitimate advantage such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources.”
In Jameel itself, the court adopted that form of expression with evident approval, and summarised the position in its own way in these words:
“Keeping a proper balance between the Article 10 right of freedom of expression and the protection of individual reputation must, so it seems to us, require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant's reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged.”
Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75 [2005] QB 946 [55].
There are at least two important strands to any such assessment. There is the inherent gravity of the offending publication on the basis of which the court will evaluate what is, or may be, at stake for the claimant. On the other hand, there is the complexity and consequent costs in terms of resources of finding out whether the claimant's case is deserving of a remedy.
An important point for the court to bear in mind is that this is not, or not just, a numbers game. The point was expressed succinctly and clearly in Haji-Ioannou v Dixon [2009] EWHC 178 QB at [31], by Sharp J DBE:
“Publication of a libel, or indeed a slander, to one person may be trivial in one context, but more serious than publication to many more in another. Much depends on the nature of the allegation, and the identity of the person about whom and the person or persons to whom it is made. To that extent, the decision in each case is ‘fact sensitive’. However, the court should not be drawn into making its decision on the basis of contested facts material to the issue of abuse which properly ought to be left to the tribunal of fact to decide.”
It is recognised, moreover, that the dismissal of a claim on the grounds of triviality or disproportionate cost is a serious matter, and a step which the court should not take lightly. As the Court of Appeal pointed out in Sullivan v Bristol Film Studios Ltd. [2012] EWCA Civ 570, [2012] EMLR 27, the main function of the court is to decide cases, not to refuse to do so and to dismiss them because the process is too costly or burdensome.
So, before it can dismiss a claim as an abuse of this kind, the Court must be satisfied, first, that the costs and other resources that would be required to adjudicate on the claim are out of all proportion to any benefit that might legitimately be obtained by the claimant; secondly, that there is no alternative means by which the dispute could be resolved at proportionate cost, and with the devotion of only those resources which are truly necessary.
Previous decisions
This is not the first time that the defendants have made a Jameel application against Mr Otuo. Such an application was made in Claim 2 as long ago as 2014. It first came before Master Leslie, who, by a judgment and order of 24 November 2014, dismissed it. The Master said:
“9. The matter is not so trivial as to be similar to that which was dealt with by the court in the case of Jameel v Dow Jones & Co Inc. [2005] EWCA Civ 75. One cannot say that somebody in Mr Otuo's position should not be permitted to sue simply because the case is not worth the candle or the wick. In my judgment, at least is he wins, it may very well be worth both the candle and the wick and the whole box of matches.”
There was an appeal, which came before Sir David Eady, sitting as a Deputy Judge of the High Court. It appears to have been argued over two days. On a third day, 26 June 2015, Sir David gave a reserved judgment dismissing the appeal, [2015] EWHC 1839 (QB). Sir David said, among other things:
“1. … This is mainly because the Defendants are seeking to rid themselves of the claim on a summary basis at a stage when the statements of case are inchoate: they leave it unclear as to how much of a factual dispute there would be if the case is allowed to proceed to trial. …
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9. Although he does not plead a meaning as such, Mr Daniel has argued that one of the reasons why the action should be struck out is that the words are not defamatory in any sense. …
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10. Here, the actual meaning to be attributed may well depend on the evidence as to who was present, what exactly was their function and how much background knowledge they had. I am not asked on the present appeal to determine the meaning(s) of the words, but I do not believe that I can at this preliminary stage rule that the words spoken were so obviously not defamatory that the Claimant is left without a cause of action. …
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14. If the words meant that the Claimant had been guilty of fraud (by whatever definition), and was thus dishonest, that is a defamatory allegation which is at least capable of causing serious reputational damage. The Court should thus be reluctant to shut out such a claim in a case where the facts have yet...
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Frank Kofi Otuo v Watch Tower Bible and Tract Society of Britain
...of conveying any defamatory innuendo meaning to the Informed Audience. See Otuo v Watchtower Bible and Tract Society of Britain [2019] EWHC 571 (QB) at [32]–[59]. Before me, neither party sought to go beyond those rulings. In these circumstances, one issue for trial in this context is how ......