Lee Johnson v Ministry of Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foskett |
| Judgment Date | 29 October 2018 |
| Neutral Citation | [2018] EWHC 2829 (QB) |
| Docket Number | Case No: HQ14D02635 |
| Court | Queen's Bench Division |
| Date | 29 October 2018 |
[2018] EWHC 2829 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Foskett
Case No: HQ14D02635
Henry Mainwaring (instructed by Direct Access Counsel) for the Claimant
David Mitchell (instructed by Government Legal Department) for the Defendant
Hearing date: 10 October 2018
Judgment Approved
This matter comes before the court on the Defendant's application, issued on 14 June 2018, to strike out the Re-Amended Particulars of Claim dated 1 August 2016 or to enter summary judgment for the Defendant. As will appear, it is the second occasion on which such an application has been made by the Defendant.
A very detailed background to the Claimant's litigious activity is set out in the judgment of the Divisional Court in A-G v Johnson [2017] EWHC 979 (Admin), a judgment upon the implications of which the Defendant relies heavily in this application. That judgment led to the Divisional Court making an indefinite “all proceedings” Civil Restraint Order (‘CRO’) against the Claimant on 3 May 2017. In short, the judgment demonstrated that the Claimant was an inveterate litigator of almost always hopeless causes. I will return to the alleged significance of that matter below.
The present action was one of 45 different proceedings commenced by the Claimant over the years and came to be embraced by the Divisional Court's order. However, because Nicol J, on 18 May 2016, had given the Claimant permission to proceed with a limited feature of the present claim, Garnham J, who had delivered the judgment of the Divisional Court, gave the Claimant permission to proceed with this claim on that limited basis by an order made on 25 January 2018. He made it plain that the permission was very limited and expressed himself thus in the order:
“In the light of the hearing before Nicol J, and the fact that the judge considered these proceedings and gave the claimant permission to continue with the claim for defamation relating to publication before 1 January 2014, I grant permission in the terms set out above. The fact that the Divisional Court granted and All Proceedings order means the claimant needs this permission to proceed but should not prevent his continuing to prosecute what the court has determined is potentially a valid claim.”
The order made by Garnham J specified that “[for] the avoidance of doubt, the Claimant does NOT have permission to continue with any element of his claim other than that for which Nicol J gave permission on 18 May 2016.” (The emphasis was as in the order.)
The proceedings are defamation proceedings arising out of the publication on a website operated by the Ministry of Justice, the Defendant in this action, of the Claimant's name as the subject of a General Civil Restraint Order (‘GCRO’). It appears that his name first appeared on that list in or about February or March 2013 and was taken off in August 2014 after these proceedings had been issued on 30 June 2014. It was taken off at the suggestion of the Senior Master at an interim stage and before whom the proceedings came initially on the first strike out/summary judgment application made by the Defendant. That application was dated 20 February 2015. It was heard on 22 October 2015 and the reserved judgment was given on 27 January 2016: [2016] EWHC 177 (QB).
It is not disputed that, whatever else may be said about his status as a potential litigant at that time (see paragraph 2 above), the Claimant was not the subject of a GCRO at that time and his inclusion on the list was a mistake. I will return shortly to his true status at the time, but what he seeks to do in this action is claim damages for defamation based upon the period that the offending entry on the register appeared (namely, from February/March 2013 until the end of 2013). The Defamation Act 2013 came into force on 1 January 2014. That Act required that “serious harm” to a person's reputation should have occurred or was likely to occur for the relevant statement to be defamatory and it is now accepted on his behalf that such a threshold could not be crossed by the Claimant.
The Senior Master had concluded (at [31] of her judgment) that “neither the Amended Particulars of Claim nor the draft Re-Amended Particulars of Claim show any reasonable grounds for a defamation claim to be brought and/or that there is no real prospect of such a claim succeeding.” Nicol J allowed the Claimant's appeal from that decision in relation to the period prior to the coming into effect of the 2013 Act. I have not seen any transcript or note of his judgment, but I am told that, whilst he considered that the Senior Master was right to grant summary judgment on the basis that the Claimant could not pass the “serious harm” threshold required under the Act to which I have referred for the period after 1 January 2014, on the material available to Nicol J, he might be able to pass the threshold at common law for the limited period to which I have also referred and, accordingly, the order of the Senior Master was set aside in relation to that period.
What was known to the Senior Master and to Nicol J was that, whilst not the subject of a GCRO at the time his name appeared on the list, he was the subject of a Limited Civil Restraint Order (‘LCRO’) made by Sharp J, as she then was, on 29 November 2012. I assume that was for a period of 2 years and thus covered the period that is relevant for the purpose of these proceedings.
As I have said, I have not seen the judgment of Nicol J. However, I must assume for present purposes that he thought that the fact that the Claimant was subject to an LCRO at the time his name appeared on the GCRO list was arguably not sufficient to prevent his claim under the pre-2014 law from proceeding. In Mr David Mitchell's Skeleton Argument for that appeal on behalf of the Defendant, he contended that the hypothetical reasonable reader of the publication “would have differentiated little, if at all, between a Civil Restraint Order classified as General rather than, Limited.”
That issue would have fallen to be judged by reference to the law applicable at the time. This has been variously stated, but the following paragraph from the judgment of Warby J in Lachaux v Independent Print Ltd and others [2016] QB 402 provides a useful reminder of what had to be established under the pre-January 2014 law:
“A meaning is defamatory of the claimant if it “[substantially] affects in an adverse manner the attitude of other people towards him, or has a tendency so to do”: Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985, para 96, per Tugendhat J. This also is an objective test. Although the word “affects” might suggest otherwise, it is not necessary to establish that the attitude of any individual person towards the claimant has in fact been adversely affected to a substantial extent, or at all. It is only necessary to prove that the meaning conveyed by the words has a tendency to cause such a consequence. The “people” envisaged for the purposes of this test are ordinary reasonable readers.”
As I say, I do not know what Nicol J said about that, even assuming it was an issue in play, but I will assume in the Claimant's favour that, having considered that test, he determined that listing him publicly as the subject of a GCRO (rather than as the subject of a LCRO) was arguably capable of affecting his reputation in a substantial manner. That said, I would respectfully think that this must have been a border-line decision.
Mr Mitchell, on this application, suggests that Nicol J had very much less than the full picture about the Claimant. For example, he draws attention to a sentence in the Claimant's personally composed and signed Skeleton Argument in support of the appeal to Nicol J which asserted that “at no time has a … GCRO been made against [the Claimant].”
That was not correct. He had been made the subject of a GCRO by Nelson J on 24 July 2008 which was upheld by the Court of Appeal on 16 April 2009: see [53] – [55] of the judgment of the Divisional Court.
He had also been the subject of an LCRO made on 23 March 2007 in Southend County Court by his Honour Judge Yelton. That information was not available to Nicol J.
Furthermore, none of the background that now appears in the judgment of the Divisional Court was before him. I have summarised the effect of that judgment above (see paragraph 2), but (subject a point raised by Mr Mainwaring: see below), it evidences the commencement by the Claimant over many years going back to 1999 of a multiplicity of actions in various courts or proceedings in tribunals, virtually all of which have been characterised as without merit. It is a very substantial catalogue of hopeless litigation. It led to the successful application by the Attorney General under section 42 of the Senior Courts Act 1981. The Claimant now finds himself listed on the Vexatious Litigants list.
In [83] of the judgment, Garnham J said that the court was satisfied that the Claimant had “habitually, persistently and without reasonable grounds instituted vexatious proceedings, made vexatious applications in proceedings and instituted vexatious prosecutions.” Anyone who reads [10] – [60] of that judgment will understand clearly why that conclusion was reached. It was that which led to the indefinite order made against him, both as ‘ Lee Johnson’ and under the various aliases he has adopted from time to time.
Mr Mitchell, on behalf of the Defendant, submits (a) that the Defendant is entitled to make this application...
To continue reading
Request your trial