Michael Ward v Associated Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin |
| Judgment Date | 18 March 2021 |
| Neutral Citation | [2021] EWHC 641 (QB) |
| Docket Number | Case No: QB-2019-003661 |
| Court | Queen's Bench Division |
| Date | 18 March 2021 |
[2021] EWHC 641 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Nicklin
Case No: QB-2019-003661
The Claimant appeared in person
Andrew Caldecott QC and Clara Hamer (instructed by Reynolds Porter Chamberlain LLP) for the Defendant
Hearing date: 18 December 2020
Further written submissions: 21 December 2020, 13 January 2021 and 2–3 February 2021
Approved Judgment
This is the second substantial interim application with which the Court has had to deal in this case before even a Defence has been served. The hearing took almost a day, and further written submissions were submitted after the hearing. Mr Ward, the Claimant, is acting in person. He has dealt, admirably, with a further comprehensive attack on his statement of case, renewed by a new Leading Counsel instructed by the Defendant. Save in the limited respects identified below, this further attack has been unsuccessful.
History
The nature of Mr Ward's claim, the statement upon which he sues, and the history to the litigation is set out in the judgment given on 5 October 2020 [2020] EWHC 2797 (QB) (“the First Judgment”). I will adopt the same definitions in this judgment. I dismissed the Defendant's application to strike out Mr Ward's claim and for summary judgment against him. I described this as a “ comprehensive and wide-ranging attack” on Mr Ward's claim [10]. I refused permission to appeal and no renewed application for permission to appeal was made to the Court of Appeal.
One of the complaints made by the Defendant was that, in his case of malice, Mr Ward had failed to identify, clearly, the particular individuals at the Defendant whom he contended acted with malice in publishing the Mail on Sunday Statement to be included in the Byline Article (see [46]). At the first hearing, no application was made to dismiss Mr Ward's plea of malice on this basis. By the time of the first hearing, Mr Ward had filed a witness statement which identified that the two key individuals against whom he alleged malice were John Wellington and Peter Wright. They were the individuals who had composed and sent the Mail on Sunday Statement for publication in the Byline Article (that ultimately appeared in paragraph 49) (see [47]–[54] of the First Judgment). I did, however, direct that Mr Ward was to make clear in an Amended Particulars of Claim the individuals against whom he alleged malice and the facts relied on: [55].
Anticipating that amendments that Mr Ward made to his Particulars of Claim might prove to be contentious, the directions provided that Mr Ward was to provide a draft Amended Particulars of Claim to the Defendant and the Defendant was given 14 days to indicate whether it consented or objected to the amendments. The process took rather longer than expected because, unfamiliar with conventions of litigation, Mr Ward did not initially identify the amendments he was seeking by application of the typical redline method to pleadings. Even when this was corrected by Mr Ward, there remained some unidentified amendments to the text. Finally, on 9 December 2020, Mr Ward served a draft amended statement of case that he suggested fully identified the amendments he was seeking. On 11 December 2020, the Defendant's solicitors sent a letter to Mr Ward identifying the amendments to which objection was taken. A hearing had been fixed for 18 December 2020. On 15 December 2020, Mr Ward served a further draft amended statement of case in response to the objections raised by the Defendant.
Although I accept that the Defendant (and its solicitors) has sought to adopt a constructive approach to the amendments sought by Mr Ward, taking what amount to ‘pleading points’ with litigants in person can be counter-productive. It will be a rare case in which a legally trained and skilled opponent, acting for a well-resourced client, will be unable to pick holes in a litigant in person's statement of case. The question is whether this serves any real purpose. Unless there is some fundamental defect in the litigant in person's case, little is achieved by such skirmishing beyond (usually) the production of ever more lengthy statements of case (as the litigant attempts to meet the objections raised against him/her), delay and depletion of resources (those of the litigant, the opponent and the Court). This case might be thought to be a paradigm example of this phenomenon. The final version of the draft Amended Particulars of Claim now runs to over 100 pages (almost double the page count of his original Particulars of Claim). In the light of that, it is not without irony that the first complaint advanced by the Defendant against Mr Ward was that his statement of case was not a “ concise statement of the facts on which the Claimant relies”: CPR 16.4(1)(a).
Since the hearing, I have also received well over 100 further pages of material. I do not criticise Mr Ward for this. Naturally, he feels under attack and the need to answer the Defendant's objections and demonstrate why, in his view, he has a valid claim that he can support with evidence. Nevertheless, objectively judged, and as will be demonstrated below, very little has been achieved by this exercise. Measured in terms of resources, it is simply disproportionate. Having spent what must be a very considerable sum in costs at two substantial hearings, what of any real value has been achieved by the Defendant by this exercise, and which could not have been achieved, instead, by pleading a Defence that set out clearly the parameters of the litigation, is difficult to identify.
The challenges to the draft Amended Particulars of Claim
Paragraphs 44–46, 48, 64–65, 189–190, 196, 202, 236, 272–273
In these paragraphs of his draft Amended Particulars of Claim, Mr Ward advances his case that, in publishing the statement for publication in the Byline Article, Messrs Wright and Wellington were actuated by malice. Mr Ward advances his plea of malice on the basis of both knowledge of falsity and that Mr Wright and Mr Wellington had a dominant improper motive. The plea of malice is advanced in the Particulars of Claim as part of Mr Ward's claim for malicious falsehood. Malice is also likely to feature as an issue in the case because, on the basis of indications given previously (see [43] in the First Judgment), the Defendant intends to rely upon a defence of qualified privilege in respect of Mr Ward's defamation claim and malice, if proved, can defeat that defence.
It has been held that malice is the same whether it is advanced as an element of a claim for malicious falsehood or to defeat a defence of qualified privilege: Spring v Guardian Assurance plc [1993] 2 All ER 273. Proof of a dominant improper motive on the part of the defendant is one of the bases on which malice can be demonstrated in publication claims: Horrocks v Lowe [1975] AC 135, 149F-G per Lord Diplock. It is, however, very much the poor relation of the other basis on which malice can be established: proof that the individual knew that the allegation s/he made was false (or was reckless to such a degree that he is, in law, equated as having this dishonest state of mind). In most cases, at least evidentially, the two states of mind tend to go hand-in-hand; the claimant alleges that the defendant did not believe what s/he published and did so because s/he wanted to damage the claimant or for some other advantage. On the basis of the authorities, there remains, perhaps, a theoretical possibility of malice being found against a defendant who, although s/he believed that what was published was true, was nevertheless actuated by a dominant improper motive. However, as I observed in Huda v Wells [2018] EMLR 7 [71]:
“… This species of malice may still have a legitimate role in malicious falsehood claims (particularly trade libel) but it has a dubious justification when advanced in answer to a well-founded plea of qualified privilege. It has been expressly excluded as a basis for proving malice in answer to a fair comment/honest opinion defence: Tse Wai Chun Paul v Albert Cheng [2001] EMLR 31. In 2002, Eady J noted that he could not recall an instance of ‘dominant intention’ malice having been proved and described this form of malice as an ‘endangered species’ in relation to qualified privilege: Lillie & Reed v Newcastle City Council [2002] EWHC 1600 (QB) [1093]. I am not aware of any such case in the 15 years since.”
In their letter of 11 December 2020, the Defendant's solicitors objected to the paragraphs of the draft Amended Particulars of Claim that advanced a plea of dominant improper motive as follows:
“We do not accept that you have pleaded a viable case on malice by way of ‘dominant improper motive’ which could succeed if the Court at trial were to accept that Mr Wright and Mr Wellington believed in the truth of the statement and were not reckless, and the matters on which you rely in this context are just as consistent with the absence of malice as the presence of malice.
We accept that generally the plea of knowledge of falsity or recklessness is proper and remains. If that were established, a finding of malice would ordinarily follow.
It is material context that this is a reply to attack case where the reply is directed only at the attack. In such a context knowledge of falsity or recklessness would seem to be the key issue.
We accept that the motive of Mr Wellington and Mr Wright in publishing the statement may arguably be relevant to what they intended to convey,...
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Tallha Basim Abdulrazaq v Shaheed UL Hassan
...I am not aware of any such case in the 15 years since.” 83 Nicklin J returned to this topic in Ward v Associated Newspapers Ltd [2021] EWHC 641 (QB). There, the Court was seized of an application by the Claimant, a self-represented litigant, to amend his pleadings. At para 8 of his judgmen......