Jan Krause v Associated Newspapers Ltd

Hearing dates: 12 February 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.

The Defendant applies to strike out this libel action, or for alternative orders. The Defendant is the publisher of Mail Online. The action was commenced by a claim form issued on 23 May 2013 in respect of a publication online made on 23 May 2012 under the title "Transsexual let off community service by judge after complaining she can't push heavy lawnmower". It was taken down (without admission of liability) on 26 April 2013, the day following the Claimant's letter of complaint.

The facts giving rise to this claim arise out of criminal convictions which were described by Moses LJ in his judgment delivered on 22 May 2012 ( R v Krause [2012] EWCA Crim 2058). He was giving his reasons for dismissing the Claimant's renewed application for permission to appeal against conviction, and for allowing an appeal against sentence. The transcript reads.

"1. This is a renewed application for permission to appeal against conviction following this applicant's conviction of acting in breach of a restraining order contrary to section 5(5) of the Protection from Harassment Act 1997. The conviction was recorded on 9th September 2011.

2. The case against this applicant was that she had breached various requirements of a restraining order which had been made against the applicant by Chester Magistrates' Court on 29th July 2010. The prosecution case was that in relation to two of the counts she had been staring at her neighbours from her premises, the third count alleged that she had shone a torch at the vehicle and the occupants, and the fourth count that she had approached a visitor, a gas man, about apparently a long-running grievance she had in relation to noise emitted from the flue of her gas boiler.

3. The original restraining order was eight items long. As a result of an appeal, with which we have just dealt with by way of an appeal by way of case stated, the restraining order was reduced. Part of the grounds of this appeal, which the applicant pursues, is that she says that she was found guilty of breaches in respect of aspects of the original restraining order that no longer remain.

4. Even if that were correct, and we doubt that it is, it would not amount to any ground for an appeal. The order that was made by the Magistrates' Court required the applicant to obey it until such time as she was able to demonstrate either that it was wrong or could be overthrown. There might be circumstances in which an unlawful condition was imposed that was unenforceable and therefore it would amount to a defence to show that it should never have been in place, but that was not the defence of this applicant at trial, and in any event it would not have been open to her so to contend in relation to the conditions that were imposed against her. It is important to emphasise that although they sound trivial here within the courtroom, they are merely a demonstration and a manifestation of a long-running dispiriting saga of what has found to be harassment by this applicant against her neighbour.

5. The grounds she also pursued, that she has not pursued today, partly concern bad character, which the single judge disposed of since it was obvious that the history of the matter had to be laid before the jury pursuant to section 101(1)(c) of the 2003 Act.

6. Today the main thrust of the applicant's case is that she was not guilty, that what she had done was merely a distortion of the truth made by her neighbours, who have lied about what in fact occurred. She seeks to put forward today audio evidence, and we have a transcript of that, showing that they were merely, on the contrary, harassing her by seeking to trap her into committing a breach of the conditions of the restraint order, and in any event persisting in allowing their boiler to emit a noise as recorded on a decibel chart that she has shown us today that was apparently recorded on the neighbour's own CCTV.

7. It is important, and I suspect the applicant well understands it, that the grounds of appeal which it is open to her to advance before this court do not include an application merely to have a re-run of the trial in which she was convicted. There may well be things she wished she had said or been able to demonstrate, or indeed evidence she wished she had adduced, at trial. The fact is she did not give evidence and the evidence made against her was believed. In those circumstances there is no warrant or basis upon which we can reconsider it again. The application is dismissed.

(Submissions on sentence followed)

8. LORD JUSTICE MOSES: Miss Krause, we think you have done enough community work. I am not quite sure on what basis, but we really want to hope that things get a bit better, we just think that all these quarrels and litigation and police and courts just make life so much worse for you and your family. What we are going to do is allow your appeal and reduce the amount of hours down to 150, so you have done it and need not do any more.

9. THE APPLICANT: At least it was contact with somebody.

10. LORD JUSTICE MOSES: Well, if you would like to go on doing it, if you would like us to say 200 — what do you want? You can withdraw the appeal. We are just trying to make things better.

11. THE APPLICANT: Another seven and a half hours.

12. LORD JUSTICE MOSES: So you can say goodbye to them. We will reduce it so that you have to do another seven and a half hours, that is down to 157 or something. One more go, all right?

13. THE APPLICANT: Thank you, your Lordship.

14. LORD JUSTICE MOSES: To say goodbye to them.

15. To that extent the appeal will be allowed. Do not ask me to give reasons because I cannot think of any."

In Krause v Newsquest Media Group Ltd [2013] EWHC 3400 (QB) (11 November 2013) I had to consider proceedings brought by the same Claimant against another news publisher and the Chief Constable of Cheshire Police arising out of the same proceedings. In that judgment at paras [34]–[35] I had a transcript of the submissions. I wrote:

"34. The only reference in that transcript to the lawnmower is in an answer she gave to Moses LJ: "Are you doing any of the unpaid work or have you not started that?" The Claimant replied: "I am pushing a lawnmower around a graveyard every Sunday". In the course of her oral submissions she said that after the hearing a reporter had asked her questions, and that it was in response to those questions out of court, and not in court, that she had referred to the lawnmower being heavy.

35. It is not possible for me to determine on paper whether it was in court or out of court that the Claimant referred to the lawnmower being heavy. So I would not have struck out the claim on the ground that a defence of absolute privilege is bound to succeed."

The evidential position as to what the...