To begin with, the Guidance applies only to judgments made by certain judges; however, in due course, it may be extended. However the starting point is that permission should be given for the judgment to be published unless there are compelling reasons why the judgment should not be published and permission to publish a judgment should always be given whenever the judge concludes that publication would be in the public interest.
The need for the Practice Guidance is illustrated by the case involving an application for defamation against the well known feminist barrister Lucy Reed. During the judgment in the Bristol County Court counsel for Lucy Reed stated that Kingsley Miller does not have the necessary permission to publish judgments from his family proceedings which show how the 'Tender Years' doctrine operates in practice.
If the statement from Lucy Reed was true the father would be guilty of contempt which is punishable with imprisonment.
The father was granted permission to publish these judgments by Lord Justice Thorpe and Lord Justice Clarke. Significantly Lord Justice Scott-Baker recognised the precedent soon after in a separate judgment. His Honour Judge Milligan accepted that the father had permission to publish these judgments on 8 December 2004. The judge then challenged the father's right to publish the 'evidence' contained within those judgments but the suspended custodial sentence was quashed on appeal by Lord Justice Ward, Lord Justice May and Lord Justice Gage.
Therefore the father was found not guilty of contempt on two separate occasions for; (1) publishing the judgments, as well as, (2) the 'evidence' contained within those judgments.
Despite these judgments the Deputy Judge sitting in the Bristol County Court stated,
There is not the slightest doubt in my mind that Miss Reed is now correct in saying that Mr Miller had no permission to publish those
judgments and there is no possible basis upon which he could hold that view any longer.
To my mind, it is unfortunate but Mr Miller appears to be obsessed by matters relating to this case. There can be many reasons why people become drowned in litigation; the basis of it usually is a lack of perspective, a lack of standing back and looking carefully (see below).Lucy Reed is asking for £7,500 costs which is now the subject of a complaint to the Somerset & Avon police constabulary.
Lord Scott-Baker - Court of Appeal - 4 November 2004
His Honour Judge Milligan - Southampton County Court – Not Guilty - 8 December 2004
His Honour Judge Milligan – Southampton County Court – Guilty - Suspended custodial sentence - 8 June 2005
Lord Justice Ward, Lord Justice May, Lord Justice Gage - Court of Appeal - Suspended custodial sentence quashed on appeal - 24 October 2005
(Please note there is a LINK to each of these judgments at the foot of this page).
01 This is a very unfortunate case that comes before me today. When I initially started preparation for the case today I had not expected that I would be able to hear it, and the reason for that is that Section 15 County Courts Act precludes the County Court from dealing with a case of defamation. However, Section 18 of the Act provides that where the parties submit a written memorandum, the court does have jurisdiction to deal with it. A signed memorandum has been placed before me and accordingly I am dealing with the case now. I made it clear to Mr Auld at the outset that if the case is to continue I do not necessarily agree that it should stay with the County Court. The normal jurisdiction route for these cases would be to send them to the Royal Courts of Justice, the High Court in London,
02 This case is a defamation case that was brought by Mr Miller, who issued a claim form on 21st September 2009 against Lucy Reed, who I am told is a practising barrister. The claim has its genesis in a long-running dispute that Mr Miller has had - and may still have, for all I know - with regard to his children, and which has been before Southampton County Court on at least one, if not other occasions. There have been hearings before His Honour Judge Milligan, who has heard evidence. That has bee transcribed from time to time. His Honour Judge Milligan granted an injunction on 12 September 2002 restraining Mr Miller from publishing any part of the judgment or the evidence in the County Court proceedings that were before him. Mr Miller appealed against that injunction, and that appeal came before Lord Justices Thorpe and Clarke in 2004.
03 The background to Children Act cases has been - at least up till recently - that there is very high level of protection of anonymity granted to those proceedings. For the main part in the past that anonymity and that privacy has been provided by the provisions of Rule 4.23 Family Proceedings Rules which provide that
'No document other than a record of an order held by the court ... shall be disclosed other than to ...' and there are a number of categories but essentially to those who are involved in the case '... without leave of the Judge or District Judge.'
That Rule was the Rule that was in force at all relevant times. There has been a change because Rule 11.2 of the amended Rules now requires not permission of the Judge but permission of the court, viz., any Judge. It follows from that that there was in fact in one sense no need for His Honour Judge Milligan to make the order that he made, because already the Rules made an ample protection. I have not considered the reasons for Judge Milligan making the order. One assumes that, because he would be well aware of these Rules, there may have been therefore some other cause or powerful reason that motivated him. I have no idea.
04 Be that as it may, as I said, the matter then came before Lord Justices Clarke and Thorpe. There was, as in all these cases - as there has been this morning – debate between the Appeal Court Judge on the one hand and the litigants on the other; 'argument' as it is called, and, with the informality that is appropriate for a litigant in person, the Appeal Court Judge discussed the various aspects of the case. At part of the argument (which appears at p. 24 of the bundle), Lord Justice Thorpe, in discussing the gradual relaxation of prohibitions on reporting proceedings, made the following comment:
'What we could do as a further relaxation would be to limit the prohibition to evidence given in the proceedings but allow you to quote from judgments given in the Southampton County Court.'
Mr Miller is recorded as saying:
'That would be fantastic if you would say that, your Lordships, but I leave that to your discretion. I would very, very much welcome that, your Lordships. That would be absolutely fantastic.'
It is important to pick up here that Mr Miller himself has picked up exactly what Lord Justice Thorpe has said - 'What we could do' - and Mr Miller has said 7 would welcome that but I leave that to your discretion.' In other words, at that point, he knows perfectly well there is no decision made; it is simply a comment that has been made in argument.
05 When the judgment was given - because the two Lords Justices withdrew and then came back to hand their judgment down - the crucial part of the judgment of Lord Justice Thorpe begins at para. 4, where he outlines the way in which there has been a change in the approach of the courts towards the blanket prohibitions of the past. He says in para. 4:
"I see nothing in this case to require any particular prohibition and so accordingly I would simply propose that the order below be varied to delete any reference to proceedings in the Court of Appeal..."
[The point of that comment is that, if he had not made that order, it would not be possible for this Court of Appeal judgment even to be discussed.] He goes on to say:
" . . . and, for the sake of clarity, further varied to ensure that in both paragraphs 1 and 2 there is specific reference to the proceedings in the Southampton County Court.'
06 So he is making clear that the restriction in the injunction relates only to the County Court proceedings, not to the Court of Appeal. He goes on at para. 5, (and this is where he is coming back to the discussions he had with Mr Miller) and says:
'I would indeed, given Mr Miller's history of responsible campaigning and writing on issues relating to family relationships, go further and ensure that the prohibition distinguishes bet\veen evidence in those proceedings and judgments in those proceedings. '
07 He then varies the injunction. At para, 6 he says:
'So the variation will be that paragraph 1 will now appear as "From disclosing or communicating any evidence given in the Southampton County Court proceedings S098P00026 to any third party. "
08 He goes on at para. 7 to vary paragraph 2 of His Honour Judge Milligan's order so that variation 2 reads;
'In particular and without prejudice to the generality of the foregoing that he, [Mr Miller], be restrained from publishing any evidence in the Southampton County Court proceedings S098P0026 on the internet, in booklets or pamphlets or otherwise howsoever.'
So what he has done is vary the injunction.
09 After that, two things happened. First, Mr Miller published the judgments. The mother of Mr Miller's children then applied for his committal for breach of the injunction. The reason for that application was that, because the judgments themselves contained excerpts of evidence, the Applicant contended that was a breach of the varied injunction. I do not need to go in any great detail into the judgment of the Court of Appeal on that issue, save to say that the decision of His Honour Judge Milligan (that in fact such publication was a breach of the injunction) was overturned by the Court of Appeal, and the Court of Appeal took the view that the prohibition in the (varied) injunction was simply against the publication of evidence itself - the transcripts of the evidence. That decision was important to Mr Miller, who has gained a great deal of comfort from it. But the difficulty that he faces is that, having gained comfort from that, what he has not done is to remember what else has been said. At para. 20 of his judgment Lord Justice Ward recounts Rule 4.23 (p. 52 of the bundle) to which I have referred. He then goes on in para. 21 to say:
'The Rule is quite clear. A judgment of the County Court ought not to be published without leave. That is the general Rule. That is the Rule that should be applied. I emphasise it lest anyone should be foolish enough to think from the circumstances of this particular case there is general leave to publish judgments of the County Court. There is not such general leave. Permission must be given for any disclosure of the judgment.'
He goes on to comment in paras. 28 and 29 of his judgment as follows. He says:
'It seems to me that a distinction was quite clearly being drawn by the Court of Appeal' [i.e. Lord Justice Thorpe] 'that publication of a judgment containing excerpts of evidence was something quite different from separate publication of the evidence in the case. Judge Milligan was, in my judgment, therefore quite wrong to say, as he did, that it was patently unsustainable to take that position. On the contrary, that is exactly the position the Court of Appeal did take.'
I break in to say that, in other words, Lord Justice Ward is agreeing with Mr Miller's interpretation of Lord Justice Thorpe's view. He goes on to say:
"The consequence is that the father has been led to believe that he could publish the judgment with impunity.'
He goes on to say - I think there is a slight punctuation problem: 'Mr Miller has been led to believe that what he was not allowed to do was separately publish the evidence.'
10 Lord Justice Ward goes on and deals with the fact that, because committal involves depriving a person of his liberty, one must be very technical in the way that one looks at this, but he says:
I emphasise that I see nothing in what has happened as tantamount to giving this father permission to have published County Court judgments. He needed leave. But that breach of the Rules does not justify his being under threat of being sent to prison.'
In other words, he is saying there has been a breach of the Rules; he (Mr Miller) should not be sent to prison for it because there was not the actual formal application for breath of Rule 4.23 before the court: nevertheless Mr Miller had published the County Court judgments without permission that he needed. That is precisely what Ward LJ says in terms. As if that is not enough, he goes on in para. 30 to say:
'Lest there be any doubt about it, I repeat, judgments of the County Court are not to be published without leave.'
That is the background.
11 There is one further aspect of background, and it is this. Mr Miller prepares and distributes booklets which espouse the cause that he puts forward, and he sought to have these introduced into a public library in Southampton, where they were accepted but I understand subsequently withdrawn. He challenged that withdrawal under his rights under the Human Rights Act, and that case then in turn came before His Honour Judge Marston of Southampton County Court. The same issue was then ventilated. I do not intend to go through the whole of the judgment because it is not relevant but what the Judge does say at p. 4 of his judgment:
'On a reading the various judgments in the Court of Appeal it is absolutely clear to me that in order to publish the two booklets Mr Miller needs the permission of the Southampton County Court otherwise he is caught still by Rule 4.22 Family Proceedings Rules.'
That is the background. It is against that I then look at what has happened.
12 Mr Miller has taken to mounting a public campaign and he does so in many ways but certainly in part by way of a website that he runs which is called Even Toddlers Need Fathers. On the website - and I have been provided with a copy of the printed page – he has (or had) links to various of the judgments that have been given in his case. He states on his website:
'Fathers generally agree that Family Courts in the UK should be more open and in July 2004 the author was given the unique right by the Court of Appeal to publish the County Court judgments from the Family Proceedings in his case because of his history of responsible campaigning and writing on the issues relating to family relationships.'
This web site print of the page is dated 10th August 2009.
13 The Defendant Miss Reed, as I have said, is a barrister who apparently practises in Family Law in London but as far as I am aware I do not know her; if she appears before me I have not linked her name with any person. She apparently contributes to, or maybe organises, a website called The Pink Tape website and which apparently, according to the claim form, is described as a blog for the Family Bar. She has made reference to Mr Miller's website apparently in the past by way of this blog. She later amended her blog and it now reads or read as follows at the time when Mr Miller noted it (and there is no controversy on this),
I know that the author of the website will not agree with my views but he has compendiously set out his views on the court's approach to the role of fathers on that site, and I would encourage anyone interested to go and look at it, including the 20 judgments of the Southampton County Court and the Court of Appeal in his own case that he has been given permission to publish.'
14 There then follows a section which is underlined and reads as follows:
'[Update: I understand that. contrary to the suggestion on the website, there may not in fact be judicial permission for these judgments to be published in full and therefore DO NOT wish to encourage further publication/distribution of them. Although I have no independent verification of the extent of any permission to publish/prohibition on publication, I would urge any visitors to the site to treat material on it with caution unless and until this matter is clarified, and in particular not to further circulate material pertaining to the individual case contained on it.]
15 It then goes on to resume what I assume is the original blog:
I am afraid I think that it is misleading of the Even Toddlers Need Fathers website to suggest as it does that the courts are routinely relying upon this doctrine (or that they rely upon it at all). I hope that this brief post goes some way to alerting readers of the important distinction between ensuring that the routine and attachment to the primary care of a small child is preserved, and the failure by the courts to recognise the role of the father.'
16 Mr Miller then says of those remarks:
'According to these remarks I do not have permission, as I claim, from the UK Court of Appeal to publish the County Court judgments from my proceedings in the County Court. If this were so, I would be in contempt of court and my assertion would be a lie.'
He goes on to deal further with other matters.
17 A Defence was filed and there has been some acrimonious correspondence between the parties. When the matter commenced it was at Southampton - it should not have been at Southampton, that is common ground; it should not have been in the County Court - it was transferred to Weston-super-Mare where immediately District Judge Corrigan concluded that it was inappropriate partly because he knew the Defendant, but also partly because of the jurisdictional issue concluded that he should transfer it here. When it came here, it was passed to me in box work and I looked at it and I saw a number of problems that concerned me. The first was whether the case was properly within the jurisdiction of the County Court; the second was whether Mr Miller had given adequate particulars of his claim; and the third was a question in my own mind as to whether the case had any particular chance of success. I therefore listed it for a conference, time estimate one hour, which was listed for today. However, the parties have both leapt upon this date and begun to file applications. Mr Miller had picked up my point about jurisdiction and had no doubt consulted with others and realised that the case should have been commenced in the High Court. Defamation is a specialist jurisdiction and therefore normally should go to specialist judges. His second application was one which related to perjury. The thrust of it was, I think, that he considered that in some of the documents the Defendant had filed with the court she had been untruthful and therefore she had been guilty of perjury. In preparation for today I considered those applications. I would have been prepared to accede to the transfer to the High Court but both parties were eager that I keep the matter here, so that application is disposed of. The application regarding the perjury I felt was incoherent, it made no sense, and I would have dismissed it no matter what else I did today. If a party in person commits perjury then it is within the power of the Crown to prosecute them; it is a criminal offence, it is not a civil matter. It was a misguided application.
18 Meanwhile, the Defendant had filed an application under Part 24 Civil Procedure Rules. The purpose of that part of the Civil Procedure Rules is to speedily dispose of cases which should be removed before people unnecessarily run up costs and court time. The test is at 24.2:
'The court may give summary judgment against a Claimant if it considers the Claimant has no real prospect of succeeding on the claim or issue and there is no other compelling reason why the case or issue should go to trial. '
Sometimes - although it is difficult to think of one - there may be a case which has no reasonable chance of success but the court might think it should still go for trial.
19 The points that are then made by Mr Auld are four-fold. I will not take them necessarily in the order that he put them forward. The first is that he contends that it is not possibly reasonably to link the Claimant Mr Miller with this (toddlers) website and therefore, no matter what Miss Reed might say, people would think of it as directed at the website rather than any individual person. For the purpose of this case before me today I am not to find facts; I am not to adjudicate on any factual dispute. There is clearly a dispute between Mr Miller on the one hand and Miss Reed on the other on this point. I will not adjudicate on that. So therefore because I cannot adjudicate on it, just for the sake of the exercise before me today - and Mr Miller is not to read anything else into that – I will assume that Mr Miller could be, by at least some people, identified as the author of the website and the man behind it.
20 The second point raised by Mr Auld is that of qualified privilege. It is the case that there are various occasions where the social fabric requires people to be able to speak their minds freely and frankly without the fear of being sued for defamation. The common examples that used to be given of such occasions were company meetings where shareholders could pillory the company directors without the fear that the directors would then sue them. If that were not so, how could you ever have a company meeting where people could speak up and speak their mind? If an employee suspected her employer - say a firm of solicitors - if such an employee suspected one of the partners of misappropriating money, the employee should be able to speak freely to the other partners without the fear of defamation actions following, otherwise how would theft in a private firm ever be exposed? These are many examples of occasions of qualified privilege. The definition can be more precisely put, and, as Mr Auld says, there has been a recent change in the political sphere because of a decision involving the Prime Minister of Ireland - but that does not trouble us particularly at the moment. What we can do is look at what is the old formulation, and which remains the same, viz., that statements that are made in pursuance of a legal, social or moral duty to a person who has a corresponding duty or interest to receive them are protected by Qualified Privilege. That is the umbrella under which Mr Auld suggests that Miss Reed is entitled to have protection. That protection can be lost in the case of malice. In other words, if the person who makes the defamatory statements is actuated by malice, that person cannot rely upon qualified privilege. The shareholder who speaks lies at a company meeting, knowing them to be lies cannot shelter behind qualified privilege. However, the issue that I would then have to determine to see if this Defence is available is a factual issue viz., who are the people who attend this website? Who are the people who go to the website for which Miss Reed writes? Who are the people who go to the people for which Mr Miller writes? Do they have a common interest? Or is it possible that by simply pressing a button on a Google search engine someone might inadvertently come to that site without knowing what it is about? In my view, the only way I can actually deal with that aspect is to hear oral evidence. I do not have the facility to make findings of fact on oral evidence today; this is, as I have said, summary judgment. I will only deal with uncontroversial issues. So I am not prepared to make a finding of qualified privilege. I would not be able to do so until there had been evidence.
21 The next point that Mr Auld makes, where he is on stronger ground, is where he says that the meaning that can be properly attributed to the comments - the "imputations" - of Miss Reed cannot add up to what Mr Miller thinks they mean. There is a technical problem for Mr Miller because he has not - not being a defamation lawyer – properly set out his case. The normal rules require that, when someone alleges defamation, they have to say what are the imputations that arise from the individual words. He has not done that in form, but it is possible for me, and indeed as has the Defendant, (I make a comment here in passing that Mr Miller was reluctant to grant any permission for additional time for the Defendant to put in her Defence, where his own pleading was faulty) to glean from the words to which I have referred, that the natural meaning would be that Mr Miller did not have permission to publish the County Court judgments from the proceedings and that he was lying. They are the imputations which I think Mr Miller says flow. So Mr Miller would say that the normal reader, reading what Miss Reed had written, would think (a) that she was saying that he did not have permission to publish, and (b) that she was saying that he was a liar. That is what Mr Miller I think is contending.
22 I reject that contention. I do not think that the words that she used can bear those meanings. She said no more than the fact that there may not in fact be judicial permission for these judgments to be published. The purpose for that is explained as she goes on. She is a practising barrister. A barrister owes a duty to the court and to the administration of justice at large. She owes a duty far more than to any individual client. The problem that she had faced was that having made a reference to this website in the past, she was concerned that she may have given the impression that the judgments on the site could be legitimately viewed and now she was uncertain of that. No more than that. She did not say anything further. She did not say specifically that Mr Miller did not have permission. Therefore in my view the inferences that he draws are misguided and wrong.
23 I now turn to the final point upon which Mr Auld relies, viz., justification. He says in broad terms that what Miss Reed said was true. In fact I think Mr Auld goes further - he does go further - he says now, on investigation, the suspicion that Miss Reed had has been borne out to be the truth; Mr Miller does not have permission. I agree. There is not the slightest doubt in my mind that Miss Reed is now correct in saying that Mr Miller had no permission to publish those judgments and there is no possible basis upon which he could hold that view any longer.
24 To my mind, it is unfortunate but Mr Miller appears to be obsessed by matters relating to this case. There can be many reasons why people become drowned in litigation; the basis of it usually is a lack of perspective, a lack of standing back and looking carefully. I have read out unequivocal comments from two Court of Appeal Judges and a further one from a separate County Court Judge. There is not the slightest doubt in anything they say that Mr Miller cannot publish those judgments unless he has permission of (now) the court, (in those days) the judge. He does not have it. Therefore his claim must fail and I dismiss it. Claim dismissed, Claimant to pay the Defendant's costs summarily assessed at £4,864.93. Costs judgment has to be paid within 14 days; that is the normal rule.