John Caine v Advertiser and Times Ltd
| Jurisdiction | England & Wales |
| Judge | Richard Spearman |
| Judgment Date | 23 August 2019 |
| Neutral Citation | [2019] EWHC 2278 (QB) |
| Court | Queen's Bench Division |
| Date | 23 August 2019 |
| Docket Number | Nos. HQ17M01967, HQ18M02612, QB-2019001263 |
[2019] EWHC 2278 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Spearman Q.C.
(sitting as a Deputy Judge of the Queen's Bench Division)
Nos. HQ17M01967, HQ18M02612, QB-2019001263
The Claimant in person
Clara Hamer (instructed by Reynolds Porter Chamberlain LLP) for the Defendants.
Hearing date: 25 July 2019
Richard Spearman Q.C.:
Introduction
There are three applications before the Court, each made by an application notice dated 10 May 2019, and each made in a different Claim. John Caine is the Claimant in each of those Claims. In Claim No HQ17M01967 (“Claim 1”) the Defendants are (1) Advertiser & Times Limited (“ATL”) and (2) Edward Curry. In both Claim No HQ18M02612 (“Claim 2”) and Claim No QB-2019-001263 (“Claim 3”) the Defendants are (1) Edward Curry and (2) Caroline Woodford. The applications are supported by a 5 th witness statement, dated 10 May 2019, of Rupert Cowper-Coles, a solicitor at Reynolds Porter Chamberlain LLP (“RPC”), with a 139 page exhibit. Mr Caine served a witness statement in response dated 21 May 2019, with a 263 page exhibit.
In Claim 1, the application notice of ATL and Mr Curry seeks the following relief: (i) an Order varying paragraph 4 of the Order of Master Yoxall dated 10 August 2018 to allow the application to be made, (ii) an Extended Civil Restraint Order (“ECRO”) pursuant to CPR 3.11 and Practice Direction 3C, paragraph 3.1(1), and (iii) costs. Paragraph 4 of that Order of Master Yoxall provides: “No further applications are to be made in these proceedings save in respect of the detailed assessment of costs and to a Judge [for permission to appeal, and to appeal, this Order]”.
In Claim 2, the application notice of Mr Curry and Ms Woodford seeks the same relief as is sought by ATL and Mr Curry in Claim 1, save that there is no Order restraining the making of further applications in Claim 2, and accordingly there is no occasion to seek the variation of any such Order to allow the application to be made. The application notice also seeks the costs of the case as well as the costs of the application.
In Claim 3, the application notice of Mr Curry and Ms Woodford seeks: (i) an order under CPR 11 that the Court does not have jurisdiction to try Claim 3 or should not exercise its jurisdiction to try Claim 3, (ii) alternatively, an order under CPR 3.4(2)(b) striking out Claim 3, (iii) a finding that Claim 3 “is totally or wholly without merit”, (iv) an ECRO on the same grounds as are relied on in Claims 1 and 2, and (v) costs.
Ms Hamer, who appeared for the Defendants in all three Claims, invited me to determine the application in Claim 3 first. In this way, if Mr Curry and Ms Woodford succeed in that application, they will be able to rely on the ruling that Claim 3 is “totally without merit” in support of the ECRO applications in all three Claims. Mr Caine, who appeared in person, did not object to that proposal. I therefore intend to adopt it.
ATL publishes local newspapers in Hampshire called The New Milton Advertiser & Lymington Times (for short “ The Advertiser and Times”). The directors of ATL are Mr Curry and Ms Woodford, who are siblings. Mr Caine is a local businessman, living in New Milton, who knew their late father, Charles Curry, Mr Caine would say as a friend, but they would say as someone who began unjustifiably meddling in his affairs by advising him (when he was suffering from dementia) to revoke a Lasting Power of Attorney given in Mr Curry's favour. Among other things, Mr Caine's intervention resulted in the involvement of the Office of the Public Guardian. However, the Lasting Power of Attorney was not revoked, and Mr Curry was exonerated of wrongdoing. Mr Caine has subsequently brought Claims 1, 2 and 3, and indeed a fourth Claim which was issued on 19 June 2019 against ATL and Mr Curry (“Claim 4”), alleging (in the main) libel and malicious falsehood in respect of articles published in The Advertiser and Times or on a Facebook page called “New Milton Watch – the Truth” (“the NMWT Page”). The NMWT Page contains content which is critical of another Facebook page which is operated by Mr Caine called “New Milton Watch” (“the NMW Page”), further or alternatively of Mr Caine himself. The NMWT Page is not operated by any of the Defendants in Claims 1–4, but Mr Caine contends that Mr Curry and Ms Woodford were or became liable for content published on the NMWT Page due to their operation of their own Facebook pages, in particular because they “Liked” the NMWT Page.
The procedural history of the Claims
Claim 1
With regard to Claim 1, I am fortunate in being able to rely on the judgment of Dingemans J in Caine v Advertiser and Times Ltd & Curry [2019] EWHC 39 (QB).
Dealing with the factual background, Dingemans J said at [3]–[4]:
“3. On 27 January 2015 Mr Caine took his motor car to the New Milton Tyre Company. Work on two tyres and a spare tyre was carried out. The spare tyre was put in the boot. Mr Caine drove his car home but later telephoned to complain that items valued by Mr Caine at £200 had been taken from his boot, which was denied by the person who had carried out the fitting. Mr Caine confronted Mr Williamson, who ran the tyre company, about the missing items and words were exchanged. Mr Caine reported the tyre company for theft but was himself prosecuted for public order offences arising out of what he had said to Mr Williamson and garage workers. On 9 May 2016 Mr Caine was convicted at West Hampshire Magistrates' Court in Southampton of using threatening or abusive words or behaviour, or disorderly behaviour, contrary to section 5 of the Public Order Act 1986.
4. On Saturday 14 May 2016 there was a report in The Advertiser and
Times about the trial. The report also reported that Mr Williamson complained that Mr Caine had conducted a 14 month online campaign against the tyre company. On 22 May 2016 Mr Caine wrote a letter of claim in relation to the article. On 10 June 2016 there was a response to the letter of claim.”
Dealing with the relevant procedural history, Dingemans J said at [5]–[12]:
“5. Mr Caine attempted to commence proceedings by sending a claim form to the court. On 4 May 2017 the Court returned the draft claim form to him because the incorrect fee had been paid and insufficient copies of the draft claim form had been provided. On 8 May 2017 Mr Caine returned the claim form to the court and it was endorsed as having been issued on 23 May 2017 (over a year after the date of publication which was on 14 May 2016). In fact, as Master Yoxall discovered when he called for the court file and recorded in his judgment, the claim form on the court file shows that the issue date of 23 May 2017 had been struck through and the date of 9 May 2017 substituted. This meant that the claim had been issued in time …
6. However Mr Caine did not immediately serve the claim form or attach any particulars of claim. On 1 September 2017 the court wrote to Mr Caine recording that the claim had been referred to Master Davison, who had noted the absence of particulars of claim, the need for a prompt application to extend time to serve the claim form and particulars of claim, and the need for service of the claim form as soon as possible.
7. It appears that Mr Caine was away from the jurisdiction and did not return until 7 September 2017. In any event the claim form was delivered by hand on 5 October 2017, when it should have been served on 9 September 2017. Further when serving the documents Mr Caine failed to serve a response pack. It is common ground that this was in breach of the provisions of CPR Part 7.8 which provides that a form for defending, a form for admitting and a form for acknowledging service should have been filed. However it also seems clear that the failure to serve a response pack did not have a material effect on subsequent developments.
8. On 19 October 2017 [ATL] and Mr Curry, both then unrepresented, emailed an acknowledgment of service to the court having ticked the box that they intended to defend all of the claim. The box “I intend to contest jurisdiction” was not ticked. The notes say “If you do not file an application to dispute the jurisdiction of the court within 14 days of the date of filing this acknowledgment service, it will be assumed that you accept the court's jurisdiction ….”. [ATL] also sent a covering email dated 19 October 2017 and an accompanying letter dated 19 October 2017 recording in both that the defendants were seeking legal advice “as it is not clear that the claim form has been correctly serviced with respect to content and dates”. It seems plain that “serviced” was a typographical error for “served”.
9. By letter dated 26 October 2017 [RPC], by then instructed on behalf of [ATL] and Mr Curry, wrote to Master Yoxall as the assigned Master noting that the claim was statute barred (having been misled by the stamp on the claim form showing 23 May 2017). The letter also stated “whilst it is not necessary due to the complete defence provided by limitation, it is appropriate for the Defendants to raise the following failures by the Claimant to comply with the CPR …”. It was then noted that the claim form and particulars of claim had not been served within 4 months of issue, and there had been a failure to serve a response pack. The letter invited Master Yoxall to strike out the claim on his own initiative. A further email was sent by RPC to Master Yoxall dated 1 November 2017 reattaching the letter of 26 October 2017 and repeating the invitation for the court to strike out or enter summary judgment against Mr Caine. Master Yoxall did not make any order of his own motion.
10. 3 November 2017 was 14 days...
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