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S. 37(1) Supreme Courts Act 1981 states that the High Court may by order, (whether interlocutory or final) grant an injunction in all cases in which it appears ...
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Claim Form issued 19 December 2012
Claim No.HQ12D
Claimant -and-
(1) LONDON BOROUGH OF LEWISHAM (2) RALPH WILKINSON (3) CHRISTINE GRICE (4) ELAINE SMITH (5) VALERIE GONSALVES (6) ELAINE HATTAM (7) KATE PARSLEY (8) DR ANTHONY WILLIAMS Defendant
References in this Skeleton Argument to C and D are the Claimant and the Defendantsâ and to the Claimantâs Bundles- B1, B2 & B3, are in the format [B?. xx. x] in this skeleton are to [bundle. page. paragraph] in bundles 1- 3:The Court is recommended to read the following documents in advance, together with this skeleton and the references contained within it: (1) Chronology [B1.38] ; (2) Câs Application Notice dated 27 February 2013- interim injunction [B1.28] ; (3) Câ (4) Câs Application Notice dated 27 February 2013s supporting letter dated 27 February 2013- interim injunction- amendment [B1.30] [B3.1394] ; ; (5) Câs supporting letter dated 27 February 2013- amendment [B3.1406] ; (6) Câs Particulars of Claim [B1.268] ; (7) Câs witness statement (1) [B1.41] ; (8) Câs witness statement (2) (9) Câs Employment Tribunal application regarding her [B1.62] ; request for a âstay of proceedingsâ dated 23 February 2013 [B1.1372] ; (10) Extracts of Câs covert recordings and transcripts highlighted in paragraphs 9a- t, 22a â c & 23 a-f of her witness statement 1 [B1.41] , (regarding her application for an interim injunction). Introduction What this application about
1 On diverse occasions between January 2011 and May 2012 the Dâs have published/uttered and/or caused and/or permitted to be uttered and/or published and/or been party to or procured the distribution and publication within the jurisdiction of this Honourable Court and engaged in and intend to continue to engage in a course of conduct which amounts to harassment. The C therefore seeks an interim injunction in libel and
(4) Whether there are any special factors. The primary objective of an interlocutory injunction is to protect the Claimant against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial.
4 Although interim defamation injunctions are rare, the C believes that in this particular case, it is right that the Court has jurisdiction and should grant it, as the words complained of are seriously defamatory of her and any further publications and/or utterances of the words complained of will cause alarm and distress to her, injure her health and exacerbate her medical condition [B3. 1370a, B1.163 â 164 & 171 â 177 & B3.1098 â 1001] and [B1.251 & 254]. There is a clear threat by Dâs 1 â 7 to further publish and utter the words complained of, and that if this is permitted she will suffer injury.
The Dâs Defence
5 In the Câs witness statement she has set out the numerous examples of why any defence by the Dâs will fail, [B1.41. 10 - 20]. It is clear that any defence by the Dâs will not succeed at trial, (see Greene v Associated Newspapers Ltd [2005] QB 972 per Brooke LJ at [A9.57] ), the Câs Employment Tribunal âstrike outâ application [B1. 321 â 335n] - which C also relies on, and the Câs High Court claim form and pleadings for
defamation [B1.262 & 268].
6 The C can also show that the statements were actuated by malice and that the Dâs had no belief in the statements. It follows that if the Dâs did not genuinely hold the alleged views expressed- see Merivale v Carson [1887], 20 QB 275 [A1.280 - 281] , (as cited in Spiller & Anor v Joseph & Ors [2010] UKSC 53), or made the statements knowing that they were untrue- see Fountain v Boodle [1842] 3 QB 5, then the C can rely on this as evidence of malice. This will vitiate any defence relied on by the Dâs.
7 The Dâs did not have a duty or interest to make the statements to external note-takers (Susan Funnell and Jocelyn Heyford). In Clift v Slough Borough Council (1) and Kelleher (2) [2009] EWHC 1550 (QB) [A14.38, 40, 86 & 99] Tugendhat J. held that publications to some of the Councilâs own âcustomer-facing staffâ attracted privilege but that publication to (i) council employees in departments which were unlikely to have any dealings with the Claimant and (ii) partner organisations were not privileged.
8 A defendant cannot resist an injunction by a generalised assertion of belief in the truth of the allegations made. As Eady J said Sunderland Housing Group v Baines ([2006] EWHC 2359 (QB)) [A12.17] : â injunction against publication of defamatory words to identify theIt seems to me at least right for a defendant who seeks to resist an defamatory meaning or meanings which he intends to justify and also to state in a witness statement verified by a statement of truth that he believes in the truth of the words in that meaning or those meanings. That, it seems to me, must be the very minimum. â
"Where a litigant's conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the process of the court as to render further proceedingsunsatisfactory and to prevent the court from doing justice the court is entitledâindeed, I would hold boundâto refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceedings against him."
13 The C is also seriously considering making a âstrike outâ application and/or an application for summary judgment and is confident that those applications would be successful. It is therefore likely that the Dâs defence would either be âstruck outâ; severely limited or the case could be settled. The C respectfully requests that the Court orders an interim injunction to ensure that in the meantime the C is not subjected to further harassment, the Tribunal proceedings are âstayedâ and the C is free to explore the above options as soon as possible. CPR Part 24.2 provides: â on the whole of the claim or on a particular issue if-The court may give summary judgment against a Claimant ⌠(a) it considers that (i) the claimant has no real prospect of succeeding on the claim or issue; ⌠(b) there is no other compelling reason why the case or issue should be disposed of at trial â.
Harassment
14 The Protection from Harassment Act 1997 is written in terms of a course of conduct: see sections 1(1), 1(2), 1(3), 2(1), 3(1), 7(3). It is submitted that the Dâs course of conduct amounts to harassment. The C believes that there is a clear basis for relief under the Protection from Harassment Act 1977, see Howlett v Holding [2006] EWHC 41 [A.11. 4] , that:
âin some circumstances, the exercise of oneâs right of free speech can fall within the concept of harassment, provided the other necessary ingredients are present. For example, it would have to be classified as unreasonable and oppressive conductâ.
15 It is submitted that the Câs application is entirely in keeping with ZAM v CFW ([2011] EWHC 476 (QB)) [A21]. The Dâs have both understood and intended throughout that the words complained of would cause alarm and distress to the C. The Dâs have and continue to engage in the deliberate and dishonest abuse of powerâ which has resulted in the C suffering loss and damage because of that action carried out with reckless disregard or indifference to the consequences.
16 The Dâs conduct is in violation of the law. Power was granted to the Dâs for a public purpose. It is an abuse of that power for them to exercise it for their own private purposes, which were out of spite, malice and revenge. The acts were done deliberately and with knowledge of its consequences and the Dâs cannot argue that they did not intend the consequences of their actions or that they were not aimed at the C and that she would suffer loss.
17 The 1st D is vicariously liable for the acts of Dâs 2 â 5. The Dâs knew that the C had an existing psychiatric illness, (depression), but despite this they were and continue to be hell-bent on intentionally exacerbating her condition and causing anxiety, distress, anguish, fear and humiliation. Together, the multitude of incidents in such a prolonged period, (from April 2011 and continuing) by the same Dâs, indicates harassment.
hearing dated 25 March 2013) and particularly the matters set out in her letter to the Tribunal dated 12 February 2013 [B1. 321 â 335n] ): a) Engaging in the deliberate and dishonest abuse of powerâ which has resulted in the C suffering loss and damage because of that action carried out with reckless disregard or indifference to the consequences; b) Intentionally exceeding authority for improper reasons, i.e. to obtain an improper private advantage for themselves and over the C; c) wilful excesses of official authority, malicious exercises of official authority, intentional infliction of injury upon a person, frauds and deceits and wilful neglect without reasonable excuse or justification. The misfeasance, breach of duty and neglect being calculated to injure the Claimant, including the Dâs neglect and the denial of knowledge of the Câs mental health condition; d) the targeting of the C, (a vulnerable disabled employee and member of the public) in order to subject her to degrading treatment which aroused feelings of fear, anguish and inferiority and it humiliated and debased her; e) suspending the C for reasons based on a body of lies, deception, concealment, exaggeration and manipulation; f) publishing the statements and allegations, without making any prior check with the C as to their veracity or offering the C any opportunity to respond to them prior to publishing/uttering them and suspending her; g) tampering with notes/minutes in order to support their false case against the C;
h) The abuse of the internal process for the purpose of making/relaying untrue defamatory statements/allegations relating to the C and which were motivated by malice; i) unlawfully dismissing the C for reasons based on a body of lies, deception, concealment, exaggeration and manipulation; j) The D did not properly act on the information given to them by the C but instead suspended and dismissed her on false and fabricated charges. The wording in the dismissal letter and the words complained of, in their natural and ordinary meaning meant and were understood to mean that the C was: i) unfit for public office; ii) incompetent; iii) responsible for her own dismissal; iv) lacking professional integrity; v) dishonest in relation to the charges brought against her; vi) there was no evidence of her disability/she had failed to adequately disclose information about this; k) ignoring and disregarding evidence which showed there was simply no evidence to support the false allegations made against the C; l) wilfully and maliciously fabricating/falsifying evidence against the C and publicly defaming her; m) justifying and reinforcing the false allegations against the C and failing to retract them, despite knowing that what they wrote and or said were false; n) failing to take disciplinary action against those guilty of misconduct in public office, upon receipt of proof of that misconduct; o) the substantial interference with the Câs Article 8 rights;
section 6 of the Human Rights Act, as it gives the Court power to make orders to protect the Convention rights of parties. The C believes that her Article 8 right, âto respect for private and family lifeâ has been engaged_._ The C also equates her experiences with inhumane and degrading treatment/torture.
23 Since inhumane or degrading treatment violates human dignity there is sometimes an overlap between Article 3 and Article 8 (the right to respect for private and family life). It is not uncommon where ill-treatment fails to meet the level of severity demanded by Article 3 that a violation of Article 8 may have occurred as Article 8 protects a personâs physical integrity as an aspect of private life; this has also been recognised by the European Court of Human Rights in E. S. and Others v. Slovakia [2009] (application no. 8227/04) [A.15].
24 By reason of the matters aforesaid, the 1st D is in breach of the Csâ rights under Article 8 of the European Convention of Human Rights (ECHR), in particular the right to reputation embraced by Article 8. The C contends that the Court is entitled to hold that the 1st D holds no convention rights and that it can on the following grounds set out in the Human Rights Act:- (a) in the interests of public safety; (b) for the prevention of disorder or crime; (c) for the protection of health or morals; (d) for the protection of reputation or rights of others;
grant the Câs application for an interim injunction, as it proportionate to the legitimate aim pursued. The Courtâs ruling itself must be itself compliant with the Convention jurisprudence.
25 The Court is entitled to conclude that the Dâs course of conduct continues to be oppressive and unacceptable by virtue of the gravity of the misconduct which is in an order which the C believes could sustain criminal liability for misfeasance/misconduct in public office, Harassment- under section 2 of the Protection from Harassment Act 1997, perverting the course of justice, concealing offences, defeating the ends of justice and obstructing the administration of justice.
26 A party who uses the Courtsâ process for the commission of a crime or a civil wrong is abusing it. A Court which allows its process to be abused in that way will lose public confidence. The Court should protect the C, (who is disabled) and itself by not tolerating such abuse. It gives the C no pleasure to have to make this application and to pursue these proceedings but in the light of the serious threat to the C, including her mental and physical health and her reputation, she felt that there was no alternative.
Conclusion
27 As Tugendhat J said in Clarke v Bain [2008] EWHC 2636 (QB), [54], defamation actions are not primarily about recovering money damages, but about vindication of a claimant's reputation.
upon third parties would be achieved by the inclusion in the Penal Notice of the words set out in the Câs draft order [B1.32].
31 There is, and without an injunction, (in accordance with the Câs request), there will continue to be, a course of conduct which amounts to harassment of her, (see the reference in s7(2) of the 1997 Act to "alarming the person or causing the person distress" and the provision in s 7(3) that a "course of conduct" must involve conduct on at least two occasions), (2) the victim can apply for an injunction under ss1 (1A) and 3A of the 1997 Act, and (3) the Defendants could not show any of the grounds set out in s1(3) of the 1997 Act, in particular because their conduct is the reverse of reasonable.
32 The C also respectfully requests the Court refuses the Dâs application stay of proceedings for the same reasons that she relies on in support this application and that it expedites the defamation trial.
STATEMENT OF TRUTH The Claimant believes that the facts stated in the statement of case are true. Signed
Ms Ayodele Adele Vaughan 13 March 2013
