Barron & Ors v Collins, Court of Appeal - Queen's Bench Division, December 22, 2016, [2016] EWHC 3350 (QB)

Issuing Organization:Queen's Bench Division
Actores:Barron & Ors v Collins
Resolution Date:December 22, 2016
 
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Case No: HQ14D04882

Neutral Citation Number: [2016] EWHC 3350 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 22/12/2016

Before :

MR JUSTICE WARBY

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Between :

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Gavin Millar QC and Sara Mansoori (instructed by Steel & Shamash) for the Claimants

The Defendant in person, assisted by Mr Mullen as ``McKenzie'' Friend

Hearing date: 16 May 2016

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JudgmentMr Justice Warby :

Introduction

  1. Twenty years ago, a new mechanism for settling a defamation action was introduced by statute. The scheme is set out in sections 2 to 4 of the Defamation Act 1996 (``the 1996 Act''). Its essentials will be clear enough from these selective citations:

    ``2. Offer to make amends

    (1) A person who has published a statement alleged to be defamatory of another may offer to make amends under this section.

    ...

    (4) An offer to make amends under this section is an offer

    (a) to make a suitable correction of the statement complained of and a sufficient apology to the aggrieved party,

    (b) to publish the correction and apology in a manner that is reasonable and practicable in the circumstances, and

    (c) to pay to the aggrieved party such compensation (if any), and such costs, as may be agreed or determined to be payable.

    ...

  2. Accepting an offer to make amends

    (1) If an offer to make amends under section 2 is accepted by the aggrieved party, the following provisions apply.

    (2) The party accepting the offer may not bring or continue defamation proceedings in respect of the publication concerned against the person making the offer, but he is entitled to enforce the offer to make amends, as follows.

    (3) If the parties agree on the steps to be taken in fulfilment of the offer, the aggrieved party may apply to the court for an order that the other party fulfil his offer by taking the steps agreed.

    ...

    (5) If the parties do not agree on the amount to be paid by way of compensation, it shall be determined by the court on the same principles as damages in defamation proceedings.

    ...

    (6) If the parties do not agree on the amount to be paid by way of costs, it shall be determined by the court on the same principles as costs awarded in court proceedings.

  3. Failure to accept offer to make amends

    (1) If an offer to make amends under section 2, duly made and not withdrawn, is not accepted by the aggrieved party, the following provisions apply.

    (2) The fact that the offer was made is a defence (subject to subsection (3)) to defamation proceedings in respect of the publication in question by that party against the person making the offer.

    ...

    (4) The person who made the offer need not rely on it by way of defence, but if he does he may not rely on any other defence.''

  4. On 26 May 2015 the solicitors RMPI LLP, who were at that time instructed by the defendant in this defamation action, made an offer of amends in her name (``the Offer''). The claimants say that they accepted the Offer, and are entitled to enforce it pursuant to s 3 of the 1996 Act. The claimants have made an application for the assessment of compensation (``the Assessment Application''). The defendant has cross-applied to ``vacate'' the offer (``the Application to Vacate''). This judgment contains and explains my decision on the Application to Vacate.

    Procedural history

  5. I heard argument on the Application to Vacate on 16 May 2016, having first heard and refused an application by the defendant for a stay (``the Stay Application''). By the Stay Application the defendant sought to halt proceedings pending the opinion of the European Parliament on her submission to it that this action infringes the Parliamentary immunity provided for by European law. My reasons for declining a stay at that point are set out in my judgment of 16 May 2016: [2016] EWHC 1166 (QB) (``my May judgment'').

  6. On the morning of 17 May 2016, however, I was informed in writing by the Chairman of the Legal Affairs Committee of the European Parliament, Mr Pavel Svoboda, that the Committee would deal with the matter of the defendant's claim to immunity, as expeditiously as possible. In view of these developments I concluded that the law as declared by the CJEU required me to impose a stay of these proceedings, and I did so. I asked the Parliament to issue its opinion as soon as possible. In the meantime, I reserved judgment on the Application to Vacate. The Assessment Application remained unheard. See the Postscript to my May judgment at [61-64].

  7. I made an order to regulate the future conduct of the action. It provided by paragraph 1 that the proceedings were stayed ``until after the European Parliament has issued its opinion as to whether immunity should be defended, or further order''. It contained these further provisions of relevance:-

    ``2. Upon the European Parliament issuing its opinion this stay shall be automatically lifted.

  8. Any further application to stay these proceedings on the grounds of immunity under Chapter III of Protocol (No 7) on the Privileges and Immunities of the EU must be issued by the Defendant within 7 days after the date on which the opinion is issued.

  9. Oral submissions on the Application to Vacate having been concluded, judgment on that application is reserved.

  10. If in the light of the opinion of the European Parliament any party wishes to make any further submissions in relation to the Application to Vacate, such submissions are to be made in writing and must be filed and served within 7 days after the date on which the opinion is issued.

  11. There be permission to both parties to have this matter re-listed for hearing as soon as possible after the European Parliament has issued its opinion ... if appropriate, the hearing will be for: (i) judgment to be given on the application to vacate and (ii) the hearing of the assessment of damages application.''

  12. On 25 October 2016 the Parliament expressed its opinion on the defendant's application. It found that there was no breach of Articles 7 or 8 of Protocol no 7. As to Article 8, the Parliament's conclusion is encapsulated in the following paragraphs of its opinion:

    E. whereas, secondly, the request concerns the defence of the freedom of Members of the European Parliament, under Article 8 of the Protocol, from any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties;

    F. whereas this part of the request relates to the fact that Jane Collins is subject to a civil claim in the United Kingdom for damages, including aggravated damages, for alleged libel and slander, as well as to a claim for an injunction against her to desist from repeating the contested statements:

    G. whereas the claim of libel and slander concerns accusations which Jane Collins made at a party conference;

    H. whereas the parliamentary immunity conferred by Article 8 of the Protocol applies to opinions expressed by Members of the European Parliament only in the performance of their duties

    1. whereas statements made by Members of the European Parliament outside the precincts of the European Parliament are considered to be made in the performance of their duties only if they amount to a subjective appraisal having a direct obvious connection with the performance of those duties

    J. whereas, however, there is no direct, obvious connection between the contested statements and Jane Collins's duties as a Member of the European Parliament, as they do not relate to her activity as a Member of the European Parliament or to the policies of the European Union, and were made in the context of national political debate;

    K. whereas the contested statements are, therefore, not covered by Article 8 of the Protocol.''

  13. The issue of this opinion triggered the 7-day period set by paragraphs 3 and 4 of my order. That expired on 1 November 2016. There was no further application by the defendant to stay these proceedings on the grounds of immunity. Nor has either party sought to make any further submissions in relation to the Application to Vacate.

  14. Following unsuccessful attempts to agree a date for the next steps in the action the claimants applied, by application notice filed on 9 December 2016, for a hearing date to be fixed. The claimant was seeking a date in January or February 2017. In a witness statement the defendant resisted the hearing of that application and the application itself on two grounds: her ill-health, and an application she intended to make to the Court of Justice of the European Union for a review of the legality of the Parliament's decision on her immunities, pursuant to Article 263 of the Treaty on the Functioning of the European Union.

  15. The evidence of ill-health consisted mainly of two short form ``fitness for work'' certificates signed by general practitioners. In relation to the Article 263 claim the defendant asserted that the proceedings in this court were still stayed. She said (in paragraph 19.4 of her witness statement):

    ``the immunity proceedings are still on-going under the right of appeal stipulated in Articles 263, 267 and 256 TFEU. As a result proceedings in the High Court are still to be considered stayed under the principles of sincere cooperation and in accordance with the order made by Mr Justice Warby in May 2016. It might be possible to argue that proceedings in the High Court could be resumed after the vote in plenary on the matter of immunity, but those resumed proceedings would have to be stayed once again upon confirmation from the General Court that an appeal had been received. This process of resuming proceedings only to have them stayed again within a matter of days would clearly be a waste of the High Court's time and resources.''

  16. At a hearing on 20 December 2016 I decided to proceed in the defendant's absence, and ruled against both grounds of objection to the substance of the application. I reminded myself of the relevant principles,...

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