John Caine v Advertiser and Times Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dingemans |
| Judgment Date | 14 January 2019 |
| Neutral Citation | [2019] EWHC 39 (QB) |
| Docket Number | Case No: QB/2018/0243 |
| Court | Queen's Bench Division |
| Date | 14 January 2019 |
[2019] EWHC 39 (QB)
Mr Justice Dingemans
Case No: QB/2018/0243
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
The Claimant in person
Clara Hamer (instructed by Reynolds Porter Chamberlain) for the Defendants
Hearing date: 11 th December 2018
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 HONOURABLE Mr Justice Dingemans
Introduction
This is the hearing of an appeal against the order of Master Yoxall dated 10 August 2018 by which he stayed permanently the claim for libel brought by John Caine, a businessman, who is the appellant in the appeal and the claimant in the action. The claim is against Advertiser and Times Limited (“the Advertiser and Times company”) which publishes the newspaper “The Advertiser and Times” a local newspaper in Hampshire, and Edward Curry a director of the Advertiser and Times company, in respect of an article published on 14 May 2016 in the Advertiser and Times.
This appeal raises a point about the procedure by which a defendant should challenge a failure to serve proceedings in time, and the effect of the judgment of the Court of Appeal in Hoddinott and others v Persimmon Homes (Wessex) Limited [2007] EWCA Civ 1203; [2008] 1 WLR 806.
Factual background
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.
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.
Relevant procedural history
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. I record that a point about whether Master Yoxall was right to find that the date of issue was 9 May 2017 was very obliquely raised in paragraph 1 of the Respondent's Notice, but it was not pursued and I say no more about it.
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.
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.
On 19 October 2017 the Advertiser and Times company 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 ….”. The Advertiser and Times company 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”.
By letter dated 26 October 2017 Reynolds Porter Chamberlain (“RPC”), by then instructed on behalf of the Advertiser and Times company 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.
3 November 2017 was 14 days after the date of the filing of the acknowledgment of service. This is a relevant date for the provisions of CPR Part 11(4), as appears below.
On 7 November 2017 an application to strike out was made on behalf of the Advertiser and Times and Mr Curry. So far as is material the order sought was “the claimant's claim be struck out pursuant to CPR 3.4(2); or the court enters summary judgment against the claimant pursuant to CPR 24.2; and the claimant pays the defendants' costs of the application”. It was stated “this application is made on the basis that the claimant has no reasonable grounds for bringing this claim ( CPR 3.4(2)(a)) which has no real prospect of success ( CPR 24.2(a)(i)) and/or that the claimant has failed to comply with various rules within the CPR ( CPR 3.4(2)(c))”. One of the failures to comply with the rules identified by the Defendants was the failure to serve the claim form and particulars of claim within time. By the time that the hearing commenced before Master Yoxall points about Jameel abuse, absence of serious harm, and complaints about the way in which the claim had been pleaded, were being relied on by the Defendants in relation to whether it would be equitable to extend the limitation period, and as distinct grounds to dismiss the claim.
Statements in support of the application were made by Mr Alex Wilson and Mr Rupert Cowper-Coles.
Proceedings before Master Yoxall
It appears that the first hearing listed at 3 pm on 11 May 2018 overran and Master Yoxall invited written submissions on whether time for service of the claim form and particulars of claim should be extended. In submissions served on Monday 14 May 2018 Mr Caine took the point that even if the claim form and particulars of claim had not been served in time the Advertiser and Times company and Mr Curry had submitted to the jurisdiction of the court because they had not disputed jurisdiction pursuant to CPR Part 11 within 14 days as required by the CPR Part 11, and because they had waived their right to challenge the jurisdiction of the court.
In response the Advertiser and Times company and Mr Curry made an application dated 18 May 2018 as follows: “1. for a four day retrospective extension of time, including by way of the court's case management power under CPR 3.1(2)(a), for the period for filing an application under CPR 11(4) from 3 November to 7 November 2017; and/or 2. Under CPR 3.9 for relief from the sanctions in CPR 11(4) and 11(5) such that the Defendants are not treated as having accepted that Court has or should exercise its jurisdiction in these proceedings and the Defendants' challenge to service contained in its application of 7 November 2017 may be considered by the Court (which is pending following a part heard hearing on 11 May 2017 before Master Yoxall)”. Reference was made in the application notice to an attached witness statement which was the third witness statement of Mr Cowper-Coles. He set out the procedural background and noted that the point about CPR Part 11 had just been taken by Mr Caine. In that...
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