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??/??/?? - Skeleton argument on behalf
of the defendant
IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
BETWEEN:
(1) MICHELLE TAYLOR
(2) LISA BUCK (nee TAYLOR)
Plaintiffs
- and -
PATRICK BERNARD O'MAHONEY
Defendant SKELETON ARGUMENT ON BEHALF OF THE DEFENDANT
1. This skeleton argument is submitted in connection with
the hearing of the Plaintiffs' application by Notice of Motion
dated 14th November 1997 (tab 3, page 44) for leave to discontinue
their action against the Defendant. For the reasons set out
hereinbelow, the Defendant contends that:
1.1. The Court should dismiss this application; alternatively,
1.2. The application should only be granted upon strict terms
not only as to costs but also as to the Plaintiffs' ability
to bring fresh proceedings against the Defendant.
Background
2. On 24th July 1992, both Plaintiffs were convicted at the
Central Criminal Court of having murdered one Alison Shaughnessy.
The prosecution case against them had been that they had stabbed
Mrs. Shaughnessy to death because the First Plaintiff was
jealous, having had a sexual relationship with the victim's
husband and the Second Plaintiff had disliked the way that
her sister had been treated.
3. The Defendant had assisted in the campaign to have the
Plaintiffs' convictions overturned on appeal. Following their
release, he formed a relationship with the First Plaintiff
which ended in October 1993.
4. On 6th June 1995 (tab 1, page 1), the Plaintiffs commenced
proceedings, seeking to enjoin the Defendant from breaching
confidences concerning the Plaintiffs' private and family
lives and conduct, and from infringing copyright in literary
works written or produced by the Plaintiffs. The action was
prompted by an article which appeared in the "News of
the World" newspaper on 28th May 1995. The article was
based on an interview with the Defendant's girlfriend, and
included an extract from a letter written to the Defendant
by the First Plaintiff.
5. The Plaintiffs proceeded for interlocutory injunctive relief
on 14th June 1995, and undertakings were given by both parties
over the hearing of a motion by Order (tab 2, page 21). On
19th July 1995, the Honourable Mr. Justice Knox stood the
motion over to trial on continuing undertakings from both
parties (tab 2, page 24).
6. In the course of Affidavits sworn by him for the purposes
of interlocutory proceedings in this action, the Defendant
referred to events which resulted in him ending his relationship
with the First Plaintiff. In particular, he described an occasion
when the First Plaintiff confessed to him that she had in
fact killed Alison Shaughnessy. In her Affidavit in response,
the First Plaintiff described the Defendant's account as "untrue
and sheer fantasy".
7. The Defendant moved the Court before the Honourable Mr.
Justice Harman on 11th November 1996 for the determination
of a point of law pursuant to RSC Order 14A -namely, whether
the Defendant's account of the First Plaintiff's confession
was confidential information for the purposes of the injunctive
relief sought by the Plaintiffs in these proceedings. That
application was supported by an Affidavit from the Defendant
in which he explained that the purpose of the application
was to attempt to eliminate the potentially lengthy and expensive
resolution of the issue whether that confession had been made.
8. The Defendant's application was dismissed by the Court
(tab 2, page 28). However, it clearly prompted a realisation
among the Plaintiffs' advisers that the existing pleadings
and interlocutory relief did not extend to cover a disputed
confession. (Indeed, it is submitted that this was obviously
so - how can a plaintiff claim a confidence in something which
she asserts she did not confide?).
9. In consequence, the Plaintiffs sought to amend the pleadings
to include a cause of action which would prevent publication
of that confession. Additionally, they sought to enjoin the
Defendant from disclosing a further allegation made by him
during the course of the action - namely, that the Plaintiffs
solicited and colluded with the Defendant to obtain false
and misleading evidence for the purposes of the appeal against
their convictions - an allegation which the Plaintiffs also
denied. Malicious falsehood (which, unlike libel, attracts
the benefit of legal aid) was the chosen cause of action.
10. The Plaintiffs applied to the Honourable Mr. Justice Neuberger
on 12th May 1997 for leave to amend the Statement of Claim
and for interlocutory relief in relation to these fresh allegations
pending trial. The Defendant attended that hearing in person
-his legal aid certificate having been discharged at the end
of 1996. The learned Judge granted the relief sought - including
an interlocutory injunction, despite the fact that the Defendant
had throughout maintained the truth of the allegedly false
allegations (tab 2, page 33).
11. In the meantime, the Honourable Mr. Justice Harman had,
at the hearing, on 11th November 1996, also given directions
for trial (tab 2, page 30). The action was set down on the
basis of the original pleadings, and a date fixed of 13th
October 1997 with a time estimate of 4 days.
12. On 7th August 1997, the Defendant's Solicitors served
a fresh Notice of Acting, as a result of the Defendant having
his legal aid certificate restored, and new Counsel was instructed
on his behalf.
13. On 3rd October 1997, a pre-trial review took place before
the Honourable Mr. Justice Neuberger. At that hearing, the
learned Judge resolved in the Defendant's favour the principal
issue before him, namely whether the probability that the
Plaintiffs had in fact murdered Alison Shaughnessy was material
in the Court's determination of the issues in the Plaintiffs'
malicious falsehood claim. In consequence of his finding that
this matter was material:
13.1. He adjourned the trial, to the first open date after
2nd March 1988, with an agreed revised time estimate of 10
to 15 days.
13.2. He ordered discovery by the Plaintiffs by List of all
documents relating to the murder of Alison Shaughnessy.
13.3. He ordered the Plaintiffs to serve (or procure the swearing)
of Affidavits relating to a specific issue which arose in
connection with the malicious falsehood claim, namely the
identity of each person who had provided legal assistance
or advice to the Plaintiffs in connection with their prosecution.
(see Order at tab 2, pages 38 et seq: paras. (1),(4),(6) and
(7)).
14. At the Plaintiffs' request, time for compliance with paragraphs
13.2 and 13.3 above was extended by the learned Judge to 28
days (the Defendant having sought 14 days, because of the
need for such materials in preparing his witness statements).
The issues in the action
15. The pleadings disclose the following principal issues
for the trial of this action:
15.1. Breach of confidence
1. The nature and extent of information confidential to the
Plaintiffs of which the Defendant is aware. (Paragraph 10
Am S of C; paragraphs 12 and 13 Am D)
2. Whether the Defendant threatens or intends to publish such
information. (Paragraphs 13 and 16 Am S of C; paragraphs 17
and 20 Am D)
15.2. Infringement of Copyright
1. Whether the published extract from one of the First Plaintiff's
letters is a substantial part of that copyright work. (Paragraph
11a Am S of C; Paragraph 15 Am D)
2. Whether the Defendant has authorised any further substantial
copying of any of the Plaintiffs' literary works. (Paragraph
11b & c Am S of C; Paragraph 15 Am D)
3. Whether the Defendant threatens or intends any further
such infringement. (Paragraph 16 Am S of C; Paragraph 20 Am
D).
15.3. Malicious falsehood
1. Whether the First Plaintiff confessed to the Defendant
that she had murdered Alison Shaughnessy.
2. Whether the content of that alleged confession is true.
3. Whether the Plaintiffs solicited and persuaded the Defendant
to obtain false and misleading evidence.
4. Whether the Defendant is motivated by malice towards the
Plaintiffs.
5. Whether the alleged malicious falsehoods are calculated
to cause pecuniary damage to the Plaintiffs (by affecting
adversely their prospects of employment).
(Paragraphs 19 and 20 Am S of C; Paragraph 21 Am D)
Recent Events
16. The Plaintiffs requested an extension of time for compliance
with their discovery and Affidavit serving obligations, which
was granted by the Defendant. However, when the Plaintiffs
had still failed to comply with those obligations by the end
of the extension period, the Defendant applied by Notice of
Motion (tab 3, page 43b) for an Unless Order. Such an Order
was granted, by consent, by the Honourable Mr. Justice Blackburne
on 13th November 1997 (tab 2, page 42). The effect of that
Order was that, unless there had been compliance with the
Orders made on 3rd October 1997 by 20th November 1997, the
Plaintiffs' claims were to be struck out.
17. Immediately after the Defendant had obtained the above
Unless Order, the Plaintiffs applied by Notice of Motion (dated
14th November 1997) (tab 3, page 44) for leave to discontinue
their case. In order to enable the matter to be argued by
the parties' retained Counsel, Mr Justice Rattee ordered by
consent on 19th November 1997 that the Plaintiffs' Motion
should be stood over to a mutually convenient date, namely
25th November 1997; further, that the Honourable Mr Justice
Blackburne's Order was be amended so as to enable the Plaintiffs'
Motion to be heard first (see tab 2, page 43a).
Factual Summary
18. Accordingly, the background to the Plaintiffs' Motion
has the following key features:
18.1. The action is at an advanced stage and is due to come
on for trial early in 1998, an October 1997 trial date having
already been vacated. The action has already been proceeding
for almost two and a half years.
18.2. The Defendant has already been restrained (whether by
undertaking or Order) from making disclosure of the matters
at the heart of this litigation, since 14th June 1995 in respect
of the alleged copyright and confidentiality claims, and since
12th May 1997 in respect of the allegations giving rise to
the malicious falsehood claim.
18.3. The Plaintiffs have failed to comply (and, it appears
clear, will not comply) with the Orders made by the Honourable
Mr. Justice Neuberger, despite the fact that the original
length of time for compliance was at their request, and despite
the lapse of time since that original time for compliance
expired.
18.4. The Plaintiffs' Motion was issued immediately after
the Unless Order was granted by the Honourable Mr. Justice
Blackburne.
19. From this the Court can infer:
19.1. That the Plaintiffs are unwilling or unable to comply
with the Orders made on 3rd October 1997. The Plaintiff is
accordingly no longer dominus litis.
19.2. That the Plaintiffs are seeking leave to discontinue
purely in order to avoid having their action struck out for
contumelious default.
19.3. That the Plaintiffs can only be adopting this course
in the hope of being able to keep alive the option of relitigating
this matter at a future date - or, at the least, they seek
to exert a chilling effect on any proposed publication by
the threat of such future action.
The Law
20. RSC Order 21, Rule 3 confers a wide discretion upon the
Court whether to accede to an application for leave to discontinue
and, if so, as to the terms which should be imposed. The following
are relevant principles when exercising that discretion:
20.1. The Plaintiff should not ordinarily be compelled to
litigate; but
20.2. No injustice must be caused to the Defendant by granting
leave, and the Defendant must not be deprived of any advantage
which he has gained in the course of the litigation.
20.3. The Court must bear in mind the public interest, most
obviously the desire (where appropriate) for finality of litigation.
See Albright & Wilson Limited v SB Chemicals [1994] RFC
608; and Harrods Limited v Harrods (Buenos Aires) Limited,
Ch D, judgment of Neuberger J on 29 April 1997 (transcript
provided).
(i) Injustice to the Defendant; depriving the Defendant of
an advantage
21. That the Court may impose terms to protect an advantage
gained by the Defendant is clear: see Albright above. Notes
to RSC Order 21, Rule 3 (SCP, page 382).
22. This application to discontinue is patently an attempt
to avoid being struck out for non-compliance with the Unless
Order made on 13th November 1997 (as subsequently varied).
If the Court is satisfied that:
22.1. The Unless Order would not have been complied with;
and
22.2. The action would have been struck out as a result,
then leave to discontinue should be refused. To use the process
of discontinuance to avoid the consequences of a peremptory
Order is an obvious, free-standing abuse of process. To refuse
leave will not have the effect of compelling the Plaintiffs
to litigate. Their action will be struck out in 2 days' time.
23. Alternatively, leave to discontinue should only be granted
upon terms disabling the Plaintiffs' from bringing fresh proceedings,
based upon the same subject matter as this action.
24. The justice of imposing such terms is clearly shown by
the similarity of the Court's jurisdiction under RSC Order
21, Rule 3 and its jurisdiction to strike out proceedings
on the ground that they constitute an abuse of process in
circumstances such as those pertaining in Janov v Morris [1981]
3 All ER 780: see Harrods Limited v Harrods (Buenos Aires)
Limited, Ch D, judgment of Neuberger J on 29 April 1997.
25. The advantage obtained by the Defendant in this litigation
(i.e. a peremptory Order which will not be complied with)
is especially important as one to be protected, having agreed
to:
25.1. The duration of the instant proceedings;
25.2. The length of time that the Defendant has been restrained;
25.3. The advanced stage which proceedings have reached; and
25.4. The fact that the legal aid fund has already financed
both sides of this action for over two years. Any further
proceedings would doubtless involve further applications for
assistance out of public funds.
26. Further, in Grovit v Doctor [1997] 1 WLR 640 the House
of Lords indicated that it is appropriate to take a stricter
approach towards delay where it is reasonable to infer that
a party has no intention to proceed to trial; continuing an
action in such circumstances amounts to an abuse of process
justifying the court in striking the action out.
27. By analogy, in an application to discontinue where a Court
infers that:
27.1. The action has been to impede or restrain a Defendant;
27.2. The action has been maintained primarily in order to
continue such restraint; and
27.3. The Plaintiff has applied to discontinue so as to avoid
being struck out and as to be able further to further obstruct
the actions of the Defendant.
such an application amounts to a potential abuse of process
and leave to discontinue should therefore only be granted
(if at all) upon terms as to fresh proceedings.
(ii) Public Interest: Effect on Free Speech
28. The Plaintiff has used causes of action in breach of confidence
and malicious falsehood to restrain free speech; the latter
cause of action has plainly been selected because of the non-availability
of legal aid for libel actions.
29. The common law recognises and protects free speech; it
is a right that informs both the law on libel and breach of
confidence: see, for instance, Derbyshire County Council v
Times [1993] AC 534; Rantien v Mirror Group Newspapers [1994]
QB 60. By parity of reasoning, it is a right that should inform
both the law on malicious falsehood and the Court's exercise
of discretion affecting such a right.
30. What the Plaintiffs are clearly seeking is the ability
to bring a future action or actions based upon the same subject-matter,
notwithstanding the fact that the Defendant has been restrained
for considerable periods of time already.
31. In essence, the Plaintiffs seek to use the threat of future
action as a disincentive to publication without the burden
of going to trial.
32. Combining prior restraint of free speech together with
subsequent litigation for damages is plainly disproportionate,
and should be prevented by imposing terms as to future actions.
Conclusion
33. Accordingly, the Defendant asks that the Plaintiffs' Motion
be dismissed.
34. Alternatively, the Defendant asks that the Motion be allowed
only upon the following terms:
34.1. That the Plaintiffs do pay to the Defendants costs of
the action to be taxed forthwith if not agreed, such costs
not to be enforced without leave of the Court;
34.2. That the Plaintiffs be irrevocably debarred from bringing
any action hereafter based upon breach of confidence, breach
of copyright, malicious falsehood or any other cause of action
that might reasonably have been raised in the present proceedings
in respect of any act or statement the substance of which
is set out either in the pleading or the affidavits sworn
in these proceedings.
34.3. That provision be made for:
(i) Discharge of the undertakings given by, and the injunction
granted against, the Defendant;
(ii) Enforcement against the Plaintiffs of their various cross-undertakings
in damages.
IAN MILL |
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