GG v YY and Another
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Tugendhat,Mr Justice Tugendhat |
| Judgment Date | 20 May 2014 |
| Neutral Citation | [2014] EWHC 1627 (QB) |
| Docket Number | Case No: HQ11D01788 |
| Court | Queen's Bench Division |
| Date | 20 May 2014 |
[2014] EWHC 1627 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Tugendhat
Case No: HQ11D01788
Ms Victoria Shore (instructed by Harveys Solicitors LLP) for the Claimant
The Defendants appeared in person
Hearing dates: 13 May 2014
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.
There are before the court the Application Notices by which the parties apply for the following, among other, orders:
i) one issued by the Second Defendant dated 13 December 2013 by which he asks for orders that (1) the claim be struck out, (2) an order dated 22 January 2011 and any subsequent amendments or undertakings be set aside (3) the Claimant be ordered to pay to him damages to be assessed under his cross-undertaking given to obtain the order dated 22 January and subsequent orders; (4) damages to be assessed in respect of further claims made by the Claimant which had already been resolved by agreement between the parties on 10 February 2011;
ii) one issued by the First Defendant dated 3 February 2014 by which she asks for orders that (1) the claim be struck out (2) the orders of 22 January and 11 February be set aside (3) the Claimant be ordered to pay to him damages to be assessed under his cross-undertaking given to obtain the order dated 22 January and subsequent orders;
iii) one issued by the Claimant dated 18 March 2014 by which he asks for orders that (1) Defendants file proper replies to his Part 18 request dated 25 February 2014 (2) an order approved by Master Eastman on 27 February 2014 be drawn up (3) an injunction restraining the Defendants from disclosing to any non-party any witness statements (including their own) filed or served in these proceedings, or using the same for a different purpose (4) the witness statements of the Second Defendant and Second Defendant's wife dated 14 March 2014 be struck out.
The Claimant is a solicitor. The Second Defendant is a retired solicitor. The Claimant acted as the First Defendant's solicitor in a boundary dispute ("the Boundary Dispute") which was tried in the autumn of 2010. For this purpose the Second Defendant was for a short time engaged by the Claimant to assist the First Defendant in that litigation. Differences arose between the Claimant and the First Defendant as to the manner in which his firm and counsel were conducting the trial. In October 2010 his retainer was terminated during the trial, but soon re-instated. It was terminated finally be letter dated 17 December 2010. Judgment was given against the First Defendant, and permission to appeal was refused. The First Defendant is aggrieved by what she claims to be the misconduct of that litigation. She has made a number of allegations against the Claimant in relation to the conduct of that litigation and in relation to personal matters. The Second Defendant has supported the First Defendant against the Claimant.
On 21 January 2011 HHJ Hughes QC, sitting as a Deputy Judge of the High Court, heard an application by the Claimant for an interim non-disclosure order made on short notice to the Defendants. He heard counsel for the Claimant, a Mackenzie friend for the First Defendant and the Second Defendant himself. On the Claimant's giving a cross-undertaking in damages (such as is normally required of an applicant for an interim injunction) HHJ Hughes QC ordered that, until 11 February (the return date) Defendants be prohibited from publishing certain personal information, or allegations of a personal nature against the Claimant, including allegations made in a number of letters and e-mails dated in December 2010 and January 2011 which are identified in the order. These include some sent by the First Defendant which were addressed to the Claimant and to his wife. They also include some sent by the Second Defendant, to a court official, to the Solicitors Regulation Authority and the Claimant's wife.
HHJ Hughes QC gave a judgment. He stated that the applications before him were under the Protection from Harassment Act 1977 and for breach of confidence (these claims had been made in two separate actions between the same parties). He said that he found it quite extraordinary that this case had developed in the way it had, because its foundation was a straightforward and minor boundary dispute. I agree. And I find it even more extraordinary that it has developed as it has since then.
The Judge recited the evidence (the Claimant had submitted witness statements dated 17 and 18 January 2011) and his conclusion that, to the standard applicable to interim applications, he was satisfied
"that there was a good case the extremely personal nature of these allegations, the way in which they have been written, the people to whom they have been reported and the persistence with which this course of conduct has been engaged in constitutes conduct causing [the Claimant] alarm and distress and that [the Defendants] ought to have known that it would have that effect".
By that time the First Defendant had become unwell, as certified by a medical certificate dated 19 January 2011.
The Particulars of Claim in what was then action 1WC 90002 were drafted under Part 8, and dated 18 January 2011. They recited the relationship between the parties, the letters referred to in the Order of 21 January, and the relief claimed under the Protection from Harassment Act. The only version of the document before this court is a draft amended version. The amendments are to include a claim for misuse of private information, and for the case to proceed under Part 7. But for reasons which will appear, no application for permission to amend has been pursued and the claim has not been amended.
Also on 22 January 2011 HHJ Hughes QC made an order in the Boundary Dispute litigation in which the judge trying that case had not yet handed down judgment. HHJ Hughes QC made an order disallowing the Second Defendant from acting thereafter as the First Defendant's Mackenzie friend. The order records his criticisms of the conduct of the Second Defendant in both the Boundary Dispute action and the two actions commenced by the Claimant.
On 11 February 2011, the return date, an Order made was effectively in two parts, one relating to the Second Defendant and one to the First Defendant. By that time the First Defendant had made a witness statement dated 9 February and had filed an Acknowledgement of Service indicating that she wished to defend the claim.
As far as concerns the Second Defendant the Order of 11 February 2011 was made by agreement between the Claimant and the Second Defendant. The Second Defendant gave a permanent undertaking to the court. The Judge continued the injunction against the First Defendant, subject to qualifications permitting her to make disclosures to the legal ombudsman and the Solicitors Regulation Authority. It was ordered that there be no publication of the contents of the judgment of 21 January 2011 without the permission of the court and there were other derogations from the principles of open justice which are commonly made in non-disclosure orders. These included protection of the hearing papers pursuant to CPR 5.4(7). The two claims were consolidated and directed to be heard under CPR Part 7.
By para 18 of the Order of 11 February 2011 the claims against the Second Defendant were stayed upon terms set out in the agreement set out in the Confidential Schedule 3 to the Order. The stay was in the usual Tomlin form, that is to say, subject to the proviso that that the action could be continued for the purpose of enforcing the terms of the agreement. By para 19 it was provided that the Claimant and the Second Defendant were to be permitted to apply to the court to enforce the terms of the agreement without the need to commence new proceedings.
When judgment was handed down in the Boundary Dispute it was against the First Defendant. She applied for permission to appeal but that was refused.
On 2 March 2011 the Claimant wrote to the Second Defendant a letter in accordance with the Pre-Action Protocol in Defamation. It was stated to be in respect of publications made by the Second Defendant on 19 January 2011 and 21 December 2010 (as set out in a Schedule), but not to include other defamatory publications the subject of the settlement of the two actions recorded in the Order of 11 February 2011.
By an application notice dated 17 March 2011 the Claimant applied for summary judgment under CPR 24 against the First Defendant. On 13 May 2011 the First Defendant signed a form of draft Consent Order. It read that, by consent of the Claimant and of the First Defendant, it was ordered that the action be adjourned generally with liberty to restore. That order was not in fact drawn up.
Nothing material occurred for over two years. There then followed the application notices issued by the Defendants in this action. No notice was given by letter to the Claimant, and no explanation has been offered by the Defendants for making their applications at this late stage, or at all.
The grounds given for the Second Defendant's application notice of 12 December 2013 are impossible to understand. They contain allegations against the Claimant in his conduct (both professional and personal) in relation to the First Defendant and to other individuals, none of which are of any concern of the Second Defendant.
After referring to the bringing of these proceedings the grounds given by the Second Defendant continue:
"Under duress the Second Defendant settled these...
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