ADOKO v LEWIS
Neutral Citation Number: [2002] EWCA Civ 896
IN THE SUPREME COURT OF JUDICATURE A2/02/0536
COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR LEAVE TO APPEAL
Friday, 24th May 2002
B e f o r e :
LORD JUSTICE LATHAM
- - - - - - - - DR.
AKENA ADOKO
Applicant
- v -
MR. ROBIN LEWIS
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THE APPLICANT appeared in Person.
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J U D G M E N T
( As approved by the Court)
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Crown Copyright
LORD JUSTICE LATHAM:
1.This is an application by Dr. Adoko
for permission to appeal against a
decision of Gray J of 6th March 2002, in which the judge ordered that
the defendant to the proceedings should have summary judgment.
In effect, he dismissed the claimant's claim under his powers in CPR Part 24.2.
The claim was a claim for damages for defamation arising out of a letter
which the defendant had written to an internet server, Freeserve.Com.Plc of
20th November 2001.
2. The background to these proceedings is a long running dispute between
the applicant and the Law Society for whom the defendant, a partner in
Bindman's, acted at all relevant times. The dispute culminated in a
series of industrial tribunal applications by the applicant against the
Law Society, in respect of which the Law Society admitted that it had
unintentionally indirectly discriminated against the applicant. There
were subsequent applications by the applicant to extend the claim to
direct discrimination but that was not permitted. Two further sets of
proceedings were commenced by the applicant against the Law Society
relating to discrimination, both of which were struck out. Ultimately,
an order for costs was made against the applicant on 27th October 1997 in the sum of £14,224.
3. The applicant has undoubtedly a deep seated sense of grievance about
the way in which he was treated, both by the Law Society and during those
proceedings by the defendant. He published a book called "The Most Corrupt
British Judges". Chapter 7 was directed to the defendant. He was accused in that
document of blackmail and of greed. He was described as a hound and a vulture, and
there were other allegations which were clearly capable of being defamatory of the defendant.
4. The applicant published the book, in particular that chapter, on a
website using Freeserve.com.Plc. It was on learning that that had
occurred that the defendant wrote the letter to which the applicant
takes exception. The letter was intended to persuade Freeserve.com.Plc
to withdraw from their site the applicant's book, and indeed it did.
5. After having set out in the letter the defamatory allegations made by
the applicant against the defendant and asserting that they had caused him distress, the defendant went on to say:
"There is also the possibility that absurd as they are the claims in the book could
cause financial damage to Mr. Lewis."
6.It is the applicant's contention that, by describing the contents of
the book as absurd, the defendant defamed him. Before the judge, Gray J,
the defendant successfully argued that the occasion of the publication
of this letter was privileged. It undoubtedly was. The applicant does
not seek to suggest otherwise before me today. What he says, however,
is that there is material in the documents before the court which could
justify an allegation of malice. He refers to the history of the dispute
between himself and the Law Society. He refers to the contents of certain letters,
in particular letters which have indications that the defendant on behalf of the Law
Society could be taking proceedings against the applicant arising out of assertions
that he was making,
these assertions being similar to the assertions made in the book but dating back to 1995,
and in particular a press conference that he held in February 1995. It is suggested that
it is clear from those documents, and the way in which the defendant behaved in relation to
the industrial tribunal proceedings, that he was acting so as to justify the conclusion
that he was motivated by malice, and that, accordingly, the letter to Freeserve.com,Plc, which falls into the same category, was therefore
motivated by malice.
7. The material did not impress Gray J as justifying the conclusion that there
was anything which could be relied upon by the applicant so as to make good his
assertion of malice. I agree that there is nothing in these documents which could
support an averment which the court could properly leave to the jury as being evidence
of malice. It follows that, on that basis, the applicant has not persuaded me that
there is any real prospect of his succeeding on an appeal.
8. He has, however, two further arguments. The first is that under CPR Part
24 the court is required to consider, not simply whether or not the action
could succeed, but also whether or not there may be some other compelling
reason for the matter to proceed to trial. He submits to me that the fact
that the defendant is a solicitor with a well known firm and a part time
judge means that the issues raised are of public importance, and it follows
that the case is one which should proceed to a jury for that reason. I can
see no justification for requiring that the defendant should meet a hopeless
claim for the reasons that the applicant has given. I see no reason why the
court's time should be spent exploring a hopeless claim. It follows that I
can see no compelling reason why the normal course should not follow in the
event of the claim itself being manifestly hopeless.
9. Finally, the applicant takes a pleading point, in that he submits
that the witness statement of the defendant does not properly put in issue
the facts which he intends or would intend, if the matter proceeded,
to prove as showing that the claims made by the applicant in his book were absurd.
That seems to me to be a misconception. The position, so far as the defendant
was concerned, is that his assertion that the complaints by the applicant were absurd
is self-evidently one which he was putting in issue by reason of the contents of his
statement. An example of the misconception of the applicant is that he criticizes the
second sentence, in which the defendant says that he made the statement
"serves to set out my recollection of the matters in which I was instructed to
conduct proceedings against Dr. Adoko. The applicant seems to think that that means
that thereafter he is not asserting facts but simply recollection.
One has only to state the way in which the applicant has approached it to
appreciate that the applicant is wholly in error in believing that what,
thereafter, the defendant set out as the history of the matter cannot be
treated as evidence of the underlying facts. Of course it can. Everybody'
s evidence as to past events consists of their recollection of past events.
That is the basis upon which evidence is given. Facts are found by the court.
It follows, in my judgment, that there is no prospect of the applicant succeeding
in the proceedings. There is no basis upon which the matter should proceed in those
circumstances and the judge, on the material before him, was fully entitled to conclude
that this was a case which should not trouble the court further. I agree, and therefore
I dismiss this application.