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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Decker v Hopcraft [2015] EWHC 1170 (QB) (30 April 2015) URL: http://www.bailii.org/ew/cases/EWHC/QB/2015/1170.html Cite as: [2015] EWHC 1170 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/04/2015

Mr Justice Warby:

1. These are the reasons for the orders I made at the hearing on 23 April 2015.

Introduction

2. Before the Court are application notices issued by the Defendant in these two defamation actions on 4 September 2014, 3 October 2014, and 14 April 2015, by which he seeks orders striking out some of the claims, and directions that certain issues in the claims that would remain should be tried as preliminary issues.
3. The Defendant is represented by Ms Kate Wilson of Counsel. The Claimant represents himself in both actions. He has not appeared at the hearing, for reasons which will become clear. Ms Wilson has advanced her client's case with scrupulous fairness, assisting me by identifying the points which, if he had been represented, the Claimant would be likely to have argued. It is because of his absence from the hearing that I have thought it best to give this written judgment rather than require the Claimant to go to the trouble and expense of obtaining a transcript of a judgment delivered orally.
4. The first matter I have to deal with is an application by the Claimant for the hearing of the Defendant's applications to be adjourned, on the grounds of the Claimant's ill health.

Background

5. The background to the actions is a dispute between the parties in their capacities as committee members of the Crawley Boxing Club. The Claimant was the Club secretary. The Defendant was the Club Chairman. There was a falling out between them which, according to the Claimant, began when he announced in 2013 that he would stand against the Defendant for election as chairman at the next annual general meeting.
6. It is unnecessary for present purposes to go into the details of the dispute that arose and continued over the following months. It is enough to say that it is alleged by the Claimant that the Defendant took steps, the validity of which the Claimant disputes, to amend the club constitution and to remove the Claimant. The Claimant not only disputed the validity of such steps but also referred matters to the sport's governing body, England Boxing.
7. The first of the Claimant's two actions was started by a claim form issued on 8 August 2014. This made three defamation claims. The first concerns words spoken in March and April 2014 to four individuals; the second concerns an allegation of crime made to the police in April 2014; the third arises from an email sent by the Defendant in April 2014 to a national officer of England Boxing. The Claimant describes these as the First, Second and Third Claims, and I shall do the same.
8. The Defendant's application notice of 4 September 2014 sought an order for the trial of preliminary issues in relation to the Third Claim. This was followed by a long and detailed letter of 8 September 2014 in which the Defendant's solicitors explained why they maintained that the First and Second Claims made by the Claimant were liable to be struck out. In relation to the First Claim it was objected that the Claimant had failed, deliberately and without justification to identify the publishees of the words the subject of that claim; and that the claim could not succeed in any event because the Claimant could not show that the publication had caused or was likely to cause serious harm to reputation. In relation to the Second Claim it was said that the plea was deficient for failure to set out the actual words complained of, and that in any event the occasion of the publication was absolutely privileged.
9. The Claimant replied the following day over six pages, stating that he would "deal with your points seriatim", which he then did, rejecting the objections raised. A hearing of the Defendant's application notice was fixed for 30 September, before Deputy Master Eyre. On 26 September 2014 a Skeleton Argument prepared by Ms Wilson was served on the Claimant. He prepared a detailed Skeleton Argument of his own. The battle lines were therefore drawn, in writing. I have been able to review and absorb both Skeleton Arguments in the course of this hearing – though Ms Wilson's latest Skeleton Argument has some updated legal references.
10. In the event, Deputy Master Eyre released the application for hearing by a Judge dealing with defamation matters.
11. On 1 October 2014 the Defendant served a Part 18 Request seeking the missing details in respect of the First Claim. On 3 October the Defendant's second application notice was issued, seeking an order striking out the First and Second Claims. On 8 October 2014 the Claimant replied to the Request for Further Information saying, among other things:

"I have obviously spent some time considering the proper response to the RFI. I would draw your attention to the Particulars of Claim (para 17 line 7-8) which expresses my concern that the individuals may suffer prejudicial treatment if their names are revealed …

… I believe the welfare of members (particularly where they are minors) supersedes my need for witnesses therefore I have decided not to comply with your RFI on that ground.

This, of course, means that your Application to strike out the First Claim has a far greater chance of success – indeed it will be difficult to resist. It therefore seems sensible, and will save time and cost, to agree not to proceed with the First Claim."

The Claimant did not however do anything more to withdraw the claim.

12. The question of when the Defendant's two application notices could be heard then had to be dealt with. On 13 October 2014 the Claimant wrote, referring to a medical procedure that he was due to undergo on 29 October 2014 for a "longstanding issue" and which he said would disable him from attending a hearing for three weeks afterwards, that is until 21 November, "perhaps longer". He said that even if fully fit by then he had childcare commitments during December that meant "any date prior to the end of the year may turn out to be problematic". He proposed any afternoon date on or after 5 January 2015.
13. The response was to the effect that the hospital stay and convalescence did make it sensible not to ask for a hearing in November, but that more than six weeks notice was sufficient to enable the Claimant to make arrangements to be available "for some dates in December". On 22 October 2014 the Claimant replied saying that "I can only repeat that I am likely to be unavailable prior to 5 January 2015. I am happy to provide a medical certificate in support to the Court in due course if required." The Claimant's correspondence was then placed before the court by the Defendant's solicitors and a date of 10 December 2014 was fixed.
14. A dispute then arose, accompanied by some ill-tempered correspondence on the Claimant's side, about whether the Defendant's solicitors had acted fairly over the matter of listing. Eventually the Claimant applied for a decision to be made without a hearing, to adjourn the hearing date on medical grounds. The Defendant's solicitors had agreed that if the medical information was private they did not need to see the medical evidence, though they did require to see all correspondence with the Court. An order adjourning the hearing was made on the papers by Turner J, and the hearing was re-listed for 12 February 2015.
15. On 28 January 2015 the Claimant wrote stating that "I have had the results of further medical tests, and I regret I will be unfit to prepare for and attend the hearing … I have been given a further medical certificate until 23^rd March 2015, by which time I hope to be fully recovered and will continue the case." The Defendant's solicitors again did not oppose the proposal. They asked to be copied in on correspondence but said that "as before, we do not require copies of confidential medical information to be provided to us at this stage." The final three words are to be noted. As a result of the Claimant's communications with the court at this point the February 2015 hearing date was vacated and the applications were listed for this hearing date.
16. The second of the Claimant's defamation actions was begun by claim form issued on 25 March 2015. The claim is for damages for slanders allegedly spoken by the Defendant on three separate occasions during a boxing dinner show on 28 March 2014. I shall therefore call these the Fourth, Fifth and Sixth Claims. Those claims were made by separate action in order to ensure they were brought within the limitation period, without the complexities that could have resulted from amending the claim in the first action. The claim form records that the Claimant paid a Court fee of £10,480.
17. On 8 April 2015 the Defendant's solicitors wrote stating that they believed a preliminary issue trial in respect of these matters would further the overriding objective and that they would be applying for an order to that effect. They enclosed a copy of the recent decision of Nicola Davies J in Lachaux v AOL (UK) Ltd [2015] EWHC 915 (QB) in which the Judge set out and applied the relevant principles, in the context of two related defamation claims. On 10 April the Claimant replied, stating that he was "required to have another overnight stay in hospital on May 11^th", and inviting agreement to an adjournment. The Defendant declined to consent, and informed the Claimant by letter of 13 April that he would have to make an application.
18. On Tuesday 14 April the Defendant's latest application notice was served on the Claimant by post and email. On Wednesday 15 April the Defendant's solicitors sent the Claimant a complete copy of the hearing bundle they had prepared. On Monday 20 April they sent him by email a copy of Counsel's Skeleton Argument and copies of each of the authorities relied on, together with a letter reminding him that the hearing remained effective. The letter pointed out that the Claimant had not applied for an adjournment nor confirmed that he did not intend to do so. It made clear that if he did apply the Defendant required to see the medical evidence and intended to serve evidence in response. The letter also said that

"…even if you consider there are proper reasons why you cannot attend, then in light of your recent expenditure on Court fees … it appears that there is no financial reason why you cannot instruct Counsel through the Public Access system … The applications to be heard on Thursday are straightforward and there is still more than sufficient time for Counsel to prepare."

The Claimant's Application to Adjourn

19. On Tuesday 21 April 2015, just one clear day before the hearing date, the Claimant issued the application notice now before me, seeking to adjourn. It asked the Court to make an order for an adjournment without holding a hearing. The Claimant's application came before me late on the afternoon of 21 April and I made an order on the papers on the following morning, 22 April 2015. It was apparent that the application was likely to be opposed. I directed that the Defendant's applications should remain listed as they were, and that the Claimant's application should be dealt with at the same hearing.
20. I also directed that the Claimant should serve his medical evidence on the Defendant, which had not at that stage been done, and that the Defendant should file any evidence to be relied on as soon as possible. Those directions have been complied with. The Claimant has also added to his evidence and has made submissions in writing. He has asked the Court to deal with his application in his absence, stating that he is not well enough to attend. It is clear that if the matter is not adjourned the hearing will proceed in the Claimant's absence. Plainly, his application is the first order of business.

Principles

21. The decision whether to adjourn a hearing, and the decision whether to proceed with a hearing in the absence of a party, are both case management decisions. The court is required to exercise a discretion, in accordance with the overriding objective, in the light of the particular circumstances of the individual case. The authorities provide valuable guidance, however.
22. A court faced with an application to adjourn on medical grounds made for the first time by a litigant in person should be hesitant to refuse the application (Fox v Graham Group Ltd, The Times, 3 August 2001 per Neuberger J, as he then was). This, however, is subject to a number of qualifications. I focus on those which seem to be of particular relevance in the present case.
23. First, the decision is always one for the court to make, and not one that can be forced upon it. As Norris J observed in Levy v Ellis-Carr [2012] EWHC 63 at [32]:

"Registrars, Masters and district judges are daily faced with cases coming on for hearing in which one party either writes to the court asking for an adjournment and then (without waiting for a reply) does not attend the hearing, or writes to the court simply to state that they will not be attending. Not infrequently "medical" grounds are advanced, often connected with the stress of litigation. Parties who think that they thereby compel the Court not to proceed with the hearing or that their non-attendance somehow strengthens the application for an adjournment are deeply mistaken. The decision whether or not to adjourn remains one for the judge."

24. Secondly, the court must scrutinise carefully the evidence relied on in support of the application. In Levy v Ellis-Carr at [36] Norris J said this of the evidence that is required:-

"Such evidence should identify the medical attendant and give details of his familiarity with the party's medical condition (detailing all recent consultations), should identify with particularity what the patient's medical condition is and the features of that condition which (in the medical attendant's opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion, and what arrangements might be made (short of an adjournment) to accommodate a party's difficulties. No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case)."

25. Norris J's approach in Levy v Ellis-Carr was expressly approved by Lewison LJ in Forrester Ketley v Brent [2012] EWCA Civ 324 [26], upholding a decision of Morgan J to dismiss an application to adjourn on medical grounds. It was followed by Vos J (as he then was) in refusing an application to adjourn the trial in Governor and Company of the Bank of Ireland v Jaffery [2012] EWHC 734 (Ch) [49].
26. In the context of what amounts to proper medical evidence it is pertinent to note two points made by Vos J in the Bank of Ireland case. At [19], referring to a GP's letter running to some 11 lines which confirmed that the defendant had been signed off work for three weeks, he said this: "It is important to note that a person's inability to work at a particular job is not necessarily an indication of his inability to attend court to deal with legal proceedings. It may be but it may also not be." At [58] Vos J indicated that he took into account the contents of the defendant's litigation correspondence, observing that he "has been communicating with the court and with the claimants over a lengthy period in the most coherent fashion. He is plainly perfectly capable of expressing his point of view, taking decisions and advancing his case".
27. The third main qualification to Neuberger J's observations in Fox v Graham is one that is implicit, if not explicit in what Norris J said in Levy v Ellis-Carr: the question of whether the litigant can or cannot participate in the hearing effectively does not always have a straightforward yes or no answer. There may be reasonable accommodations that can be made to enable effective participation. The court is familiar with the need to take this approach, in particular with vulnerable witnesses in criminal cases. A similar approach may enable a litigant in poor health to participate adequately in civil litigation. But the court needs evidence in order to assess whether this can be done or not and, if it can, how.
28. Fourthly, the question of whether effective participation is possible depends not only on the medical condition of the applicant for an adjournment but also, and perhaps critically, on the nature of the hearing: the nature of the issues before the court, and what role the party concerned is called on to undertake. If the issues are straightforward and their merits have already been debated in correspondence, or on previous occasions, or both there may be little more that can usefully be said. If the issues are more complex but the party concerned is capable, financially and otherwise, of instructing legal representatives in his or her place and of giving them adequate instructions their own ill-health may be of little or no consequence. All depends on the circumstances, as assessed by the court on the evidence put before it.
29. The fifth point that may be of significance here is that, sometimes, it may appear to the court at the outset or after hearing some at least of the rival arguments that in truth the matter before it is one on which one or other side is bound to succeed. The closer the case appears to one or other of these extremes the less likely it is that proceeding will represent an injustice to the litigant. Thus, in Boyd & Hutchinson (A Firm) v Foenander [2003] EWCA Civ 1516 the Court of Appeal proceeded with the hearing of an appeal on the basis that it would refuse an adjournment if it concluded, as it did, that the appeal had no real prospect of success. This appears consistent with the conclusions of Neuberger J in Fox v Graham that where the court refuses a litigant in person an adjournment it may proceed in his absence if satisfied either (a) that it is right to grant the applicant the relief sought or (b) that the application is plainly hopeless.
30. I accept the point made by Ms Wilson, in order to assist the court, that when considering an adjournment application the court's approach should to an extent be affected by whether the matter involves applications of a case management nature, or final determinations on the merits such as an order striking out a statement of case or part of it, where Article 6 of the Convention is engaged. The court will need to be more cautious in cases failing within the second category. Nonetheless, the factors I have identified above are relevant in both contexts.
31. It is with these principles in mind that I approach the question of whether, as Ms Wilson put it, it is necessary to adjourn these applications, in this case, because of the ill-health problems of this claimant.

The evidence

32. The Claimant's application notice contains this statement of the relevant facts, over a statement of truth:

"I was diagnosed with Mononucleosis (glandular fever) at the end of last year. The illness causes severe fatigue and cognitive problems, particularly to persons over 40. In addition an MRI scan in January revealed micro haemorrhages which may contribute to the cognitive and memory retention issues. There was no improvement so I was recently referred to a specialist hospital for an overnight brain activity scan. This revealed more than 300 involuntary spasms leading to 75 episodes of arousal from sleep during the night. I was recalled into hospital for a further overnight stay last Monday 13^th April which confirmed the disturbed sleep problem, treatment for which is I believe a type of 'anti-spasm' drug that will prevent the sleep disturbance that appears to be a significant contributor to the cognitive problems. I expect a further appointment with the neurologist will be scheduled this week and I will be prescribed this drug. Alongside that it is hoped that the effects of the mononucleosis will also diminish (I understand fatigue from this infection can last for years.)

I have provided a copy of my current Medical Certificate that certifies the diagnosis of mononucleosis and cognitive impairment covering the period up until 21^st June 2015, however I hope my cognitive abilities will recover earlier than that therefore I am requesting the adjournment for the next available date after June 8^th. Before that time it would be difficult for me to follow proceedings at a hearing, or to prepare effectively."

33. Attached to the application notice is a medical certificate dated 21 April 2015 made out by Claimant's GP, Dr Anderson. This states that the Claimant is not fit to work, giving two reasons: "infectious mononucleosis" and "cognitive impairment". Following my order of the morning of 22 April the Claimant wrote to the Court during the afternoon attaching five further documents in support of his ill-health claim, which he also sent to the Defendant. These are:

1) A letter 23 February 2015 to the Claimant's GP from a Dr Venn, Clinical Director of the Sleep Disorder Centre at Queen Victoria Hospital East Grinstead, referring to a clinic on 18 February 2015 at which it would appear that Dr Venn saw the Claimant. Dr Venn says this:

"Thank you for your letter dated 1^st December 2014 asking us to see Mr Decker whom we saw in 2010 and started on CPAP but was lost to follow-up in 2012. He had an overnight respiratory study carried out in 2010 which showed features of mild sleep disordered breathing…

I definitely think he ought to have a neurological assessment because he has a number of features, one of which is numbness in the left ulnar nerve distribution from the elbow downwards, and also quite marked deterioration in intellect with forgetfulness of significant things such as his children's names. …

… I will ask my colleague Dr Angus Nisbet to see him; he is a Neurologist who works with us here in the Sleep Disorder Centre and I have copied this letter to him.

In the meantime we will carry out full overnight polysomnography and I will then assess him with the results to see what we should do with regards to further management and treatment. …"

2) An appointment letter dated 18 February 2015 for an overnight stay at the sleep disorder centre from 23-24 March 2015. This is consistent with Dr Venn's letter but no clinical information.

3) A document dated 26 February 2015 said by the Claimant to be a "pulse/oxygenation record" and to show "several desaturations during sleep associated with a high heart rate". The document does not have the Claimant's name on it, but I assume it relates to him. It is however unclear where this comes from or precisely what its significance is.

4) A print out of some graphs which evidently show the results of tests carried out at the Sleep Disorder Centre during the Claimant's overnight stay on 23 March 2015. These give figures for sleep disturbance which the Claimant says evidence a total of 79 occasions of arousal from sleep. The figure 79 is certainly on the graph. Whether it represents 79 occasions when the Claimant was aroused from sleep is a great deal less clear.

5) An appointment letter dated 31 March 2015 for a further overnight stay at the hospital's sleep disorder centre from 11-12 May 2015. This adds no clinical information.

34. On the Defendant's behalf, his solicitor Mr Deans has submitted a witness statement in which he makes three main points in support of an assertion that the Claimant is capable of dealing with the Defendant's applications. First, he points out that in this litigation the Claimant has represented himself throughout and has written numerous lengthy and detailed letters. By way of example he refers to a letter dated 6 March 2015 running to three sides of A4 which I have read, and which is a well-structured, highly articulate example of litigation correspondence. From my own review of the correspondence in this litigation, to much of which I have referred above, those characteristics are typical of the Claimant's writing.
35. Secondly, Mr Deans refers to correspondence sent by the Claimant over the last two months, threatening others with legal action, copies of which he exhibits. The exhibits show that on 17 February 2015, the day before visiting Dr Venn at the Sleep Disorder Centre, the Claimant sent a detailed three-page letter before action to one Traci Thorne, complaining of alleged false and defamatory statements made by her about him on various occasions between 1 September 2014 and 1 February 2015. Ms Thorne replied by email at around 2.30pm on 18 February 2015. On the same day the Claimant wrote a further letter in reply consisting of three pages of closely-argued single spaced text. The Claimant's letters to Ms Thorne are ordered, logical, clear, and articulate. They betray no indication of any form of cognitive impairment. In addition to this correspondence, on 17 February 2015, at 13:44, the Claimant sent a detailed e-mail to the Defendant's son, Rees Hopcraft, relating to the boxing club.
36. Thirdly Mr Deans refers to the Claimant having been fit enough to be Master of Ceremonies at a boxing show on 6 March 2015 for a period of one half hours. He exhibits a DVD, but in the event I have not seen it. That is because the Claimant has accepted that he is physically fit enough to attend court, and it is therefore unnecessary for the Defendant to rely on the DVD for that purpose.
37. Mr Deans makes two further points. First he says that the Defendant is 70 years old and recently diagnosed with Parkinson's disease and has had this litigation hanging over him for nine months already. The Defendant has other health problems. He has had heart surgery in the past and continues to take medication related to that surgery. He is evidently anxious to ensure that matters are progressed. Secondly, Mr Deans produces some email correspondence from 2013 in the course of which the Claimant said "I enjoy the sport of suing people …"
38. In his prompt and detailed letter of response to my order of 22 April the Claimant seeks to address some of the matters raised by Mr Deans. He did so in advance of Mr Deans' witness statement, but knowing from exchanges with Mr Deans some of the points that Mr Deans was in due course to make. The Claimant says that he is sometimes able to deal with correspondence immediately "particularly if it is a fairly simple reply", but that he has made errors and omissions due to his illness and that this is known to the Defendant's solicitor. He says "I usually hope to write lengthy substantive letters in three days sometimes it's shorter sometimes it's longer dependent upon fatigue".
39. The Claimant admits threatening proceedings against Ms Thorne, but says that he has not pursued it due to the difficulty of running several claims at the same time. He says fatigue does not stop writing letters "particularly where these are effectively from letters following a standard format from easily available templates, and when I can break the task down over several hours or days" the Claimant explains his ability to act as MC at the boxing show on 6 March 2015 on the basis that it is not an intellectual challenge to read two names from a card into a microphone every so often during a show and then read the winner's name. He asserts that after that event he was confined to bed for three days. His main difficulty is in any complicated processing of information that requires short-term memory and alertness.
40. In a letter sent on the morning of the hearing date, 23 April 2015, the Claimant has provided a further reply to Mr Deans' points, after sight of his evidence. His detailed four-page letter combines matters of evidence and submissions. So far as evidence is concerned, he states that his correspondence has been executed extremely slowly, taking less than two hours each day. He suggests that he could not cope adequately with a "lengthy hearing where I would be required to deliver coherent arguments in response to arguments made by a skilled barrister", saying that "normally I would be confident in such an encounter given the merits of my case but for some months I have felt as if half my IQ has disappeared – my brain currently is simply not capable of keeping up with proceedings." He then addresses Mr Deans' evidence in a series of numbered paragraphs, focusing on "some of the more contentious matters he raises". He states that his letter of the previous day took some 3 hours to complete, and that his current letter has been "almost impossible to complete cogently".

Submissions

41. The principal submission of the Claimant, set out in his most recent letter, is that the Defendant "cannot succeed in opposing this Application without challenging the submitted letters and reports written by medical professionals." The Claimant points to the absence of any medical evidence addressing the "compelling evidence" adduced by him, and to the absence of any "submissions with regard to the two specific conditions stated on that [GP's] certificate, nor made any reference to" the Claimant's evidence. He adds that the DVD is of no significance as "in my case I am not physically incapacitated nor unable to perform basic cognitive tasks." He concludes that it seems perverse for the Defendant to oppose his application when such compelling medical evidence has been provided.
42. Ms Wilson makes five main points on behalf of the Defendant. First, she points to the undesirability of delay and the inevitable additional costs attendant on repeated delays. She submits this matter is clearly in the nature of a small claim, has been delayed for many months, and should be dealt with promptly if at all possible. She also expresses concern about the recoverability of costs, though this is based on speculation as to the Claimant's means. Secondly, she refers to the impact on the Defendant of this matter hanging over him, though she fairly asked me not to place too much weight on what is said about his health, in the absence of medical evidence. I place some but only slight weight on that.
43. Thirdly, Ms Wilson submits that the Claimant's medical evidence falls short of showing why this Claimant cannot attend this hearing on this particular day. She fairly invites me to accept, as I do, that the Claimant is suffering some cognitive impairment. But she submits that the Sleep Clinic appointment letters are of no help, and the records of 26 February and 23 March of no real assistance, in the absence of medical evidence explaining their significance. The closest the evidence gets to being adequate, submits Ms Wilson, is the certificate of Dr Anderson. This, however, is a sick note for work purposes. It does not address whether the Claimant is capable of turning up in Court, with the Court making allowances. Nor does the 23 February letter from Dr Vines. That letter does recognise some intellectual impairment, but it also makes clear that the problem is one of long standing, dating back to 2010.
44. Fourthly, Ms Wilson refers to the Claimant's conduct of this litigation and other correspondence. In addition to the documents cited by Mr Deans, Ms Wilson refers to the letter of claim of 4 March 2015 which she submits shows that he was at that time perfectly capable of putting forward a closely-argued position in respect of his claim. It is organised, and refers to remedies, evidence and procedure. Reference is also made to the Particulars of Claim, both well organised coherent documents. Finally, Ms Wilson asks me to take into account in assessing whether the Claimant could cope with this hearing that on these applications every issue raised in her Skeleton Argument for this hearing has been flagged up in correspondence or in a previous Skeleton Argument and the Claimant has been able to respond. She also points out that a whole day has been set aside for the hearing, which would allow the proceedings to be taken slowly, with breaks if necessary.

Without Prejudice Save as to Costs material

45. In his letter to the Court of 22 April the Claimant explained his delay in filing an application notice. One point was that he had overlooked the Defendant's letter of 13 April, which was one of two attachments to an email. The second point relied on attachments to his letter in the form of without prejudice correspondence. In relation to this he wrote that "There is another compelling reason why I did not file an Application at that time; I believe this may be considered if you are not hearing the cases therefore I have set this out in a separate letter and attachments prefaced 'WP'". I made sure not to read any of this material before the hearing, arranging for it to be kept safely in another room. My initial view was that I need not look at it in any event, as it went only to the lateness of the application to adjourn and that was unlikely to determine or significantly influence my decision. Ms Wilson, knowing the content of the correspondence, has however told me that she feels duty bound to draw attention to its content, in the Claimant's interests, if I am otherwise minded to refuse the adjournment.
46. When I indicated that on the basis of the matters I have dealt with so far I was minded to refuse the adjournment, Ms Wilson has told me in outline what the correspondence, which was Without Prejudice Save as to Costs, showed. She told me that it includes an offer by the Defendant and a purported acceptance by the Claimant, but that her client does not accept that this has given rise to a concluded agreement. That is for two reasons: the offer is said to have been withdrawn before the purported acceptance, and the acceptance is said not to match the offer. Having learned this much, I decided that I did not need to and should not read the correspondence itself.
47. The lateness of the Claimant's application was a factor in my decision to refer it to a hearing, allowing the Defendant an opportunity to respond, but I do not in the end consider it to be a factor of any significance to my decision whether to adjourn. So any explanation that the correspondence might offer for delay would not matter. It is not clear to me quite what the Claimant's position is about the offer and acceptance. However, he has not so far suggested to the Court that there is a concluded settlement so that it would be wrong to hold this hearing. If he were to take that position in future, and his position was accepted, it would be a matter going primarily to costs. The Claimant's position would not be adversely affected, unless he had to pay out costs which could not be recovered. I have no reason to believe that there would be any difficulty in reversing the effect of costs orders I make on these applications, and if there were any reason to believe it the Claimant has time to put it forward after this hearing.

Discussion and conclusions

48. My decision must be taken in accordance with the overriding objective of dealing with cases justly and at proportionate cost. In my judgment Ms Wilson is right to characterise this as a small claim. As such, it is particularly important that it should be managed efficiently and without avoidable delay.
49. The Claimant is physically fit to attend. The issue relates to his intellectual capacity. There are substantial reasons to be sceptical of some of the Claimant's contentions as to his cognitive difficulties. He is clearly capable currently of functioning at a high level, and that has plainly been the position over recent months. His correspondence in relation to this action up to date, including his present application and his most recent correspondence suggest a lively intelligence operating effectively. The correspondence in respect of other matters to which I have referred is of the same nature. His explanations for his ability to write long, complicated and detailed letters do not strike me as convincing. It seems perfectly clear, for example, that his letter of 18 February 2015 to Ms Thorne was not a standard form letter, and that it was composed within a few hours.
50. The medical evidence the Claimant has produced to substantiate his claims is in my judgment unimpressive, on a proper analysis. So far as cognitive impairment is concerned, I have no evidence at all that is directed to the Claimant's ability to conduct a hearing such as the present. The only evidence I have on the question of cognitive impairment which is independent of the Claimant himself is the GP's certificate, which uses the words "cognitive impairment" but does not elaborate in any way, and the letter of Dr Venn. The GP's certificate is designed to justify absence from work but I am not told what work the Claimant is or would be engaged in, and it does not follow from the GP's opinion on that topic that the Claimant would be unable to cope with this hearing. Dr Venn's letter does speak of intellectual problems, evidently involving short-term memory. However it is two months old. In addition, the documentary evidence shows that the Claimant was able at the same period of time to compose lengthy and complex correspondence on legal matters, at some speed. That ability appears to me undiminished since 18 February 2015, as evidenced by the Claimant's prompt, fulsome and eloquent correspondence over the past few days. I accept Ms Wilson's characterisation of the previous correspondence.
51. I accept as I have indicated that the Claimant is suffering some cognitive impairment, but I do not regard the evidence he has provided as establishing such an impairment that it is necessary in order to deal justly with the matters raised by the Defendant's applications to grant him an adjournment. I do not consider that the evidence shows that the Claimant is or would be so impaired that he could not conduct this hearing adequately with, if necessary, reasonable accommodations for any difficulties he would experience.
52. Important factors in reaching that conclusion are the nature of the applications that are before the Court; the fact that their merits have been debated in Skeleton Arguments and correspondence already; and what appear to me to be the merits of the Claimant's position on those applications. The applications for preliminary issues raise procedural matters which will not determine any rights or obligations. To the extent that the applications seek final determination of rights or obligations I bear in mind the need for caution which Ms Wilson has highlighted but the issues have been clearly identified and the parties' positions identified well in advance of this hearing and, for reasons to which I shall come, they are in my view matters the appropriate resolution of which is so plain and obvious that it could not be said that the Claimant suffers any relevant prejudice by reason of his ill-health.
53. For these reasons I refuse the application for an adjournment. In reaching that conclusion I repeat that I place little weight on the Defendant's health. I also leave out of account the 2013 email relied on by Mr Deans, which seems to me a point that in itself carries no weight in the present circumstances. Applying the principles I have outlined above I also proceed in the Claimant's absence. I do so because in my judgment he has voluntarily absented himself although he is fit enough to participate in these proceedings today – albeit he might need some breaks - and because I consider the right orders to make are so clear that it is not unjust to proceed in his absence.

The Applications to Strike Out

54. The applications to strike out are made under CPR 3.4(2). The applications are put on the basis that the matters targeted for strike-out disclose no reasonable basis for a claim, and/or are an abuse of process and/or, in the case of the First Claim, fail to comply with a Practice Direction.

The First Claim

55. The First Claim is pleaded in this way:

"16. The Defendant stated to two of the Claimant's friends and colleagues, as well as two parents of members of the club during March and April of 2014 that the Claimant had deliberately and maliciously promoted a different boxing club's annual show in preference to his own club's show. All four reported the remarks to the Claimant independently which included several almost identical phrases, being:

16.1 "he got lots of our boxers to go to the Battlebridge show instead of ours" and;

16.2 "he was telling sponsors to get a table at the Battlebridge show last month and they bought tables because they thought it was our show.""

56. CPR 53PD 2.2(2) and 2.4 set out requirements of pleading in a slander action. They require the Claimant to identify the publishees, which words were spoken to whom, and when publication took place. The Claimant recognises this, and deals with the point in para 17 of the Particulars of Claim:

"While CPR 53 2.2 and 2.4 require the persons reporting these comments to be named, 2.4 also states 'as far as possible' in this regard. The Claimant understands that, as members of the club and parents of members of the club, the four individuals may suffer prejudicial treatment until this matter is concluded (and, perhaps, afterwards) The Claimant humbly submits that this part of the Claim not be considered for striking out, as the Defendant has not denied making these comments when they were put to him by the Claimant in his email of 3^rd April 2014 or in the subsequent Letter of Claim of 4^th June 2014, or indeed in the draft Witness Statement of 26^th June 2014."

57. At paragraph 20 the Claimant pleads as follows:

"The Claimant's reputation is likely to have suffered damage from the conduct of the Defendant. While the four persons who reported the conversation back to the Claimant did not believe the statements made by the Defendant, it seems likely that he has repeated the same statements to other persons unknown, who may in turn have repeated the falsehoods to others associated with the club or local people. This adversely affects the Claimant's standing in the Club, the boxing community and the local community. The comments made by the Defendant have caused the Claimant considerable pain, suffering and loss of amenity and the Claimant humbly asks the Court [to] consider an award of General Damages in this regard."

58. There followed the Part 18 Request to which I have referred above, and the Claimant's reply of 8 October 2014 explaining that he had decided not to answer it. It would appear that the Defendant was at that point accepting that in the absence of compliance by him with the requirements of the Practice Direction, the First Claim was bound to be struck out if he did not withdraw it. It would appear that his intention then was to withdraw it, but he has not done so.
59. Ms Wilson submits that this claim falls to be struck out on two separate and independent grounds. The first is the failure, indeed refusal, to provide details of the publishees. In some cases a Claimant may be allowed to proceed with a defamation claim despite being unable to plead full particulars. If the facts are not within the Claimant's knowledge, but may be discovered in the course of the action, it may be proper to allow the claim to go ahead: Gatley on Libel and Slander 12^th edn paras 26.6-26.7. This is not such a case, however. The Claimant knows the details but is refusing to provide them. Nevertheless, I might have been inclined to make an order that the claim be struck out unless the Claimant provided the particulars, thus allowing him a final opportunity to make good the omission. I do not need to decide that point however, because Ms Wilson's second submission is in my judgment unanswerable and this claim could not succeed in any event.
60. This claim manifestly cannot satisfy the requirements of s 1(1) of the Defamation Act 2013, by which "a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant." It is the Claimant's own pleaded case that the unidentified people to whom the words of which he complains were spoken "did not believe them". What this comes to in substance is that so far as those four individuals are concerned the Claimant's case is that his reputation has not been caused serious harm.
61. The claim cannot be salvaged by reliance on the alleged "likelihood" that the Defendant has repeated the statements to others. On its face this is purely speculative. It is trite that a claim for defamation must be specifically pleaded, and cannot be framed in such a way. In my judgment Ms Wilson is clearly right to submit that a claimant cannot satisfy the serious harm requirement of s 1(1) by alleging that it is "likely" that the Defendant has published words to some unknown people on some unknown occasion and that it is "likely" that this has caused serious harm to the Claimant's reputation. An averment of harm or likely harm to reputation must be tied to a properly pleaded claim.
62. I agree with Ms Wilson's subsidiary submission, that this claim would have been struck out as an abuse of process even before the Defamation Act 2013 came into force, pursuant to Jameel v Dow Jones & Co Inc [2005] QB 946. which set a threshold which was easier for claimants to satisfy than the one set by s 1 (see Defamation Act 2013, Explanatory Notes, para 11).

The Second Claim

63. This is pleaded at paragraphs 22 – 24 of the Particulars of Claim in the following terms:

"22. The Second Claim concerns a false and misleading crime report made by the Defendant on or about 15^th April 2014 to Sussex Police regarding the 'theft' of club keys.

23. The Defendant knew there was well-founded dispute that was documented in several emails where the Claimant specifically referred to key holders and their rights, and that the matter of keys and authority to act on behalf of the club would be decided once the England Boxing complaint had been decided (it is likely that either England Boxing or the Charities Commission will order the club to re-run the AGM elections allowing all 235 members to vote).

24. In what would appear to be a malicious act designed to cause harm to the Claimant, the Defendant telephoned Sussex Police to make a criminal complaint alleging the Claimant had unlawful possession of a door key."

64. Ms Wilson again makes two points. First, she says this claim should be struck out pursuant to CPR r3.4 as it does not identify the words complained of and/or raises an unwinnable case. In a libel action, the Claimant must set out the statement complained of: Wissa v Associated Newspapers Ltd [2014] EWHC 1518 (QB) [29]. The Particulars of Claim fail to do so. In any event, she submits, it is clear that this claim is in respect of a complaint made by the Defendant to the police that an offence may have been committed, so that the Defendant has a complete defence of absolute privilege,
65. In Westcott v Westcott [2009] QB 407 the Court of Appeal, upholding a decision of HHJ Parkes QC sitting as a Judge of the Queen's Bench Division, held that the absolute immunity from suit which applies to out of court statements, which can fairly be said to be part of the process of investigating a crime or possible crime with a view to prosecution, is not confined to persons subsequently called as witnesses but applies to others including those, such as the defendant in that case, who make unprompted allegations to the police that others have carried out criminal acts. Ward LJ, with whom Sedley and Stanley Burnton LJJ agreed, put it this way at [34] and [36]:

"Because society expects that criminal activity will be reported and when reported investigated and, when appropriate, prosecuted, all those who participate in a criminal investigation are entitled to the benefit of absolute privilege in respect of the statements which they make. That applies whether they are informants, investigators, or prosecutors. …

In my judgment, any inhibition on the freedom to complain will seriously erode the rigours of the criminal justice system and will be contrary to the public interest. In my judgment immunity must be given from the earliest moment that the criminal justice system becomes involved. It follows that the occasion of the making of both the oral complaint and the subsequent written complaint must be absolutely privileged."

66. Stanley Burnton LJ added a number of observations as to why it was right as a matter of legal policy for the privilege to be absolute. The second was this (at [43]):

"… particularly where the crime is alleged to have taken place in private, the protection afforded by qualified privilege is more apparent than real. If the alleged perpetrator alleges that the victim has lied and made up her allegation, the alleged lie, if established, may well be sufficient evidence of malice. Thus, in the present case, the appellant contends that the fact that the respondent's allegation is false is evidence of malice sufficient to overcome a defence of qualified privilege: he pleads, in para 12 of his amended particulars of claim, "The allegations were made by the defendant maliciously, in that she knew that they were not true." The defence of qualified privilege in such a case does not protect against the risk of being sued, with the attendant costs of litigation, and in practice adds little to the defence of justification."

67. The failure to set out the words complained of as founding the Second Claim would not necessarily have been a fatal defect at this stage. The Claimant pleads that he has been unable so far to discover the exact wording of the report initiated by the Defendant. As with the First Claim I might well have made an order that the claim be struck out unless the Claimant pleads to the best of his ability the statement of which he complains. The objection on the ground of absolute privilege is however a complete answer to this claim. It is an objection that appears on the face of the Particulars of Claim, which expressly plead that the words complained of consisted of a crime report.
68. When this point was first raised on behalf of the Defendant the Claimant's response was to suggest that "the appeal decision [in Westcott] seems finely balanced in a case where there is considerable doubt whether there was malice in the original report she [the defendant] made to Police." The Claimant asserted that there was no doubt in this case that the Defendant had reported the matter maliciously. This was to miss the point about absolute immunity, which is that it is absolute and not qualified. Malice is no answer to it. The Claimant's response well illustrates the point made by Stanley Burnton LJ in Westcott. If the privilege were qualified only, the Second Claim might have survived a strike-out. As it is, I shall strike it out as a claim which is on its face plainly and obviously unwinnable as a matter of law. In doing so I bear in mind that there may be, within the way the case is pleaded, an allegation of republication within the police service following and consequent upon the Defendant's initial report. But the absolute immunity would extend to protecting the Defendant against any liability for such republication.

Paragraphs 43 – 44

69. The third application to strike out relates to the claims for injunctive relief in paragraphs 43 and 44 of the Particulars of Claim. Paragraph 43 says as follows:

"The Claimant submits that litigation is a direct result of what the Claimant believes was an ultra vires attempt by the Defendant to alter the club's Constitution in an effort to favour the Defendant and his family. Given that the casus belli is established, the Claimant requests the Court remove that 'cause of the war' by injunction to reverse the situation back to the positions prior to March 2014."

70. Paragraph 44 then requests the Court to consider granting three injunctions:

"44.1 The Defendant be required to comply with the club Constitution as adopted in 2009 and in use in that form until February 2014, and

44.2 The Defendant take the necessary steps to restore the Claimant's position on the Committee, and

44.3 The Defendant facilitate a compliant AGM and new election allowing all 235-odd members of the 2013-14 season to vote for their chosen candidates."

71. The stated basis for seeking this relief is that the "casus belli" is before the court and it is convenient to deal with these issues, arising from the background of dispute over the Club's rules and the Defendant's alleged breach of them, that is outlined in the introductory paragraphs of the Particulars of Claim.
72. Ms Wilson submits that this relief cannot be granted in this action as it is an action for defamation and these remedies are not available in such an action. It is true that these are not remedies that the Court can grant on proof of actionable defamation, but that does not mean that a Claimant may not combine more than one cause of action in a single claim, or that the Court may not permit a cause of action which is separate and distinct from defamation to be pursued alongside a defamation claim. It seems to me that there is some room for argument that this is what the Claimant is seeking to do here. In other words, in addition to claims in defamation the Claimant claims remedies to enforce the Club's rules against the Defendant.
73. Whether or not that claim is sound or even arguable is not a matter addressed in Ms Wilson's Skeleton Argument. She had not foreseen the point I have mentioned. When I raised this point Ms Wilson addressed me at the hearing, submitting that the claim is clearly pleaded as one in defamation alone; and that the Particulars fail to set out facts that would give rise to a cause of action against the Defendant. All of this was new, however, and the Claimant has not addressed argument to this point.
74. In those circumstances I do not consider it appropriate to strike out these paragraphs of the Particulars of Claim. I shall adjourn that aspect of the application with liberty to restore, and without prejudice to any application that may later be made to require any claim based on the Club rules to be pursued separately from any defamation claim.

The Applications for Trial of Preliminary Issues

75. In relation to the Third Claim the Defendant seeks an order for the trial as preliminary issues of (i) the meaning of the statement complained of, (ii) whether the statement is fact or opinion, and (iii) whether the Claimant satisfies s 1 of the Defamation Act 2013. The Defendant also applies to strike out those paragraphs of the particulars of claim that seek orders requiring compliance with the club's constitution.
76. In relation to the Fourth, Fifth, and Sixth Claims the Defendant applies for an order that the following five issues be tried as preliminary issues in the Second Action: (a) whether the Defendant spoke and thereby published the statements complained of and if so; (b) whether the statement is actionable without proof of special damage; (c) the natural and ordinary meaning of the statement; (d) whether the statement is fact or opinion; and (e) whether the statement has caused, or is likely to cause, serious harm to the reputation of the Claimant within the meaning of section 1 of the Defamation Act 2013.
77. Defamation actions have historically been notorious for length, complexity and undue expense. Orders for the early determination of issues, including the actual meaning of words, whether they are factual or opinion and, more recently, the question of whether the claim crosses the threshold of seriousness, have increasingly come to be recognised as an appropriate means of giving effect to the overriding objective.
78. Ms Wilson relies on what I said in Ames v The Spamhaus Project Limited [2015] EWHC 127 (QB), [2015] EMLR 13 at [101] about the desirability of preliminary issues, as opposed to summary judgment or strike-out applications, as a means of deciding whether claimant has a viable claim:

"In my judgment it is likely in today's legal context to be preferable to address issues of serious harm or Jameel abuse by means of preliminary issues, with any disputes as to meaning being resolved at the same time...At a trial of preliminary issues the court can decide the relevant issues once and for all. In Ansari v Knowles [2013] EWCA Civ 1448, the issue of whether the claim represented Jameel abuse was tried as a preliminary issue: see [9]. This approach is all the more appropriate in the light of the change in the law by s 1 of the 2013 Act. In Cooke [v MGN Ltd [2014] EWHC 2831 (QB); [2014] EMLR 31] the issue of what meaning the words bore and the question of whether the publication had caused or was likely to cause serious harm were tried together as preliminary issues. For the purposes of a preliminary issue trial disclosure can be ordered if and to the extent necessary and proportionate in the circumstances. There may be cross-examination. In Cooke there was none, and Bean J observed that it would have been inappropriate in that case: see [24]. It may not always be so, however, and this case may well be an example of one where cross-examination would be appropriate."

79. As Ms Wilson points out, in Lachaux v AOL (UK) Limited (above) Nicola Davies J agreed with the above approach and applied it to the two cases then before her. At [22] Nicola Davies J said of the proposal to try identification, meaning and harm as preliminary issues in those cases:

"Such a hearing would be at one with the ethos of the 2013 Act namely early identification of issues, where appropriate determination of the same, with consequent saving of time and money. A contention by the claimant that in this case such a course does not take account of the concept of cost budgeting and that such a hearing should await service of further pleadings and a case management hearing, flies in the face of common sense and the aims of the overriding objective."

80. Ms Wilson submits that it is highly desirable for the issues identified by the Defendant to be tried as preliminary issues here. She says that if required to serve a Defence to the Third Claim the Defendant intends, in addition to denying that s 1 is satisfied, to advance defences of truth, honest opinion, and common law qualified privilege. The costs of such a Defence and litigating those issues may be avoidable, and may prove wholly unnecessary if the claim does not satisfy s 1 of the 2013 Act. Alternatively, she submits, it will be more efficient and effective for any substantive defences to be addressed to meaning(s) which the words have been found to convey. A trial of the above three issues should be relatively straightforward and not, of itself, time consuming. She estimates a day at most.
81. As for the Fourth, Fifth and Sixth Claims, Ms Wilson says that the Defendant will "among other matters" deny that he spoke the words alleged by the Claimant and will deny that the claim satisfies s 1 of the 2013 Act. Determination of these issues will establish whether the Claimant has a viable claim and serve the same beneficial ends as in the first action: to save unnecessary expense and manage the litigation proportionately.
82. The Claimant's position when the question of whether preliminary issues should be tried in respect of the Third Claim was raised before the Master on 30 September 2014 was set out in his lengthy Skeleton Argument. He disputed that the issues required determination before a Defence was served. The thrust of his written submissions on this point was that the meanings of the words are obvious, and the meanings are obviously factual as opposed to comment; this case would not be tried by jury, so that earlier authorities on the benefits of preliminary trials have less relevance; here the preliminary issue trial proposed would only cause delay and extra cost, when the real issue is whether the Defendant has any defence to the claims.
83. My conclusion is that the trial of the preliminary issues identified on behalf of the Defendant is a course of action which is fair to both parties and furthers the overriding objective. These are, looked at objectively, small claims. They concern words spoken or written over a year ago. A proportionate procedure is required to resolve them. The time estimate for the trial of all the preliminary issues on the Third to Sixth Claims inclusive is two days. That is on the generous side, but still short. A timetable can be set for disclosure (not likely to be substantial) and exchange of witness statements (likely to be few) which may well allow a trial of those issues in June or July 2015. The alternative of proceeding to service of a Defence or Defences, and disclosure, witness statements and a full trial on all the issues would involve a considerable amount of additional time, expense, and delay.
84. The trial of preliminary issues in these actions is in my judgment a course which may save costs, by resolving one or more of the claims against the Claimant without the need for Defences to be pleaded, or for disclosure or witness statements on the issues which would arise if Defences were pleaded. Even if it does not finally resolve any of the claims the preliminary issue trial would not be likely to waste expense. It would resolve in short order questions which would have to be determined at a trial in any event. If those issues are resolved against the Defendant, that may enhance the prospects of settlement. Even if it does not it will as Ms Wilson submits, ensure that any defences of truth or honest opinion are directed at meanings which the court has found the words to bear rather than some different meanings.