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25/11/97
- JUDGMENT
25th November 1997
In attendance for Plaintiffs: Mr David Brook
In attendance for Defendants: Mr lan Mill
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Mr Justice Rimer sitting in court 40 on hearing of Plaintiffs'
Motion to discontinue the action with no order as to costs.
Hearing held in camera.
Judgment
The Plaintiffs in this action are Michelle Taylor and Lisa
Buck (nee Taylor) who is her sister. The Defendant is Patrick
Bernard O'Mahoney.
This action was started by Writ which was issued on the
6th June 1995 and which included allegations against the
Defendant involving complaints of breach of confidentiality
and infringement of copyright.
At an early stage in the proceedings, either by way of injunction
or undertakings, I think the latter, the Defendant gave
the Plaintiffs the protection they needed until judgment
in this action.
There was an important development in the course of this
action when it became apparent that the Defendant was threatening
to publish that the first Plaintiff had confessed to him
that she had committed a serious crime. At that point the
Plaintiffs applied to amend their Statement of Claim to
include a claim against the Defendant in malicious falsehood
and also sought and obtained either an injunction or an
undertaking until judgment which protected them from publication
of what they said was a malicious falsehood. As a consequence
of the amendment there was a hearing before Mr Justice Neuberger
on the 3rd October 1997 where he gave various interlocutory
directions concerning the trial of this action, the date
of which had already been fixed and the estimated duration
of which was four days.
As a result of the amendment to include malicious falsehood
it became apparent, in part also as a consequence of Mr
Justice Neuberger's directions, that the trial would take
considerably longer, now estimated at 10 to 15 days. A new
trial date was fixed for 1998. Mr Justice Neuberger made
certain directions with regard to certain further discovery
which was to be supplied by the 31st October and with regard
to the making by them of affidavits as set out in sub-paragraph
6 of his Order.
The position is that the Plaintiffs are legally aided and
Mr Brook tells me that it was apparent that if the Plaintiffs
were unsuccessful before Mr Justice Neuberger, and he imposed
the directions which he did and extended the duration of
the trial, in practice the Plaintiffs could not proceed
to trial as the Legal Aid Board would not fund the prosecution
of the action to a trial of that length. So when the Order
of Mr Justice Neuberger was made the Plaintiffs already
accepted that they would not be complying with it nor did
they.
On the 13th November 1997 Mr Justice Blackburne made an
Unless Order against the Plaintiffs namely that unless the
Plaintiffs do on or before the 20th November 1997 make and
serve on the Defendant's solicitors the list of documents
and affidavits referred to in sub paragraph 4 of the Order
dated 3rd October 1997 and the affidavits referred to in
sub paragraphs 6 and 7 of the said Order, the Plaintiffs
claim against the Defendant be struck out and the Plaintiffs
pay to the Defendant the cost of this action. Again, for
like reasons, the Plaintiffs had no intention of complying
with the Unless Order and on the following day, 14th October
1997, they issued the Motion now before me for leave to
discontinue and for no order as to costs. The matter came
before Mr Justice Rattee on the 19th November 1997 and he
adjourned the Motion until today and extended compliance
with the Unless Order until the 27th November. The purpose
of that was to enable the Motion to discontinue to be heard
prior to the Unless Order taking effect.
The position is that if I refuse to give permission for
the action to be discontinued there is no intention on behalf
of the Plaintiffs to comply with the Unless Order so the
consequence is that the action will be struck out pursuant
to Mr Justice Blackburne's Order as amended.
Mr Brook appears before me to seek leave to discontinue
the action with no order as to costs. Mr Mill opposes that,
he invites me either to dismiss the application, or alternatively
if leave should be given then on terms which will prevent
the Plaintiffs from starting like proceedings against the
Defendant in respect of like complaints and a consequential
order for the discharge of the injunction granted against
the Defendant and liberty to apply to enforce the cross
undertakings given by the Plaintiffs as to damages.
The question is whether I should refuse the application
or grant it and if so on what terms. Mr Mill draws my attention
to the decision in Allbright & Wilson Ltd. -v- S.B.
Chemicals [1994] R.P.C 608 where Aldous, J. was similarly
concerned with an application under Order 21 Rule 3 which
is the order under which Mr Brook is applying. This provides
that
"except as provided by Rule 2, a party may not discontinue
an action (whether begun by writ or otherwise) or counterclaim,
or withdraw any particular claim made by him therein, without
the leave of the court, and the court hearing an application
for the grant of such leave may order the action or counterclaim
to be discontinued, or any particular claim made therein
to be struck out, as against any or all of the parties against
whom it is brought or made on such terms as to costs, the
bringing of subsequent action or otherwise as it thinks
just".
Mr Justice Aldous after referring to certain authorities
said at page 610
"Those cases do not appear to me to establish any clear
principle in that they are all decided upon their own facts.
The court has a complete discretion and must exercise it
upon the facts before it and taking in to account the practice
in the Patents Court that normally some undertaking is required.
However, the cases do not give guidance as to whether the
undertaking that will be required is that suggested by the
plaintiff or the defendant. I therefore believe I should
approach this matter from first principles. In particular
I should consider what is just in all the circumstances,
taking into account that I should not compel the plaintiff
to litigate against its will and that the defendant should
not be deprived of any advantage or in any way be prejudiced".
Mr Mill says that if I simply give leave to the Plaintiffs
to discontinue and impose no terms upon them, they will
be at liberty to start further proceedings against his client
in respect of the same subject matter. If I give leave on
terms, the Plaintiffs will not enjoy that advantage. If
I allow the proceedings to be struck out the Defendant will
have a good case if further proceedings are started to claim
that those proceedings are an abuse of the process of court.
Mr Mill says with considerable force that to refuse the
leave which Plaintiffs seek would not compel them to litigate
against their will since there is not going to be an action
anyway, as the case will be struck out. Mr Mill also says
that if I give leave to discontinue on no terms, the Defendant
will lose the advantage that he has gained with the Unless
Order. Mr Mill therefore submits that it will be unjust
to the Defendant to give the Plaintiffs the leave they seek
- if leave to discontinue is given then it should be on
the same terms as if the action was struck out.
Alternatively, Mr Brook says rightly that I have to look
at the facts of this case. He says that if I follow the
course which Mr Mill is suggesting I will give the Defendant
a licence to publish the claims he has made in the course
of these proceedings. He says that although the Plaintiffs
cannot pursue the present case, I should not draw an inference
that they will not be able to finance a future action. He
says that if I accede to Mr Mill's submissions I will give
the Defendant a licence in respect of which the Plaintiffs
will have no remedy.
Mr Brook has said all that could be said on behalf of his
clients but in my judgment his approach is profoundly unsatisfactory.
The Writ in these proceedings was issued in 1995 and proceedings
have up until now taken two and a half years, during most
of which the Defendant was under restraint in respect of
confidentiality and infringement of copyright. Since May,
he has also been restrained in respect of the claim of malicious
falsehood. Litigation of this sort is a matter of anxiety
for both sides and must be so for the Defendant. Once this
advanced stage in proceedings has been reached, for the
Plaintiffs to say that they cannot go on with it now due
to lack of funds but would like to in the future, is close
to an abuse of the process of the court. It is entirely
unsatisfactory that the Plaintiffs should be given that
liberty. All justice points to the conclusion that if the
Plaintiffs are unable or unwilling to go to trial the proceedings
should either be dismissed so that they cannot be started
again or the Unless Order should be allowed to take its
course.
In these circumstances, I have come to the conclusion that
the right order is that I should simply dismiss the Motion
for leave to discontinue and let the Unless Order take its
course.
Mr Mill applies for costs of this motion in any event and
for the Defendant to be discharged from his undertakings.
Mr Justice Rimer reviewing the undertaking given to Mr Justice
Knox. Mr Justice Rimer noting that the undertakings as given
would not automatically lapse and therefore it would be
necessary for the Defendant to apply by way of motion for
the undertakings to be discharged. This application should
be made after the Unless Order has become effective.
Motion dismissed with costs. |
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