Wxy v Henry Gewanter and Others
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Tugendhat,Mr Justice Tugendhat |
| Judgment Date | 14 March 2013 |
| Neutral Citation | [2013] EWHC 589 (QB) |
| Date | 14 March 2013 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ09X04089 |
[2013] EWHC 589 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Tugendhat
Case No: HQ09X04089
Mr Aidan Eardley (instructed by Archerfield Partners LLP) for the Claimant
Patrick Green QC and Kathleen Donnelly (instructed under the direct professional access scheme) for the Third Defendant
Hearing dates: 5 and 6 March 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.
On 6 March 2012 Slade J handed down her reserved judgment (Neutral Citation Number: [2012] EWHC 496 (QB)) ("the trial judgment") following the trial of this action against the Third Defendant ("Mr Burby"). The trial of all issues in the action against all three Defendants had been due to start on 11 July 2012. It was in fact held, in respect of the claim against Mr Burby alone, on 14–15 and 18–20 July 2011.Slade J's conclusion, stated at para [133], was as follows:
"In my judgment unless restrained, the Third Defendant is likely to resume publication of or threatening to publish private and confidential information of the Claimant and thereby to continue to harass her. The interim injunctions will continue in place pending a hearing to consider the terms of orders consequential upon this judgment."
On 6 March 2012 Slade J made an order that "Judgment on liability be entered for the Claimant against the Third Defendant". She directed a further hearing to decide what other orders and directions should be made in consequence of her judgment handed down on that day.
On 15 May 2012 Sir Charles Gray made an order that, amongst other orders, the trial of the action against the First and Second Defendant commence on 18 June 2012.
On 13 June 2012 Slade J handed down a further judgment (Neutral Citation Number: [2012] EWHC 1601 (QB)) following a hearing held on 20 April and 9–11 May 2012. On the same day she made a further order. That order included the following:
"… judgment on liability having been entered for the Claimant on 6 March 2012
IT IS ORDERED AS FOLLOWS:
Assessment of Damages
1. There shall be an assessment of damages due to the Claimant from the Third Defendant following the conclusion of the trial on liability of the Claimant's claim against the First and Second Defendants, or settlement of that claim. Directions for such assessment to be given at the handing down of judgment in that trial (or as otherwise ordered by the court) or, if that claim is settled or is otherwise concluded without a trial, on a date to be fixed by the court upon the Claimant's application, made on notice to all the Defendants…"
The assessment of damages was listed to commence before myself on 5 March 2013 following the issue of an application notice by the Claimant dated 20 July 2012. On 27 February 2013 Mr Burby issued an application notice asking for an order that that the assessment of damages be taken out of the list, and that instead there should be a hearing for directions to be given pursuant to the order of Slade J made on 13 June 2012 para 1.
On 5 March I heard submissions from Mr Green QC and Mr Eardley on Mr Burby's application. I informed the parties that I refused the application. I said I would give reasons in the judgment on the assessment of damages. Parts of that hearing were held in public, and parts in private, because that was necessary in order that the purpose of the non-disclosure order be not defeated.
This judgment relates to both matters. It is an open judgment.
The order of 13 June 2012 also included final injunctions restraining Mr Burby from (amongst other things) disclosing specified confidential information or allegations, threatening to makes such disclosures, or otherwise harassing the Claimant, subject to some exceptions and conditions which are set out in that order. The order is in 19 paragraphs over 10 pages.
MR BURBY'S APPLICATION FOR AN ADJOURNMENT AND DIRECTIONS
The reason why the trial in July 2011 resulted in judgment only on the issue of liability, when no order for the trial of a preliminary issue had been made before 11 July, is as follows.
The trial against the First and Second Defendant, which had been due to take place at the same time as the trial against Mr Burby, had been adjourned on account of the ill health of the First Defendant. The applications for an adjournment had been heard on the first days listed for the trial, 11–13 July 2011. On 13 July 2011 Slade J handed down her judgment which is available in redacted form (Neutral Citation Number: [2012] EWHC 501 (QB)). The order for the adjournment and other directions are set out in the order of Slade J made on 21 July 2011. Mr Green QC did not appear for Mr Burby on that occasion. Mr Burby had also made an application for an adjournment, but that was dismissed by Slade J.
In her judgment of 13 July 2011 Slade J said:
"12. [Counsel for the First and Second Defendants] contended that the assessment of damages, if it came to it, would be difficult if the case against all defendants were not heard together. There would be issues of causation to be determined: was distress caused by concern about disclosure of alleged perjury, or by disclosure of the alleged sexual relations, or both? Aggravated damages are claimed. [Counsel] contended that the amount of such damages would have to be fixed according to the culpability of the least guilty party. This would be difficult if two separate trials were conducted….
15. As to the points made by [Counsel for the First and Second Defendants], on the difficulties of granting relief in two separate trials, Mr Eardley said that the primary relief claimed was injunctive relief. If an injunction were granted against the third defendant after the first trial which proved to be too wide, having concluded the second trial, the injunction could be varied. The issue of damages could be adjourned until the determination of the second trial."
The order of 13 June 2012 included the following:
"18. The Third Defendant shall have liberty to apply, between (a) the date of judgment in the claim against the First and Second Defendants and 28 days thereafter, and, if such judgment is appealed, (b) the date of the determination of any appeal against that judgment and 28 days thereafter, for a variation of the terms of this order, such liberty limited to any application founded upon a finding of fact made by the trial judge in that claim or any determination by the Court of Appeal that a finding of fact made by the trial judge in that claim was wrong. …"
On 15 June 2012 the claim against the First and Second Defendants was settled, and the action stayed on terms set out in a Tomlin Order. The First and Second Defendants gave undertakings to the court in terms similar to the non-disclosure injunctions made against Mr Burby. They were ordered to pay very substantial sums in respect of the costs of the proceedings, but there was no provision that they pay damages.
In support of the Claimant's application of 20 July 2012 that there be an assessment of damages, her solicitor had made a witness statement. He stated that the Claimant would rely on the evidence relied on at the trial and Slade J's judgment, and no further directions were required.
Mr Burby has disputed that. He submits that an order for directions is required by the order of 13 June 2012. The form of directions that he seeks includes provision for further pleadings (a schedule and counter-schedule of loss) and exchange of witness statements.
However, since the Claimant has made clear, both in correspondence and through Mr Eardley, that she is not claiming any special damage, and does not propose to give any further evidence, Mr Eardley submits that there are no further directions to be given, other than that the assessment proceed. The claim is for general damages for anxiety, distress and injury to feelings.
Mr Eardley also made clear that the Claimant proposed to rely on the findings made by Slade J, and did not rely on the evidence or documents adduced at trial for the purpose of seeking any further finding of fact. He recalled that, since there had been no prior order for the trial to be limited to liability, the witness statement prepared by the claimant, and verified as her evidence in chief, included all the evidence that she wished to give on all the issues in the action.
Mr Green submitted that, without further pleadings or evidence, Mr Burby did not know the case he had to meet. No figure had been advanced for general damages until the skeleton argument prepared for this hearing. Mr Green accepted that there are some findings of distress in the trial judgment, but he submits that without further findings of fact the court cannot assess the damages. Damages must depend on the resolution of other issues, including causation and apportionment, and the duration and intensity of any injury to a Claimant's feelings.
Further, Mr Burby wished to challenge some of the evidence that the Claimant and her witnesses had adduced at the trial which related to damages.
However, Mr Burby did not participate in the trial. His subsequent application to set aside the judgment was dismissed, as was his application for permission to appeal on that point. In my judgment, unless the Claimant is permitted to adduce further evidence, which she did not ask to do, Mr Burby is precluded from seeking to challenge evidence given at the trial, which he chose not to participate in, for reasons which Slade J has found to be reasons which did not support his...
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