Wallis v Valentine

JurisdictionEngland & Wales
JudgeLORD JUSTICE BUXTON,Sir Murray Stuart-Smith,Lord Justice Potter,Lord Justice Peter Gibson
Judgment Date18 July 2002
Neutral Citation[2002] EWCA Civ 1034,[2002] EWCA Civ 345
Docket NumberA2/2001/2843,Case No: QBENI/A2/2001/2843
CourtCourt of Appeal (Civil Division)
Date18 July 2002
Between
Wallis
Appellant
and
Valentine
Respondent

[2002] EWCA Civ 1034

Before

Lord Justice Peter Gibson

Lord Justice Potter and

Sir Murray Stuart-Smith

Case No: QBENI/A2/2001/2843

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

His Honour Judge Previté Q.C.

Mr. David Price (Solicitor Advocate) and Mr. John Samson (of David Price Solicitors and Advocates of London WC1) for the Appellant

Mr. Jacob Dean (instructed by Messrs. Peter Carter-Ruck & Partners of London) for the Respondent

Sir Murray Stuart-Smith
1

This is an appeal from orders of His Honour Judge Previté QC sitting as a deputy judge in the Queen's Bench Division in libel proceedings which the appellant brings against the three defendants, all of whom are called Valentine; they are husband, wife and son. The judge made two orders on the 5th December 2001. First he gave summary judgment pursuant to Part 24.2 of the CPR against the claimant on the question raised under paragraph 7 of the particulars of claim: "and further on or about the same date with express malice, published the said affidavits to other persons." The judge held that there was no publication to other persons. Secondly he held that the whole of the particulars of claim should be struck out pursuant to CPR Part 3.4(2)b on the basis that the court considered the statement of case was an abuse of the process of the court.

2

In giving permission to appeal Buxton LJ said that he gave permission to appeal on the first point and only if this court was prepared to allow the appellant's appeal on that aspect, should the appellant have permission to appeal on the abuse of process point. Having said that, it seems to me that Buxton LJ left the final decision as to whether we should entertain an appeal on the abuse of process point to this court. In the court below Mr Wallis appeared in person; but in this court he is represented by Mr David Price a solicitor advocate and Mr John Samson junior counsel. In their skeleton argument they indicate that they wish to seek permission to appeal the second point, even if they are not successful in the first.

The Claim

3

Mr Wallis claims that he was libelled in three documents. The first is a letter dated the 28th April 2001, secondly a letter dated the 12th July 2001 and thirdly an affidavit sworn by Mr Valentine on the 20th March and sent under cover of the letter of the 12th July. The letters in question were addressed to the claimant and Miss Guesne; the publication alleged is to Miss Guesne, who is Mr Wallis' partner and lives with him at 39 Russell Square in Brighton. Indeed it appears to be her house. At the material time Mr and Mrs Valentine lived next door at No 38, which they ran as a hotel.

4

It is not alleged that the letters were published to anyone but Miss Guesne. But in paragraph 7 of the particulars of claim it is alleged that the affidavit was published to "other persons". The respondents in their defence admitted publication to Miss Guesne. But in a very full defence pleaded substantive defences of qualified privilege, based on duty and interest alternatively reply to an attack, absolute privilege, justification and fair comment. They denied publication to anyone other than Miss Guesne. In respect of those defences the defendants rely on facts set out in detail in the defence, which cover the protracted history of disputes between Mr Wallis and Mr and Mrs Valentine.

5

An important issue which arose on the application before the judge was the extent to which the affidavit had been published "to others". The defendants sought further information of this allegation, asking the claimant to identify the other persons. The reply by the claimant was that he was still awaiting a reply to his request as to who was the new owner of the Valentine House Hotel at No. 38 Russell Square. In the course of the hearing Mr Wallis made it clear that the "others" were the new owners of No. 38 Russell Square.

6

The judge had before him witness statements from Mr Valentine, a Mr Eke and a Mr Mills, Mr Valentine's solicitor.

7

Mr Valentine said [at page 211]

"In paragraph 7 of the particulars of claim, Mr Wallis complains of publication of 20 th March 2000 affidavit to 'other persons'. I do not know who he is referring to, and he has at the date of this statement given no indication who he means. In the letter dated 12 th July 2001 complained of by the claimant at paragraph 6 of the Particulars of Claim, I stated that I had sold Valentine House Hotel and that pursuant to my duty as a vendor the new owner has been advised with 'Court documents' of the 'outcomes' of the litigation with Mr Wallis and Ms Guesne. I was referring him to the fact that I had given a copy of the judgment of His Honour Judge Kennedy QC dated 16 th December 1999 and the order for an injunction dated 29 th March 2000 to my solicitor, Mr John Mills of Messrs Pitcher Mills, who I understand had in turn passed them to the new owner, Mr Eke. The claimant may have misinterpreted the letter as meaning that I had disclosed the said affidavit to Mr Eke. I have not. I have never published that affidavit in any way to Mr Eke nor to Mr Mills, nor to any other person. Nor to my knowledge have any other of the defendants. Nor have either Mr Eke, Mr Mills or any other person been given an opportunity to read the affidavit by any of us. The statements of Mr Eke and Mr Mills confirm this."

8

Mr Anthony Eke who gave his address as Valentine House Hotel, 38 Russell Square Brighton, said:

"I am the new owner of Valentine House Hotel having completed the purchase from the second and third defendants, Mr and Mrs Valentine on 24 th July 2001. I confirm that the only court documents I have ever seen relating to this purchase are the judgment of His Honour Judge Kennedy QC dated 16 th December 1999 and the injunction order dated 29 th March 2000."

9

Mr Mills, solicitor of Pitcher Mills, said that he was instructed by Mr and Mrs Valentine in respect of the sale of their business to the purchaser, Mr Anthony Eke. He refers to the duty of the vendors to disclose the existence of legal disputes to purchasers and added:

"The second and third defendants were therefore compelled to disclose to Mr Eke the judgment of His Honour Judge Kennedy QC dated 16/12/99 and the injunction order dated 29/ 3/2000. These were the only documents passed to Mr Eke in relation to the neighbour dispute between the claimant and the defendants. I confirm that I have received from the defendants no other affidavits or court documents in respect of the matter."

10

Mr Wallis did not seek to cross examine any of the witnesses on these matters. But he produced a copy of the Land Registry certificate relating to no 38 Russell Square which showed that the registered owner was a company called Carmawood Limited. Mr Wallis' point was that Mr Valentine was not telling the truth when he said that they had sold the hotel to Mr Eke. Mr Dean, who appeared for the Valentines before the judge as he does in this court, took instructions on this matter. Carmawood is a company owned by Mr and Mrs Eke, of which they are directors. The negotiations for the sale were conducted with Mr Eke, but the conveyance was into the company's name: those instructions are now confirmed in a witness statement. The judge, not surprisingly, accepted that; he declined to hold that Mr Valentine, Mr Eke and Mr Mills had lied about it. Mr Wallis also contended that the covering letter of the 12 th July 2001 indicated that the affidavit was sent to the purchasers. The relevant paragraph is as follows:

"It is a legal requirement to notify the new owners of any disputes with neighbours and, therefore, they have been fully advised with the use of absolutely privileged court documents of our successful outcomes in relation to litigation affecting 38 Russell Square. The new owners have been advised in detail of your nailing of a fence over the window of room 9 and following judgment against you, filming the occupants in bed. I refer to paragraph 17 of the enclosed affidavit dated 20.3.2000."

11

Taken in isolation I agree that a possible interpretation of the letter is that the affidavit enclosed had itself been shown to the new owners. But seen in the context of the last two paragraphs of this letter and the penultimate paragraph of the letter which preceded it dated the 28th April 2001, where Mr Valentine is referring to what may happen if insolvency proceedings are taken, with the risk of publicity from the publication of adverse material including the affidavit, it seems to me that there is a clear distinction between the two documents that recorded the outcome of the previous litigation, namely the court's orders, and other material including the affidavit, which had not yet been disclosed. The order of the 29th March 2000 which embodied the injunction against the appellant and Miss Guesne forbade them from "directing or maintaining any form of camera or other recording device directed towards or capable of recording by sound and/or vision any activities inside the claimants premises" is clearly capable of being defamatory, implying as it does that the appellant and Miss Guesne had been prying into the Valentines' Hotel with a video camera, conduct of a highly disagreeable nature. In his witness statement Mr Valentine explained that in the letter he was indeed referring only to the two court orders. He was not cross examined on his witness statement and the judge accepted his evidence, supported as it was by the evidence of Mr Eke and Mr Mills.

12

The judge...

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    • 24 July 2018
    ...of expense, harassment, commercial prejudice or the like beyond those ordinarily encountered during properly conducted litigation (c.f. Wallis v Valentine [2003] EMLR 8 [28] and [34] per Sir Murray Stuart-Smith. Broxton v McClelland , supra. vi) The test of the claimant's motive is objecti......
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    ...what a reasonable man placed in his situation would have in mind when initiating or pursuing the actions”: Goldsmith v Sperrings p499F; Wallis v Valentine [2003] EMLR 8 para [32]. It was on this basis that Mr Caldecott made his submissions without having taken the opportunity to cross-exami......
  • Robin Cammish v Clive Hughes
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 12 December 2012
    ...of the court, the relevant question was whether "the game was worth the candle". This approach had been approved by this court in Wallis v Valentine [2003] EMLR 175. Eady J could not accept: "that there is any realistic prospect of a trial yielding any tangible or legitimate advantage such ......
  • Dhir v Saddler
    • United Kingdom
    • Queen's Bench Division
    • 6 December 2017
    ...not found it of assistance. 99 In his trial skeleton, Mr Samson submitted the following: i) the award of damages should be nominal: Wallis v Valentine [2003] EMLR 8; ii) the Claimant's behaviour is relevant on the issue of damages. If a claimant behaves badly, " as for instance by provoking......
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1 books & journal articles
  • Table of Cases
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    • Irwin Books Cyberlibel: Information Warfare in the 21st Century? Part VIII
    • 15 June 2011
    ...v. CFTO Ltd., 1987 CanLII 126 (ON C.A.) ...................................................................... 51 Wallis v. Valentine, [2003] E.M.L.R. 8 (C.A.) .............................................................................. 166 Ward v. Clark, [2002] 2 W.W.R. 238 (B.C.C.A.) ........

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