Ronald Terance Stocker v Nicola Stocker
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lady Justice Sharp,Sir John Laws |
| Judgment Date | 12 February 2018 |
| Neutral Citation | [2018] EWCA Civ 170 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2016/1266 |
| Date | 12 February 2018 |
[2018] EWCA Civ 170
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR JUSTICE MITTING
HQ13D06031
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McFarlane
Lady Justice Sharp DBE
and
Sir John Laws
Case No: A2/2016/1266
David Price QC and Jonathan Price instructed by David Price for the Appellant
Manuel Barca QC instructed by SA Law LLP for the Respondent
Hearing date: 30 January 2018
The respondent and appellant in this appeal were married to each other for 13 years. They divorced in 2012. They have a son, now aged 17. Their divorce was acrimonious. These proceedings for libel arose from comments (the Comments) made by the appellant on the Facebook Wall of the respondent's new partner, Ms Deborah Bligh on 23 December 2015.
The trial of the action took place before Mitting J between 29 February 2016 and 3 March 2016. The judge heard oral evidence from the parties and from Ms Bligh; and gave an ex tempore judgment at the conclusion of the trial (see: [2016] EWHC 474 (QB)). He found the respondent had published (in the legal sense) the words complained of to three individuals who it was acknowledged by the appellant at trial had read the relevant Comments. He found the words complained of were defamatory of the respondent, essentially in the meanings that were attributed to the words in the respondent's pleaded claim. He rejected the various defences relied on by the appellant. These were in summary that (i) the claim in respect of the postings was an abuse of the process because it did not disclose a real and substantial tort; (ii) the claim was an abuse of the process because the respondent had a dominant collateral and/or improper purpose in bringing it; (iii) the respondent had consented to the Comments complained of because he had deliberately procured their publication in connivance with Ms Bligh, to obtain materials that could be used to threaten or bring a defamation claim; and (iv) the Comments were true or substantially true and/or the defence of truth should succeed by virtue of section 5 of the Defamation Act 1952.
The respondent waived his right to damages. The judge held that had the respondent not done so, he would have awarded him damages of £5000.
The respondent had also sued on an email sent by the appellant to Ms Bligh's former partner. No issue arises in this appeal in relation to that part of the claim or the judge's decision that it should be struck out on Jameel principles. I need say no more about that aspect of the case, except to say that because that part of the claim failed, the judge's order on costs was that the respondent should have 75 per cent of his costs on a standard basis.
By the time the matter came for trial, it had been the subject of two contested interim hearings. On 14 June 2014, HHJ Parkes QC rejected the appellant's application that the respondent be ordered to answer various Part 18 requests: see [2014] EWHC 2402 (QB) and in a judgment dated 10 June 2016, Warby J rejected an application made by the respondent to strike out the defence of consent: see [2015] EWHC 1634 (QB).
The trial judge when dealing with the costs expressed his concern about the complexity and cost of the proceedings in which the parties had embroiled themselves, a sentiment with which I would entirely agree. It is unfortunate, to say the least, that attempts to resolve this litigation, including by mediation, which we were told had also taken place, have proved to be unsuccessful.
Permission to appeal in this case was given at an oral hearing before Arden LJ on the 5 April 2017. In my view, it is clear from what she said when giving permission, that she considered there were two points only that merited consideration on an appeal: first, whether the judge's conclusions as to one the of the meanings found by him was wrong; and secondly, whether the judge had applied the correct legal test with regard to publication. Mr David Price QC for the appellant nevertheless argues that no formal restrictions were placed on the permission given, and has thus sought to advance a number of other grounds, more fully set out in his skeleton argument, a recent Addendum, and a supplemental skeleton served in response to a Respondent's Notice. We heard argument on the matters he wished to address, but it is right to say that the focus of this appeal has been on the points identified by Arden LJ which in my view, are dispositive of this appeal in the respondent's favour.
I turn first to the issue of meaning. The Facebook exchanges between the appellant and Ms Bligh on the 23 December 2012, including the Comments complained of are set out in a Schedule attached as an Appendix to this judgment. All of these exchanges were made on Ms Bligh's Facebook Wall, and were accessible to her Facebook friends.
The Comments were made in the following circumstances. In late November or early December 2012 the appellant made a ‘friend request’ to Ms Bligh on Facebook, asking Ms Bligh in other words to accept her as a Facebook friend. Ms Bligh accepted the appellant's request. By then, as the appellant accepted in evidence, she had been a user of Facebook for some years, and used it “quite a lot”. She was moreover familiar with the different settings that could be used by a Facebook user to set who could and could not see their Facebook Wall. The judge found the appellant's purpose in making the ‘friend request’ was to find out about Ms Bligh by monitoring her interaction on Facebook with her family and friends.
On 23 December 2012 Ms Bligh posted a Status Update on her Facebook Wall (a Status Update is essentially a broadcast to all the Facebook user's Facebook friends). At 12.16 pm the appellant posted a ‘comment’ on that Status Update. This started an exchange of comments between Ms Bligh and the appellant which continued for the next four minutes. The appellant knew, as the judge found, that these were visible to all Ms Bligh's Facebook Friends. One minute after this, Ms Bligh posted a further Status Update on her Facebook Wall, inviting the appellant to telephone her. The appellant's evidence was that she did not telephone Ms Bligh because she did not want to speak to her and the appellant was at work and it was inconvenient. The judge did not accept this. As he pointed out, the exchanges continued over the course of the next 2 hours and 18 minutes. He found the purpose of the two participants to these various exchanges was plain. The appellant wanted to blacken the respondent in the eyes of his current girlfriend and belittle her; Ms Bligh wanted to find out from the appellant about the respondent's previous history.
The particular Comments complained of were these:
Nicola Stocker: “I hear you have been together 2 years? If so u might like to ask him who he was in bed with the last time he was arrested…”
…
Nicola Stocker: “…Wouldn't bring it up last time I accused him of cheating he spent a night in the cells, tried to strangle me. Police don't take too kindly to finding your wife with your handprints round her neck. But don't worry you will get a nice watch for Christmas!”
…
Deborah Bligh: “why did terry get arrested?”
Nicola Stocker: “…Which time?”
Deborah Bligh: “why has he been arrested???”
Nicola Stocker: “well u know about him trying to strangle me, then he was removed from the house following a number of threats he made and some gun issues I believe and then the police felt he had broken the terms of the non molestation order.”
Nicola Stocker: “All quite traumatic really”
The meanings attributed by the respondent to the Comments in the Particulars of Claim were that the respondent:
i) had tried to kill the appellant by strangling her, for which he was arrested by police;
ii) had also threatened the appellant and breached a non-molestation order protecting her, for which he was also arrested;
iii) had been arrested countless times and accordingly, it was to be inferred, was a dangerous and thoroughly disreputable man.
Of these, the first (to which Arden LJ referred when giving permission) and the third have been the subject of argument before us.
At this point I should identify the meanings that the appellant sought to justify (in essence, therefore, the appellant's rival meanings). These were:
i) The respondent violently gripped the appellant's neck which inhibited her breathing and put her in fear that he intended to kill her.
ii) In consequence, the appellant was arrested.
iii) The respondent threatened the appellant. In consequence, the respondent was arrested.
iv) The respondent breached a non-molestation order, the purpose of which was to protect the appellant.
v) Alternatively, there were reasonable grounds to suspect that the respondent had breached the order, in consequence of which he was arrested.
vi) The respondent has been arrested on another occasion.
vii) The respondent is dangerous and disreputable.
The issue between the parties on the first meaning was whether the words meant that the respondent had tried to kill the appellant by strangling her, as the respondent alleged, or the lesser meaning, that he had violently gripped the appellant's neck as contended by the appellant. The criticism of the judge's approach focuses in particular on the judge's use of dictionaries. The judge referred in his judgment, to the Oxford English Dictionary (OED) definition of “strangle” to confirm the meaning in ordinary usage of a single English word, an approach he said he did not think was precluded; and to the two senses in which “strangle” was defined in that dictionary. These were first: “To kill by external compression of the throat” and second “To constrict painfully (of the neck or throat).” Mr Price d...
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