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 350 (QB) |
| Date | 21 February 2019 |
| Court | Queen's Bench Division |
| Docket Number | Case Nos: HQ13M03735 |
[2019] EWHC 350 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE 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.
Mr Otuo was expelled from the Jehovah's Witnesses in 2012, the announcement being made at a meeting of the Wimbledon Congregation. He sues the first defendant (“Watch Tower”) for slander in respect of that announcement (“Claim 1”) and, in a second action (“Claim 2”), in respect of some words spoken at another meeting just over a year later by Mr Morley, the second defendant in Claim 2. The Court has found that the words complained of bore, among others, imputations of guilt of fraud.
In earlier judgments on this prolonged Pre-Trial Review I have dealt with applications to dismiss the claims, strike out pleadings, and permit the service of witness summaries, as well as applications for relief from sanctions. Now, I have to address Mr Otuo's application for permission to amend his claim forms, Particulars of Claim and his Replies to advance a claim for remedies for breach of contract, and/or corresponding allegations by way of reply to the Defences.
He has tried to do some of this before. Over four years ago, on 10 and 11 December 2015, Sir David Eady heard an application by Mr Otuo to amend his claim form and Particulars in Claim 2 to add a claim for breach of contract in respect of the process leading to his expulsion or “disfellowship” from the Jehovah's Witnesses. (At the time, Claim 1 stood dismissed on limitation grounds, a decision later reversed by the Court of Appeal.) In his reserved judgment of 15 January 2016, [2016] EWHC 46 (QB), Sir David dismissed the application for permission to amend.
The Judge was not persuaded by the defendants' argument that the Court would necessarily conclude that the religious context meant the case was one where there could not be an intention to create legal relations. But the draft amendments were found to be deficient. In particular, they asserted a factual basis for the claim which was impossible given that the second defendant (“Watch Tower”) did not exist at the time of the alleged contract. Further, no proper basis was pleaded for any contractual relationship with Watch Tower. Further still, on the basis of the Articles of Watch Tower, which were in evidence before him, Sir David was unable to see how it could be said that Mr Otuo was a member of that body. He was not satisfied that the claim was or could be satisfactorily formulated against an existing party to the claim.
The present application was made by application notice dated 7 February 2019, three years after Sir David's decision and just over a month before the trial date. The trial is listed for 11 March 2019. The application was supported by a witness statement of Mr Otuo, also dated 7 February 2019, which explained that the application and the draft amendments were based on a document disclosed by the defendants following the directions Order of HHJ Parkes QC dated 17 September 2018. The document is a Constitution dated 29 May 1997 of the Congregation. It was disclosed by Mr Morley. It was disclosed, or rather produced, in April 2018.
What Mr Otuo now wishes to do, by what he himself describes as a “late application to amend” is to amend his claims “to include a breach of contract as the Constitution makes no provision for the expulsion of members within the Congregation”. More accurately and specifically, he proposes to Re-Re-amend his Particulars of Claim and amend his Reply in Claim 1, and to Re-amend his Particulars of Claim and amend his Reply in Claim 2.
The proposed amendments fall into two main groups. The amendments to the Particulars of Claim are designed to advance breach of contract as a cause of action which entitles Mr Otuo to relief from the Court. Mr Otuo wishes to add a paragraph asserting that he was a member of the Congregation; that its constitution made no provision for expulsion; and that therefore the actions of the defendants of which he complains were ultra vires. On the back of this, he seeks the following relief:
“that the Defendants be ordered to make an announcement to the Congregation “in the terms that the expulsion of the Claimant on 19 July 2012 was unconstitutional, as such the claimant is reinstated as a member of the London Wimbledon Congregation of Jehovah's Witnesses upon the announcement pursuant to the Court's Order.”
The amendments to the Replies have different purposes. First, the alleged contract, and the allegedly ultra vires nature of the defendant's conduct, are relied on as an answer to the pleaded defences of consent. Secondly, they are relied on to support an allegation, which was already to be found in the Replies, that the defendants' conduct involved them meddling in matters which were “commercial affairs of the claimant which they had no pastoral or constitutional duty to”. Hence, it was pleaded, they had no legitimate religious, moral, or social interest or duty to make the offending communications. The same facts are relied on as affording evidence of malice.
The application could not be dealt with at the first day of the PTR, Monday 11 February 2019, because Mr Otuo had only given 1 clear day's notice. He frankly admitted that this was not enough, and did not seek an order abridging time. So, like other applications that were listed for hearing that day, it had to be adjourned. That was highly inconvenient. The court has many demands on its time, which is limited – and increasingly so. If litigants suddenly call for applications to be dealt with on short notice, they inevitably disrupt the process. It can sometimes be justified, but only where something has happened to require a short-notice application.
Why was this application brought on such short notice in the first place? There is no adequate answer to that. A significant part of the answer, it is clear, is culpable delay on the part of Mr Otuo. On his own account, the evidential basis for the application has been available to him since April 2018. His application was first filed some ten months later, just over one month before the trial, which has been fixed for a considerable time now. One working day's notice was given, before the PTR. He had given no prior warning at all. He is acting in person, but that cannot excuse delay of this kind.
Adjournment of the application was in the circumstances, inevitable. As it turned out, it was possible to list the application for a hearing not long after 11 February 2019. I heard it on Friday 15 February. This was inconvenient, as it required a number of aspects of the Court's diary to be reorganised. Mr Otuo is fortunate that this was not just possible, but that the time and trouble was taken to undertake these re-arrangements. Even then, it was not possible both to hear and to give judgment on all the applications that were before me that day. After two days of hearing, I had to reserve judgment on nearly all of those applications, and reserve my reasons on them all.
But the adjournment of this particular application has had a number of benefits. First, it has enabled me to read the draft amendments, which was not possible before, as they were only supplied less than 30 minutes before the previous hearing began. Secondly, Mr Otuo has been able to explain more fully his case – although he had an ample opportunity to do that before he filed the Application Notice. Thirdly, it has allowed the defendants to prepare and provide written and oral submissions in response. Finally, and importantly, I have been afforded at least some time to absorb and reflect on all of this. All these are or should be ordinary steps towards a fair and reasoned decision on such an application. The process, as everyone with experience of it knows, makes it essential for the opposite party to be given adequate time to respond to an application and for the Court to be allowed time for pre-reading and preparation. Mr Otuo knows that. Although he is unrepresented, he is a very experienced litigant.
In the light of all that I have now read and heard, I have reached the clear conclusion that the application for permission to amend to plead a claim in contract must be dismissed. However, although I have considerable reservations about the merits of these contentions, I will allow Mr Otuo to amend his Replies to maintain that the process leading to his disfellowship was conducted in breach of contract.
Principles
Any amendment must of course disclose a reasonable basis for a claim or defence. The Court will refuse...
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Frank Kofi Otuo v The Watch Tower Bible and Tract Society of Britain
...the plea of malice. 51 Whole paragraph Post-publication conduct which is not more consistent with malice than its absence (see [2019] EWHC 350 (QB) [36]) and/or in any event is remote and would call for a disproportionate inquiry. 52 “The Court now knows” Improper form of pleading. Comment......