COURT OF APPEAL (CIVIL DIVISION)

Caven-Atack v Church of Scientology Religious Education College Inc

(Transcript:John Larking)

JUDGES: Sir Thomas Bingham MR, Hobhosue, Morritt LJJ

DATE: 31 October 1994

D Ryan for the Respondent; H Malek for the Applicants
Graham Fear & Co, Enfield; Hodkin & Co, West Sussex

SIR THOMAS BINGHAM MR

This is an application to set aside leave to appeal granted by two members
of this court, on 26th May 1994. The action was begun by writ issued on 19th
March 1993 and it was an action in which the plaintiff, who had formerly
been a member of the Church of Scientology, but had ceased to be a member,
and had indeed become hostile to it, sought an injunction restraining the
Church of Scientology Religious Education College incorporated from
disclosing confidential information about him and, further, claiming damages
for breach of confidence.

At an early stage of the proceedings affidavits were sworn on behalf of both
sides. Those affidavits were ordered to stand as the statement of claim and
the defence respectively. It was, however, ordered that there should be
further pleadings exchanged between the parties on the issue of damages and
that was done. At that stage in the action it became appropriate for
discovery to be made and the trouble which gives rise to this application
stems from the fact that over a significant period the plaintiff failed to
make proper discovery. He served a series of lists purporting to comply with
the Rules, but in each case they failed to do so and a series of orders were
made. Ultimately, on 8th November 1993, the Master made an Unless Order, the
effect of which was that unless the plaintiff swore and served on the
defendants a full and proper affidavit under Ord 24 r 7 by 4 o'clock on
Monday 22nd November 1993, the plaintiff's claim would be struck out, with
costs to be taxed and paid by the plaintiff to the defendants. The plaintiff
failed to comply with that order and accordingly a summons was issued, on
25th November 1993, seeking a declaration that the plaintiff's claim is
struck out, with costs to be taxed and paid by the plaintiff to the
defendants and, in the alternative, an order that the plaintiff's claim be
struck out, with costs to be taxed and paid by the plaintiff to the
defendants. The defendants also asked for the costs of that application.

The matter came before the Master on 15th December 1993 and he made the
order, as asked, under paragraphs 2 and 3, that is, the order that the claim
be struck out with costs, and he ordered that the plaintiff pay the costs of
the application. Against that order there was an appeal to the Judge and the
matter came on appeal before Bell J on 8th February 1994. The question was
then argued out before him and he made an order striking out the claim and
upholding the Master's decision.

There was then a rather curious series of events, curious in the sense that
there was no provision for them in the Rules. The plaintiff went back to the
Master and queried with the Master the effect of what the Master had ordered
and the Master, on looking at the order that he had made, expressed some
surprise that he had not ordered that the action should be dismissed,
because that, he said, would have been the order he would usually make if he
was striking out the whole action.

Fortified by that expression of opinion by the Master, the parties returned
to the Judge and endeavoured to persuade him that there had been some
ambiguity about the Master's order which would affect the order that the
Judge himself had made. We have a brief note of what the Judge said on that
occasion and I quote it. He said:

"The terms of the Order were quite clear, the whole of the claim was
dismissed by Master Eyre, although I am told that Master Eyre cannot recall
at this moment precisely what was meant. It is quite clear from Mr Hodkin"
-- that is the deponent of the defendant's affidavit -- "that this is a
conflict between Counsel's recollections. I did hear the matter afresh in
any event and concluded the right order was to dismiss the whole claim. I
propose to say no more."

I make two comments on that. The first is that when one looks at the
transcript of what the Judge had actually said on 8th February 1994, it is
abundantly plain that he intended the whole action to be struck out. He
said:

"If the action is not struck out they will suffer from having to continue
their undertaking, and from the extension of the costs, further costs in the
action which they must pay. I can see nothing wrong with the Master's order.
In fact in all the circumstances I consider it to have been right and this
appeal is accordingly dismissed."

The second point is that some misunderstanding or doubt appears to have been
created by the endorsement which a young member of the Bar put on his brief,
having attended before Master Eyre on 8th November and 15th December. On 8th
November he endorsed his brief recording the order as being that if the
affidavit were not sworn by the date stipulated the claim for damages would
be struck out, and when he appeared on 15th December, when the striking out
order was made, he endorsed his brief, "plaintiff's claim for damages struck
out". Why counsel wrote that on his brief is far from clear, since it was
not what the defendants were asking for by their summons and it was not what
the Master actually ordered, but it is in reliance on that that it has been
suggested that there was some ambiguity about the Master's order. I should,
however, say that after the matter was before the Judge on 11th February
1994, the parties then went back to the Master again and he then said,
having been informed of what the Judge had said, that he was in no doubt
that he had indeed intended to strike out the whole action. It was in those
circumstances that Roch LJ refused leave to appeal on paper and the
plaintiff sought leave ex parte from the Court of Appeal on 26th May 1994.

This court is extremely reluctant to set aside leave granted by one of its
Divisions and certainly does not do so unless it is persuaded that there is
no prospect whatever of the leave which has been granted founding a
successful appeal. In this case it does appear to me that the Court of
Appeal on 26th May was under some misapprehension. It does not, so far as we
know, appear to have been drawn to the attention of the court on that
occasion that Bell J was at no stage invited to refer the matter back to
Master Eyre, nor is it clear that the court was told that the matter had
actually been back before Master Eyre after the hearing before the Judge on
11th February. It is, furthermore, not by any means clear that the court
appreciated that not only had the Judge said on 11th February that he had
struck out the whole action, but that in his judgment on 8th February he had
made it absolutely plain that he was indeed striking out the whole action.
It may also be doubtful whether the Court of Appeal on 26th May appreciated
that the ordinary practice is not to strike out part of a claim, that is the
claim for damages, leaving the claim for an injunction alive, but to dismiss
the whole action if default in discovery is made.

Those features of the case may not have been fully in the mind of the Court
of Appeal on 26th May, but it is not a case in which there was any
misrepresentation, or any failure to make proper disclosure to the Court. It
is simply a case in which it may well be that the court did not have all the
appropriate circumstances in mind.

What, however, seems more significant is that, as think, the learned Lord
Justice, in giving his decision that there should be leave on 26th May, fell
into error as to the issue which was before the court. He said at the end of
his judgment:

"The only issue we have to decide is whether it is arguable that the learned
Master's order related only to the claim for damages as distinct from the
whole action. For reasons that have been submitted to us by Mr Levene, we
are of the opinion that this is an arguable case and that the learned Master
was only seeking to strike out the action to the limited extent that I have
described."

In my judgment the learned Lord Justice did inadvertently fall into error in
that passage because whatever the Master had intended to do, it is
abundantly plain that the hearing before the learned Judge was a rehearing,
and the learned Judge decided to strike out the whole action. There is, in
my judgment, no ground whatever for criticising that decision.

The point is made that the injunction and the claim for damages could, or
should, be treated as separate issues and that, therefore, it would be
appropriate to strike out the claim for damages, but leave the claim for an
injunction alive. That, however, encounters the obvious difficulty that
discovery was not being made in two halves, related to one issue and then
the other. There was no order of any kind limiting the scope of discovery,
which was, therefore, to apply to both aspects, and the learned Judge was
not only entitled but, in my view, bound to conclude that a plaintiff who,
despite repeated opportunity, was not willing to comply with the court's
orders with regard to discovery should be prevented from pursuing his action
at all. There is no reason to suppose that the Master's peremptory order was
in any way misunderstood. It is not seriously argued that it was properly
complied with. It was never the subject of appeal. And so the learned Judge
was confronted with the case of a litigant who, despite repeated
opportunities, had failed to comply with an Unless Order. He accordingly
decided that the action should be struck out and the claim should proceed no
further. That was a decision which, as I say, he was not only entitled to
come to but, in my view, was almost bound to come to.

In the round, therefore, it seems to me that we should be doing the
plaintiff no favour by allowing this appeal to proceed, since it is an
appeal which must necessarily fail and the continuance of which can have no
result other than to incur further costs. I would accordingly, in the
unusual circumstances of this case, set aside the leave which was granted on
26th May.

HOBHOUSE LJ

I agree.

MORRITT LJ

I agree.

Application dismissed. Costs order against the Legal Aid Fund to be
suspended for ten weeks, to enable them to show cause why they should not
pay the costs of this application, if thought appropriate. 

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COURT OF APPEAL (CIVIL DIVISION)

Caven-Atack v Church of Scientology Religious Education College Inc

(Transcript:John Larking)

JUDGES: Farquarson, Simon Brown LJJ

DATE: 26 May 1994

V Levene for the Applicant; The Respondent did not appear and was not
represented
Graham Fear & Co, Middlesex

FARQUHARSON LJ

(Reading the judgment of the court): This is an application for leave to
appeal against an order of Bell J, dated 8 February 1994. On that occasion
the learned Judge dismissed the plaintiff's appeal from an order made by
Master Eyre, dated 15 December 1993, whereby he struck out the plaintiff's
claim with costs.

This action is in two parts in the sense that two separate remedies are
claimed. The first of these is a prayer for an injunction restraining the
defendant from divulging confidential information about the plaintiff. The
second part of the plaintiff's claim is for damages for breach of
confidence.

On 13 May 1993 this dichotomy between the two claims was underlined by an
order of Crawford J whereby he directed that the affidavits, which up to
that time had been sworn, should constitute the pleadings in relation to the
plaintiff's claim for an injunction, but that so far as his claim for
damages was concerned, the case should proceed on the basis of separate
pleadings within the main action. Thereafter, the plaintiff gave discovery
by lists during the period between May and September 1993. The defendants
were dissatisfied about the extent of the discovery and claimed that there
was a lack of documents relating to the damages which were claimed by the
plaintiff.

Accordingly, a summons for further discovery was issued and heard by Master
Eyre on 16 September 1993. On that occasion the learned Master ordered the
plaintiff to make a further affidavit pursuant to the provisions of Ord. 24
r 7. The plaintiff prepared two further affirmations and lists of documents,
but the defendants in the action were still dissatisfied with the extent of
the discovery on the basis that not all the documents which had been
previously referred to in earlier affidavits had appeared in the plaintiff's
lists. In those circumstances, a further summons was issued and heard by
Master Eyre on 8 November 1993. Having heard the parties, he made an
"Unless" Order, the terms of which were that unless the further discovery
required was made by 22 November, the plaintiff's claim would be struck out.
This is the order where the original confusion arose because it is now
submitted that the Unless Order made by Master Eyre related only to the
claim for damages. There is affidavit evidence, to which I shall briefly
refer in a moment, indicating that the issue as to the injunction was not
the subject of any argument before the learned Master.

There has been filed an affidavit by learned counsel who appeared on behalf
of the plaintiff on that occasion. Having described how he attended the
hearing, he said this in para 5:

"The Master expressed dissatisfaction with the Plaintiff's affidavit and
ordered that the Plaintiff should swear and serve a full and proper
affidavit pursuant to his earlier order by 4 p.m. on Monday the 22nd
November 1993. My clear understanding was that if the Plaintiff failed to
comply with this order his claim for damages would be struck out and so I
endorsed this on my brief."

It is fair to say that that endorsement does appear on learned counsel's
brief.

The matter was then adjourned for further affidavits to be drawn in relation
to the discovery of the documents. Once again, the defendants were
dissatisfied with the extent of the discovery, although that is a matter of
contest now on the part of the plaintiff. The result was that a further
summons was issued before the learned Master which was heard on 15 December
1993. The order appears in the affidavit of the solicitor acting for the
plaintiff and the summons recites that the application was for an order that
the plaintiff's claim be struck out with costs to be taxed because he failed
to serve and swear a full and proper affidavit. The learned Master endorsed
the summons in those terms, thus striking out the whole claim.

The issue, of course, was whether in those circumstances the learned Master
was striking out only the plaintiff's claim for damages, to which the
discovery related, or whether he was thereby dismissing the entire action.
That depended on whether the summons for the hearing on 8 November related
to the one remedy rather than both.

Howsoever that may be, the plaintiff appealed to Bell J and that, as I have
already indicated, was heard on 8 February 1993. The learned Judge held that
there was no ambiguity in the terms of the order made by the learned Master
and dismissed the appeal. As a result of the confusion that had taken place,
there were further applications made to the learned Master who indicated
that normally, if he had been minded to strike out the whole of an action,
he would have said, "Action dismissed, writ struck out".

Thus fortified with those assurances, counsel once more appeared before Bell
J who took the view that whatever the Master may have intended he himself
would have struck out the whole of the action.

The matter comes before us as an application for leave to appeal. The only
issue we have to decide is whether it is arguable that the learned Master's
order related only to the claim for damages as distinct from the whole
action. For reasons that have been submitted to us by Mr Levene, we are of
the opinion that this is an arguable case and that the learned Master was
only seeking to strike out the action to the limited extent that I have
described. Accordingly, there will, in this application, be leave to appeal.

Application allowed