Weston v Bates & Anor

In a defamation claim, delay may amount to abuse of process where it supports a strong inference that the proceedings are being pursued for an improper purpose. The court must also assess whether a successful claimant could obtain worthwhile vindication, having regard to the age, reach and nature of the publications and matters relevant to damages. Serious allegations may justify proceedings initially, but their continuing value can diminish over time. Delay awaiting related proceedings may be reasonable where the issues substantially overlap, although the parties should seek appropriate case-management directions. A collateral purpose is abusive where the improper purpose is predominant; the presence of a subsidiary legitimate purpose is not conclusive.

Robert Weston brought libel proceedings against Kenneth Bates and Leeds United Football Club concerning three hard-copy publications made in 2009. Mr Bates appealed against Master McCloud’s refusal to strike out the claim under CPR 3.4(2)(b) and (c). The claim had made little substantive progress, partly while related trust and commercial proceedings were pursued in Jersey and the Chancery Division.

The central issues were whether the delay constituted abuse of process or a serious breach of the CPR, whether the claim retained sufficient value by way of vindication, and whether a fair trial remained possible.

1. The appeal was allowed and the libel proceedings were struck out.

2. The Master was entitled to conclude that the allegations were sufficiently serious and widely published to justify pursuing a libel claim at the outset. The relevant issue was whether there were grounds for believing or suspecting dishonesty or breach of trust, rather than whether Mr Weston was guilty at the highest level of seriousness.

3. However, the Master erred by treating the absence of evidence that Leeds supporters had forgotten the publications as material. Hard-copy publications are inherently ephemeral. Continuing distress does not necessarily establish continuing reputational harm sufficient to justify the expense of a stale claim.

4. The Master also failed to take into account matters which would affect damages by way of vindication, including Mr Weston’s lack of continuing connection with Leeds and football, undisputed matters concerning his convictions and the disputed money, and the public findings of the Jersey courts. On the evidence, very little could be achieved by a trial occurring seven or more years after publication, while investigation of the issues would be extensive and costly.

5. Delay awaiting the related Chancery proceedings could reasonably be treated as justified, although the court expressed hesitation because the procedural rules had become stricter since Khalili v Bennett [2000] EMLR 996. The first period of delay, consisting of issuing and serving the proceedings at the last possible time without explanation, was different. Applying the reasoning in Grovit v Doctor, that delay, reinforced by Mr Weston’s conduct of the Jersey litigation, gave rise to a strong inference of abuse, whether or not he also sought vindication.

6. The Master’s reliance on the “but for” test for collateral purpose was not the governing approach. The test derived from Goldsmith v Sperrings [1977] 1 WLR 478 had been disapproved in Crawford Adjusters v Sagicor General Insurance [2014] AC 366. A predominant improper purpose is sufficient even where a subsidiary legitimate purpose exists.

7. The death of a potentially important witness did not itself make a fair trial impossible. The court could address any resulting unfairness by means short of striking out.

• High Court (Queen’s Bench Division): Appeal from Master McCloud’s refusal to strike out the libel claim under CPR 3.4(2)(b) and (c). The appeal was allowed and the proceedings were struck out.