Summerfield Browne Ltd v Philip James Waymouth
| Jurisdiction | England & Wales |
| Judge | Master David Cook,Master Cook |
| Judgment Date | 18 January 2021 |
| Neutral Citation | [2021] EWHC 85 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2019-004618 |
| Date | 18 January 2021 |
[2021] EWHC 85 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Master David Cook
Case No: QB-2019-004618
Mr S J Bradshaw (instructed by Summerfield Browne Limited) for the Claimant
The Defendant did not appear and was not represented
Hearing date: 18 January 2021
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.
This is a remedies hearing in respect of a defamation claim commenced by a firm of solicitors against a former client. On 6 July 2020 I struck out parts of the defence and made an order requiring the Defendant to file an amended defence by 3 August 2020 in default of which the defence would be struck out. On that occasion I gave an extempore judgment explaining my reasons. It is appropriate that I now set out that judgment in full.
The strike out judgment
This is the hearing of an application to strike out certain parts of the Defendant's defence. The Claimant is a firm of solicitors. The Defendant is a former client. The Defendant was involved in a dispute concerning the enforcement of a court order. He sought out the Claimant after an internet search, signed their standard terms and conditions after which the Defendant gave him advice for a fixed fee of £200. It seems that for some reason, which he has never fully articulated, the Defendant was dissatisfied with the advice he was given. It appears that rather than engage with the Claimant, in accordance with its dispute resolution procedure, the Defendant's response was to leave a review on the Trust Pilot website in the following terms;
“ “A total waste of money another scam solicitor
Stacey mills left the company half way through my assessment and the replacement was useless.
I paid upfront for a legal assessment of my case, but what I got was just the information I sent them, reworded and sent back to me.
No new information or how to proceed or what the law says or indeed the implications of what was done. I Just got their false assumptions, full of errors showing a lack of understanding for the situation and the law.
Once they have your money they are totally apathetic towards you. You will learn more from forums, you tube and the Citizens advice website about your case, for free”
In the circumstances the Claimant has brought proceedings for libel on the basis that it has been described as “ A total waste of money” and “ another scam solicitor”. The particulars of claim set out the defamatory meaning contended for at paragraphs 13 and 14 and at paragraphs 21 to 25 the fact the Claimant had suffered serious harm as defined by s.1(1) of the Defamation Act 2013.
The Claimant seeks general damages limited to £25,000, special damages of £300 per day, injunctive relief and an order to remove the defamatory words from the Trust Pilot web site.
The Defendant filed a defence which was sent to the court on 14 th June 2019. Attached to the form of Defence is a narrative seven-page document which the court will read as his defence. The defence is in many respects not compliant with the CPR but Mr Bradshaw takes no point on this, it is apparent to him and to the court that the defence adequately sets out the defences the Defendant wishes to put forward, namely, honest opinion, public interest, truth, and the issue of whether the Claimant has suffered serious harm.
Following the filing of the defence, the Claimant issued this application on 12 th March 2020 by which the Claimant seeks to strike out the defences of honest opinion and public interest and to obtain summary judgement on the defence of truth.
The application is supported by the witness statement of Tessa Rhodes, a solicitor employed by the Claimant firm. In her evidence she confirms the Claimant is regulated by the SRA, that it has been trading since 2014, is in good standing, and that there has never been criticism by the regulator of any dishonest or fraudulent behaviour.
The Defendant, it is fair to say, has not engaged with the application in any meaningful way. He has been in email contact with the court concerning the hearing; this contact is relevant and I propose to give a brief summary of it.
On the 29 th of June 2020 the Defendant was sent an email link for the hearing. His response was as follows:
“ I have had no correspondence from your court and this notice of hearing for the 6th of July came to me via E Mail from Rhodes@SummerfieldBrowne.com.
This entire situation is of their own creation, they deceived me into believing they would provide an assessment to the value of £200 +vat, they did not provide anything of value — its a dictionary definition of the word Scam.
Summerfield Browne made no attempt to negotiate out of court and refused to respond to my offers on three occasions. They refused to discuss my pre court offer of withdrawing my opinion should they refund my £200 +vat. They are suing for personal gain.
SB are the solicitor acting in person, they have no ‘client’, they are claiming to represent their ‘client’ for the sole purpose of financial gain.
Going through litigation is just another attempt at getting more money from me without giving anything of service in return and all the hallmarks of a scam solicitor.
I am disappointed that the High Court has given this self-serving solicitor a hearing when the prerequisite of pre court negotiating has not been satisfied and suggest the case dismissed immediately before costs are incurred.
The cost of attending this hearing with representation, excludes me from my right to justice as is clearly their intention.”
The court responded by informing the Defendant that he should copy his emails to the other party as required by CPR 39.8. The Defendant responded as follows:
“ I am well aware of the history of this application and I responded to it at the time with a witness statement answering all the issues.
You have not answered any of my points or addressed any of the issues I raised.
If you seek a response from me for you procedure, then you could include my witness statement in the court bundle along with this email chain and the judge can read it all before the hearing should he/she wish to do so.
I have already made it perfectly clear that this case should never be heard in court and I will not be giving it any credence or legitimacy by attending.
By continuing with the hearing you are undermining the integrity of your own institution”
On the basis of this communication it is not surprising the Defendant failed to attend the remote hearing listed today. Given the Defendant's stance, I am confident he is well aware of the hearing and has taken the deliberate decision not to attend.
The Defendant has recently referred to the fact that he is currently a resident in Sweden. The Swedish address was not initially known by the Claimant. The address used for service was the one given by the Defendant when he instructed the Claimant and was his last residential address. In the circumstances there is no possibility of the Defendant taking any successful point on jurisdiction. He has filed an acknowledgement of service indicating an intention to defend the claim but not otherwise taking issue with the court's jurisdiction and he has filed a defence. On any view he must be taken to have accepted the jurisdiction of the court. Further, as pointed out by Mr Bradshaw, the Defendant was at the time of service resident in a member state of the European Union and by section 9 of the Defamation Act 2013 there would be little basis for opposing jurisdiction as England and Wales is clearly the most appropriate place in which to bring this action.
I turn to the basis of the application. CPR 3.4, provides that a defence may be struck out if it is bound to fail. CPR 24.2 provides that summary judgment may be entered if the Defendant has no real prospect of successfully defending the claim.
I will now consider each of the three defences set out in the Defence.
First, the defence of honest opinion. The Claimant submits that the defence of honest opinion cannot succeed in circumstances were the words used convey an allegation of fraud. Mr Bradshaw referred me to the case of Wasserman v Freilich [2016] EWHC 312 (QB), an unreported decision of Sir David Eady sitting as a High Court judge. At paragraph 16 of his judgment Sir David said:
“ The common sting in the various natural and ordinary meanings, pleaded in paragraph 27 of the particulars of claim, is that the Claimant was dishonest. That has generally been regarded as a factual allegation. It has long been recognised that “the state of a man's mind is as much a fact as the state of his digestion”: Edgington v Fitzmaurice (1885) 29 Ch D 459. Juries are deciding on every day of the week, as a matter of fact, whether a particular Defendant was, or was not, dishonest. Accordingly, it is an allegation which in the context of libel is readily understood as being susceptible to a plea of truth under s.2 of the 2013 Act (as was the case with justification). It is not thought to be a matter of opinion: nor can one convert an allegation of dishonesty (or, for that matter, of murder or rape) into a matter of opinion by merely inserting in front of it a formula such as “I believe …” or “she thinks …”: see e.g. Hamilton v Clifford [2004] EWHC 1542”
And at paragraph 22 of his judgment he said:
“ An allegation of dishonesty, fraud or attempted fraud will usually fall fairly and squarely on the side of fact rather than opinion. The same is true also, as I have already mentioned, where the allegation is of “reasonable grounds to suspect”....
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