Payam Tamiz v Guardian News & Media Ltd
| Jurisdiction | England & Wales |
| Judge | The Hon. Mrs Justice Sharp,Mrs Justice Sharp |
| Judgment Date | 31 July 2013 |
| Neutral Citation | [2013] EWHC 2339 (QB) |
| Docket Number | Case No: HQ13D00758 |
| Court | Queen's Bench Division |
| Date | 31 July 2013 |
[2013] EWHC 2339 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Sharp
Case No: HQ13D00758
The Claimant in person
Catrin Evans (instructed by Gill Phillips Director of Editorial Legal Services) for the Defendant
Hearing dates: 24 June 2013
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.
Introduction
The Defendant, Guardian News & Media Limited, is the publisher of the Guardian online newspaper. It applies to strike out this libel action under CPR 3.4 and/or for summary judgment to be entered against the Claimant under CPR 24.2.
A number of grounds are relied on but I am not invited to resolve them all unless it is necessary for me to do so. The application has focused on the following principal issues:
i) Whether parts of the claim are statute barred;
ii) Whether the words complained of are only capable of being comment;
iii) Whether the Defendant has a complete defence to the action on the ground that the Claimant consented to publications complained of (at least, those of which he is now able to complain insofar as they are not statute barred);
iv) Whether the claim has any real prospect of success; and
v) Abuse of the process (in the form recognised in Jameel v Dow Jones and Co [2005] EWCA Civ 75).
In the event, it has not been necessary for me to resolve two further issues; first, as to meaning, that is whether the words complained of are capable of bearing the meaning attributed to them by the Claimant or any meaning defamatory of the Claimant; and an associated issue, that is whether the Defendant is liable for the publication of words which did not appear on its website, but were accessible via a hyperlink.
The Claimant, Mr Tamiz, lives in Kent. He has some legal training (a degree in Law and Business Administration) and is training to be a solicitor. He also has some previous experience of litigation: including as a litigant in person, see for example, Tamiz v Google [2013] EWCA Civ 68.
The Claim Form was issued on the 20 February 2013, accompanied by Particulars of Claim dated 19 January 2013. By agreement no defence has yet been served.
The claim is brought in respect of two short items published on the internet in the Guardian online newspaper, which originally appeared on the 27 April 2011 (though the Claimant is not able to complain as to these first versions for limitation reasons). In each of the items there was a hyperlink to an article published in the Evening Standard (the Evening Standard article). The Evening Standard article concerned derogatory comments allegedly made by the Claimant about women in two places online: first, in a Facebook group called " Girls in THANET…you are all slags, hoes, brasses and bheads" (the Facebook Group); and secondly, on his publicly available Facebook profile page.
The items and the Evening Standard article were subject to a number of amendments after publication following complaints by the Claimant. The Evening Standard article was eventually removed entirely, and replaced by an apology to the Claimant. The items remain online in their final form, and provide access to the apology via the hyperlink.
The words complained of are contained in only one of the several amended versions of the items, and the Evening Standard and are set out in paragraphs 36, 37 and 39 below. In the light in particular of the Defendant's Jameel application, it is nonetheless necessary to refer to the somewhat convoluted history of this matter, and various amendments made both before and after the publication of the words complained of.
Two of the applications (whether parts of the claim are statute barred, or whether the words complained of are capable only of being comment) are not dependent on the underlying facts. As to the remainder, Ms Evans who appears for the Defendant, submits they are based on facts which are admitted or uncontested or plain and obvious from the documents, including the Claimant's admitted comments on his own profile (amongst other matters); and can be determined on the assumption that the Claimant was not a member of the Facebook Group or author of any of its posted comments — a matter he denies.
Summary judgment
On an application for summary judgment under CPR rule 24.2 the applicant must establish that the respondent has no real prospect of success and there is no other compelling reason why the claim should be disposed of at trial. The word "real" directs the court to the need to consider whether there is a realistic as opposed to a fanciful prospect of success: Swain v Hillman [2000] 1 All ER 91. The respondent must have a case which is better than merely arguable.
The rules provide for the service of evidence in support of the application and in response: see CPR para. 24PD.1. The court should not conduct a mini trial but it does not have to accept everything said by a party, particularly where such statements are contradicted by the contemporary documents; summary disposal where appropriate, saves the costs and delay of trying an issue the outcome of which is inevitable: ED&F Man Liquid Products Ltd v Patel [2003] EWCA 472, paragraph 10, per Potter LJ and Three Rivers DC v Bank of England (No.3) [2001] UKHL/16 per Lord Hope of Craighead at [95].
The court should also consider the evidence that could reasonably be expected to be available at trial or the lack of it: see CPR PD para. 24PD1.3 and Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ, 550 C.A. The court can make that assessment it seems to me on a sensible appraisal of the issues and evidence which are before it on the application: but in my view, it does not mean that the decision should be made on a speculative basis, nor does the rule assist a litigant who has simply failed to put in credible evidence when such evidence is plainly called for. Though the overall burden of proof rests on the applicant, if credible evidence is adduced in support of the application, the respondent then becomes subject to an evidential burden of showing some real prospect of success or some other reason for a trial: see the note at para. 24.2.5 in Civil Procedure, 2013, Vol 1 p.689.
In the context of libel actions, and the right to a jury trial (as things currently stand) judgment should not be given at any stage which has the effect of depriving the parties of a jury decision in any case where the defence or claim, as the case may be, may depend upon a finding of fact which would be properly open to a tribunal: see Alexander v Arts CouncilMiller v Associated Newspapers Ltd [2003] EWHC 2799(QB) at [13]; Wallis v Valentine [2003] EMLR 8 at [13] and further, the approach of Eady J in Bataille v Newland [2002] EWHC 1692 (QB) at pp6–7 cited at para 32.32 of Gatley on Libel and Slander (11 th ed).
The evidence on the Application
The Defendant's Application Notice was issued on the 18 April 2013. It set out in detail (over 3 pages) the order the court was being invited to make, and the grounds for the application. It was accompanied by an 18 page witness statement from Ms Phillips, the Defendant's legal advisor, dated 18 April 2013 (Phillips1) with an attached exhibit of 117 pages. Phillips1 dealt in detail amongst other matters, with the communications between the parties after the items were first published on 27 April 2011 and the discussions which led to various amendments the Defendant made to what was published online. Amongst the documents exhibited to Phillips1 were what were described in the index to the exhibit as "Extracts from Claimant's Facebook page" and "Extracts from Facebook group "Girls in Thanet." A short supplemental statement from Ms Phillips ( Phillips2) was served on 14 May 2013, dealing with the number of online "hits" for the items during the relevant period, and exhibiting some further Facebook extracts.
The Claimant agreed to serve his evidence in reply no later than 10 days before the hearing (therefore by 13 June 2013) but in the event, served none. At the start of the hearing, in application intimated by a letter received very shortly before the court sat, he invited me to adjourn the Defendant's application for two reasons. He said he had been taken by surprise or "ambushed" by the grounds of the Defendant's application as set out in Ms Evans's skeleton argument given to him on 19 June 2013. He also said that he had made a request for further information of the Defendant on the 18 June 2013 in relation to the authenticity of what were said to be screen grabs from his Facebook profile and the Facebook Group "Girls in THANET…" exhibited to Ms Phillips's witness statements. He said this further information was relevant to determine who had provided the screen grabs to the Defendant, when this had been done and " the full extent of the evidence the Defendant had to prove the allegations it intends to justify at the hearing". He said he needed this information and more time to prepare his response and serve evidence in reply.
The application was opposed by the Defendant on the basis it was an attempt by the Claimant to derail the hearing for no good reason and to defer answering the evidence lodged with the application.
When asked to identify which matters in the skeleton had taken him by surprise the Claimant referred to matters which had in fact been referred to in the Application Notice. When this was pointed out to him, he said he had not received the Application Notice (or at least that part which contained the grounds on which the...
To continue reading
Request your trial
-
(1) David Kneafsey (2) Scott Reddy (3) Leo O'Neil (4) Terry Robinson (5) Martina Byrne (6) Christopher Price v (1) Independent Television News Ltd (2) Channel Four Television Corporation (3) Simon Israel
...conduct made against them, there is no real prospect of the Claimants recovering anything other than minimal damages ( Payim Tamiz v Guardian News and Media Ltd [2013] EWHC 2339 (QB) para 72). 13 In each case it is the Defendants' case that the Claimants have no real prospect of defeating t......