Radu v Houston and Another
| Jurisdiction | England & Wales |
| Judge | THE HON. MR JUSTICE EADY,The Hon. Mr Justice Eady |
| Judgment Date | 23 November 2007 |
| Neutral Citation | [2006] EWHC 231 (QB),[2007] EWHC 2735 (QB),[2007] EWHC 2328 (QB) |
| Docket Number | Case No: HQ05X00542,Case No: QB/2005/PTA/06343 |
| Court | Queen's Bench Division |
| Date | 23 November 2007 |
1.Marco Houston
2. Sena-julia Publicatus Ltd
[2006] EWHC 231 (QB)
The Hon. Mr Justice Eady
Case No: QB/2005/PTA/06343
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Patrick Moloney QC and William Bennett (instructed by Carter-Ruck) for the Claimant
Stephen Cogley (instructed by Tarlo Lyons) for the Defendants
Hearing dates: 31st January and 1st February 2006
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 Claimant is married to the daughter of King Michael of Romania. He claims damages for libel against Mr Marco Houston, who is the editor, and Sena-Julia Publicatus Ltd, the publishers, of a magazine called Royalty Monthly. This has been described by Mr Cogley, appearing on their behalf, as "a barely solvent, tiny magazine". Nevertheless, it is not disputed that the Defendants published an article in volume 19, issue no. 5, headed "Scandal in Romania as Princess Margarita's husband is branded an impostor". The magazine was published in the jurisdiction and was plainly defamatory. It was pleaded on the Claimant's behalf that the words meant:
"… the Claimant is a con man, a forger, and an impostor and a former secret policeman for the wicked Ceaucescu dictatorship who has falsely passed himself off as royal prince in order to con people out of money and to inveigle himself into high official positions which would otherwise have been denied to him".
The Defendants proposed to rely upon justification, fair comment and privilege. It was thus in issue, inter alia, whether the Claimant is entitled to use the name Prince Radu of Hohenzollern or, for that matter, Prince of Hohenzollern-Veringen. It also in dispute whether he was a member of the Ceaucescu secret police.
The present issues concern security for costs. The Claimant resides in Romania, which is due to become a member of the European Union on 1 January 2007. The evidence shows, however, that there is at least the possibility of postponement until 2008. At the moment, Romania is seeking to achieve compliance in many respects with standards laid down by the European Union. Some of these are concerned with the administration of justice and, in particular, the enforcement of foreign judgments.
Following a hearing on 14 July last year, Senior Master Turner, whose experience in this field stretches back over many years and is well known, made an order that the Claimant should pay £125,000 by way of security. On 24 August Treacy J refused the Claimant's application for an extension of time within which to make the payment, and judgment was entered for the Defendants in default of compliance the following day. He (like the Senior Master) had also refused to grant a stay. That order was not appealed. This regularly entered judgment thus presents the Appellant with a formidable obstacle. I shall need to return to this in due course. Meanwhile, I turn to the merits of the appeal and the present applications before the court. Nevertheless, even if the Claimant succeeds, in whole or in part on those matters, it will avail him nothing unless I set aside this judgment.
The Senior Master gave permission to appeal on two grounds only, which correspond to Grounds 5 and 6 in the Appellant's notice. They were identified by the Master in the form N460 as follows:
"Permission to appeal is confined to two issues:
If this Claimant is to be believed he has virtually no assets; yet his relations and friends and others with whom he works appear to be in receipt of substantial funds. Is he therefore a candidate for 'Yorke Motors'?
If so, ought he to give security for the bulk of the additional costs of execution?"
The reference to " Yorke Motors" was to the case of Yorke Motors v Edwards [1982] 1 WLR 444, 449 where it was made clear that the court should take into account the fact that a litigant pleading impecuniosity "may have funds, he may have business associates, he may have relatives, all of whom can help him in his hour of need". The Master gave an extension of time for serving the Appellant's notice up to 14 September and, when it was served, it contained four other grounds upon which the Appellant was seeking permission to appeal. In the particular circumstances of this case, it seems to me right to set out all the grounds of appeal as they appear in the Appellant's notice:
The Master's decision to refuse the Claimant's application for an adjournment of the hearing in order to deal with the Defendants' recently-served evidence was wrong in law and/or an improper exercise of his case management discretion for the following reasons:
a) In breach of Part 23 CPR, the Defendants did not serve with their application notice any evidence as to the Romanian law and practice relevant to the enforcement there of UK judgments or the additional costs of such enforcement by comparison with a Brussels Convention jurisdiction.
b) The Defendants' evidence on that topic was served on 11 and 12 July 2005 (the hearing being on 14 July) and the quantum of £150,000 specified by letter of 13 July.
c) The Claimant had no or no sufficient opportunity to consider that evidence, let alone obtain instructions or evidence in answer as to Romanian law prior to the hearing.
d) Balancing the prejudice to the parties from hearing or adjourning the matter on 14 July, the only just solution was to grant the adjournment, (possibly with a stay meanwhile). By proceeding without relevant evidence and accepting as he did the Defendants' said evidence, the Master was bound to reach the wrong and unjust conclusions as to additional costs of enforcement set out at Grounds (3) and (4) below.
e) Further, the Master also permitted the Defendants to rely on evidence as to the Claimant's means and bad faith (the 4 th WS of Mr Pennal) served after close of business on 13 July, to which the Claimant had no opportunity to respond, and refused him an adjournment to deal with that evidence.
f) Again, by proceeding without the evidence in response, and refusing an adjournment on terms, the Master was bound to reach the wrong and unjust conclusions as to ability to pay, set out at Grounds (5) and (6) below.
Had the Master granted the adjournment sought, he would have been able to receive and consider the following additional evidence on the Claimant's behalf, which would or ought to have led him to a different decision on the merits and/or to have reached his decision in a just manner.
a)The evidence as to Romanian law and procedure set out in the Expert Report of Dr Bazil Oglinda;
b)The evidence as to the means of the Claimant and his wife, and the availability of third-party assistance in providing security, set out in the 2 nd WS of the Claimant, and the 1 st WSs of Princess Margarita and King Michael;
upon which the Claimant now seeks permission to rely.
For the reasons more fully set out in the Expert Report of Dr Oglinda, the Master's decision that the Defendants would, if successful in this action, face substantial additional costs of enforcement in Romania by comparison with a Brussels Convention country was plainly wrong in fact and law:
a)Since May 2004, Romania has in effect been a Brussels Convention country since its law on foreign judgments is now identical to that applicable in the EU.
b)The Master was therefore wrong to rely on his past experience of Romanian enforcements under the pre-Convention regime.
c)The Master had no or no sufficient evidence before him as to the costs of enforcement in Romania, let alone the comparative costs in EU countries, on which to base his conclusion that there was a material excess in those costs in Romania.
Even if the Master had rightly and/or fairly held that it was likely that there would be some additional costs of enforcement in Romania by comparison with a Convention country, there was no proper evidential basis for his conclusion that £125,000 was a proper quantum of security, and the evidence of Dr Oglinda shows this amount to be manifestly excessive.
Even assuming that a given amount of security would otherwise be due, the Master ought not to have ordered it unless satisfied that to do so would not stifle the Claimant's claim by reason of his inability to pay. The Master's conclusion that the Claimant could reasonably be expected to obtain funding from the ex-Royal Family was:
a)unjust, because reached on the basis of unfairly admitted and unanswered evidence of Mr Pennal referred to above;
b)wrong in fact, especially in the light of the further evidence as to the means of the Claimant and his wife, and the means and intentions of the King, referred to above.
In the light of that evidence (which the Master should have permitted to be prepared and adduced before him) to order any substantial security in this case would be to stifle an otherwise legitimate claim in breach of the Claimant's ECHR rights and contravention of the overriding objective.
I should point out at this stage that Grounds 5 and 6 have become redundant, since King Michael has subsequently made clear that he is prepared, if necessary, to provide up to £125,000 to enable the Claimant to meet any security requirement. No question of stifling now arises.
Mr Cogley, who has taken every conceivable point on behalf of his clients, has challenged the Claimant's right to introduce the first four grounds. Not only did he argue that none of them had any realistic prospect of success and that, accordingly, permission should be refused. He also suggested that an extension of time was required, over and above the extension for the Appellant's notice...
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