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IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION



Mr Justice Warby :

Introduction

(1) The most important application was by the claimant for permission to amend the Particulars of Claim in two respects: first, by adding a new cause of action in respect of a publication that had not hitherto been complained of (paragraphs 9A to 9D) and secondly to modify an existing claim contained in paragraph 10 of the Particulars. (2) An application by the defendant to serve a short supplementary statement to correct what is said to be an omission by oversight in his trial witness statement. This application was issued on 11 May 2016, the day before the hearing. (3) An application for permission to amend the Defence, which is not the subject of a formal application notice.

The factual background

The pleaded issues

(1) the need for the CPS to explain the circumstances in which a vulnerable young woman who was suffering from a psychiatric illness and who made a complaint of rape came to be prosecuted first by her alleged attacker and then by the CPS and whom as a result, committed suicide shortly before she was due to stand trial; (2) the inquest into the death of Ms de Freitas; (3) the serious implications for the reporting of rape if victims fear that they may end up the subject of a prosecution if their evidence is in any way inconsistent, or if their complaint does not result in a prosecution; (4) the need for the CPS to consider very carefully whether it is in the public interest to prosecute in such cases.

(1) Responsibility for publication (2) Reference (3) Meaning (4) Serious harm to reputation (5) Whether the publication was reasonably believed to be in the public interest.

The applications

Claimant's amendment application

0. 6th November 2014 12:59  email to 'Sandra Laville'

9A. On 6th November 2014 at 12:59 the Defendant's solicitor, Ms Harriet Wistrich, sent by email on behalf of the Claimant to Ms Sandra Laville of Guardian Newspapers Limited and therefore to that company and others at it (of whom the Claimant cannot presently provide better particulars) under the rubric "draft statement" a written statement by the Defendant which he through Ms Wistrich therefore published or caused to be published to Ms Laville, Guardian Newspapers Limited and others which contained the following words defamatory of the Claimant:

"(6) On the 23rd December 2012, Eleanor had arranged to see a man who she had become friendly with, Alexander Economou (who I shall refer to as AE). On the evening of 23rd December I could not get hold of Eleanor on the phone and therefore sent her a couple of text messages to AE asking about her safety and whereabouts .In the early hours, I received a text from Eleanor via AE's phone saying that she was fine. In fact, I subsequently learnt, although not until the following week, that Eleanor had been raped by AE.

(9) On 4th January 2013 I received a threatening phone message from AE along the lines of "your daughter is making very serious allegations about me, if she does not stop immediately, I will take legal action". In the meantime Miranda [who is the Defendant's wife] called me to say Eleanor was going to the police station to report that she had been raped. She asked me to go down with her and I immediately made arrangements to meet her there. In fact, after Eleanor reported the rape, AE turned up at Chelsea Police station to lodge his complaint and the police arrested him ..

(10) I understood later that Eleanor had been advised to report the rape when she spoke about what had happened to her with a community police officer who used to come into the Body Shop where she worked. After she made the report, I think she was relieved and felt she had done the right thing.

(11) On 21st February 2013 I was informed that the police had taken the decision that they could not proceed further with the investigation as they considered there was not a realistic chance of a successful conviction because of all the surrounding circumstances concerning the allegations. I later learnt that these circumstances included the fact that she had reported the crime late and therefore there was no forensic evidence that could be collected to support her belief that she may have been drugged by AE. Furthermore, she had behaved in a way following the rape which might, by a Jury, be considered inconsistent with her allegations particularly in relation to her communications with the alleged perpetrator and others both before and after the event. The police did not want to put Eleanor in the position where she would feel that SHE was being tried when under cross-examination. The police felt particularly strongly about this as they considered Eleanor to be a vulnerable person.

(13) Unfortunately, on 14th August 2013, Eleanor received an email from Edmonds Marshall McMahon solicitors, acting for AE, issuing her with a private prosecution summons for perverting the course of justice .

(15) In due course, she instructed EBR Attridge solicitors. Their advice was that the prosecution would not pass the test with the Code for Crown Prosecutors and that they should seek to get the Crown Prosecution Service to take over the prosecution and bring it to an end.

(16) Over the following few months I attended court with Eleanor on a number of occasions. The judge invited the CPS to provide their assessment of the case. In October 2013, Sarah Maclaren Head of Homicide and RASSO at the CPS met with Detective Inspector Julian King of the Sapphire Team at Fulham Police Station, who had investigated the original allegations made by Eleanor. They were invited to pass on evidence, including the ABE tape, and to discuss whether Eleanor should be prosecuted. I know that the police told the CPS that there was no evidence that Eleanor had in fact lied with regards to the allegations and that her allegation was still recorded as a crime of rape .

(19) Eleanor was very happy with her legal team and I am aware that they were making representations to the Crown Prosecution Service to take the case over and then stop it. Unfortunately, on 5th December 2013, the CPS made a decision that they would take over the prosecution and continue with it. Eleanor's legal team was very surprised by this and made urgent representations to try to get the prosecution stopped .

(26) The decision of the CPS to pursue the case against Eleanor is one which Eleanor herself was unable to reconcile with the facts. Eleanor was a vulnerable young woman who made a complaint of rape as a result of which she herself became the subject of legal proceedings. This was despite the fact the police did not believe there to be a case against her. There are very serious implications for the reporting of rape cases if victims fear that they may themselves end up the subject of a prosecution if their evidence is in any way inconsistent. It is therefore of the utmost importance that the CPS consider very carefully whether such cases are in the public interest.

'

9B. The said words referred and were understood to refer to the Claimant by the Defendant's use of the Claimant's name, Alexander Economou, and the abbreviation "AE".

9C. In their natural and ordinary meaning the said words meant and were understood to mean that the Claimant:

9C.1. Is guilty of the rape of Ms de Freitas; and

9C.2. Prosecuted Ms de Freitas for perverting the course of justice on a false basis.

9D. That the said words caused or are likely to cause serious harm to the reputation of the Claimant is obvious from their gravely damaging nature, context and circumstances of publication, including that their publication was in the first instance directly to a highly influential journalist and print and Internet media organisation."

"A. 6th November 2014  first Guardian interview

On or about 6th November 2014 the Defendant gave an interview to the Guardian newspaper and/or in any event between about 15:34 and 18:41 supplied to Ms Laville and therefore Guardian Newspapers Limited and others at that company by email through the agency of Ms Shona Crallan at INQUEST and/or Ms Wistrich a written statement or statements entitled "Press Statement of David de Freitas" during which he said or wrote and so published or caused to be published to those who interviewed him and/or received the said written statement or statements and in any event (where the words below appear in bold) in the Guardian for 6th November 2014 and at its website www.theguardian.com/uk from that date onwards the following words defamatory of the Claimant:

"The decision of the CPS to pursue the case against Eleanor is one which Eleanor herself was unable to reconcile with the facts. " Eleanor was a vulnerable young woman, diagnosed with bipolar, who made a complaint of rape as a result of which she herself became the subject of legal proceedings. This was despite the fact the police did not believe there to be a case against her.

" There are very serious implications for the reporting of rape cases if victims fear that they may themselves end up the subject of a prosecution if their evidence is in any way inconsistent. It is therefore of the utmost importance that the CPS consider very carefully whether such cases are in the public interest. "

I urge the CPS to conduct a review of the decision to prosecute Eleanor and specifically how the full code test was met. It would be impossible for Eleanor to have perverted the course of justice without wasting police time. The police looked at this matter twice and concluded that there was no case to answer. Who has a better idea of whether the police's time is being wasted: the police or the CPS?...

" I feel that the system of fairness in this country has let me down terribly, and something needs to be done so that this can never happen again. "

Defendant's applications

The factual and procedural context

(1) On the morning of 5 November 2014 Ms Wistrich emailed Sandra Laville at the Guardian asking whether she might be interested in "a story re state involvement that may have led to the suicide of a rape victim". Ms Laville replied that she was in the following day and would be very interested. Ms Laville followed up by outlining the then situation and explaining the family's keenness to ensure a full enquiry. She wrote "I have persuaded them a sympathetic story might help show the wider public interest and persuade the coroner of the need to widen the scope of the inquest  so would ideally want a story in Friday's paper I think?" (2) It was arranged that the two would speak the following day to provide Ms Laville with more detail. Ms Laville asked "One more question?! Would I be able to get a quote from the family for the story thur for Friday?" (3) By 6 November 2016 the defendant had prepared a draft witness statement for the inquest ("the draft Statement"). It contained the words set out and complained of in paragraph 9A of the draft Amended Particulars of Claim, above. It will be seen from those words that the draft Statement named the claimant as the man who raped Ms de Freitas. (4) At 12:59 on 6 November Ms Wistrich, then acting for the de Freitas family, sent Ms Laville an email ("the Email") with a copy of the draft Statement. She described this as "statement from david for info purposes only  please check before using any of it - " (5) At 13:21 Shona Crallan of Inquest emailed Ms Wistrich, with copy to the defendant, to say that "I have spoken to Sandra [Laville] as I understand you have also . We agreed that I will now provide her with a quote from David I have discussed with David the possibility of press follow up tomorrow and suggested that he can decide with you at that time whether to give any interview or further quote then ." (6) At 14:30 Ms Crallan emailed the defendant to ask "have you had a chance to prepare your statement?". At 15:19 he replied attaching "the two paragraph press statement as promised". The defendant's disclosure includes two versions of a document called "Press Statement of David de Freitas" ("the Press Statement"). One version, which appears to be the earlier of the two, is a two paragraph document. The defendant's email explained: "I was getting the witness statement sorted and it took longer than expected. I attach this too." (7) At 15:30 Ms Wistrich forwarded something to Ms Laville saying "David prepared this but he said you can talk to him if you would like". It is not entirely clear what it was that was forwarded by Ms Wistrich. It may have been the defendant's email to Ms Crallan of 15:19 and its attachments. But eight minutes later Ms Crallan sent an email to Ms Laville and Ms Wistrich explaining that "I attached the wrong statement in error . Attached now is David's statement for your article." (8) At 18:41 on 6 November 2014 Ms Crallan emailed Ms Laville, with copy to Ms Wistrich, saying: "If it is not too late, David has considered further what he would like to say as part of your article and if you are able to include the following he would be grateful." A paragraph of text was set out, describing the defendant's feelings about his daughter and her loss. It ended with the sentence now quoted in the last paragraph complained of in the draft amendment to paragraph 10, above ("I feel the system of fairness in this country has let me down terribly " etc.). (9) The second version of the Press Statement contained in the defendant's disclosure is a three paragraph document. The third paragraph is in the same terms as the quote set out Ms Crallan's email of 18:41 on 6 November 2014.

"10.3 ...On 6 November Ms Wistrich sent to Ms Laville, on the Defendant's behalf, various documents including a copy of the witness statement which the Defendant had provided to the Coroner.

10.4 The first and second paragraphs of the statements complained of pleaded at paragraph 10 are quotes taken from the Defendant's witness statement. The Defendant will rely on the whole of the witness statement at trial."

"In the light of what is alleged by paragraphs 10.3 to 10.6... ...the Claimant may in due course have to amend the Particulars of Claim to complain further over the documents now allegedly published on 6th November 2014 by the Defendant to Sandra Laville of the Guardian newspaper"

(1) In relation to paragraph 10.3 of the Defence the claimant asked "on how many occasions and in each instance on what date or dates and at what times Ms Wistrich contacted Ms Laville". The answer was that the information was not necessary or proportionate in order to enable the claimant to prepare his case or understand the case he had to meet. (2) Asked how Ms Wistrich was said to have "raised with the defendant the possibility of highlighting in the media the issues he was seeking to raise in the inquest", the defendant gave the same answer. (3) Asked how he could reconcile paragraphs 10.3 (admitting that Ms Wistrich sent Ms Laville the draft Statement which named the claimant) and 72 (asserting that Ms Wistrich advised and the defendant followed her advice not to name the claimant to journalists), the defendant responded as follows: "Ms Laville was provided with an advance copy of the statement which was provided to the coroner for the inquest hearing on 56 November 2014. The Defendant believes that Ms Laville was given [the draft Statement] by way of background and was told that she should not name the Claimant or use or quote the contents of the statement without prior permission from the Defendant."

"I agreed to this, although I had no input into what particular documents or information she provided them with or how she would do this. As I later learned after the claimant had issued the claim against me, HW sent SL my statement prepared for the inquest "

"What I intended to convey was that I did not authorise HW to provide this document to SL and I would not have done so had I been consulted and my authority sought. It would have been contrary to the advice being given to me at that time by HW "

Discussion

Amendment of the Particulars of Claim

Authority indicates that the right way to approach such a question is to start by considering the general principles as to amendments to add new causes of action outside the limitation period: see Wood v Chief Constable of the West Midlands Police [2005] EWCA Civ 1638, [2005] EMLR 20 [84]. The general rule is set out in s 35(3) of the Limitation Act 1980: "neither the High Court nor the county court shall allow a new claim within subsection (1)(b) above to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim." There is no doubt that the time limit for enforcing this proposed claim had expired many months before the present application was made. A "new claim" is defined to include "the addition or substitution of a new cause of action". It is clear that the proposed amendment now under discussion would add a new cause of action.

(1) "The policy of [s 35] was that, if factual issues were in any event going to be litigated between the parties, the parties should be able to rely upon any cause of action which substantially arises from those facts." Lloyd's Bank plc v. Rogers [1997] TLR 154 (Hobhouse LJ). (2) "Whether one factual basis is 'substantially the same' as another factual basis obviously involves a value judgment, but the relevant criteria must clearly have regard to the main purpose for which the qualification to the power to give permission to amend is introduced. That purpose is to avoid placing a defendant in the position where if the amendment is allowed he will be obliged after expiration of the limitation period to investigate facts and obtain evidence of matters which are completely outside the ambit of, and unrelated to those facts which he could reasonably be assumed to have investigated for the purpose of defending the unamended claim." Goode v Martin [2001] 3 All ER 562 (Colman J). (3) "The substance of the purpose of the exception in subsection (5) is thus based on the assumption that the party against whom the proposed amendment is directed will not be prejudiced because that party will, for the purposes of the pre-existing matters [in] issue, already have had to investigate the same or substantially the same facts": BP plc v Aon Ltd [2006] 1 Lloyd's Rep 549 [54] (Colman J). This passage was later described as "helpful" by the Court of Appeal in Ballinger v Mercer Ltd [2014] EWCA Civ 996, [2014] 1 WLR 3597.

"only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings."

"In one sense, the facts sought to be relied upon in the proposed amendments are similar to those already pleaded; that is to say, the allegations about the claimants are similar. The essence of a claim in libel, however, is not the nature of the allegations but their publication. Each publication gives rise to a different cause of action. The publication to Sir Jeremy cannot, therefore, be characterised as (even "substantially") the same fact as the publication to the Ambassador. the litigation of the factual issues relating to the 20 May publication does not mean that the issues relating to the alleged later publications to and by Sir Jeremy are bound to be litigated in any event."

"If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which

a) The operation of section 4A of this Act prejudices the plaintiff and

b) Any decision of the court under this subsection would prejudice the defendant "

"where a party to proceedings has put itself in a position by its own conduct that it requires the discretion of the Court to be exercised in its favour to be allowed to continue in those proceedings it must proffer an explanation to the Court as to how the state of affairs has arisen The Court is being asked to apply its discretion in favour of a party who would otherwise suffer the consequences of being statute barred."

(1) It would deprive him of an otherwise unassailable limitation defence, and require him at this very late stage to plead, and prepare evidence, in answer to a new head of claim. (2) A new factual investigation would be necessary which would not only cover the question of publication by Ms Wistrich to Ms Laville but also, if I allowed the amendment as it stands, the question of whether Ms Laville communicated to others. In the short time available the defendant has obtained a witness summary from her, based upon information she has provided, in which it is asserted that she did not communicate to others. (3) It appears from the witness summary that a serious issue would also arise as to whether the publication caused serious harm to the claimant's reputation in the eyes of Ms Laville. (4) All this would have to be done in conjunction with the already significant burden of preparing for a fairly long trial, at a time when (at the time of the hearing and so far as I know still) the parties also have to prepare for and deal with a criminal trial. (5) The need to engage with these new issues in this context would represent serious prejudice to the defendant in my view.

The defendant's applications