Kaschke v Osler
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE EADY,Mr Justice Eady |
| Judgment Date | 13 May 2010 |
| Neutral Citation | [2010] EWHC 1075 (QB) |
| Docket Number | Case No: HQ08X01628 |
| Court | Queen's Bench Division |
| Date | 13 May 2010 |
[2010] EWHC 1075 (QB)
Before: The Honourable Mr Justice Eady
Case No: HQ08X01628
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Claimant in person
Robert Dougans (Solicitor Advocate instructed by Bryan Cave LLP) for the Defendant
Hearing date: 23 April 2010
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.
Mr Justice Eady:
These proceedings were begun by the issue of a claim form on 28 April 2008. Ms Kaschke sues Mr Osler in respect of an article on his blog at www.davidosler. com published on 7 April 2007, and to some extent thereafter, under the heading “Respect member's ‘Baader-Meinhof link’” alongside a photograph of Ms Kaschke. The blog was in these terms:
“Johanna Kaschke – recent defector from New Labour to Respect – was in the 1970s held in custody in her native Germany, charged with support for the ultraleftist Baader-Meinhof terrorist group.
Ms Kaschke – pictured left – denies any wrongdoing, although she admits to having organised some sort of benefit gig:
‘All I ever did was organise a music concert in the University of Würzburg Mensa. This got me sacked from my job in the University bookshop Schöningh and I also then lost my home.’
She has recently launched a complaint against leading German news magazine Der Spiegel for an article it wrote three decades ago, naming her in this connection. Rather than trying to hide any of this, Ms Kaschke has commendably chosen instead to post a copy of the story on her own website. She goes on to write:
‘I can safely say I never met any of the other persons mentioned in the article and got released after three months of prison on remand and was paid compensation for wrongful arrest and imprisonment two years later.’
If we take this account at face value – and I have no reason not to – the worst she stands accused of is youthful folly. After all, many young attracted to far left politics in the 1970s were passively sympathetic to groups such as the Baader-Meinhof gang. Most have subsequently been rehabilitated.
Former Angry Brigade suspect Angela Mason these days boasts an Order of the British Empire gong and sits on quangos. Even I used to wear a Brigate Rosse T-shirt, as modelled by Joe Strummer. Ms Kaschke appears to have come to political terms with all this:
‘Frankly I cannot understand how such educated university graduates like the Baader Meinhof people fell for this illusion that the state is only a paper tiger and they can win an urban guerrilla war against them.
‘Now with al Qaeda again we have people believing they go to paradise after they blew themselves up and that they are good Muslims if they cause a lot of destruction.
‘Terrorism is the enemy of all Socialism as it creates exactly the opposite reaction, it makes the state more right wing and is likely to destroy all Socialist advances made by peaceful negotiation.
‘If I knew of someone planning a terrorist atrocity I would definitely report them to the authorities because it's not right. I believe that people being put up to those guerrilla activities are being used by some people for exactly the purpose to create a right-wing movement.’
The thing is, she may find that not all of her new colleagues in Respect share her stance. Respect MP George Galloway, for instance, believes it would be morally justified for a suicide bomber to kill Tony Blair.
Posted at 23:58, 7 April 2007.”
The article in question attracted a certain number of comments which were posted shortly after the original publication. The Claimant also sues Mr Osler in respect of some of these comments as having been displayed on his blog. They include the following:
“Surely something can be morally justified while being tactically disastrous?
The assassination of Tony Blair is a clear example of this …
Posted by Daz 00:29, 8 April 2007
…
I'd be very dubious about someone, like Kaschke, who ‘suddenly’ discovers Labour are a bunch of bastards. I wonder if it could be connected with any realisation that her background would never allow her to be a Labour candidate in the way that any trivial conviction or even hint (or smear) of any illegality would bar anyone from being a main party candidate.
Maybe Respect will provide the next path for her career (although she has to be a Brit, Irish or a Commonwealth citizen to be an MP).
…
I guess now Kaschke is a member of Respect sh[e] will realise that the best way to have fought US imperialism in Germany was for the Baader Meinhof to have killed lots of Catholics, at random. In the hope of a backlash making the country ungovernable.
…
Posted by tim 11:34, 8 April 2007
She gets mentioned on page 6 [of Der Spiegel]. Under suspicion of supporting ‘criminal grouping’, was also bookseller Johanna Kaschke, arrested on July 10th (1975), because she was involved in the anarcho organisations ‘Rote Hilfe’ and ‘Schwarze Hilfe’. She was observed with two other left-wingers near to a weapons depot, she was also supposed to have been involved in organising bank robberies.
Of course, as she says, she got compensation for wrongful imprisonment, but the article reflects the news at the time (when she was in custody). …
Posted by Daggi 12:20, 8 April 2007
Whatever her company does, I hope (for her clients' sake) that it's not involved in the field of webdesign and the rest of her site suggests she might be one cherry short of a piece of Schwarzwälderkirschtorte.
…
Posted by Daggi 12:20, 8 April 2007
…
‘She was observed with two other left-wingers near to a weapons depot, she was also supposed to have been involved in organising bank robberies.’
What's the next bit – is somebody saying ‘we're starting to hear names nobody's ever heard of’?
Widen the net enough and that's just what will happen.
SPP is horribly confused with regard to this one, but I think it's worth making the point that head-banging pseudo-leftist nutters are entitled to legal representation and decent conditions –…
Posted by Phil 10:28, 9 April 2007
… By which I meant, if that's what Johanna K was doing in ‘Red Aid’ and/or ‘Black Aid’, she hasn't got much to be ashamed of. Embarrassed about, maybe.
Posted by Phil 10:37, 9 April 2007
… (Kaschke seems to be using web-design as a form of terrorism now.)
…
Posted by andy newman 13:15, 10 April 2007.”
Ms Kaschke stated in her particulars of claim that she noticed the above comments on 25 May 2007 and asserts that they connected her to terrorism. She adds:
“The whole flavour of this article was positively assertive of terrorist activities and connected the Claimant to it”.
Only recently, Mr Osler has been advised by Mr Dougans, who represented him before me at the hearing on 23 April 2010. Mr Dougans has taken the view that the original defence served by Mr Osler was unsatisfactory and, accordingly, an application was made to substitute a completely new “Amended Defence”. This unfortunately came very late in the day, since the trial was due to take place before a jury the following week. For various reasons, it became necessary for me to adjourn the trial. The “Amended Defence” raised defences of justification (on a very limited basis), fair comment, qualified privilege and limitation. I would be inclined to give permission for the defence to be served, in order that the real issues between the parties can be properly identified and resolved. This is clearly unsatisfactory, but the explanation proffered by Mr Dougans for the delay was simply that his client had not, until very recently, had the advantage of legal advice.
Mr Dougans also applied for the claim as a whole to be struck out as an abuse of process and, in the alternative, at least in part, on the basis of limitation. He submits that the claim should be confined to any publication which can be proved as being attributable to Mr Osler after 27 April 2007 (i.e. within the 12 month period leading up to the issue of the proceedings).
Further or in the alternative, Mr Dougans submits that certain passages complained of in the particulars of claim should be struck out, since they do not refer to Ms Kaschke and/or are incapable of bearing any meaning defamatory of her. He also relies on part of the words complained of as having been published with Ms Kaschke's consent (since the words in question are said to derive from her own website) and should be struck out for that reason in any event.
It is probably unnecessary to introduce the parties in any great detail, beyond saying that Ms Kaschke is a naturalised British citizen and is politically active in Tower Hamlets. She has from time to time changed her allegiance, politically, and has, as I understand it, contemplated standing for office. Mr Osler is a journalist and active member of the Labour Party. He too is resident in East London.
It is Mr Osler's case that he only posted the material about Ms Kaschke because he had seen an article published by her on her own website, at some stage prior to 7 April 2007. Indeed he provided a link to this, but unfortunately the article does not appear any longer to be available on the Internet and Ms Kaschke herself has not disclosed it. It appears that she attached a copy of an article published in Der Spiegel in September 1975 by way of background. This is of some significance, having regard to the proposed defence of consent, since it makes reference to Ms Kaschke in these terms (as translated):
“Suspected of having assisted a ‘criminal gang’ is also the bookseller Johanna Kaschke, arrested on 10 July, while she worked in anarchistic organisations like ‘Red Help’ and ‘Black Help’. Near a weapons depot she has been seen with two left...
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