Posted by: John Brace | 31st October 2018

After Wirral Council ask for libel case to be immediately struck out, DJ Hennessy gives Claimant 3 weeks and chance to amend her Particulars of Claim first

After Wirral Council ask for libel case to be immediately struck out, DJ Hennessy gives Claimant 3 weeks and chance to amend her Particulars of Claim first

                                      

Birkenhead County Court entrance 5th October 2018

Birkenhead County Court entrance 5th October 2018

This continues from yesterday’s report on Chalmers v Wirral Borough Council which was headlined DJ Hennessy refers to “traffic chaos” and criticises Wirral Council for not complying with a court order and covers what happened after the short adjournment.



The three Wirral Council employees (which included the solicitor Mr Bayatti) returned to the hearing room where DJ Hennessy was present. This time one of the three Wirral Council employees had a laptop which was passed around.

Mr Bayatti said that he hadn’t delivered the application to Mrs Chalmers on the day he had delivered copies of the application to the Birkenhead County Court.

However the day after delivering copies of the application to the Court he had delivered a letter to the Claimant, he referred to a date of 29th August.

District Judge Hennessy was passed the laptop and said she had just read the letter.

Mr Bayatti said it had been delivered the next day but without the notice of appeal.

District Judge Hennessy said that was alright. She pointed out that it looked to her that the copy of the application had been delivered to the Claimant and brought to her attention that it hadn’t been a sealed copy.

However 29th August was a long period before the hearing for the Claimant to have had a copy of Wirral Council’s strike out application.

Mr Bayatti responded.

District Judge Hennessy said that checking the court file there were three copies of the CPR 3.9 application but not three copies of the other one which she concluded Mr Bayatti had served. She checked and confirmed the court had only one copy of the other application which was a reasonable inference as the notice of hearing had been sent dated 4th October.

For the rule 3.9 application District Judge Hennessy would need (if Mr Bayatti could do it swiftly) a signed witness statement detailing what he had told her and what he had done with the copy letter and copy application. District Judge Hennessy said she couldn’t dictate the wording of the witness statement to Mr Bayatti but she would dictate words in an order to the effect that he had to copy, serve and prepare a witness statement within 48 hours.

She explained however what was needed to be in the witness statement and that Mrs Chalmers could within 14 days of her order apply for it to be set aside. This would avoid unfairness to Mrs Chalmers. She asked Mr Bayatti if he was happy with that and was he happy doing that?

District Judge Hennessy said she would type up a full preamble after having heard the rule 3.9 application. However her order would include that the Court had not served a copy of the application on the Claimant and on the solicitor for the Defendant stating in Court that he had by hand delivered a copy of the application to the Claimant on 29th August 2018 and that he will file and serve a witness statement to this effect by 4pm on…

She paused at this point and asked Mr Bayatti, “tomorrow afternoon”? He nodded and she continued with “1st November”.

District Judge Hennessy went on to state that she had granted relief from sanctions. An application to set aside had already been filed, but the Claimant did have 14 days to apply for the order to be set aside from the date of service of the Order on her. The order could be set aside on the ground that she [the Claimant] had had no notice of the application.

She asked Mr Bayatti if there was no other order sought? He replied no, that there was not.

District Judge Hennessy continued with the order granting permission for Wirral Council to rely on its defence and for completeness there would be no order as to costs. Then she said she would now move on to the other case which was the strike out application.

Mr Bayatti said yes, that she was right.

District Judge Hennessy asked him to bear with her.

Mr Bayatti said that this application was more difficult than the previous one, the reason why was that he would have said the first application was about his inability to comply with directions.

This application was fairly straightforward and relied on the assertion that the Claimant failed in any meaningful way to particularise what it was she was claiming in her libel case that the Council was guilty of. Nowhere in her Claim did it specifically address the passage of words or communication which the Claimant said were libellous. Mr Bayatti said that he didn’t have any experience in libel matters, but that the Claimant had not pointed to a passage in a published newspaper or some other similar form of media which would put everyone on terms as to the certainty as to what it was the Claimant was seeking to claim for libel.

District Judge Hennessy referred to Practice Direction for CPR 53 as to what statements of case must set out. Reading the rules the necessary information,

“to inform the other party of the nature of the case he has to meet. Such information should be set out concisely and in a manner proportionate to the subject matter of the claim.

2.2

(1) In a claim for libel the publication the subject of the claim must be identified in the claim form.

(2) In a claim for slander the claim form must so far as possible contain the words complained of, and identify the person to whom they were spoken and when.

2.3

(1) The claimant must specify in the particulars of claim the defamatory meaning which he alleges that the words or matters complained of conveyed, both

(a) as to their natural and ordinary meaning; and

(b) as to any innuendo meaning (that is a meaning alleged to be conveyed to some person by reason of knowing facts extraneous to the words complained of).

(2) In the case of an innuendo meaning, the claimant must also identify the relevant extraneous facts.”

Finally DJ Hennessy said that in a defence if that if a Defendant alleges “that the words complained of are true he must –

(1) specify the defamatory meanings he seeks to justify; and

(2) give details of the matters on which he relies in support of that allegation.” and for honest opinion there was a likewise requirement which is what the pleadings needed to contain.”

Mr Bayatti referred to the Civil Procedure Rules, Practice Directions and how what was supposed to happen was that the Claimant was supposed to have specified the way in which the Council had libelled her. In the Council’s defence, the assertion was about justification.

The Claimant was evicted by her landlord as a result of the representation made to her former landlord by the Council. The Council’s homelessness section didn’t secure accommodation for the Claimant on the basis of representations made by the homelessness section.

Mr Bayatti said that he would expect the Claimant to have a statement from the former landlord or former social housing provider in support of her Claim to identify the words, but such a statement wasn’t there supporting her application.

DJ Hennessy said that he should look at the Claim Form and the document headed libel, attached were two letters from Wirral Council dated 5th June, a letter dated 18th January and a letter dated 18th June 2015.

Mr Bayatti said that none of the letters from the Council contained any words that suggested they were libellous, but were all letters that progressed the investigation into antisocial behaviour.

DJ Hennessy referred to the letter from Mrs Chalmers dated 27th February to the court. Then the case had been transferred out to Liverpool for consideration, then transferred back for case management. Then they had got letters (one dated 23rd June) as well as several letters to the Court.

The reality was that in and so far as the Claimant needed to comply with Practice Direction 53 that the Claimant represented herself, therefore DJ Hennessy did not expect complete compliance with it automatically. However, she continued that Mr Bayatti’s position was that it was a root and branch matter that the Claimant had not complied.

Mr Bayatti said that it undermined the merits of the Claim and for that reason he wanted it struck out. He suggested that if the Court wasn’t with him, then the Court could set out the requirements that a libel action requires put in terms to put the onus on the Claimant. His assertion was that the Claim was so lacking that it had no realistic prospect of success, an additional comment which was not strictly speaking a direct factor was that clearly the Local Authority [Wirral Council] had a duty to investigate antisocial behaviour, as it also had a duty to advise and assist in relation to homelessness.

The avenues of challenge to the Local Authority [Wirral Council] if someone thought it had erred in its duties were by way of complaint to the Local Government Ombudsman, or the Housing Ombudsman or judicial review if the Council had been wrong or wrong for whatever reason allowable under judicial review.

To put the Council to a claim for libel as a potential avenue of challenge would hamper the local authority [Wirral Council] in terms of deciding whether to liaise with partner agencies in providing frank information about potential tenants.

The registered provider in question specialised in dealing with tenants who were more challenging, but that didn’t mean he is saying that the Claimant was a more challenging tenant.

He pointed out that a housing provider would have to take a lot of factors into account the highest being to give the tenant a formal warning.

District Judge Hennessy said she appreciated she was making inquiries about the antisocial behaviour and was not blaming or making findings, but had there been an injunction, or a criminal matter or anything at all?

Mr Bayatti said that the Claimant had been interviewed about reports about her behaviour. At that interview counter allegations had been made by the Claimant but the Claimant had made minor admissions. The enforcement officer had found that there was not enough to make a finding in relation to the vast majority of the allegations and counter allegations but gave the Claimant a warning about the admissions she made.

District Judge Hennessy said that she was slightly surprised based on the strike out application that the Claimant had not set out the information required by Practice Direction Part 53, she was surprised that the evidence was relying on just what was in the box.

Mr Bayatti said that Wirral Council was conscious of not wanting to enter into expensive and costly evidence gathering and seeking to take up an inordinate amount of time. Essentially it was being heard as a preliminary issue. He asked for the case to be struck out because the Claim was so lacking in specificity that he had come to the conclusion that the Court can’t come to a conclusion, therefore there was no realistic prospect of success.

District Judge Hennessy said that it was not evidenced, there was no witness statement, she had read the letters that Mrs Chalmers sent most of which had been appended to the Claim Form. There was a factual dispute about the allegations of antisocial behaviour. Whether it had been dealt with or the conclusions reached, Wirral Council had not disclosed evidence to inform her decision. There was disagreement by the Claimant with the findings of the antisocial behaviour admissions. District Judge Hennessy wanted to take it no further but she wanted all to know that it was not entirely clear.

Mr Bayatti said that the Claimant believed that Wirral Council had used a hierarchy of intervention that was higher up.

Direct Judge Hennessy said that a case can be brought in the Magistrates Court for criminal antisocial behaviour and that it could be criminal for all she knew. Why she had asked was that even if not relevant, there were two things that she could do. She could agree with the pleading of Wirral Council which would end the Claim or require the information to be set out. Those were the two options. She said that Wirral Council said clearly that the requirements aren’t fulfilled, but it would be needed to spelt out as there could be as many as several.

Mr Bayatti said that if it had been complied with to some degree, there were issues in terms of the [Civil Procedure] Rules and the Practice Directions and asked for it to be struck because either it was wholly inadequate or the rules or directions hadn’t been complied with as the reason why it was made.

District Judge Hennessy said yes, the Claimant should set out what the defamatory statement is if libel. If slander what the statement was to whom, the defamatory meaning, what it was that had been said that was not true and anything that was said that was justified. Then either Wirral Council stated it wasn’t said at all depending on what was alleged or if Wirral Council believed it had been said then whether it was justified in being said.

DJ Hennessy said she had read the file before she came in, she understood the point but she would have to say that unless Wirral Council had more, then she would give the Claimant three weeks to put it right. If Mrs Chalmers had not put it right, DJ Hennessy said that she assumed the Claimant was not present for a reason rather than because the Claimant was no longer pursuing the case, then the matter would be struck out. During that three-week period, the Claimant could apply to have the order set aside or make an application about why she wasn’t at the hearing to do with something awful on the way to the Court.

Mr Bayatti said he beared in mind that the Claimant was a Litigant-in-Person, so he asked for a full judgement with reasons why DJ Hennessy would refuse the first part. The way DJ Hennessy had set out how the matter could be resolved Mr Bayatti didn’t object to. Ultimately the result would be in Wirral Council knowing what was alleged of it or the matter would be struck out. A three-week delay would not cause the Council any difficulties.

DJ Hennessy said the two cases needed to be managed together assuming that they run to trial. If there were two trials consideration needed to be made as to which was first. DJ Hennessy said it seemed to her there were reasons why case management could wait for three weeks.

The Judge said she would get another attendance sheet to make sure she had the right case number and started dictating an order. She said that in case E14YJ013 by 4pm on 21 days after when the court staff type up her order, the Claimant shall provide amended Particulars of Claim to comply with Practice Direction 53 of the Civil Procedure Rules. Namely that the Claimant must set out in a document insofar as it is possible the words that have been spoken or published by Wirral Borough Council that she complains of. The who it is that stated or published the words and to whom the words were spoken, the defamatory meaning of those words which the Claimant alleges are defamatory. OK? She commented that that was the two broken down into stages.

Continuing she said that in default of the Claimant complying the Claim shall be struck out without further order. On receipt of the amended Claim, she stopped and asked if Mr Bayatti was going to want to amend Wirral Council’s defence? She continued dictating her order giving Wirral Council permission to file an amended defence and no later than 21 days to do so after receipt of the amended Particulars of Claim. She asked if she needed any further directions and added that further directions would be on paper but there was no order as to costs.

Mr Bayatti asked that in terms of the eventuality where an amended Particulars of Claim wasn’t submitted and the application is dismissed would the negligence claim carry on?

DJ Hennessy said she would give directions just in that action. Mr Bayatti replied. DJ Hennessy said that she would fill it in now, but either when the libel case was struck out there would be no amended defence, or once the defence was in she would consider further directions on compliance with the order on 30th October 2018 in case E14YJ013.

She finished by saying that was as far as they could go today.

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