Jamie Hodges v Christopher Naish
| Jurisdiction | England & Wales |
| Judge | Richard Parkes |
| Judgment Date | 01 July 2021 |
| Neutral Citation | [2021] EWHC 1805 (QB) |
| Docket Number | Case No: FB0BS542 |
| Court | Queen's Bench Division |
[2021] EWHC 1805 (QB)
HIS HONOUR JUDGE Richard Parkes QC
SITTING AS A JUDGE OF THE HIGH COURT
Case No: FB0BS542
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
WINCHESTER DISTRICT REGISTRY
Royal Courts of Justice
Strand, London, WC2A 2LL
Gervase de Wilde (direct access) for the Claimant
The Defendant appeared in person
Hearing dates: 24, 25 February 2021: 12 March 2021: 1 July 2021
Approved Judgment
ON TRIAL OF PRELIMINARY ISSUES
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.
His Honour Judge Richard Parkes QC:
BACKGROUND
This is a slander action with a protracted and convoluted history. It involves two leading exponents of Irish dance, who worked together for some years as friends and colleagues in a business known as Fusion Fighters. The business involved both performance and teaching. They performed shows and taught students the skills of Irish dance at workshops all over the world. Their business relationship broke down in early 2019, in circumstances such that their friendship ended also.
By this litigation, the claimant claims damages for slanders allegedly spoken by the defendant to certain individuals in February, March and April 2019, and an injunction to prevent their repetition. The claim form was issued on 21 March 2019. The publications originally complained of were to Conor Kennedy and John McCullough, on the same occasion; to Elaine Walker; to Erin Mulcahy; and to Phillip Gaber.
Matters took a wrong turn with the Particulars of Claim, because counsel then instructed failed to set out the actual words alleged to have been spoken by the defendant. Instead, he pleaded their gist, in indirect speech. That was wrong: the actual words published are the essence of a claim in slander, as in libel. It is never enough to plead the gist of what was said, which can be hard to distinguish from a pleading of the meaning of the words. The relevant Practice Direction ( CPR 53xPD para 2.4) provides that in a claim for slander the precise words used and the names of the persons to whom they were spoken and when must, as far as possible, be set out in the Particulars of Claim. The qualification ‘as far as possible’ does not mean that the gist of the words will suffice: see eg Best v Charter Medical of England [2002] EMLR 18, and Rayner v Seabourne-Hawkins [2020] EWHC 2895 (QB).
Given the failure to plead the actual words, it was not surprising that the natural and ordinary meanings relied on in the Particulars of Claim were little more than a repetition of the gist. Moreover, there was a largely misconceived gamut of innuendo meanings. And there were other problems. In particular, it was unclear where some of the alleged slanders were published, and it later emerged that publication would have occurred in foreign jurisdictions; there was a superfluous plea that the words complained of were false and motivated by malice; and the pleader brought in a novel cause of action (not foreshadowed in the claim form) in deceit and fraudulent misrepresentation.
Unfortunately, instead of applying to strike out the Particulars of Claim, the defendant (who was then represented) pleaded to them. The Defence compounded the difficulties of the case, by pleading such matters as the state of mind with which the defendant spoke such words as he admitted to having spoken, and by pleading that many of the statements made were true, without making clear in what meaning they were to be justified, and without pleading any Lucas-Box particulars in support.
The Defence was followed by a Reply. Inevitably, that further aggravated the difficulties in which the litigation found itself. Instead of focusing on the real issues, the pleadings became a tangle of irrelevancies.
The case had been proceeding in the Bristol District Registry. It came before HH Judge Cotter QC in Bristol. He transferred it to the Media and Communications (‘MAC’) List, and on 21 May 2020 Jay J gave directions by way of pre-trial review. It appears that witness statements had been exchanged on or by 17 April 2020. The claimant had served statements by himself, Mr Kennedy, Mr McCullough and a Mr Kevin Goble, whose evidence was that the defendant had spoken to him similar words to those alleged to have been spoken to Mr Kennedy and Mr McCullough.
At the pre-trial review, counsel for the claimant (not then Mr de Wilde) applied orally for the trial of a preliminary issue as to the words published, the meaning of the words complained of, whether the meanings were defamatory at common law, whether the imputations were likely to cause the claimant's reputation to suffer serious harm, and whether they were allegations of fact or opinion. It appears that on that occasion the claimant's then counsel took the view that the Particulars of Claim were fit to be used at the trial, while the defendant (in my judgment rightly) disagreed. The judge at once saw the unavoidable need to vacate the trial date, and made a novel and ingenious order for a kind of defamation Scott Schedule, which was plainly designed to get round the unhappy state of the pleadings.
Jay J's order (so far as now material) was as follows:
(1) The trial of this matter listed for 9 and 10 June 2020 be vacated;
(2) The trial of the preliminary issues of publication, meaning, the status of the imputations as fact or expressions of opinion, whether the publications are defamatory at common law, and serious harm, be adjourned to a date to be fixed, to be heard by a Judge of the Media and Communications List in Bristol, with a time estimate of three days…
(4) The parties shall, by no later than 4.30pm on 16 June 2020, identify any witness evidence from that already served (sic) upon which they rely;
(5) The parties shall agree and file a consolidated table showing:
(i) the words complained of (by reference to the paragraph of the Particulars of Claim),
(ii) the claimant's alleged meaning (by reference to the paragraph of the Particulars of Claim),
(iii) whether the Defendant admits the words complained of,
(iv) the defendant's alternative version of the alleged publication (if applicable),
(v) the defendant's case as to the meaning of the words complained of,
(vi) the defendant's case as to fact or opinion,
(vii) whether the defendant admits the meaning is defamatory at common law,
(viii) the parties' cases on serious harm under section 1 of the Defamation Act 2013, and,
(ix) if opinion is alleged, the factual basis of that opinion,
by 4.30 on 7 July 2020;
(6) The matter shall be reserved to Jay J, if possible.
Thereafter, by further order of Judge Cotter QC at Bristol, on the direction of Jay J and after consultation with Warby J (then judge in charge of the MAC List), the trial of the preliminary issues was transferred to Winchester District Registry for hearing before me, as a nominated judge of the MAC List.
The trial of preliminary issues had been re-fixed for hearing from 10–12 November 2020, even though it was hardly more ready for hearing than the full trial would have been in June. In addition, two applications were issued on 9 October 2020 by the claimant, who by now was represented by specialist defamation counsel, acting on a direct access basis, Mr de Wilde.
In the event, there was no scope for listing the applications before the week of trial, having regard to listing constraints and counsel's availability. Nor was there time both to hear the applications and to deal with the trial of preliminary issues. So the trial had to be taken out of the list, and the applications were heard on Wednesday 11 November 2020.
The claimant sought to adduce further witness statements, primarily in order to amplify existing statements by setting out the actual words which the witnesses alleged had been spoken; and by his second application he sought an order striking out certain of the witness statements served by the defendant, including parts of the defendant's own witness statement, on the footing that they had no relevance to the issues to be determined on the hearing of the preliminary issues. Counsel then acting for the defendant rightly did not argue for their relevance for that purpose.
I allowed the first application, albeit on the basis that (as the defendant had long argued) the Particulars of Claim had to be amended in advance of the trial of preliminary issues. A properly pleaded case as to precisely what words were spoken, and what they were said to have meant, was in my view an inescapable precondition of a defamation claim fit to be answered with a defence and, ultimately, to go to trial. I was not prepared to conduct the trial of preliminary issues on the basis of the claimant's witness statements, nor to determine whether or not unpleaded words, simply referred to in a witness statement, had been published, or what the meaning of those words might be. I therefore ordered the claimant to serve draft Amended Particulars of Claim (APOC) by 2 December 2020, so that the claimant's case was at least prospectively set in stone. Despite that order, I retained Jay J's consolidated table identifying the parties' respective contentions on the issues in play, and directed that the claimant should make consequential changes to the table, and that the defendant should update the table in response.
As far as the second application was concerned, I did not strike out the relevant witness statements, given the possibility that parts of them might later become...
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