The skeleton arguments object to Lewisham Council’s application to strike out my defamation claim and they also support of my application to strike out Lewisham Council’s defence and bring contempt of Court proceedings against it.
The documents detail my allegations of misconduct and corruption by Lewisham Council managers and make references to my covert recordings supporting my claims, and which had also previously been submitted to the employment tribunal.
My skeleton argument in support of my opposition to Lewisham Council’s application to strike out my defamation claim and obtain an extended civil restraint order against me, (which they failed to get).
Claimant’s legal arguments in the Vaughan v London borough of Lewisham defamation case
My skeleton argument in support of my application to strike out Lewisham Council’s defence to my claim and contempt of Court allegations.
At the last-minute, (just 2 weeks before we were about to exchange witness statements for the main trial), Lewisham Council made 2 applications. The first was to strike out my claim/obtain costs and the second was to get an extended civil restraint order against me.
My objection to the Lewisham Council’s applications were not based on a ‘hope and a prayer’, but on the principles of ‘reason’ and legal ‘precedents’, (the majority of which have been set by the Court of Appeal), and which support my arguments / rationale.
I cited 38 pieces of case law in support of my contention that my claim should not be struck out. This is not mentioned in the judgment.
Also not mentioned in the judgment is the fact that the defamatory statements I complained about were numerous ,(approximately 34 slanderous statements and approximately libellous 50 statements).
It is also not mentioned that they are very serious, i.e.allegations of dishonesty, incompetence, and unfitness for my office/job/post/purpose, which I demonstrated by my evidence I could disprove.
We are told that this is how the law is upheld. I asked the Court if this was public misconception and if Lewisham Council and their managers were above the law.
I asked the Court to have due regard to the implication that the outcome would have for my life, i.e. irreparable damage to my reputation, mental health, future career prospects, and bankruptcy for the second time! I put it to the Court that it should not strike out a case involving serious complexity of this nature, (particularly in an area of developing jurisprudence, where it raises serious issues of fact that can only be determined by hearing oral evidence).
I pleaded with the Court not to end my chances of being able to clear my name. Reputation goes hand in hand with a person’s dignity.
My reputation affects who will employ me, who will do business with me and who will promote and support me etc.
The Defendants’ have refused to retract the false, malicious and defamatory statements and Lewisham Council has refused to remove them from my employee file.
I also set out clearly at paragraphs 76 -78 of my seventh witness statement, further evidence of significant damage to my reputation as a result of the actions of the Defendants’. The reach and further impact of this, particularly when a major law firm, (Squire Sanders) is leading the spiteful internet campaign, is profound.
I submitted evidence to the Court of the Law firm’s article discussing my case, which ridiculed me. The online article was written by a Solicitor named Sarah Wilkinson, and the firm published the article in its blog. They describe the blog as an ‘Employment Law Worldview Blog’ that:
…aims to interest and educate, to stimulate discussion, to provoke and sometimes just to amuse HR and other practitioners around the world. Through contributions from our own Labor & Employment lawyers, along with occasional guest writers, it provides a unique global insight into practical and legal HR issues relevant to employers everywhere.
They then tweeted about the ridiculing article on their Twitter page, (I also submitted this evidence to the Court), and in response to the article, an individual named Kelly Underwood tweeted:
This is comedy gold
Squire Sanders then replied:
All of this is not mentioned anywhere in the judgement. Clearly, my name is now a ‘punch line’, but this isn’t a comedy show, this is my life!
Just after I first transferred to Lewisham Council, I attended a staff meeting. During this staff meeting, Lewisham Council’s head of the Youth Support Service and Consultant at the time, (Nick French), described the working environment as:
a pit of malicious rumours that is in serious jeopardy of ruining individuals’ personal and family lives and career prospects
I submitted evidence of the statement, which was contained in Lewisham Council’s own minutes to the staff meeting.
The issue of my dismissal and covert recordings and transcripts has received massive publicity online.
The pleadings and other selected documentation relating to this action are accessible to the public- i.e. ‘open justice; and the media’s ability to access court documents. (The Court has an inherent common law power to order disclosure of documents which have been placed before a judge and referred to in open proceeding).
I told the Court that libel proceedings are not simply to compensate a Claimant for harm already done. It is to prevent harm being done in the future if the falsity of the allegations is not publicly established. I had referred the Court Broome v Cassell & Co Ltd  AC 1027, 1125, citing Ley v Hamilton 153 LT 384, 386:
It is impossible to track the scandal, to know what quarters the poison may reach’. So long as its withdrawal is not communicated to all those to whom it has reached it may continue to spread.
I also stated that, ‘not only must Justice be done; it must also be seen to be done.’
Take the time to read my legal arguments and draw your own conclusions.
In the end, Judge Eady concluded that my claim was an abuse and that it was not a real and substantial tort, (i.e. I had suffered no real damage), because the defamatory statements were only made to a limited number of people. He also stated:
…the continuation to trial of the High Court proceedings is unlikely to yield any tangible advantage to the Claimant, with respect either to damages or possible vindication, such as to justify the considerable expenditure that would be incurred by the London Borough, in defending them
The harm is to my reputation is debilitating, (causing mental distress, thus exacerbating my health condition).
I referred the Court to Broome v Cassell  AC 1027, where the House of Lords referred to mental distress, injury to feelings, insult, indignity, humiliation and a heightened sense of injury or grievance.
The defamatory statements made are clearly capable of bearing sufficiently serious defamatory meanings to constitute a real and substantial tort and they were obviously intended to and did cause damage to me: I loss my job and career, my reputation was destroyed and I am probably now unemployable because of the stigma of the legal action.
The facts I pleaded were capable of justifying a real, (as opposed to a nominal) award of damages which would contribute to the vindication which I believe that I was entitled to seek, but was denied.
I told the Court that the continuation of the litigation would achieve substantive vindication of my reputation and in my view, the claim is therefore ‘worth the candle’. I reminded the Court that the focus should not be on how many people the false and defamatory statements were published to, but on the excessive number of statements made, the serious and damaging nature of them, the Defendants’ assertion that they are true, (when they are demonstrably false) and the Defendants’ contemptuous actions.
I asserted that striking out my claim would reduce my access to justice in such a way and an extent that the very essence of my right to a fair hearing and the protection and vindication of my reputation will have been denied.
In addition to this, I stated that it would also undermine public confidence in the administration of justice and that this offends the principle of proportionality.
The key legal points
- The issue of real and substantial tort and proportionality: I had pointed out that even though the defamatory statements were disclosed to a small number of recipients, this is not in itself, sufficient to render a case an abuse, where the allegations are serious and I referred the Court to example supporting this contention: a) Underhill v Corser ( EWHC 1195 [at 143])) and c) Sanders v Percy  EWHC 1870 QB- (refusing to strike out on Jameel grounds slander published to one person alleging benefit fraud).
The Defendants’ plea of justification
- I referred Judge Eady to the judgment he handed down in Madras v New York Times Co.  EWHC 3135 at , where he made the statement that abuse is not simply a ‘numbers game’. In the same judgment, at para , Eady J stated that it was relevant in determining whether there was any purpose to be served in the Claimant pursuing vindication, was the fact that the Defendants’ had pleaded justification and the Claimant should have the chance to meet that plea.
- In my case, the Defendants’ had pleaded justification, but this was not mentioned in the judgment.
(Judge Eady’s decision in my case appears to be in conflict with the decision he made, in the Madras case, where he made it clear that a plea of justification is relevant to an abuse any argument alleging abuse of process).
- Also relevant in the view of Eady J was that the allegations could not possibly be dismissed as trivial. The defamatory allegations made about me were very serious.
- I also referred the Court to Haji-Ioannou v Dixion  EWHC 178 (QB), where the allegations in issue were made to only one man, a ‘Financial Times’ Journalist. Yet they were of dishonesty, (which was an issue in my case), hence Sharp J held at para  that it could not be said that the damages would be minimal if the Claimant won at trial, particularly if they were aggravated by an unsuccessful plea of justification. In any event Sharp J ruled that  that it would
‘not be right to strike out an action as an abuse, merely because the costs are high, or considerably higher than the amount that might be recovered at trial. That is, unfortunately, commonplace in libel litigation.
- I also referred the Court to Karpov v Browder & Ors, Simon J also held at  under point 3, that:
The requirement of a real and substantial tort is not an absolute requirement. The Court is required to have regard to the ultimate proportionality test described by Lord Steyn in Re S (a child) (see above), and may conclude that the balance falls in favour of allowing the case to continue.
- I reminded the Court that much is at stake for me and that the overriding objective requires the Court to be very slow to find that my claim has no real and substantial tort. I had pleaded in my ‘Particulars of Claim’ that the Court is also entitled to take into account the Defendants’ conduct both prior and subsequent to the publications in question, which included the many aggravating features of the case, including the gravity of the allegations made, the effect on my life and reputation, and the Defendants’ persistence in maintaining their false allegations.
Judge Eady concluded that Lewisham Council should not have to spend any more money defending my claim, because they had already spent so much defending my tribunal claim against them, (which I withdrew in March 2013, after the High Court refused to my application for my defamation claim to be dealt with first).
I had referred Judge Eady to the Judgement he made In Madras v New York Times Co.  EWHC 3135, at para , where he cited the comments of Thomas LJ in Aldi Stores v WSB Group Plc  EWCA Civ 1260 at :
I do not see how the mere fact that this action may require a trial and hence take up judicial time (which could have been saved if Aldi had exercised its right to bring action in a different way) can make the action impermissible. If an action can properly be brought, it is the duty of the state to provide the necessary resources….
Judge Eady also concluded that any compensation that I might receive would be nominal.
- I argued that the allegations made against me are very serious and have gone uncorrected for nearly 2 years. I also stated that the Defendants’ sustained and aggressive plea of justification would increase the recoverable aggravated damages and I referred the Court to Sutcliffe v Pressdram Ltd  1 QB 153 [A6.184E], Nourse LJ:
The conduct of a defendant which may often be regarded as aggravating the injury to the plaintiff’s feelings, so as to support a claim for “aggravated” damages, includes a failure to make any or any sufficient apology and withdrawal; a repetition of the libel; conduct calculated to deter the plaintiff from proceeding; persistence, by way of a prolonged or hostile cross-examination of the plaintiff or in turgid speeches to the jury, in a plea of justification which is bound to fail; the general conduct either of the preliminaries or of the trial itself in a manner calculated to attract further wide publicity; and persecution of the plaintiff by other means.
Real risk of further publication
- This point is not dealt with at all in the judgment.
- The Defendants’ also contended that I was not entitled to an injunction. However, it is clear from the evidence which I submitted to the Court, (Lewisham Council’s legal representative’s e-mail to me, dated 24 November 2011), which was sent to me during their attempts to get me to settle my Tribunal claims, that it has reserved its right to make a safeguarding referral to the Independent Safeguarding Authority (ISA) in relation to me.
- This is the indirect threat to put my name on the ‘barred list’, (for no apparent reason), which would prevent me from working with children and vulnerable people; see paragraphs 42 – 44 of my seventh witness statement.
- I told the Court that Lewisham Council and Babcock put the clause in the proposed settlement agreement. I also provided the Court with previous settlement agreements Lewisham Council and Babcock tried to get me to sign, (in the months prior to the last offer), which did not include such a clause and I contended that the clause was clearly put in by them for the clear purpose of causing distress, scaring and intimidating me into believing that my future career would be at stake if I didn’t accept the offer.To me, the e-mails were an indication, (a warning sign) of what was to come. The Defendants’ clearly had reprisal in mind, which involved the defamation of my character.
- In this respect, I argued that there was ground for inferring that there is a real risk that the Defendants’ may repeat the false and defamatory statements, or words bearing similar meaning, based on the current, (and/or further) malicious and false allegations.
The delayed strike-out application by Lewisham Council
- Lewisham Council had been ‘toying’ with the possibility of a ‘strike out’ application since May 2013, yet did nothing until October 2013. If a claim is said to be an abuse of the process, it should be struck out sooner rather than later, see Jameel (Yousef) v Dow Jones & Co Inc  QB 946 at para .I had previously been criticised by Mrs Justice Sharp her judgment handed down in April, for bringing my application for an interim injunction, just 3 months after I lodged her claim, (despite being unrepresented and having severe health issues). Lewisham Council had no such disadvantages.
Developing area of law
- My case raises interesting questions about the future development of the law: I referred the Court to Tugendhat J’s words in Lewis v Metropolitan Police  EWHC 781 (QB) at para :
The law in relation to qualified privilege as it applies to publications made by a public authority is difficult and is developing.
I also referred the Court of Appeal decision in, Lonrho Plc v Al-Fayed (No.5)  1 W.L.R. 1489 citing Lonrho Plc v Fayed (No. 2)  W.L.R. 1 at [1499A]:
novel and difficult points of law in an expanding field of law should not be determined against a plaintiff.
A statement of case in an area of developing jurisprudence should not be struck out where it raises a serious issue of fact that can only be determined by hearing oral evidence: I referred the Court to the Court of Appeal decision in Partco Group Ltd v Wragg  EWCA Civ 594 at para. I pointed out that case law stated that in such areas, decisions should be based upon actual findings of fact, and I referred the Court to Farah v British Airways (unreported) 6th December 1999 (CA) per Lord Woolf M.R. at para 35 and Lonrho Plc v Al-Fayed (No.5)  1 W.L.R. 1489 at [1493E]:
But the issue as to what the plaintiffs’ purpose is in bringing this action is an issue of fact which is disputed and it cannot, in my judgment, be decided at an interlocutory stage on the tendentious affidavits of the solicitors on each side. It can only be decided at the trial: compare Speed Seal Products Ltd. v. Paddington  1 W.L.R. 1327.
Human Rights issue
- I argued that it would also be wrong to shut me out from advancing a case founded on s6 of the Human Rights Act 1998 and Art.8 of the Convention. Lewisham Council is obligated under the HRA 1998 to respect my Art 8 right to my reputation and therefore under a duty not to publish the offending material.
- The Court as a public authority is equally under a duty to ensure that Convention rights are respected.
- The disposal of my claim or part by way of summary judgment (which is the same as striking it out in this case) raises issues in relation to the ECHR Art.6 right of access to a Court and as such the Court should be wary of trying issues of fact on evidence where the facts are credible and are to be set against the facts being advanced by the other side. Choosing between them is the function of the trial judge, not the judge on an interim application.
- In relation to the issues of ‘Qualified privilege’, questions of duty and interest are intensely fact-dependent.
- I also raised the point that Lewisham Council’s decision to disclose the defamatory material about me and sensitive information about my health etc to third-party note-takers, (who were not employees) was not in pursuit of a legitimate aim and it involved a breach of my rights under the Data Protection Act: This point was not addressed in the judgment.
I objected to the external note-takers being present during Lewisham Council’s internal hearing after they investigated me on the basis of the false allegations which had been made about me, but Lewisham Council ignored my objections.
I produced evidence that notes taken by Susan Funnell (the external note-taker) were grossly inaccurate and deliberately falsified.
Lewisham Council insisted that it was a legitimate aim because their decision to use professional external note-takers was to ensure that accurate notes were taken.
It is particularly unclear how Susan Funnell could have had an interest in receiving the information because Lewisham Council stated the following in their e-mail to me after they had used her services, (I submitted this evidence to the Court):
When Ms Smith read out her presentation, she handed Mr Wilkinson a copy, to avoid verbatim notes of the presentation needing to be taken during the hearing.
- I argued that the defamatory statements were not published on an occasion of qualified privilege and alternatively, the limits or duty of
interest was exceeded. As in Clift v Slough Borough Council (1) and Kelleher (2)  EWHC 1550 (QB) the Court is equally under a duty to
ensure that Convention rights are respected, it follows then that Lewisham Council’s duty to me trumps the duty to any personnel of the external partner organisations.
- Lewisham Council showed nothing that could properly have prompted them to make the statements they did about me to third-parties; they had no legal, social or moral duty to pass on the false, malicious and defamatory statements and sensitive data in the discharge of their office and such people had no
interest in receiving it.There was no basis on which they could believe the allegations were true.
It was simply a barrage of accusations made by Lewisham Council’s managers, without any proper factual basis, and without any inquiry and without giving me the opportunity to rebut it. Lewisham Council and their managers ambushed me with the allegations at the last-minute, (after the investigation interviews had already been completed, instead of giving me the chance to address the allegations when I was being interviewed on 3 different occasions, totalling 8 hours).
- Where a public authority wishes to rely on qualified privilege, it is necessary for the authority to plead and prove that it has acted in a manner compatible with any Convention rights, (which are engaged) and which it did not.
- I advised the Court that I was clearly able to demonstrate and proof of a dominant improper motive on the part of Lewisham Council and its managers and I referred the Court to the well-known opinion of Lord Diplock in Horrocks v Lowe  AC 135 at paras 149-151, where was held that to destroy privilege (which was what I was asserting I could do), the desire to injure must be the dominant motive for the
- The issue of malice: Malice may be inferred from proof of lack of belief or recklessness as to the truth or falsity of the defamatory statements which were made.
- I proved that Lewisham Council and their managers did not believe that what they published was true, (either spoken or written) and that this was conclusive evidence of express malice. I referred the Court to Horrocks v Lowe at page 149B–150G, where Lord Diplock enunciated the law relating to malice in libel cases: to entitle a person to the protection of qualified privilege, he has to have a positive belief in the truth of what he published.
- I referred the Court to Horricks v Lowe  AC 135, where it was held that malice defeats qualified privilege in two situations: a) Where the defendant did not believe that what he said was true or was indifferent to the truth; and b) Where the defendant’s dominant motive in publishing was improper (in the sense of not being related to the duty or interest which founds the existence of the privilege.
- I pleaded actual and/or express malice and I asserted that this issue cannot be solved summarily because the crucial question of the Defendants’ subjective state of mind is a matter of inference and is a question for the judge to decide whether available primary facts are capable of supporting the necessary inference.
(The way that the probability principle works is you identify the primary facts, and then you judge the inference by reference to the primary facts. The primary facts in this case are complex and were in dispute. I argued that it was not appropriate to insert a separate filtering process, at the pleading stage, where a judge has to make hypothetical assumptions about how the facts might or might not come out at trial).
- I stated that it could be inferred from the number and pattern of the false claims that the Defendants’ had known the defamatory statements to be untrue and that in these circumstances, they acted maliciously, and their publications/utterances do not attract qualified privilege.
- I also stated that there is not an absence of malice to justify a free flow of information between the parties and this issue can only be dealt with at trial. In response to this Judge Eady granted summary judgment on the issue of malice. I had argued that the question of whether or not qualified privilege can be relied on is subject to whether or not I can prove malice. I stated that I was able to prove malice and I submitted volumes of evidence, (both documentary and audio) in support of this assertion. At paragraph 33 of the judgment striking out my claim, Judge Eady made the following statement:…it would hardly be possible to rule in relation to the pleaded case in malice that it is bound to fail.
Yet my claim was still struck out!
- I had included a conspiracy plea in my defamation claim: Despite having done so, this issue was not addressed in the Judgment. I set out factual allegations going to support bad faith on the part of Lewisham Council and its managers, and to support my conspiracy claim. I advised the Court that this was is in line with the requirement set out in Seray-Wurie v Charity Commission of England and Wales  EWHC 870 (QB) at para :
If the Claimant were to have a realistic prospect of defeating the defence of privilege by reason of malice, he would need to set out some factual allegations going to support bad faith on the part of one or more of the individuals concerned, and/or to support his conspiracy theory.
The Defendants’ contention that my claim was an abuse of process
- Judge Eady concluded that my claim was an abuse, because I should have allowed the Tribunal hearing to run its course, (instead of insisting I presume, that I should be allowed to vindicate my reputation first because this was more important, and withdrawing my claim when Mrs Justice Sharp put my defamation case on hold).
- At the time that Mrs Justice Sharp put my defamation case on hold, she was aware that the Tribunal case was not due to be heard until October 2013. So I was expected to wait 7 months for the Tribunal hearing to start, instead of being allowed to vindicate my reputation, at the earliest opportunity.
- I advised Mrs Justice Sharp that I had already had to live with the damage to my reputation since August 2011 when I was suspended by Lewisham Council and subsequently dismissed in April 2012. Judge Eady was also aware of the facts involving this issue.
- My Article 6 rights entitled me to have the claim tried within a reasonable period. I had referred Mrs Justice Sharp to Johnson
v Gore Wood & Co  2 AC 1, which was endorsed by Judge Eady J in Wakefield v Channel Four Television & Others  EWHC
- I had cited paragraphs 2 and 5 and Judge Eady’s judgment in my skeleton argument which I submitted to Mrs Justice Sharp, ( in support of my contention that the Tribunal hearing should not be allowed to proceed first):
In As it was put by Glidewell LJ in Grovit v Doctor, 28th October 1993 (unreported), CA: “The purpose of a libel action is to enable the plaintiff to clear his name of the libel, to vindicate his character. In an action for defamation in which the plaintiff wishes to achieve this end, he will also wish the action to be heard as soon as possible.
The essence of a genuine complaint in libel is prompt action
It appears that Judge Eady and Mrs Justice Sharp did not think that this approach was applicable in my situation!
- I argued that an action is only an abuse if the Court’s processes are being misused to achieve something not properly available to the plaintiff in the course of properly conducted proceedings. 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.
- At the hearing in March 2013, (where my application for an injunction against Lewisham Council and its managers was refused and their application to put my defamation claim on hold was granted), I told the Judge that I therefore intended to withdraw my Tribunal claim. In response to this, in her judgment, Mrs Justice Sharp made no mention of this preventing me from proceeding with my High Court claim, or it constituting an abuse of process, instead she only stated the following, (at paragraph 45):
…even if the stay were to be lifted the Claimant should not assume that the High Court would then permit unlimited reliance on the covert recordings…
- I argued that I could not have litigated the issue of ‘defamation’ in the Employment Tribunal. In addition, I stated that an Employment Tribunal does not have the power to make an order preventing Lewisham Council from breaching my human rights and/or the power to award damages for a breach of the Convention rights under the Act.
- Defendants’ admitted to the High Court that they defamed me, yet in their Tribunal response, Lewisham Council and their managers denied that they had defamed me and asserted that I should be ‘put to proof’. I submitted this evidence to the Court.
- It would have been impossible for me to do this because the Tribunal has no jurisdiction to hear/adjudicate such a claim and to top it off they had initially stated that I could not rely on any of my covert recordings, then following my appeal, it reconsidered and decided I could only use 5 hours of about 40 hours of the recordings, (not even a third).
- I asserted that it could not be said that I was using the Court’s process ‘for a purpose or in a way significantly different from its ordinary and proper use’ (a definition of abuse of process applied by Lord Bingham in Attorney General v Barker, The Times, 7 March 2000).
- I referred the Court to Bradford & Bingley Building Society v Seddon  4 All ER 217 at para [1482A-H], where it was held, (allowing the appeal), that, provided neither cause of action estoppel nor issue estoppel arose, it was not necessarily an abuse of process to relitigate an action, nor even to commence a second claim which could have been included in, or was inconsistent with, an earlier one.
- The Defendants’ also assert that I had instituted proceedings with an ulterior motive. Even if I had instituted proceedings with an ulterior motive, (which I advised the Court was not the case), I referred the Court to Broxton v McLelland  EMLR 485, where Simon Brown LJ set out central principles emerging from the case law, which includes the fact that the institution of proceedings with an ulterior motive is not of itself enough to constitute an abuse.