Johnson v Ministry of Justice, Court of Appeal - Queen's Bench Division, October 29, 2018, [2018] EWHC 2829 (QB)

Resolution Date:October 29, 2018
Issuing Organization:Queen's Bench Division
Actores:Johnson v Ministry of Justice
 
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Neutral Citation Number: [2018] EWHC 2829 (QB)

Case No: HQ14D02635

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 29/10/2018

Before:

MR JUSTICE FOSKETT

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Between:

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Henry Mainwaring (instructed by Direct Access Counsel) for the Claimant

David Mitchell (instructed by Government Legal Department) for the Defendant

Hearing date: 10 October 2018

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MR JUSTICE FOSKETT:

  1. This matter comes before the court on the Defendant's application, issued on 14 June 2018, to strike out the Re-Amended Particulars of Claim dated 1 August 2016 or to enter summary judgment for the Defendant. As will appear, it is the second occasion on which such an application has been made by the Defendant.

  2. A very detailed background to the Claimant's litigious activity is set out in the judgment of the Divisional Court in A-G v Johnson [2017] EWHC 979 (Admin), a judgment upon the implications of which the Defendant relies heavily in this application. That judgment led to the Divisional Court making an indefinite ``all proceedings'' Civil Restraint Order (`CRO') against the Claimant on 3 May 2017. In short, the judgment demonstrated that the Claimant was an inveterate litigator of almost always hopeless causes. I will return to the alleged significance of that matter below.

  3. The present action was one of 45 different proceedings commenced by the Claimant over the years and came to be embraced by the Divisional Court's order. However, because Nicol J, on 18 May 2016, had given the Claimant permission to proceed with a limited feature of the present claim, Garnham J, who had delivered the judgment of the Divisional Court, gave the Claimant permission to proceed with this claim on that limited basis by an order made on 25 January 2018. He made it plain that the permission was very limited and expressed himself thus in the order:

    ``In the light of the hearing before Nicol J, and the fact that the judge considered these proceedings and gave the claimant permission to continue with the claim for defamation relating to publication before 1 January 2014, I grant permission in the terms set out above. The fact that the Divisional Court granted and All Proceedings order means the claimant needs this permission to proceed but should not prevent his continuing to prosecute what the court has determined is potentially a valid claim.''

  4. The order made by Garnham J specified that ``[for] the avoidance of doubt, the Claimant does NOT have permission to continue with any element of his claim other than that for which Nicol J gave permission on 18 May 2016.'' (The emphasis was as in the order.)

  5. The proceedings are defamation proceedings arising out of the publication on a website operated by the Ministry of Justice, the Defendant in this action, of the Claimant's name as the subject of a General Civil Restraint Order (`GCRO'). It appears that his name first appeared on that list in or about February or March 2013 and was taken off in August 2014 after these proceedings had been issued on 30 June 2014. It was taken off at the suggestion of the Senior Master at an interim stage and before whom the proceedings came initially on the first strike out/summary judgment application made by the Defendant. That application was dated 20 February 2015. It was heard on 22 October 2015 and the reserved judgment was given on 27 January 2016: [2016] EWHC 177 (QB).

  6. It is not disputed that, whatever else may be said about his status as a potential litigant at that time (see paragraph 2 above), the Claimant was not the subject of a GCRO at that time and his inclusion on the list was a mistake. I will return shortly to his true status at the time, but what he seeks to do in this action is claim damages for defamation based upon the period that the offending entry on the register appeared (namely, from February/March 2013 until the end of 2013). The Defamation Act 2013 came into force on 1 January 2014. That Act required that ``serious harm'' to a person's reputation should have occurred or was likely to occur for the relevant statement to be defamatory and it is now accepted on his behalf that such a threshold could not be crossed by the Claimant.

  7. The Senior Master had concluded (at [31] of her judgment) that ``neither the Amended Particulars of Claim nor the draft Re-Amended Particulars of Claim show any reasonable grounds for a defamation claim to be brought and/or that there is no real prospect of such a claim succeeding.'' Nicol J allowed the Claimant's appeal from that decision in relation to the period prior to the coming into effect of the 2013 Act. I have not seen any transcript or note of his judgment, but I am told that, whilst he considered that the Senior Master was right to grant summary judgment on the basis that the Claimant could not pass the ``serious harm'' threshold required under the Act to which I have referred for the period after 1 January 2014, on the material available to Nicol J, he might be able to pass the threshold at...

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