Case No: QBENI/A2/2001/2843	
Neutral Citation Number: [2002] EWCA Civ 1034 
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.
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Thursday 18 July 2002
Before :

LORD JUSTICE PETER GIBSON

LORD JUSTICE POTTER

and 

SIR MURRAY STUART-SMITH

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Between :

	WALLIS	Appellant	
	
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VALENTINE	
Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
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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

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Judgment
As Approved by the Court
Crown Copyright ©

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 20th 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 12th 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 16th December 1999 and the order for an injunction dated 29th 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 24th 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 16th December 1999 and the injunction order dated 29th 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 12th 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 concluded that, on the allegation that the affidavit had been published to others, judgment should be given for the defendants under CPR Part 24.2.   He said at page 165b: 
“On the issue of the extent of publication of the affidavit, my view is that Mr Wallis has no reasonable prospect of establishing that the affidavit was published to anyone other than Miss Guesne.    That issue should, in my view, be determined now.   I give summary judgment for the defendants on that issue under CPR 24.2.    I see no compelling reason why that issue should proceed to trial.”
13.	Although that is the wording of CPR Part 24.2(a)(i) it is now well established that, in a defamation case where the claimant has a right to trial by jury, the court can only give judgment under Part 24.2 if there is no evidence fit to be left to a jury on the essential issue.   If there is some evidence, which the jury might properly accept, then the court ought not to give summary judgment.    In Alexander v Arts Council of Wales [2001] 1 WLR 1840 the alleged defamatory statement had been published on an occasion covered by qualified privilege.    At the conclusion of the case the judge had withdrawn the issue of malice from the jury on the basis that the evidence, taken at its highest, was such that a jury properly directed could not properly reach the conclusion that the defendant was actuated by malice.   The court of appeal upheld the judge’s decision and in doing so gave valuable guidance as to how the court should deal with applications by the defendant for summary judgment under CPR Part 24.2.     At paragraph 37 on page 1852 May LJ said:
“There are of course a variety of possible circumstances in libel cases in which issues of law may arise for decision by the judge.   In so far as questions of this kind properly depend on an evaluation of evidence so as to determine material questions of disputed fact, these are matters for the jury.   But, as Mr Milmo accepted in the present appeal, it is open to the judge in a libel case to come to the conclusion that the evidence, taken at its highest, is such that a jury properly directed could not properly reach a necessary factual conclusion.   In those circumstances, it is the judge’s duty, upon a submission being made to him, to withdraw that issue from the jury.   This is the test applied in criminal jury trials: see R v Galbraith [1981] 1 WLR 1039, 1042C.   In my view, it applies equally in libel actions.   It is in substance the test which the judge set himself to apply in the present case.”
14.	After referring to the decision in Safeway Stores plc v Tate [2001] 2 WLR 1377 in which the court of appeal held that the judge was wrong to give summary judgment under CPR Part 24.2 on the issue whether the matter complained of was defamatory or not, May LJ continued at paragraph 39 as follows:
“39.	As is evident from Otton LJ’s judgment, at p.1381, the first instance judge had decided that Mr Tate had no real prospect of success on the question whether the words complained of were defamatory.   He had held that the power to give summary judgment was discretionary.   He had accordingly made an evaluative decision on an issue which Otton LJ held should have been left to the jury.   Safeway Stores plc v Tate is thus a decision binding on this court to the effect that, if there is a material issue of fact in a libel case, section 69 of the Supreme Court Act 1981 entitles a party to have that issue decided by the jury.   It is, however, for the judge to decide whether there really is such an issue.   In my view, just as it is open to the judge to decide that a publication is not capable of bearing a defamatory meaning, so it is open to the judge to decide in an appropriate case that a publication is not capable of not bearing a particular defamatory meaning and that a jury’s verdict to the contrary would be perverse.   In those circumstances, there would be nothing ‘in issue’ on which section 69 of the Supreme Court Act 1981 could operate.
40. 	I agree with Mr Milmo that the principles to which I have just referred apply to questions of primary fact.   I agree with Mr Shields that the crucial question in this case of the second defendant's subjective state of mind is a matter of inference.   It was a question for the judge to decide whether available primary facts were capable of supporting the necessary inference.”
15.	Lord Woolf CJ at page 1857 paragraph 56 said:
“In considering Otton LJ’s judgment, it is important to have in mind that, in Safeway Stores plc v Tate, the judge did not expressly ask himself the question whether the words complained of were only capable of having a defamatory meaning.   Instead he appears to have given judgment having evaluated the issue himself.   If the judge had asked himself that question and properly come to the conclusion that the words were only capable of having a defamatory meaning, then it is difficult to see what objection there could be to his giving summary judgment on an issue on which there was no room for argument.   The judge would have been doing no more than what the trial judge could have done if the action had proceeded to trial.   The court, that is the judge, would not be ‘satisfied that there is in issue’, whether the words were defamatory, as required by section 69 of the Supreme Court Act 1981.”
16.	In giving permission to appeal after an oral hearing Buxton LJ was concerned that this authority had not been referred to the judge.   Giving judgment on the application hearing he said this:
“All that said, however, the question for me at this stage is whether it is unarguable that the judge was precluded from making the decision on the question of fact as to publication that he did under Part 24 of the CPR: bearing in mind, of course, that he did not have the benefit, as I understand it, of having any of the authority that was put before me.   I do not think it is open to me to say, in view of the general statements that are to be found in the two authorities that I have referred to, that it is unarguable that the judge was wrong in his view with regard to Part 24.”
17.	It is now abundantly plain that the two relevant authorities of the Safeway case, and particularly the Alexander case were before the judge.   Both these authorities were referred to in Mr Dean’s skeleton argument which the judge indicated that he had read.   Safeway v Tate was also referred to in Mr Wallis’ skeleton argument.   In the course of oral argument the judge was referred to both authorities and particularly the relevant paragraphs in Alexander v Arts Council.   Although the transcript of the proceedings before the judge is corrupt, it is clear that Mr Wallis made submissions to the judge based upon the correct test.   And, in his reply, Mr Dean again referred to the Alexander case and made the point that there was no evidence to support the allegation of publication to the owners of the hotel.
18.	It is quite clear that none of this was drawn to the attention of Buxton LJ, as it should have been.   The respondents of course did not attend the hearing for permission.   When they learnt that permission had been granted on the basis that the relevant authorities had not been referred to the judge, they wrote to the appellant and pointed this out.    They said that Buxton LJ had granted permission on a wrong basis or a misunderstanding of the true position.   There was no reply to that letter.   
19.	I find it surprising if Buxton LJ did not voice his concern in the course of argument about the point which troubled him.   The transcript of the argument before Judge Previté was not before Buxton LJ, but Mr Wallis must have known full well that these authorities were referred to the judge and discussed at some length.   Mr Price told this court on instructions that Buxton LJ did not raise his concerns in argument.    Be that as it may, even if Buxton LJ did not express his concern in the course of argument, his judgment makes it plain that that is the reason why he gave permission to appeal.   Hearing that, the appellant should have corrected the misapprehension.   I am inclined to think that, had the respondents applied to discharge the permission, this is one of those rare cases where the court might have done so.   But they did not so apply;  and here we are.
20.	But although the judge did not refer to those authorities in his extempore  judgment I cannot accept that he did not have the appropriate test well in mind.   In his judgment he stated the correct test under CPR Part 24;  but he did not add the gloss which is necessary where trial will be by jury, as required by the decisions of this court in Safeway and Alexander.
21.	Mr Price now submits that the judge should not have usurped the function of the jury; they might have disbelieved Mr Valentine, Mr Eke and Mr Mills and concluded that what was said in the letter of the 12th July 2000 only bore the meaning sought to be put upon it by Mr Wallis, namely that the affidavit had been shown to Mr and Mrs Eke.   I do not agree.   There was no positive evidence of publication to them.    In addition to Mr Valentine’s evidence, there was that of his solicitor and Mr Eke, an independent witness;  there is now a statement from Mrs Eke, who is also independent.   There is no indication that any other evidence could be forthcoming.    There is no material upon which Mr Mills or Mr and Mrs Eke could be cross-examined to show that they are lying.   Admittedly Mr Valentine could have been cross-examined on the basis of the letter of 12th July.   But it seems to me that for a jury to hold that they were satisfied that Mr Valentine was lying, and the other witnesses as well, flies in the face of reality and would be perverse.   The judge would be wholly justified in ruling that there was no evidence for it to be considered by the jury.
22.	I turn then to consider the second aspect of the case, namely whether the judge was justified in striking out the action as an abuse of process under CPR 3.4.2(b) which provides:
“The court may strike out a statement of case if it appears to the court….. (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings.”
23.	Mr Dean submitted that this court should not entertain an appeal on this ground, because Buxton LJ had indicated that leave should only be considered if the appellant succeeded on the Part 24 issue.   But although Buxton LJ expressed his strong opinion that the appeal on abuse could not succeed, if the Part 24 appeal failed, I am persuaded that in fact he left this decision to the full court.
24.	It is necessary to refer briefly to the background and it is convenient to adopt the judge’s summary.    This had to be seen in the context and that the only publication was to Miss Guesne and of a trial likely to last a fortnight, with probably several previous interlocutory hearings.   Relations between the parties had been acrimonious and there had been three sets of the proceedings.   The judge recounts the history at pages 155 to 159:
“Against a background of disputes between them as neighbours, the first litigation arose out of the planting of trees and the positioning of a fence panel on the premises occupied by Mr Wallis and Miss Guesne, which obscured light to part of the Valentines’ premises.   The Valentines issued proceedings against Mr Wallis in the Brighton County Court claiming a declaration of a right to light and an order for the removal of obstructions.
Following through the course of that claim, that claim came before His Honour Judge Kennedy.   The learned judge made the requested declaration;  the counterclaim of Mr Wallis and Miss Guesne was withdrawn by consent.   The claimants, Mr Wallis and Miss Guesne, were ordered to pay the defendants’ costs in the sum of £16,000.   That was in December 1999.
In March 2000, Mr Wallis and Miss Guesne submitted statements of means relating to the unpaid costs of that litigation.   In his statements of means, dated 20th March 2000, Mr Wallis states he has an account with the Abbey National Building Society:
‘Miss Guesne and I also maintain a joint account at the Alliance and Leicester Building Society.   I do not receive any state benefits.   My present income is zero.  I have no assets save for the joint account as above.   I believe that Miss Guesne has kindly offered on behalf of us both and in respect of our joint and several liabilities the sum of £50 per month.’
Miss Guesne states in her statement of means, also of 20th March 2000:
Mr Wallis has no income because he is engaged in litigation full time against the claimants in another matter.   For a very long time our income has been less than our expenditure.   We have been using the last reserves of our cash.’
In June 2000 Mr Wallis served an application to the court for an interim order in respect of a voluntary arrangement.  He stated:    
‘My reasons for making this application to the court for an interim order are as follows.   (1)  That I am insolvent, being unable to pay my debts as and when they fall due and am eligible to present my own petition in bankruptcy.’
However in August of that year, Miss Guesne paid the outstanding costs incurred in that litigation.
The second piece of litigation between Mr Wallis and Mr and Mrs Valentine was that on 18th November 1999 Mr Wallis began proceedings for libel.  The particulars of claim have been amended.   For the purposes of this judgment I am referring to the amended particulars of claim served pursuant to the order of Master Rose, dated 22nd March 2000.   Mr Wallis complained of words contained in four letters.  He set out in his particulars the extracts of which he complains.   The words complained of in letter one are, ‘He punched me three times in the chest.’   The words complained of in letter two, ‘Mr Wallis grabbed my shirt and said he would beat me up and kill me at the next opportunity, just like he would do to my father.’   Letter three, it was alleged that the claimant had used the words, ‘I’ll punch you to death.’   Letter four, the words complained of are, ‘And he then pushed the window fully open by bending the brass retaining stays.   The window landed on my head causing some bruises, and Mr Wallis tried to climb in, punching at me on my right arm and chest.’   It is asserted that those words are defamatory of Mr Wallis.
There was an application in that case which came before Master Rose in March 2000.   The Master ordered that Mr Wallis give further information in relation to this claim, namely that he should specify the precise nature of the criminal offences which he alleged the letters complained of accused him.   That information was not given.   Master Rose struck out the proceedings, with costs, for failure to provide the information.   That was on 10th May 2001.  On 11th May, Mr Wallis wrote to Mr Valentine saying:
‘I have today made an application to the judge in chambers to have the order of the Master set aside … Should that application fail, I will simply claim again.’
Mr Dean particularly drew my attention to that assertion of Mr Wallis.
With regard to enforcement proceedings, Mr Wallis said:
‘Neither of us [himself and Miss Guesne] has any intention of going bankrupt.   We have today instructed an insolvency practitioner who will be contacting you shortly.  In my case you may be aware that bankruptcy is not a bar to a libel action in any case nor are the damages subsequently recoverable by the creditor.’
Mr Wallis made an application on paper for permission to appeal the order of Master Rose.   That was considered by Gray J on the documents that Mr Wallis provided.   The learned judge gave permission because, as he stated in his reasons for that decision:
‘I can find no record of the reasons why the Master struck out this claim.'
There was then, approximately a month later, a hearing before Gray J.   Both Mr Wallis and Mr Valentine appeared in person at that hearing.   In his judgment Gray J stated:
‘The application of the claimant for permission to appeal that order of Master Rose came before me on a written application and I gave permission.   As I made clear when giving permission, the reasons why the Master made the order that he did were not then before me, nor indeed was the order previously made by Master Rose on 22nd March 2000, the breach of which was the principal reason given by the Master, so I am told, for dismissing and striking out this claim.   I simply make the comment that, whilst of course every allowance must be made for the fact that Mr Wallis is acting in person, it is regrettable that the full facts were not made available to the court when the application for permission was made.   That said, of course, I must consider the appeal on its merits, which I now do.’
The learned judge came to the conclusion that the order should stand, so the case remained struck out.
Towards the end of his judgment, when Mr Wallis sought the judge’s leave to appeal to the court of appeal, the learned judge says:
‘I am going to refuse it because it appears to me that in the end the ground on which I have refused you leave is a simple and straightforward one, namely non-compliance with a prior order.   I do not accept that there is a real prospect of an appeal against the ground of the decision succeeding.’
Then the question of costs arose.   Mr Valentine asked for an assessment of his costs.   The figure he asked for was £700.   Mr Wallis was asked how long he would like for payment of that money.   Mr Wallis said:
‘I would like you to allow me 48 hours, my Lord.   That would be quite sufficient, thank you.’
The judge gave him over the weekend, until 5.30 on Monday the 24th.   Those costs have not been paid.   In consequence there was an oral examination of Mr Wallis on 1st November 2001 at Brighton County Court.   There was before me a typed copy of the questions for examination of the judgment debtor on which District Judge Thompson had written Mr Wallis’ replies to questions.   That document – it is in photocopy form – bears the signatures of Mr Wallis and of the district judge.
Amongst the questions that he was asked were, ‘What assets do you own?’  Answer, ‘None that I can think of.’  He was asked, ‘Are you financially dependent on Miss Grenegh?’  He said, ‘Yes’.  He was asked, ‘State all sources of income to you from October 1999 until present, including gifts and contributions to any accounts.’   His answer was, ‘ I have had a nil income from October 1999, no state benefits.   I have earned no money since October 1999.   I have been given money, charitable donations from Miss Grenegh, for the purpose of pursuing my litigation in the High Court in respect of my first action for libel.’   It was pointed out to him that, ‘On 20th March 2000 you signed a statement of means that revealed that you have had no income for a long period of time as you were, and continue to be, a full-time litigant in person.   Did Miss Grenegh sponsor your defamation claim against the defendants issued on 18th November 1999?’  Answer, ‘I am unable to answer that question, save for the answer to question 29,’ which is the question and answer to which I have just referred.
He was asked about the source of money for the issuing of the current proceedings, claim HQ 01/X03657.   ‘Where did the money come from to pay for the £500 issue fee for that claim served on 3rd September 2001?’  Answer, ‘It is sub judice.   Asked, ‘Where did the money come from to pay for the allocation questionnaire fee of £80 and other costs of this claim to date?’  Answer, ‘Paid by a third party.’  Then two supplementary questions, ‘Did you pay the sum of £500?’  Answer, ‘Yes, insofar as it was in my hand.’  Question, ‘Where did you get the sum of £500?’  Answer, ‘I am not able to answer that question.   I had it in cash.   It came from no other account’.  I will be corrected by Mr Wallis if I do not have it right or by Dean.   Question, ‘It was money paid by a third party?’  Answer, ‘Yes’.
Finally, in respect of those proceedings, on 19th November Mr Wallis applied to set aside a statutory demand based on the non-payment of costs in the first libel proceedings, stating in that application:
‘I have a cross-claim of equivalent or greater value.’
Also stating, ‘I am not in fact insolvent.’
The third set of proceedings between Mr Wallis and Mr and Mrs Valentine arose in an action for an injunction to restrain nuisance on the part of Mr Wallis.   The nuisance alleged was the erection of a CCTV camera on the premises occupied by Mr Wallis and Miss Grenegh, the camera being trained at one of the bedroom windows of the defendants’ hotel.   That matter came again before His Honour Judge Kennedy, who made orders that Mr Wallis and Miss Grenegh take down the camera and pay the Valentines’ costs of those proceedings.”
[Throughout this passage Miss Guesne is referred to as ‘Miss Grenegh’]
25.	In addition there is an important letter, upon which Mr Dean placed reliance, written by Mr Wallis to the defendants’ solicitors after the ‘right to light’ litigation.   In that letter Mr Wallis stated:  
“It may be that after this process is partially or fully implemented that I will need to seek leave to approach the court again.     The particulars of claim will be long, they may be well drafted.   I am impecunious and you may not recover your costs, if any.    I may well represent myself.    I will then embark upon a period of sustained and extensive litigation.”
26.	In his consideration of the application the judge summarised Mr Dean’s submissions; first, to the effect that the claimant was pursuing a vendetta against the Valentines rather than pursuing a vindication of his reputation.   This was borne out by the letter just quoted.    Secondly, the limited extent of the publication to Miss Guesne, who was privy to all the previous complaints against Mr Wallis and was a party to some of the litigation, meant that his reputation would not have suffered any real harm.   Thirdly, that even if the defences of qualified privilege failed, the damages were likely to be extremely modest, perhaps even nominal.   That modest award is to be contrasted with the enormous costs likely to be incurred in contesting a fourteen day case with no prospect of recovery of any costs against the appellant, who had repeatedly made it clear that he had no income and no assets.   Fourthly, that one of the objects of these proceedings was to stave off his bankruptcy because, in response to a bankruptcy application based on the non-payment of costs in the previous libel action, Mr Wallis said that he “had a cross-claim of equivalent or greater value”.   That was a reference to these proceedings.    The judge also referred to Mr Wallis’ failure, and indeed refusal, to plead to the facts relied upon as justification in the defence.   That, he said, was inconsistent with his duty under Part 53.   It appears that the judge substantially agreed with Mr Dean’s submissions.    
27.	After referring to Mr Wallis’ submissions the judge directed himself that, when considering an application to strike out a claim as an abuse of process under CPR Part 3.4, he had to have regard to the overriding objective set out in CPR Part 1.   That provides as follows:
1.1.(1)	These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.   
2.	Dealing with a case justly includes, so far as is practicable – 
a)	ensuring that the parties are on an equal footing;
b)	saving expense; and
c)	dealing with the case in ways which are proportionate -
i)	to the amount of money involved;
ii)	to the importance of the case;
iii)	to the complexity of the issues; and
iv)	to the financial position of each party.
d)	ensuring that it is dealt with expeditiously and fairly; and
e)	allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.
28.	Although the appellant appeared in person before the judge, it was clear that he was not unfamiliar with court procedure and cases of defamation.    Moreover in this court he has been represented by solicitor advocate and junior counsel.    Dealing with the other matters, the judge considered that at best, having regard to the very limited publication to Miss Guesne, damages would be likely to be very modest, perhaps nominal.    The case was of no general importance.   The issues were very complex, especially having regard to the manner in which the appellant had chosen to plead his case and his refusal to plead to the defendants’ case of justification.    There would inevitably be considerable interlocutory work and the trial would be lengthy.   He said that the length of the interlocutory proceedings and the trial were wholly disproportionate to the importance of the case.   As to the financial position of the parties, the appellant is impecunious;  if he lost the case he had no means of paying the defendants’ costs.   The appellant himself had nothing to lose even if he became bankrupt.    The judge also considered that the interlocutory proceedings, and the trial would make substantial inroads into the courts resources.   The judge concluded “that this claim has been brought for the dominant purpose of causing further harassment and expense to the defendants.    The publication of the libel to Miss Guesne is, in the circumstances of this case, in my view, a technical publication and one which is most unlikely to have resulted in harm to Mr Wallis’ reputation”.
29.	In striking out the case the judge considered that he was exercising his powers in accordance with the overriding objective set out in CPR Part 1.   In his submissions Mr Price submitted that the judge fell into error in the following respects:- 
a.   A dominant intention to cause expense and harassment to a defendant – even if proved – is not a reason for depriving a claimant from prosecuting a valid claim.   It is only where the claimant seeks to cause additional expense and harassment to the defendant by deliberately litigating in an oppressive fashion that the action is an abuse.   The judge did not apply himself to this question.
b.   The judge approached the issue from the wrong perspective by stating that he had to be confident that the claimant’s motives were genuine.   The question he should have asked himself was whether it was so obvious that the claimant’s dominant motive was improper that a contrary jury verdict would have been perverse.
c.   In any event, he was not entitled to make such a finding, and certainly not without hearing the claimant cross-examined.   The claimant had stated that his purpose in bringing proceedings was vindication in respect of serious defamatory allegations and to prevent further publication.   Although it was not made explicit in the judgment, it was a corollary of the judge’s abuse finding that he rejected the claimant’s evidence as dishonest.   He should not have done so without an application from the defendants to cross-examine the claimant.
d.   The judge relied heavily on his earlier finding that there was no realistic prospect of the claimant proving publication to anyone other than his partner.   In doing so he approached the matter from the wrong standpoint.   He conflated the objective issue of whether there had been publication to other people with the subjective issue of the claimant’s motivation.   Insofar as the extent of publication was relevant to the abuse of process argument, the issue should have been whether the claimant believed that there had been wider publication.   It was only this question that could be relevant to his motivation to initiate proceedings.   There was no finding made that the claimant did not believe that the allegations had been published more widely.   Indeed, such a belief was entirely reasonable bearing in mind the terms of the letter of 12th July 2001.
e.   The various factors on which the judge relied in support of his finding were matters that could have been put to the claimant had he been cross-examined.   They were not, however, necessarily inconsistent with the claimant having a legitimate purpose.”
30.	Mr Price also submitted that the defamatory allegations were serious, involving allegations of criminal damage, perverting the course of justice and sexual perversion, which had at this stage to be assumed to be false, notwithstanding the previous county court order and injunction.    I also understood Mr Price to submit that if the claimant was seeking to vindicate a legal right the overriding objective was irrelevant.
31.	The relevant principles when considering strike out for abuse of process have recently been stated in the judgment of Simon Brown LJ, with whose judgment Nourse and Waite LJJ agreed, in Broxton v McClelland and Another [1995] EMLR 485 at 497-498:
“(1)	Motive and intention as such are irrelevant (save only where ‘malice’ is a relevant plea): the fact that a party who asserts a legal right is activated by feelings of personal animosity, vindictiveness or general antagonism towards his opponent is nothing to the point.   As was said by Glass JA in Champtaloup v Thomas (1976) 2 NSWLR 264, 271 (see Rajski v Baynton (1990) 22 NSWLR 125 at p.134):
‘To impose the further requirement that the donee [of a legal right] must be actuated by a legitimate purpose, thus forcing a judicial trek through the quagmire of mixed motives would be, in my opinion, a dangerous and needless innovation.’
(2)	Accordingly the institution of proceedings with an ulterior motive is not of itself enough to constitute an abuse:  an action is only that if the Court’s processes are being misused to achieve something not properly available to the plaintiff in the course of properly conducted proceedings.    The cases appear to suggest two distinct categories of such misuse of process:
(i)	The achievement of a collateral advantage beyond the proper scope of the action – a classic instance was Grainger v Hill where the proceedings of which complaint was made had been designed quite improperly to secure for the claimants a ship’s register to which they had no legitimate claim whatever.   The difficulty in deciding where precisely falls the boundary of such impermissible collateral advantage is addressed in Bridge LJ’s judgment in Goldsmith v Sperrings Limited at page 503 D/H.
(ii)	The conduct of the proceedings themselves not so as to vindicate a right but rather in a manner designed to cause the defendant problems of expense, harassment, commercial prejudice or the like beyond those ordinarily encountered in the course of properly conducted litigation.
(3)	Only in the most clear and obvious case will it be appropriate upon preliminary application to strike out proceedings as an abuse of process so as to prevent a plaintiff from bringing an apparently proper cause of action to trial.”
32.	I respectfully adopt that statement of the law.    But I would add the following three matters.    First, where Simon Brown LJ speaks in paragraph (2)(ii) of the conduct of the proceedings, this is not confined as Mr Price submitted, to the conduct of proceedings after the issue of the claim, but includes the initiation of the claim itself.    Secondly, at the interlocutory stage the test is an objective one.    In Goldsmith v Sperrings Limited (1977) 1 WLR 478 Lords Justices Scarman and Bridge dismissed the defendant’s appeal from refusal of the judge to strike the action out as an abuse of process.   Lord Denning MR dissented; he considered the action was brought for the collateral purpose of cutting off the channels of distribution of the defendant’s paper ‘Private Eye’.   At page 499E, Scarman LJ said:
“No application  has been made in these proceedings to cross-examine Sir James Goldsmith.   He has not been confronted with the challenge direct.   Instead, he has to meet a case based on adverse inference said to arise from surrounding circumstances.   It is this circumstantial case which has, as I understand his judgment, impressed Lord Denning MR.   In so far as the Master of the Rolls is saying that Sir James Goldsmith’s purpose must be objectively ascertained, that is, by reference to what a reasonable man placed in his situation would have in mind when initiating or pursuing the actions, I respectfully agree with him.”
Thirdly  the Broxton and Goldsmith cases were prior to the Civil Procedure Rules.   In Schellenberg v British Broadcasting Corporation [2000] EMLR 296 Eady J, in an application to strike out for abuse of process, rejected the claimant’s submission that the overriding objective under the CPR was irrelevant.    At page 318 he said:
“Even in a jury action it is regarded under the CPR as a judge’s duty to take a realistic and practical attitude.   He or she is expected to be more proactive even in areas where angels have traditionally feared to tread.
I have seen nothing to suggest that the CPR are to be applied any less rigorously, or the judges are to be less interventionist, in litigation of the kind where there is a right to trial by jury.   That important right is sometimes described as a ‘constitutional right’, although the meaning of that emotive phrase is a little hazy.   Nevertheless I see no reason why such cases require to be subjected to a different pre-trial regime.   It is necessary to apply the overriding objective even in those categories of litigation and in particular to have regard to proportionality.   Here there are tens of thousands of pounds of costs at stake and several weeks of court time.   I must therefore have regard to the possible benefits that might accrue to the claimant as rendering such a significant expenditure potentially worthwhile.”
33.	I agree with Eady J.     And although the judge must not usurp the function of the jury, as was explained by this court in Alexander’s case, he is entitled, and indeed bound, to look at the case at its highest from the point of view of the claimant, and ask himself the relevant questions which arise when considering the overriding objective.   That is what the judge did here.   
34.	I must deal with Mr Price’s submissions set out in paragraph 29.   Although the judge did not refer to the authority of Broxton, he is a judge who is very experienced in defamation cases and it seems to me that he was applying the test referred to in paragraph (2)(ii) of Simon Brown LJ’s statement of the principles.   Mr Dean, in a submission that the judge evidently accepted, submitted that the claimant was pursuing a vendetta, rather than pursuing a vindication of his reputation.   Moreover, while the judge did refer to the court having to be confident that it was a genuine claim for injury to reputation, which arguably puts the onus the wrong way, his findings are clearly and trenchantly expressed,  particularly where he stated “my finding is that this is a wholly unmeritorious claim, pursued for, in effect, vindictive purposes”.   Any finding by a jury of wider publication than that to Miss Guesne would have been perverse.
35.	I accept it may be preferable, when there is written evidence before the court in the form of a witness statement to the effect that the claimant’s purpose was to vindicate his reputation, to invite cross-examination where that statement is challenged.  However, in this case the judge had the opportunity of seeing the claimant in the course of the day making submissions as a litigant in person and was in a good position to form an opinion about him.    Moreover, once the judge had determined the extent of the publication, he was fully justified in considering the impact of the overriding objective on the future prosecution of the claim, whatever the appellant’s belief may have been up to that time.
36.	Mr Price submitted that it was the claimant’s subjective motivation that was in issue;  if he believed that the passage cited from the letter of the 12th July 2001, indicated that the affidavit had been published to the new owners of No. 38, his motivation could not be impugned.    But the passage cited from the judgment of Lord Justice Scarman in the Goldsmith case indicates that it is not a purely subjective test.    As I have already indicated, although the paragraph from the letter taken in isolation is ambiguous and might support the claimant’s assertion, taken in the context of the letter as a whole and also the previous letter, it is clear to my mind that the references to the ‘absolutely privileged’ court documents are to those recording the court orders.   I do not think it was a reasonable conclusion to jump to that the affidavit was shown to the new owners, or that this justified the issue of proceedings without more ado.   Furthermore, as I have already stated, once the judge had determined the extent of the publication, he was fully justified in my judgment in holding that any further prosecution of the claim would be an abuse of process.
37.	For these reasons I would dismiss this appeal.
Lord Justice Potter:
38.	I agree.
Lord Justice Peter Gibson:
39.	I also agree.
Order: 
1.	The appeal is dismissed.
2.	The Appellant is to pay to the Respondents the costs of the appeal, assessed at £7,576.80.
(Order does not form part of the approved judgment)