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| Neutral Citation Number: [2016] EWHC 3350 (QB) |
| Case No: HQ14D04882 |
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL |
| 22/12/2016 |
B e f o r e :
MR JUSTICE WARBY
____________________
Between:
(1) SIR KEVIN BARRON MP
(2) RT HON JOHN HEALEY MP
(3) SARAH CHAMPION |
Claimants
|
| – and –
|
|
JANE COLLINS MEP
|
Defendant
|
____________________
Gavin Millar QC and Sara Mansoori (instructed by Steel & Shamash) for the Claimants
The Defendant in person, assisted by Mr Mullen as “McKenzie” Friend
Hearing date: 16 May 2016
____________________
HTML VERSION OF JUDGMENT
____________________
Crown Copyright ©
Mr Justice Warby :
Introduction
- Twenty years ago, a new mechanism for settling a defamation action was introduced by statute. The scheme is set out in sections 2 to 4 of the Defamation Act 1996 (“the 1996 Act”). Its essentials will be clear enough from these selective citations:
“2. Offer to make amends
(1) A person who has published a statement alleged to be defamatory of another may offer to make amends under this section.
…
(4) An offer to make amends under this section is an offer
(a) to make a suitable correction of the statement complained of and a sufficient apology to the aggrieved party,
(b) to publish the correction and apology in a manner that is reasonable and practicable in the circumstances, and
(c) to pay to the aggrieved party such compensation (if any), and such costs, as may be agreed or determined to be payable.
…
3. Accepting an offer to make amends
(1) If an offer to make amends under section 2 is accepted by the aggrieved party, the following provisions apply.
(2) The party accepting the offer may not bring or continue defamation proceedings in respect of the publication concerned against the person making the offer, but he is entitled to enforce the offer to make amends, as follows.
(3) If the parties agree on the steps to be taken in fulfilment of the offer, the aggrieved party may apply to the court for an order that the other party fulfil his offer by taking the steps agreed.
…
(5) If the parties do not agree on the amount to be paid by way of compensation, it shall be determined by the court on the same principles as damages in defamation proceedings.
…
(6) If the parties do not agree on the amount to be paid by way of costs, it shall be determined by the court on the same principles as costs awarded in court proceedings.
4. Failure to accept offer to make amends
(1) If an offer to make amends under section 2, duly made and not withdrawn, is not accepted by the aggrieved party, the following provisions apply.
(2) The fact that the offer was made is a defence (subject to subsection (3)) to defamation proceedings in respect of the publication in question by that party against the person making the offer.
…
(4) The person who made the offer need not rely on it by way of defence, but if he does he may not rely on any other defence.”
- On 26 May 2015 the solicitors RMPI LLP, who were at that time instructed by the defendant in this defamation action, made an offer of amends in her name (“the Offer”). The claimants say that they accepted the Offer, and are entitled to enforce it pursuant to s 3 of the 1996 Act. The claimants have made an application for the assessment of compensation (“the Assessment Application”). The defendant has cross-applied to “vacate” the offer (“the Application to Vacate”). This judgment contains and explains my decision on the Application to Vacate.
Procedural history
- I heard argument on the Application to Vacate on 16 May 2016, having first heard and refused an application by the defendant for a stay (“the Stay Application”). By the Stay Application the defendant sought to halt proceedings pending the opinion of the European Parliament on her submission to it that this action infringes the Parliamentary immunity provided for by European law. My reasons for declining a stay at that point are set out in my judgment of 16 May 2016: [2016] EWHC 1166 (QB) (“my May judgment”).
- On the morning of 17 May 2016, however, I was informed in writing by the Chairman of the Legal Affairs Committee of the European Parliament, Mr Pavel Svoboda, that the Committee would deal with the matter of the defendant’s claim to immunity, as expeditiously as possible. In view of these developments I concluded that the law as declared by the CJEU required me to impose a stay of these proceedings, and I did so. I asked the Parliament to issue its opinion as soon as possible. In the meantime, I reserved judgment on the Application to Vacate. The Assessment Application remained unheard. See the Postscript to my May judgment at [61-64].
- I made an order to regulate the future conduct of the action. It provided by paragraph 1 that the proceedings were stayed “until after the European Parliament has issued its opinion as to whether immunity should be defended, or further order”. It contained these further provisions of relevance:-
“2. Upon the European Parliament issuing its opinion this stay shall be automatically lifted.
3. Any further application to stay these proceedings on the grounds of immunity under Chapter III of Protocol (No 7) on the Privileges and Immunities of the EU must be issued by the Defendant within 7 days after the date on which the opinion is issued.
4. Oral submissions on the Application to Vacate having been concluded, judgment on that application is reserved.
5. If in the light of the opinion of the European Parliament any party wishes to make any further submissions in relation to the Application to Vacate, such submissions are to be made in writing and must be filed and served within 7 days after the date on which the opinion is issued.
6. There be permission to both parties to have this matter re-listed for hearing as soon as possible after the European Parliament has issued its opinion … if appropriate, the hearing will be for: (i) judgment to be given on the application to vacate and (ii) the hearing of the assessment of damages application.”
- On 25 October 2016 the Parliament expressed its opinion on the defendant’s application. It found that there was no breach of Articles 7 or 8 of Protocol no 7. As to Article 8, the Parliament’s conclusion is encapsulated in the following paragraphs of its opinion:
E. whereas, secondly, the request concerns the defence of the freedom of Members of the European Parliament, under Article 8 of the Protocol, from any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties;
F. whereas this part of the request relates to the fact that Jane Collins is subject to a civil claim in the United Kingdom for damages, including aggravated damages, for alleged libel and slander, as well as to a claim for an injunction against her to desist from repeating the contested statements:
G. whereas the claim of libel and slander concerns accusations which Jane Collins made at a party conference;
H. whereas the parliamentary immunity conferred by Article 8 of the Protocol applies to opinions expressed by Members of the European Parliament only in the performance of their duties
I. whereas statements made by Members of the European Parliament outside the precincts of the European Parliament are considered to be made in the performance of their duties only if they amount to a subjective appraisal having a direct obvious connection with the performance of those duties
J. whereas, however, there is no direct, obvious connection between the contested statements and Jane Collins’s duties as a Member of the European Parliament, as they do not relate to her activity as a Member of the European Parliament or to the policies of the European Union, and were made in the context of national political debate;
K. whereas the contested statements are, therefore, not covered by Article 8 of the Protocol.”
- The issue of this opinion triggered the 7-day period set by paragraphs 3 and 4 of my order. That expired on 1 November 2016. There was no further application by the defendant to stay these proceedings on the grounds of immunity. Nor has either party sought to make any further submissions in relation to the Application to Vacate.
- Following unsuccessful attempts to agree a date for the next steps in the action the claimants applied, by application notice filed on 9 December 2016, for a hearing date to be fixed. The claimant was seeking a date in January or February 2017. In a witness statement the defendant resisted the hearing of that application and the application itself on two grounds: her ill-health, and an application she intended to make to the Court of Justice of the European Union for a review of the legality of the Parliament’s decision on her immunities, pursuant to Article 263 of the Treaty on the Functioning of the European Union.
- The evidence of ill-health consisted mainly of two short form “fitness for work” certificates signed by general practitioners. In relation to the Article 263 claim the defendant asserted that the proceedings in this court were still stayed. She said (in paragraph 19.4 of her witness statement):
“the immunity proceedings are still on-going under the right of appeal stipulated in Articles 263, 267 and 256 TFEU. As a result proceedings in the High Court are still to be considered stayed under the principles of sincere cooperation and in accordance with the order made by Mr Justice Warby in May 2016. It might be possible to argue that proceedings in the High Court could be resumed after the vote in plenary on the matter of immunity, but those resumed proceedings would have to be stayed once again upon confirmation from the General Court that an appeal had been received. This process of resuming proceedings only to have them stayed again within a matter of days would clearly be a waste of the High Court’s time and resources.”
- At a hearing on 20 December 2016 I decided to proceed in the defendant’s absence, and ruled against both grounds of objection to the substance of the application. I reminded myself of the relevant principles, which I had summarised in Decker v Hopcraft [2015] EWHC 1170 (QB) [21-30]. The issues were procedural not substantive. The defendant, though unable to be present, had received sufficient notice of the issues raised and had the opportunity to address them, which she had done in writing in detail. I found that the evidence of ill-health did not address the defendant’s likely health at the relevant times in January or February 2017. I found that the medical evidence failed in any event to deal with the key question of whether the defendant would be unable due to ill-health to participate effectively in a hearing. I further held that the defendant had not demonstrated any basis for her contention that these proceedings were, or should be, further stayed.
- The defendant was clearly wrong in what she said about the effect of my own order. That order expressly provided that the stay would end upon the Parliament issuing its opinion. It was not apparent that the defendant’s Article 263 claim had been filed at the time of the hearing before me, but I proceeded on the assumption that it had. The defendant had not identified, and neither Counsel nor I was able to find, any legislative provision or authority to support the view that this court is bound to stay its proceedings pending the determination by the CJEU of a challenge under Article 263 to an opinion of the European Parliament expressed under Protocol no 7. The authorities concerning the duty of sincere co-operation to which I referred in my May judgment do not appear to touch on this issue.
- The way is therefore clear for me to decide the Application to Vacate.
The factual background
- Much of this is set out in my May judgment, and in an earlier judgment of April 2015, in which I ruled on the meanings of the words complained of and whether they were imputations of fact or expressions of opinion: [2015] EWHC 1125 (QB). I shall nonetheless rehearse the key points, for ease of understanding and to add in some detail of particular relevance to the Application to Vacate.
- The claimants are Labour MPs for constituencies in the Rotherham area. In August 2014, as is now notorious, Professor Alexis Jay reported that in the Rotherham area over a period of 16 years some 1,400 children had been the victims of sexual exploitation by men of Asian origin, in the course of which children were raped, beaten, plied with alcohol and drugs and threatened with violence.
- At the UKIP party conference on 26 September 2014 the defendant, an MEP, made a speech containing, as I later held, three imputations. These were to the following effect: (1) that the claimants had all known the details of the child sexual exploitation in Rotherham, yet deliberately chose not to intervene but to allow the abuse to continue; (2) that they had acted in this way for political motives; and (3) that they were guilty of misconduct so grave that it was or should be criminal, as it aided and abetted the perpetrators.
- In December 2014 the claimants issued these proceedings for slander and libel. On 29 April 2015 I determined the meanings of the words complained of as outlined above. I held that the first meaning was factual, and that the other two were expressions of opinion. There was no attempt to appeal against those conclusions.
- On 26 May 2015 RMPI wrote an open letter to the claimants’ solicitors making the Offer. They stated that the defendant had instructed them to make an unqualified offer of amends in accordance with s 2 of the 1996 Act. As is standard practice, the letter tracked the definition in s 2(4) of the Act. It offered “to make a suitable correction … and a sufficient apology”; to “publish the correction and apology in a manner that is reasonable and practicable in the circumstances”; and to “pay the claimants damages and their reasonable legal costs to be assessed if not agreed.” As is common, the letter contained no detail of what form of correction or apology was to be offered or made, how that was to be done, or what sums in damages were offered.
- However, in a separate letter of the same date headed “Without Prejudice Save as to Costs” RMPI wrote to the claimant’s solicitors addressing the last of these points. They said: “We refer you to the Defendant’s offer of amends and confirm that the Defendant is prepared to offer the sum of **** to each Claimant, ie, a total of * ** in full and final settlement of their claim.” (The figures have quite properly been redacted in the copy correspondence put before me, on the grounds that they are irrelevant at the present stage).
- At 17:38 the same day Ms Gabrielle Rowland, the solicitor with conduct of the matter at RMPI, reported by email to the defendant that she had “just received a telephone call from the claimant’s solicitors confirming that whilst they will accept the Offer to Make Amends they are not prepared to accept your offer for damages, ie the offer to pay the claimants ** * has been rejected.” Ms Rowland reported that Mr Shamash of the claimants’ solicitors had said that he would respond in writing to the offer in the morning.
- On 27 May 2015 Mr Shamash wrote RMPI a letter headed “Without Prejudice Save as to Costs”: “Thank you for your letter of 26th May 2015. We have taken all our clients’ instructions. The defendant’s offer is rejected.”
- Later on 27 May 2015 RMPI filed and served a Defence, settled by Ms Wilson. This relied on the Offer as a defence, asserting that it had been made and not withdrawn. That was in accordance with s 4(1) and (2) of the 1996 Act. Paragraph 9 of the Defence recorded that “It is accepted that the claimants and each of them are entitled to compensation pursuant to the above offer of amends.” The Defence bore a statement of truth signed by Ms Rowland. She verified that the defendant believed the facts stated in the Defence were true, and that Ms Rowland was duly authorised by her to sign the statement of truth.
- On 28 May 2015 Mr Shamash wrote RMPI a letter headed “Offer to Make Amends – s 2 Defamation Act 1996” in which he said “Our three clients accept your offer to make amends. Please, therefore, let us have your proposals as to the steps to be taken by way of correction, apology, and publication… We are also anticipating a realistic offer of compensation …” He attached a breakdown of the base costs incurred by the claimants’ legal team “so that we can seek to reach agreement on the total amount of costs to be paid by your client.”
- On 25 June 2016 the defendant parted company with her solicitors. A file note made by RMPI that day records that in the course of a call made to her by Ms Rowland (“GR”), the defendant stated that she had “decided to represent herself and defend the claim”. She said that she had “spoken to another solicitor who has advised her that as RMPI LLP made the offer of amends it does not count.” The File Note continues:
“GR said that was not correct and noted that she had instructed us to make the offer on her behalf and that we filed a defence after the offer of amends was accepted which she also approved.”
- In fact, although an intention to accept the Offer had been indicated beforehand, the Defence was filed before receipt of the claimants’ formal acceptance. But this is an unimportant inaccuracy. Whether the defendant gave the instructions and approval suggested by Ms Rowland’s Note is important.
- The defendant did not take any step at that time to “defend the claim”. Nor was agreement reached on the details of any element of the Offer. Accordingly, on 9 September 2015 the claimants issued the Assessment Application, which was subsequently listed for hearing on 18 December 2015.
- The first indication that the defendant might intend to raise defences on the merits came on 13 November 2015, when four lever arch files of documentation were delivered in purported compliance with an agreed order for the service of evidence in relation to the Assessment Application. The bundles were accompanied by a witness statement of Michael Burchill, the defendant’s Parliamentary Assistant.
- Mr Burchill’s statement asserted that the defendant had been “completely managed” by UKIP legal advisers, who had advised her “without her understanding” to sign “a letter of amends which she thought was part of her defence”. Mr Burchill’s statement explained that he had offered to help the defendant to construct “a more robust set of documents to allow her to vacate her letter of amends”. The lever arch files contained a variety of blog posts, newspaper articles, Council minutes, Ofsted reports, and Inquiry reports, but without any linking narrative. There was no draft Defence. Nor was there any other form of coherent explanation of how these documents were relevant or what they were said to amount to.
- On 9 December 2015 the defendant wrote to the court to make the Application to Vacate. She stated that she had not instructed her solicitors to make any offer of amends; and that it was only after becoming a litigant in person that she had realised the effect of an offer of amends.
- On 15 December 2015 Dingemans J directed that the Application to Vacate should be listed for hearing on 18 December 2015, before the hearing of the Assessment Application. On 18 December 2015 Judge Moloney QC was persuaded by a written application of the defendant that he should adjourn the hearing of both applications on health grounds. They were later fixed for hearing before me on 16 May 2016.
- In the meantime, pursuant to directions given by Judge Moloney QC, the defendant filed a witness statement in support of the Application to Vacate, and gave her former lawyers instructions waiving privilege in respect of the advice they gave her about the Offer and its consequences.
- It is for these reasons that the solicitors’ file, suitably redacted to obscure irrelevant material and figures, was before me at the hearing on 16 May. It is because privilege has been waived that I have been able to set out the content of correspondence that was Without Prejudice Save as to Costs (“WPSATC”), and will be able to detail later in this judgment what passed between the defendant and her solicitors and Counsel during this period.
The Application to Vacate
- In support of her application the defendant puts forward what appear to me to be, on analysis, eight grounds. The first three are challenges to the existence of a concluded or enforceable agreement. They are:
(1) That the defendant did not give informed consent to the making of the Offer. She says that the effect of an offer of amends was not explained to her by RMPI, and she only understood its effect after becoming a litigant in person. She accuses RMPI of “severe negligence”.(2) That the Offer was not accepted by the claimants. The defendant maintains that Mr Shamash’s letter of 27 May 2015 amounted to a rejection of the Offer.
(3) That in the absence of agreement on how to fulfil a single one of the elements of the Offer, there was no effective agreement. In oral submissions the defendant and her McKenzie friend (whom I allowed to address me when the defendant herself lost her voice) submitted that any apparent agreement on the principles of the Offer was a sham, as the claimants and/or their solicitors had refused to negotiate in good faith on its implementation.
- The defendant next submits that there are four grounds on which she could defend the claimants’ claims on their merits:-
(1) She maintains that the statements complained of are not defamatory because they do not cross the “serious harm” threshold in s 1 of the Defamation Act 2013 (“the 2013 Act”). She points to the fact that all three Claimants were elected at the General Election with an increased percentage of the vote.(2) She asserts that she could rely on the defence of truth provided for by s 2 of the 2013 Act.
(3) Further and alternatively, she says that she could rely on the statutory defence for publication on a matter of public interest pursuant to s 4 of the 2013 Act.
(4) More generally, she relies on the right to freedom of expression in Article 10 of the Convention and the Strasbourg jurisprudence upholding the importance of free political expression.
- The defendant’s eighth point is reliance on the immunity afforded to MEPs by Protocol No 7 to the Treaty on the European Union of 2009. In her witness statement of 6 January 2016 the defendant referred to this immunity and asserted that
“At all times the claimants have acknowledged that I was speaking in a political forum and in my capacity as an MEP. It is abundantly clear that I was acting in accordance with my duties as an elected representative for the people of Rotherham, which falls within my constituency.”
- Her case is that she could have relied on Parliamentary immunity as an answer to these claims, and that RMPI negligently failed to advise her, properly or at all, on the availability of this immunity.
Immunity
- I can deal with this quite shortly. The legal framework is fully set out in my May judgment at [33-42]. The factual picture is straightforward. The issue for decision is, as indicated by the opinion of the Parliament, whether the defendant’s party conference speech had a “direct, obvious connection with” her European Parliamentary duties. I share the opinion of the Parliament that it did not have any such connection. My view is that this is a clear and obvious conclusion. The allegation of negligence levelled at RMPI is in my judgment without merit.
“Vacating” the Offer
Legal principles
- I am not aware of any challenges to the enforceability of an accepted offer of amends other than the challenge made by the defendant in Warren v The Random House Group Ltd [2007] EWCA Civ 834, [2009] QB 600. That challenge required the Court of Appeal to consider the principles that apply to such a challenge.
- An offer of amends by the defendant had been accepted by the claimant. There was no dispute that an agreement had been reached. The defendant sought to set aside the agreement and to resist the claim on its merits in reliance on a defence of justification (truth). There was, first of all, a dispute as to whether such an agreement has the status of a binding and legally enforceable contract. At first instance Gray J had held that it did, and that no grounds had been shown for setting it aside. The Court of Appeal doubted that such an agreement amounts to a binding and legally enforceable contract but, unsurprisingly, endorsed the claimant’s concession that “whether or not a contract properly so called comes into operation, the court would permit either party to resile from it on one of the traditional contractual grounds”: see [17].
- The court went on to consider whether the court might permit a party to resile from an agreement which could not be challenged on such traditional grounds and, if so, under what circumstances. It concluded that the court has a discretion to allow this, but that it will rarely be appropriate to exercise that discretion so as to relieve a party of the consequences of a bargain freely entered into. The question to be asked is, the Court stated at [40], “whether there are here on the facts special circumstances which lead to the conclusion that the defendant should be permitted to resile from the statutory scheme which flows from the claimant’s acceptance of its offer of amends.”
- The considerations to which the court should have regard when asked to exercise that discretion are, the Court of Appeal held, similar to those which apply when a party seeks the release or modification of an undertaking voluntarily given in the course of litigation. They include, in particular, the context, and whether the offer was made independently of the agreement of the claimant, or as part of a collateral bargain.
- At [42] the court adopted the approach taken by Potter LJ in Di Placito v Slater [2003] EWCA Civ 1863, [2004] 1 WLR 1605, namely to ask:
“whether it would be just to deprive the respondent of the benefit of the bargain made with the appellant and whether the circumstances are so different from those contemplated at the time of the agreement that it would be just to allow the appellant to resile from the agreement. This involves a consideration of the relevant circumstances, including a consideration of the question whether the circumstances which have subsequently arisen were circumstances which were intended to be covered or ought to have been foreseen at the time the agreement was made.”
- A critical factor is that the making and acceptance of an offer of amends leads to an agreement with important and well-understood consequences. As the Court said at [43]:
“It appears to us that an important starting point for such a consideration is this. A person does not have to publish defamatory material without checking whether or not it is true. Thereafter he does not have to make an offer of amends. The purpose of the scheme is to engender compromise and the time when all reasonable enquiries should be made is before an offer to make amends is made because, save in special or exceptional circumstances of the kind we have described, the defendant will have to pay compensation under the scheme. The same is true of a defendant making a CPR Part 36 offer or an offer outside Part 36.”
The facts
- The solicitors’ file maintained by RMPI provides a very detailed documentary record of the process by which the Offer came to be made. This makes clear that the defendant expressly authorised the making of the Offer. It demonstrates to my satisfaction that before doing so she was fully and carefully advised, and that she was kept properly informed throughout the process. I can see no basis for the defendant’s allegation that RMPI were negligent in their approach to or advice upon the Offer. Nor can I accept that the defendant acted in ignorance of what an offer of amends amounts to, or what its consequences are.
- It is unnecessary to recite the sequence of events in detail, but it is appropriate to set out some key features.
(1) By 15 January 2015 Counsel had been instructed and had posed questions for the client to answer. An email sent by Ms Rowland at lunchtime that day shows that she had called the defendant and impressed upon her that a response to all the questions was needed that night.(2) On 16 January 2015 the defendant attended a conference with Counsel. The file note shows that she was advised that “in light of the lack of evidence the client has provided us with in order to support her potential defence” an offer of amends “may be the best option open to her.” Detailed advice on the offer of amends regime was given, which explained “that this would entail agreeing to make a suitable apology and … paying damages to the claimants. If the offer was accepted by one or all of the claimants then the parties would try and agree damages but if they failed to do so then damages would be determined by the court.” This was a succinct and entirely accurate summary of the pertinent features of the regime. It made clear, in particular, that an offer of amends involved an acceptance of liability to pay damages.
(3) Counsel was instructed to advise in writing and she did so on 18 February 2015. A copy of the Advice was sent to the defendant. It included the following: “As discussed in conference, until a Defence is served, it is open to Ms Collins to make an offer of amends (ss 2-4 Defamation Act 1996) to all or any of the claimants. By accepting liability at an early stage, this reduces the amount of damages payable…” As Mr Millar QC has observed, this also clearly and unequivocally states that an offer of amends involves an acceptance of liability and an obligation to pay damages.
(4) On 11 May 2015 Ms Rowland, having considered the evidential position, advised by email that “In the absence of such evidence then you must try and settle this matter”. She asked for clear written instructions. Later the same day she was told, on the defendant’s behalf, that the defendant “is keen to get this matter settled as soon as possible and would like to know what the next step is in making a settlement offer?” The response was an email of the following day to the defendant in which Ms Rowland advised that “an offer of amends should be put forward as soon as possible”.
(5) In a further email of 13 May Ms Rowland spelled out what this meant, explaining that an offer of amends “means that we would serve a notice on the claimants offering to make a suitable apology and to pay damages”. She explained the consequences if the offer was accepted and if it was rejected, in accordance with the statutory provisions.
(6) It was explained to the defendant that an offer could not be made without confirmation that funding was in place to support it. It was later confirmed by Ms Rowland that an offer could now be made. I infer that funding was put in place.
(7) In an email of 21 May 2015 Ms Rowland noted that she had received instructions from various people, and took care to ensure that she had written instructions from the defendant herself before making an offer. The defendant gave written authority to Michael Kendall to deal with matters on her behalf. Mr Kendall, in an email copied to the defendant, confirmed instructions to proceed with an offer of amends.
(8) Ms Rowland nonetheless sought confirmation, the following day, from the defendant herself. There seems to have been some intervention at this point which led the defendant to think there might be an alternative. The plan to make an offer of amends was put on hold for a short while. But in an exchange of emails with Ms Rowland on the evening of 23 May 2015 the defendant expressly and personally confirmed her instructions “to put forward the offer of amends on Tuesday”.
(9) Ms Rowland confirmed by email sent at 09:29 on 26 May that she would do so, and that she would forward copies of the letters having done so. Seven minutes later she did exactly that. Ms Rowland then received the call from Mr Shamash to which I have referred above, indicating that the Offer would be accepted but the “WPSATC” offer of damages would be rejected. Ms Rowland, when reporting these developments to the defendant, also said that Counsel was drafting the Defence which would be forwarded for approval.
(10) The draft Defence was then prepared. On 27 May 2015 Ms Rowland emailed Counsel stating that “the client has approved it as drafted subject to her press offer reviewing it.”
- The defendant’s witness statement contains the following passages:
“At the time the offer of amends was made I was entirely reliant on RMPI for legal advice and representation. From the initial correspondence between RMPI and Steel and Shamash LLP …. I had been under the impression that my legal representatives were robustly contesting the claim in my interests.
…
At all times I understood that RMPI were preparing my defence. … My understanding of the term defence is … based on its common meaning [which] can be summed up by …. ‘We will never surrender’
… My staff and I have always anticipated defending the case robustly
… It was only after I had become a litigant in person that I realised the effect of an Offer of Amends was to tie my hands and force me to settle. At no time had RMPI explained to me what an Offer of Amends was, or its consequences. I did not give informed consent to an Offer of Amends. I consented and believed I was paying for a robust defence.”
- The defendant’s witness statement, though lengthy, does not address any of the detail of the exchanges between her and her lawyers, some of which I have set out above. Her evidence cannot be reconciled with the contemporary records, to the extent that it suggests that she was ignorant of what an offer of amends amounts to, and its consequences, and that she did not realise what she was doing when authorising the Offer and approving the Defence. I am satisfied that the defendant was clearly advised about the offer of amends procedure, both orally and in writing, in terms which were clear and which she understood. She personally authorised the making of the Offer, knowing what she was doing, and knowing that it was an alternative to putting forward a defence on the merits. I am satisfied that she did in fact read and approve the Defence, subject to press office approval), and that she understood what it said.
- For these reasons I reject the defendant’s contention that she did not give informed consent to the making of the Offer. It is unnecessary to consider what the consequences might have been had the evidence supported that contention.
- It is appropriate to add that the defendant’s witness statement does not endorse, nor in my judgement does it support, the assertion in Mr Burchill’s earlier statement that the defendant was “completely managed” by UKIP legal advisers at the time she agreed to make an offer of amends. The evidence in the RMPI file makes clear that a variety of individuals were involved, but that evidence also clearly indicates that the defendant made the key decisions personally, and that she did so on the basis of accurate information and proper advice.
- The defendant’s argument that the Offer was rejected by the claimants is misconceived. It is quite clear that what happened is that the offer of a specific sum by way of damages was rejected as inadequate, but the Offer itself was accepted. Mr Shamash made that clear to Ms Rowland, who fully understood. Ms Rowland made it clear to the defendant, and the contemporaneous correspondence satisfies me that the defendant also understood at the time.
- I cannot accept the argument that a failure to agree on how the Offer should be implemented somehow undoes the agreement to make amends. Failure to perform an agreement is no basis for setting the agreement aside. I could not uphold the defendant’s allegation of bad faith. There is no evidence to support it, the negotiations having no doubt been conducted without prejudice. In any event, it is hard to see how a failure to negotiate in good faith over the details of an agreement to make amends would undermine the agreement itself. The statutory regime contains a mechanism to resolve any impasse over what steps should be taken. So a party confronted by bad faith or unreasonable intransigence in negotiations over the fulfilment of an offer of amends has a remedy. Meanwhile, an offer WPSATC can be made, to provide a platform for an appropriate costs order.
- I turn therefore to the question of whether there is any basis for setting aside or permitting the defendant to resile from what in my judgment is an agreement freely entered into, on proper advice. The defendant’s statement sets out the four grounds of substantive defence that I have identified above and then asserts in paragraph 42 that there are “clear and legitimate grounds on which to defend against this defamation action… I therefore humbly suggest that it is in the public interest for the offer of amends to be vacated and the case heard.” She submits that to do this “will not create any significant problems for the case” as the court could award appropriate damages if she fails in her defences.
- Mr Millar QC has made some submissions about the defences which the defendant says would be available to her. He has suggested that they lack merit, and that if they had been tenable the defendant would have been so advised. But his primary position is, and I accept, that I should not be seduced into starting this part of my assessment with any kind of review of the merits of defences which, it is said, might have been available to the defendant if she had chosen to contest these claims.
- My starting point should be that the burden lies on the defendant to persuade me to allow her to go back on what was a free and informed decision, on legal advice, to admit liability and settle these claims. I should follow the approach prescribed by the Court of Appeal in Warren v Random House, and look to see whether it would be just in all the circumstances to deprive the claimants of the benefit of the bargain freely entered into by the defendant.
- The defendant has pointed to two distinctions between the situation in the present case and the circumstances under consideration in Warren. First, in that case but not in this one, elements of the offer of amends package had been agreed upon, and the agreement had been partly performed by the making in court of an agreed apology. Secondly, Warren was decided before the bar for defamation claims was raised by the “serious harm” requirement contained in s 1 of the Defamation Act 2013. I agree that these are factual distinctions which I should and do bear in mind as part of the relevant circumstances, but I do not think they affect the principles.
- Applying the principles identified in Warren it seems to me that the conclusion on the facts of the present case is clear: there is no sound basis on which to exercise the discretion in the defendant’s favour.
- It is convenient to start with a review of the defendant’s evidence, to see if she has shown that the circumstances now are materially different now from those that existed, or that were or should have been foreseen at the time she made the Offer. She has failed to do so.
(1) The point on s 1 of the 2013 Act was there to be taken at that time, if it had any merit. Nothing of relevance has changed since.(2) As to the defence of truth, the witness statement deals with this in two short paragraphs. The first refers to material “in the public domain” including blogs, newspaper reports and committee reports, and makes generalised assertions about “the widespread knowledge of CSE within political circles”. The defendant has not attempted to analyse what material she had at the time of the Offer and what material she has obtained since. It would appear however that this is all material that was available to her at the time, in the sense that it existed and could have been obtained. She has certainly made no attempt to show that she now has cogent material of this kind that was not accessible to her then.
(3) The second paragraph on the defence of truth refers to investigations made by Michael Burchill. An interview with the father of one of the victims is said to support adverse conclusions about the first claimant. Reliance is placed on inference from alleged association between the first claimant and local councillors whom Professor Jay reported did know of the scale of abuse. Nothing is said against the second claimant. As to the third claimant, it is said that she “received reports” from the Council from 2008 onwards. Again, no attempt has been made to demonstrate which parts of this material were not available to the defendant at the time of the Offer and why. It appears that at least some of it may not have been in her possession at that time. But there is no evidence or indication that any of it could not have been obtained at that time.
(4) The parts of the defendant’s statement which are devoted to the public interest and the importance of freedom of political speech raise important points of principle. But they fail to engage properly with the detail of this case. The defendant refers to the public importance of the CSE scandal, to a number of public statements relating to that scandal and the failings of the Council, and to her own role as a public official. She states that the UKIP conference was a political gathering. All of this is reasonable as far as it goes, but it fails to address the key point for present purposes. The enquiry at this stage is whether it is just for this defendant to be permitted to back out of an agreement. That depends in important part on what if anything has changed since she entered into that agreement. This part of her statement contains nothing to support the view that there has been a relevant change of circumstances.
- At paragraph 42 of her statement the defendant accepts that “these issues should have been raised at an earlier date in proceedings.” Her case is that they were not raised or considered, or not properly. She offers three explanations. The first is that there was not much time. Secondly, she argues that it was reasonable not to investigate defences on the merits while the meaning application was pending. Thirdly, she blames negligence on the part of RMPI. She has not persuaded me of any of these points.
- Leaving aside any question of investigations prior to making her speech, the defendant had over six months between the issue of proceedings and the making of the Offer in which to investigate and assemble evidence to support defences on the merits. The RMPI file shows that she was urged to search for relevant evidence. The evidence as to what in fact was done is not satisfactory. I am not persuaded that there was no investigation. The record suggests that the defendant did provide some information, but it was judged to be inadequate. If there was no investigation, or no adequate investigation, I do not accept that this was reasonable. The defendant maintains that she had not been advised actively to investigate substantive defences while the meaning application was pending. I am not persuaded of that. The file indicates otherwise. As one would expect, the legal team were asking questions, looking for evidence, and assessing the available options.
- The defendant accuses RMPI of a negligent “failure to consider any of the above issues”, that is, the defences on the merits which she now identifies. That, in the final analysis, seems to be the main plank of the Application to Vacate. If an offer of amends was shown to have been made on the basis of negligent legal advice that would no doubt be a relevant circumstance, when considering whether to exercise the discretion to vacate an offer of amends. But in my judgment the defendant has not come close to establishing that this is such a case.
- I have dealt already with the immunity issue. I have not been persuaded that there was in fact a failure to consider the other defences on the merits which the defendant now seeks to raise. On the contrary, although the evidence I have been provided with is redacted it suggests to me that, as I would expect, those advising pursued and suggested proper lines of enquiry, and considered all potential avenues of defence. What is clear is that the advisers concluded that such information as the defendant provided was inadequate, so that an offer of amends was the best solution to her predicament. I do not consider that the evidence supports the defendant’s contention that her solicitors failed to advise her adequately.
- I therefore conclude that it has not been shown that the present circumstances are significantly different from those that existed or were or should have been contemplated at the time of the Offer. Further, if there is a relevant difference between the evidential material she has now and that which she had then, I do not accept that there is a reasonable explanation for this. I reject the defendant’s case that her lawyers are to blame for failing to pursue or direct appropriate lines of enquiry. Nor do I accept her case that she made the Offer in reliance on negligent advice.
- My conclusion that it would not be just to allow the defendant to resile from her bargain does not depend solely on those points. I have considered two further points. First, the issue raised by the defendant of whether there would be any prejudice to the claimants if she were allowed to change her mind. I cannot accept her case on that issue. It is true that in this case, unlike Warren, the Offer has not been performed at all. It would be easier to undo. But because any post-acceptance negotiations remain “without prejudice” I cannot tell whether that is the fault of the claimants, the defendant, both, or neither.
- In any event, the disturbance of settled and legitimate expectations is prejudice in itself. So also are delay in the resolution of the claim, and all the personal consequences that carries with it. Even if the question were purely one of finance, as the defendant implicitly suggests, the fact is that she has put no evidence of her means before the court. I cannot be confident that she would be able to meet the substantial orders for costs that would be likely to result from a successful application to vacate followed by a failed attempt to defend. There is a risk that vacating the offer and allowing her to defend would lead to substantial irrecoverable costs.
- The second issue is whether, as the defendant asserts, the public interest requires an investigation of the defences she says would be available. I am prepared to assume that there might be circumstances in which the public interest demanded that the court allow a defendant to resile from an offer, even if it was freely made, on reasonable legal advice, there was no change of circumstances, and vacating the offer would cause delay and risk substantial irrecoverable costs. It would be a rare case, but I do not rule out the possibility. I have therefore reviewed the defendant’s case on the merits. I do not consider that she has demonstrated that the public interest requires that it be investigated.
- This application is in no way the equivalent of an application to set aside a default judgment, or an application for summary judgment. I have not reviewed the defendant’s case by reference to the tests that would apply in such a context. I have instead applied the test of special circumstances. What I find is this.
(1) There has been no adequate attempt to explain how the truth of the factual imputation might be proved against these claimants. There is no draft Defence, nor is there any other form of coherent narrative which draws the material together and explains what facts it is said the defendant could prove, or how. These are essential pre-requisites of any attempt to re-open a case after liability has been determined. It is not enough, particularly at this stage of proceedings, merely to put files of paperwork before the court and assert that their contents go to prove the truth of the allegation.(2) I do not believe that the importance of the freedom of political speech gives rise to any issues separate and distinct from those raised by the public interest defence under s 4 of the 2013 Act. That defence protects statements of fact and expressions of opinion.
(3) So far as the s 4 defence is concerned, there would surely be no dispute that the question of whether any of the local Labour MPs knew about CSE as it was going on and took no action is a matter of public interest. But it is not the law that every statement on a matter of public interest is immune from suit. By s 4(1)(b) of the 2013 Act a defendant who makes such a statement is protected only if she also shows that she “reasonably believed that publishing the statement complained of was in the public interest”. The court must have regard to all the circumstances of the case: s 4(2). The defendant would therefore have to plead and prove
a) that she believed that it was in the public interest to use her conference speech to accuse these claimants of (putting it shortly) knowing about CSE and doing nothing about it for years; and
b) circumstances which made it reasonable for her to hold that belief.
A draft pleading would be expected. There is none, nor is there any other adequate summary of a defence containing these elements. The defendant’s evidence does not engage with these requirements.
(4) There is nothing exceptional or special about the defendant’s case on serious harm. She maintains that the court can and should infer that extensive publication of what are on any view serious allegations caused no harm in fact, because the publishees were either political opponents whose opinions were adverse and not important to the claimants, or people who trusted the claimants and would not take the accusation seriously. Whatever merit these points might have by way of mitigation, it is not easy to see them as knock out blows on liability. It is understandable that the defendant’s lawyers considered an offer of amends to be a preferable strategy.
- For these reasons the defendant falls a long way short of demonstrating that the public interest requires an investigation of the matters of defence that she has put forward.
- I have borne in mind throughout that the defendant is now a litigant in person. It can be appropriate to make allowances for this, when considering the exercise of a discretion. The overriding objective requires this. It is however clear that the defendant has had access to the services of a substantial number of support staff. Costs schedules submitted by her for the hearings in May 2016 indicate that three people have been working hard on a variety of issues relating to this case. She claims the value of their time to be in excess of £180,000. She has had an ample opportunity and sufficient resources to put forward a case in support of the Application to Vacate.
- The defendant has not satisfied the requirements for the exercise of the court’s discretion in her favour, and the application will be dismissed.
- I have fixed a date of 31 January 2017 for a hearing of what remains of the issues between the parties. In the light of my decision on the Application to Vacate, the next step should be the hearing of the Assessment Application.
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