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12

Judgement in Watch Tower Appeal in Otuo v Morley and Watch Tower by Sir David Eady

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akromo

@prologos Mr Otuo has no Nigerian connection and trust me this guy a seriously decent hard working guy wh had his reputation traduced by a very jealous J Morley.

Judgement in W

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akromo

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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Otuo v Morley & Anor [2015] EWHC 1839 (QB) (26 June 2015) URL: http://www.bailii.org/ew/cases/EWHC/QB/2015/1839.html Cite as: [2015] EWHC 1839 (QB)

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		Neutral Citation Number: [2015] EWHC 1839 (QB)
		Case No: CH/2014/0637

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM MASTER LESLIE

		Royal Courts of Justice Strand, London, WC2A 2LL
		26 June 2015

B e f o r e :

SIR DAVID EADY
Sitting as a High Court Judge
____________________

Between:

	Frank Kofi Otuo	Claimant/ Respondent
	- and -
	Jonathan David Morley - and - Watch Tower Bible & Tract Society of Britain	First Defendant/ Appellant Second Defendant/ Appellant

____________________

Richard Daniel (instructed by Watch Tower Legal Department) for the Appellants
The Respondent appeared in person
Hearing dates: 15 April and 18 June 2015
____________________

HTML VERSION OF JUDGMENT
____________________

Sir David Eady :

On 24 November 2014, Master Leslie refused to grant the Defendants summary judgment in this slander claim. Permission was given to appeal by William Davis J on 20 February 2015. It is an unusual case and, like the Master, I have found it troubling. This is mainly because the Defendants are seeking to rid themselves of the claim on a summary basis at a stage when the statements of case are inchoate: they leave it unclear as to how much of a factual dispute there would be if the case is allowed to proceed to trial.
Mr Otuo was a member of the Jehovah's Witnesses for some 40 years until in 2012 he found himself "disfellowshipped". He claims that one of the significant consequences of this was that he was shunned by friends and family and, in particular, that he has had no contact with his elderly mother for several years. He believes that this was wholly unmerited and has never been able to understand why he was treated in this way. There are prescribed procedures for the taking of such disciplinary steps although Mr Daniel, who appeared for the Defendants, emphasised that they are to be found in a confidential rule book to which reference should not be made in court save in so far as it is absolutely necessary.
What appears to have happened is that allegations of "fraud" had been made against the Claimant in a letter from an unnamed third party (which he says he has never seen) and these were examined by those given responsibility under those rules for doing so. Mr Daniel was at pains, however, to emphasise that the notion of "fraud" in this context was not such as to entail criminality, but rather bore a specific religious connotation, which he sought to define in his written submissions as follows:

"Fraud is defined as the intentional use of deception, trickery, or perversion of truth for the purpose of inducing another to part with some valuable thing belonging to him or to give up a legal right."

I confess to some puzzlement, as it seems to be a distinction without a significant difference. Surely anyone accused by reference to that definition would be seriously defamed in the eyes of any reasonable listener: it would clearly be an allegation of dishonesty. Yet Mr Daniel argued that "… if not de minimis, the actual damage sustained was very limited".
At all events, the relevant committee, on its findings of fact, determined that the Claimant should be "disfellowshipped" with all the profound consequences which, according to the Claimant, flowed from that. He told me that he was aware of the identity of the unnamed third party and doubted whether he ever wrote such a letter or accused him of "fraud" (in any sense). He says that he pressed for a sight of the letter from the outset but that it was never vouchsafed to him. He doubted whether it ever existed. At the resumed hearing before me, on 18 June 2015, those doubts were reinforced when Mr Daniel told me that it had been destroyed on data protection grounds; that is to say, because the Defendants took the view that they had no legitimate reason for keeping it.
In due course, the Claimant took such steps as were open to him under the prescribed procedures to challenge the finding of the original committee and his consequent "disfellowship": he wished to be reinstated. He assumed that this would be dealt with on paper, but the Defendants decided to hold a meeting to consider his application, which he was invited to attend in July 2013. It was at an early stage of this meeting that the defamatory words were spoken by the First Defendant which led to the present slander claim.
The words complained of are as follows:

"So just going back to July of last year when you were disfellowshipped, I think it was July 19 that it was announced to the congregation, is that correct? I think it was … do you… how do [you] view then what you were disfellowshipped for? Do you understand what you were disfellowshipped for? … Just to summarise what I thought you have said, is that even today you would not accept it was fraud … That is what you seem to be saying?"

The Claimant suggests that these words meant inter alia that he "… has been disfellowshipped from his congregation for committing the criminal act of fraud". There is also pleaded an innuendo to the effect that he had been disfellowshipped "… for unrepentantly committing the criminal act of fraud". He would no doubt argue that the words are thus actionable without proof of special damage.
Although he does not plead a meaning as such, Mr Daniel has argued that one of the reasons why the action should be struck out is that the words are not defamatory in any sense. He says that, in context, they meant no more than that the ground on which he had been disfellowshipped in 2013 was, rightly or wrongly, that of "fraud". As I have already noted above, however, he drew a distinction between "criminal" fraud and the type of fraud he sought to define, although I find it a difficult boundary to draw. He has to take on the burden of establishing that any reasonable listener would have understood the First Defendant's question to the Claimant in a non-defamatory sense; for example, to the effect that it was no more than a purely fact finding or administrative enquiry as to the ground on which the earlier decision had purportedly been reached.
Context is always important when assessing whether words are defamatory. Here, the actual meaning to be attributed may well depend on the evidence as to who was present, what exactly was their function and how much background knowledge they had. I am not asked on the present appeal to determine the meaning(s) of the words, but I do not believe that I can at this preliminary stage rule that the words spoken were so obviously not defamatory that the Claimant is left without a cause of action.
Mr Daniel also submitted, in the light of Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946, that the limited publication of the words could have caused no significant damage to the Claimant's reputation (let alone special damage), since the only people to have heard the remarks were the three other members of the committee who had been convened to address the Claimant's application for reinstatement. When the First Defendant spoke to them, they were not being told anything which they did not already know. There would thus be an abuse of process if the claim were allowed to proceed.
Indeed, one of Mr Daniel's grounds for summary disposal was that there had been no publication at all. I do not follow that. Albeit on a very limited basis, the words spoken by the First Defendant were plainly published to anyone within earshot. Whether any such communication was the subject of qualified privilege is a separate matter, which I shall shortly need to address, but I reject the notion that there was no publication at all.
As to the undoubted fact that publication was very limited, I was reminded by the Claimant of the words of Sharp J (as she then was) in Haji-Ioannou v Dixon [2009] EWHC 178 (QB), at [31]:

"Publication of a libel, or indeed a slander, to one person may be trivial in one context, but more serious than publication to many more in another. Much depends on the nature of the allegation, and the identity of the person about whom and the person or persons to whom it is made. To that extent, the decision in each case is 'fact sensitive'. However, the court should not be drawn into making its decision on the basis of contested facts material to the issue of abuse which properly ought to be left to the tribunal of fact to decide."

That is an important principle to bear in mind when the court is called upon to address early applications for summary disposal in defamation cases, which have become increasingly frequent in recent years.

If the words meant that the Claimant had been guilty of fraud (by whatever definition), and was thus dishonest, that is a defamatory allegation which is at least capable of causing serious reputational damage. The court should thus be reluctant to shut out such a claim in a case where the facts have yet to be fully explored. I naturally recognise that this claim is not concerned with damage flowing from the original "disfellowship" or from its announcement before the congregation, but only with the consequences of the limited publication sued upon, but even so it would be unduly "robust" in my view to hold that an allegation of fraud can have done no harm at all.
It is not entirely clear to me whether the Defendants are intending to raise a plea of justification (e.g. to the effect that the Claimant was guilty of fraud). The current defence does not say so in terms and certainly does not put forward a Lucas-Box meaning or any particulars of justification. On the other hand, there is included, unusually for a defamation defence, a general traverse. They are generally avoided for the very reason that they could be taken as denying the falsity of the words, and thus stealthily importing a plea of justification. I asked Mr Daniel about this, and he replied that his clients wished to await the outcome of the current application for summary disposal before putting their cards on the table. They did not wish to plead justification unless it became necessary to do so. Plainly, however, I need in the meantime to bear in mind that the Claimant is entitled to a presumption that he is innocent of fraud (or indeed of having been found guilty of fraud) unless and until the contrary is proved by the Defendants.
The Defendants intend to rely on qualified privilege and, although the evidence would need to be carefully considered in the context of the prescribed rules for the relevant internal procedures, there is quite a strong prima facie case to that effect. Nonetheless, the Claimant wishes to put forward a plea of malice against the First Defendant in particular. I understand that he wishes to assert, although no particulars of malice are yet pleaded, that the defendants must have known that there was no evidence of fraud on his part. The Claimant told me that he had been waiting to provide such particulars until at least he had seen the third party letter and the specific accusations it had supposedly made against him. Only in those circumstances, would he be in a position to pinpoint what the Defendants knew or believed about him and the genuineness of the First Defendant's state of mind at the time of the words complained of. It emerged at the resumed hearing before me on 18 June that the third party's letter has been destroyed, according to Mr Daniel on instructions, on data protection grounds and that, accordingly, the Claimant will never now be able to make an assessment of it or rely upon it in formulating his particulars of malice. It is fair to say, however, that this latest piece of news has done nothing to allay his suspicions as to their good faith.
I was initially troubled by the Master's conclusion that there was evidence of malice which would need to be considered at a trial, as this appeared to be one of his principal grounds for refusing the Defendants summary relief. I had in mind the basic principles about pleading malice and the need to go beyond bare assertion. That was one of the reasons for having to adjourn on 15 April 2015, since none of the relevant principles or authorities was before the court; nor had they been considered by the parties: see e.g. Gatley on Libel & Slander (12th edn), at 28.6 and 30.35, Alexander v Arts Council of Wales [2001] 1 WLR 1840, Seray-Wurie v Charity Commission for England & Wales [2008] EWHC 870 (QB), and Henderson v London Borough of Hackney [2010] EWHC 1651 (QB). This was another consequence of the inchoate state of the pleadings and just one illustration of the disadvantages confronting a litigant in person.
Nevertheless, an indication had been given in the Claimant's first witness statement as to the case on malice he would wish to put forward. This is probably what the Master had in mind when he said, at paragraph 7 of the transcript, that in his judgment "… there is material from which a court might find that Mr Morley was actuated by some malice". What the Master did not have, although it was before me, was the Claimant's second witness statement dated 8 April 2015. This put more flesh on the bones of the anticipated plea of malice. I need cite only one passage, from paragraph 30(h), to illustrate the scope and gravity of the dispute between the parties:

"In spite of the First Appellant maintaining that the accusation of fraud was communicated to him by a letter from the accuser, the Appellants have failed despite several requests to produce a copy of the letter. It is the R's case that the accusation was fabricated by the First Appellant to cause harm to the R and there was no such accusation from the accuser. The Appellants' failure to produce this letter clearly supports the R's assertion."

I have indicated already that the Claimant's suspicions have been enhanced by the recent claim that the third party letter has purportedly been destroyed. I am not in a position to say that the First Defendant has trumped up a case in fraud to bring about the Claimant's "disfellowship", for reasons of his own, or that he uttered the words at the reinstatement meeting in 2013 in order to manipulate its outcome. Of course not. Nevertheless, I have come to the conclusion that the Master was correct in his conclusion that there is more to this than currently meets the eye. It is not the sort of case which can be terminated by the convenient means of summary disposal nowadays available to the court in the light of the CPR and their application in such cases as Jameel (Yousef) v Dow Jones & Co Inc, cited above. It seems to me that a significant number of the real issues between the parties fall within the description of "fact sensitive" and do not lend themselves to a short cut.
I bear in mind Mr Daniel's warning that I may be allowing myself to be diverted by a "smokescreen", but it simply illustrates why the facts need to be properly investigated after full pleadings have become available, disclosure of documents has taken place and witness statements have been exchanged. Only then will the smoke have cleared.
In these circumstances, I must dismiss the appeal.

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URL: http://www.bailii.org/ew/cases/EWHC/QB/2015/1839.html

12

Judgement in Watch Tower Appeal in Otuo v Morley and Watch Tower by Sir David Eady

by akromo in

[home] [databases] [world law] [multidatabase search] [help] [feedback].

england and wales high court (queen's bench division) decisions.

you are here: bailii >> databases >> england and wales high court (queen's bench division) decisions >> otuo v morley & anor [2015] ewhc 1839 (qb) (26 june 2015) url: http://www.bailii.org/ew/cases/ewhc/qb/2015/1839.html cite as: [2015] ewhc 1839 (qb).

akromo

Yes WT sought to strike case on two occasion as being a non-justiciable case i.e. being beyond the realm of the court and have failed.

12

Judgement in Watch Tower Appeal in Otuo v Morley and Watch Tower by Sir David Eady

by akromo in

[home] [databases] [world law] [multidatabase search] [help] [feedback].

england and wales high court (queen's bench division) decisions.

you are here: bailii >> databases >> england and wales high court (queen's bench division) decisions >> otuo v morley & anor [2015] ewhc 1839 (qb) (26 june 2015) url: http://www.bailii.org/ew/cases/ewhc/qb/2015/1839.html cite as: [2015] ewhc 1839 (qb).

akromo

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Otuo v Morley & Anor [2015] EWHC 1839 (QB) (26 June 2015) URL: http://www.bailii.org/ew/cases/EWHC/QB/2015/1839.html Cite as: [2015] EWHC 1839 (QB)

[New search] [Printable RTF version] [Help]

		Neutral Citation Number: [2015] EWHC 1839 (QB)
		Case No: CH/2014/0637

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM MASTER LESLIE

		Royal Courts of Justice Strand, London, WC2A 2LL
		26 June 2015

B e f o r e :

SIR DAVID EADY
Sitting as a High Court Judge
____________________

Between:

	Frank Kofi Otuo	Claimant/ Respondent
	- and -
	Jonathan David Morley - and - Watch Tower Bible & Tract Society of Britain	First Defendant/ Appellant Second Defendant/ Appellant

____________________

Richard Daniel (instructed by Watch Tower Legal Department) for the Appellants
The Respondent appeared in person
Hearing dates: 15 April and 18 June 2015
____________________

HTML VERSION OF JUDGMENT
____________________

Sir David Eady :

On 24 November 2014, Master Leslie refused to grant the Defendants summary judgment in this slander claim. Permission was given to appeal by William Davis J on 20 February 2015. It is an unusual case and, like the Master, I have found it troubling. This is mainly because the Defendants are seeking to rid themselves of the claim on a summary basis at a stage when the statements of case are inchoate: they leave it unclear as to how much of a factual dispute there would be if the case is allowed to proceed to trial.
Mr Otuo was a member of the Jehovah's Witnesses for some 40 years until in 2012 he found himself "disfellowshipped". He claims that one of the significant consequences of this was that he was shunned by friends and family and, in particular, that he has had no contact with his elderly mother for several years. He believes that this was wholly unmerited and has never been able to understand why he was treated in this way. There are prescribed procedures for the taking of such disciplinary steps although Mr Daniel, who appeared for the Defendants, emphasised that they are to be found in a confidential rule book to which reference should not be made in court save in so far as it is absolutely necessary.
What appears to have happened is that allegations of "fraud" had been made against the Claimant in a letter from an unnamed third party (which he says he has never seen) and these were examined by those given responsibility under those rules for doing so. Mr Daniel was at pains, however, to emphasise that the notion of "fraud" in this context was not such as to entail criminality, but rather bore a specific religious connotation, which he sought to define in his written submissions as follows:

"Fraud is defined as the intentional use of deception, trickery, or perversion of truth for the purpose of inducing another to part with some valuable thing belonging to him or to give up a legal right."

I confess to some puzzlement, as it seems to be a distinction without a significant difference. Surely anyone accused by reference to that definition would be seriously defamed in the eyes of any reasonable listener: it would clearly be an allegation of dishonesty. Yet Mr Daniel argued that "… if not de minimis, the actual damage sustained was very limited".
At all events, the relevant committee, on its findings of fact, determined that the Claimant should be "disfellowshipped" with all the profound consequences which, according to the Claimant, flowed from that. He told me that he was aware of the identity of the unnamed third party and doubted whether he ever wrote such a letter or accused him of "fraud" (in any sense). He says that he pressed for a sight of the letter from the outset but that it was never vouchsafed to him. He doubted whether it ever existed. At the resumed hearing before me, on 18 June 2015, those doubts were reinforced when Mr Daniel told me that it had been destroyed on data protection grounds; that is to say, because the Defendants took the view that they had no legitimate reason for keeping it.
In due course, the Claimant took such steps as were open to him under the prescribed procedures to challenge the finding of the original committee and his consequent "disfellowship": he wished to be reinstated. He assumed that this would be dealt with on paper, but the Defendants decided to hold a meeting to consider his application, which he was invited to attend in July 2013. It was at an early stage of this meeting that the defamatory words were spoken by the First Defendant which led to the present slander claim.
The words complained of are as follows:

"So just going back to July of last year when you were disfellowshipped, I think it was July 19 that it was announced to the congregation, is that correct? I think it was … do you… how do [you] view then what you were disfellowshipped for? Do you understand what you were disfellowshipped for? … Just to summarise what I thought you have said, is that even today you would not accept it was fraud … That is what you seem to be saying?"

The Claimant suggests that these words meant inter alia that he "… has been disfellowshipped from his congregation for committing the criminal act of fraud". There is also pleaded an innuendo to the effect that he had been disfellowshipped "… for unrepentantly committing the criminal act of fraud". He would no doubt argue that the words are thus actionable without proof of special damage.
Although he does not plead a meaning as such, Mr Daniel has argued that one of the reasons why the action should be struck out is that the words are not defamatory in any sense. He says that, in context, they meant no more than that the ground on which he had been disfellowshipped in 2013 was, rightly or wrongly, that of "fraud". As I have already noted above, however, he drew a distinction between "criminal" fraud and the type of fraud he sought to define, although I find it a difficult boundary to draw. He has to take on the burden of establishing that any reasonable listener would have understood the First Defendant's question to the Claimant in a non-defamatory sense; for example, to the effect that it was no more than a purely fact finding or administrative enquiry as to the ground on which the earlier decision had purportedly been reached.
Context is always important when assessing whether words are defamatory. Here, the actual meaning to be attributed may well depend on the evidence as to who was present, what exactly was their function and how much background knowledge they had. I am not asked on the present appeal to determine the meaning(s) of the words, but I do not believe that I can at this preliminary stage rule that the words spoken were so obviously not defamatory that the Claimant is left without a cause of action.
Mr Daniel also submitted, in the light of Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946, that the limited publication of the words could have caused no significant damage to the Claimant's reputation (let alone special damage), since the only people to have heard the remarks were the three other members of the committee who had been convened to address the Claimant's application for reinstatement. When the First Defendant spoke to them, they were not being told anything which they did not already know. There would thus be an abuse of process if the claim were allowed to proceed.
Indeed, one of Mr Daniel's grounds for summary disposal was that there had been no publication at all. I do not follow that. Albeit on a very limited basis, the words spoken by the First Defendant were plainly published to anyone within earshot. Whether any such communication was the subject of qualified privilege is a separate matter, which I shall shortly need to address, but I reject the notion that there was no publication at all.
As to the undoubted fact that publication was very limited, I was reminded by the Claimant of the words of Sharp J (as she then was) in Haji-Ioannou v Dixon [2009] EWHC 178 (QB), at [31]:

"Publication of a libel, or indeed a slander, to one person may be trivial in one context, but more serious than publication to many more in another. Much depends on the nature of the allegation, and the identity of the person about whom and the person or persons to whom it is made. To that extent, the decision in each case is 'fact sensitive'. However, the court should not be drawn into making its decision on the basis of contested facts material to the issue of abuse which properly ought to be left to the tribunal of fact to decide."

That is an important principle to bear in mind when the court is called upon to address early applications for summary disposal in defamation cases, which have become increasingly frequent in recent years.

If the words meant that the Claimant had been guilty of fraud (by whatever definition), and was thus dishonest, that is a defamatory allegation which is at least capable of causing serious reputational damage. The court should thus be reluctant to shut out such a claim in a case where the facts have yet to be fully explored. I naturally recognise that this claim is not concerned with damage flowing from the original "disfellowship" or from its announcement before the congregation, but only with the consequences of the limited publication sued upon, but even so it would be unduly "robust" in my view to hold that an allegation of fraud can have done no harm at all.
It is not entirely clear to me whether the Defendants are intending to raise a plea of justification (e.g. to the effect that the Claimant was guilty of fraud). The current defence does not say so in terms and certainly does not put forward a Lucas-Box meaning or any particulars of justification. On the other hand, there is included, unusually for a defamation defence, a general traverse. They are generally avoided for the very reason that they could be taken as denying the falsity of the words, and thus stealthily importing a plea of justification. I asked Mr Daniel about this, and he replied that his clients wished to await the outcome of the current application for summary disposal before putting their cards on the table. They did not wish to plead justification unless it became necessary to do so. Plainly, however, I need in the meantime to bear in mind that the Claimant is entitled to a presumption that he is innocent of fraud (or indeed of having been found guilty of fraud) unless and until the contrary is proved by the Defendants.
The Defendants intend to rely on qualified privilege and, although the evidence would need to be carefully considered in the context of the prescribed rules for the relevant internal procedures, there is quite a strong prima facie case to that effect. Nonetheless, the Claimant wishes to put forward a plea of malice against the First Defendant in particular. I understand that he wishes to assert, although no particulars of malice are yet pleaded, that the defendants must have known that there was no evidence of fraud on his part. The Claimant told me that he had been waiting to provide such particulars until at least he had seen the third party letter and the specific accusations it had supposedly made against him. Only in those circumstances, would he be in a position to pinpoint what the Defendants knew or believed about him and the genuineness of the First Defendant's state of mind at the time of the words complained of. It emerged at the resumed hearing before me on 18 June that the third party's letter has been destroyed, according to Mr Daniel on instructions, on data protection grounds and that, accordingly, the Claimant will never now be able to make an assessment of it or rely upon it in formulating his particulars of malice. It is fair to say, however, that this latest piece of news has done nothing to allay his suspicions as to their good faith.
I was initially troubled by the Master's conclusion that there was evidence of malice which would need to be considered at a trial, as this appeared to be one of his principal grounds for refusing the Defendants summary relief. I had in mind the basic principles about pleading malice and the need to go beyond bare assertion. That was one of the reasons for having to adjourn on 15 April 2015, since none of the relevant principles or authorities was before the court; nor had they been considered by the parties: see e.g. Gatley on Libel & Slander (12th edn), at 28.6 and 30.35, Alexander v Arts Council of Wales [2001] 1 WLR 1840, Seray-Wurie v Charity Commission for England & Wales [2008] EWHC 870 (QB), and Henderson v London Borough of Hackney [2010] EWHC 1651 (QB). This was another consequence of the inchoate state of the pleadings and just one illustration of the disadvantages confronting a litigant in person.
Nevertheless, an indication had been given in the Claimant's first witness statement as to the case on malice he would wish to put forward. This is probably what the Master had in mind when he said, at paragraph 7 of the transcript, that in his judgment "… there is material from which a court might find that Mr Morley was actuated by some malice". What the Master did not have, although it was before me, was the Claimant's second witness statement dated 8 April 2015. This put more flesh on the bones of the anticipated plea of malice. I need cite only one passage, from paragraph 30(h), to illustrate the scope and gravity of the dispute between the parties:

"In spite of the First Appellant maintaining that the accusation of fraud was communicated to him by a letter from the accuser, the Appellants have failed despite several requests to produce a copy of the letter. It is the R's case that the accusation was fabricated by the First Appellant to cause harm to the R and there was no such accusation from the accuser. The Appellants' failure to produce this letter clearly supports the R's assertion."

I have indicated already that the Claimant's suspicions have been enhanced by the recent claim that the third party letter has purportedly been destroyed. I am not in a position to say that the First Defendant has trumped up a case in fraud to bring about the Claimant's "disfellowship", for reasons of his own, or that he uttered the words at the reinstatement meeting in 2013 in order to manipulate its outcome. Of course not. Nevertheless, I have come to the conclusion that the Master was correct in his conclusion that there is more to this than currently meets the eye. It is not the sort of case which can be terminated by the convenient means of summary disposal nowadays available to the court in the light of the CPR and their application in such cases as Jameel (Yousef) v Dow Jones & Co Inc, cited above. It seems to me that a significant number of the real issues between the parties fall within the description of "fact sensitive" and do not lend themselves to a short cut.
I bear in mind Mr Daniel's warning that I may be allowing myself to be diverted by a "smokescreen", but it simply illustrates why the facts need to be properly investigated after full pleadings have become available, disclosure of documents has taken place and witness statements have been exchanged. Only then will the smoke have cleared.
In these circumstances, I must dismiss the appeal.

IN THE HIGH COURT OF JUSTICE CLAIMNO: HQ14D02898

QUEENS BENCH DIVISION

B E T W E E N:

FRANK KOFI OTUO

Claimant

&

JONATHAN DAVID MORLEY 1st Defendant

&

WATCHTOWER BIBLE AND TRACT SOCIETY OF BRITAIN

2nd Defendant

RE-AMENDED PARTICULARS OF CLAIM

The Claim

1. This is a claim in slander against the First and Second Defendant.

The Slander

2. The First Defendant is an “Elder” appointed by the Second Defendant to oversee its affairs in the Wimbledon Congregation of Jehovah’s Witnesses. The latter is now being held vicariously liable for the malicious slander of the Claimant at a meeting set up by the First Defendant on the 22nd of June 2013 about 8:00pm, to mend a strained relationship with the Second Defendant.

3. The objective of the meeting was to seek reconciliation and reinstatement to the Second Defendant’s Organisation after a contentious disfellowshipping action taken against the Claimant that was premised on a false and malicious allegation of fraud against the Claimant. The Claimant does not accept that he is disfellowshipped.

BACKGROUND

4. The First Defendant summoned the Claimant to a brief meeting on Sunday the 30th December 2011. He informed the Claimant that, a fellow congregant, Mr Robert Wee had written a letter to the Body of Elders of the Wimbledon Congregation of Jehovah’s Witnesses accusing the Claimant of fraud. The Claimant requested for a copy of the letter of accusation but the First Defendant refused to produce it and has not, to this day. The Claimant was informed that a “Judicial Committee” had been set up to hear the facts of the case and rule on it on Friday 6th January 2012. The Claimant’s attendance was thus mandated.

5. At the close of the said meeting, the First Defendant informed the Claimant that the accusation was founded and as such a decision has been made to dis-fellowship the Claimant from the Congregation and as such the worldwide organization of Jehovah Witnesses.

6. An announcement was made to that effect on the 19th July 2012. By this announcement, the Claimant avers that he was defamed by the 2nd Defendant. This is now subject to a separate claim in this Court pending judgement on the Claimant’s application to dis-apply s4A of the Limitation Act 1980.

7. At the meeting for reinstatement, the First Defendant made the accusation of fraud and the exact terms of the accusation are particularised as below;

The words complained of are:

“So just going back to July of last year when you were disfellowshipped, I think it was July 19 that it was announced to the Congregation, is that correct? I think it was do you … how do view then, what you were disfellowshipped for? Do you understand what you were disfellowshipped for?... just to summarise what I thought you have said, is that even today, you would not accept it was fraud … That is what you seem to be saying? … Is that your position?” … no that’s fine… we respect that and appreciate, we would not want you to lie to us, that will be counterproductive anyway because...ok, we appreciate … I guess the only question I will like to ask you, Frank though is, you got four brothers here who spent a lot of time on this matter as you know, you had three other brothers on the appeal committee, who spent a lot of time on it and after that, the Branch had a look at all of it, so, do [sic], have you not considered that, with that process that was gone through and that the conclusion was, on the part of the of the original committee, the appeal committee and the Branch that it was the a fraudulent situation, do you not feel that you ought to really reflect on whether you’ve understood the matter correctly?”

8. The publication of the words complained of was made in the presence of Mark Lewis, Collin Smith and Andrew Sutton.

9. The natural and ordinary meaning of the words complained of is that;

the Claimant has been disfellowshipped from his congregation for committing the act of fraud.

10.The innuendo meaning of the words complained of to those present is that;

the Claimant has been disfellowshipped from his Congregation of Jehovah’s Witnesses for unrepentantly committing the act of fraud.

The special fact relied upon by the hearers to derive the innuendo meaning is that they were aware of an earlier allegation of fraud brought against the Claimant by the Second Defendant on the premise that it had been alleged by a fellow congregant, Robert Wee. There was however no confirmation of the accusation by the alleged complainant back then and to date.

Malice

11.The Claimant vigorously denies the allegation of fraud and has consistently maintained his innocence. The First and Second Defendants conspired to harm the Claimant, by, amongst many other facts to be explored at the trial, being indifferent to the truth or falsity of the defamatory allegations complained of, thereby precluding the Defendants from having an honest believe in their truth.

Damages Suffered

12.The Claimant has suffered a near irreparable damage to his reputation, emotions, physical and psychological and has reduced my standing before the hearers of the words complained of and community-at-large.

13.The damage suffered by the Claimant following the repetition of the slander by the 1st Defendant is cumulative upon the original the slander of the disfellowshipping by the 2nd Defendant announced to the Congregation twelve months earlier. The Congregants are also mandated by the teaching of the Second Defendant to repeat the slander to all who are Jehovah’s Witnesses but not necessarily members of the Wimbledon Congregation. This implies that the extent of defamation is worldwide and last a life time.

14.As a direct result of the gratuitous slander by the First Defendant at the said meeting, the Claimant was a fraudster and thus unfit to be reinstated into the Church. This has led to continued ostracism by the Claimant’s family and friends reinforcing and aggravating the damage done to the claimant’s reputation.

15.In a further aggravation of the damage caused; the slander has been republished in the London Evening Standard which boasts readership of over two million. This has subjected the Claimant to further ridicule and humiliation in his neighbourhood and community–at-large. The Claimant holds the Defendants responsible for the damage caused by the republication.

16. The republication, it is averred, to be the natural and foreseeable outcome upon a suit, as the 2nd Defendant enjoys an unenviable press interest. The 2nd Defendant was thus fully aware, upon notice of proceedings in a pre-action protocol, that if she does nothing to retract an unfounded allegation of fraud and proceedings ensued, the inevitable outcome was a press article in a major newspaper and a repeat of the slander that will lead to further substantial damage and aggravation of damages to the Claimant’s reputation.

17.See http://www.standard.co.uk/news/jehovahs-witness-sues-for-150000-after-church-snubbed-him-over-fraud-claims-9750062.html [sup…].

18.The Claimant has continued to suffer extreme shunning by friends and family occasioned by the Defendants actions.

19.My three young children, who are pubescent to teenage, are finding it extremely difficult to cope with the fact that their Dad has been ostracised by the only community they have ever known since birth. This is in addition to the spiritual harm and mental distress caused to me as a direct consequence of the action.

20.I have lost all my friends who were only Jehovah Witnesses as they are not allowed to speak to me lest they face the same fate.

21.I have not travelled outside the UK, especially to see my ailing mother or any of my family members who are also members of the Organisation and as such barred from receiving me.

22.I lost my fundamental rights [Article 8 of the Human Rights Act] to my family as consequence of the sustained action by the Defendant and shall not regain it unless I admit to fraud and say I have repented of it. This is something I am unable to do conscientiously.

23.I have lost a least seven hundred regular friends I have known for up to forty years now. I had the privilege of service and associating with at least fifteen thousand such ones annually at the annual District Convention of Jehovah’s Witnesses.

24.The worship and faith was in essence everything my family and I lived for. It was our lives and everything else revolved around it. I am not allowed to have any spiritual association with my own wife and children.

Breaches of the Claimant’s ECHR

25.The Claimants submits that the actions of the Defendant breaches Article 8(1) of ECHR which states;

“Everyone has the right to respect for his private and family life, his home and his correspondence.”

The Defendant’s publication of the words complained of and sustaining it has led to the continued loss of family life and the right of correspondence with his family.

26.The Claimant further submits that the actions of the Defendant have breached the Claimants right under Article 9(1) of the ECHR which states;

“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and……”

The Defendants’ actions have wrongfully usurped the Claimant’s right of expressing his religion and affiliation with his chosen religious community.

What the Claimant seeks as Remedy

The Slander

27.Seeks an injunction to barr the Defendants from repeating the alleged slander in any form communicable.

28.The Claimant seeks damages of £175,000.00 for reputational, emotional and psychological damages occasioned by the Defendants actions.

29.The Claimant seeks aggravated damages as consequence of the Defendants unreasonable behaviour subsequent to the accusation.

DATED: 1st February 2016.

I BELIEVE THE FACTS STATED IN THESE PARTICULARS OF CLAIM ARE TRUE.

SIGNED…………………………………………………………………………

FRANK OTUO.

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Watch Tower's ridiculous Defence in Otuo v Morley and Watch Tower

by akromo in

in the high court of justice queen’s bench division .

frank kofi otuo .

jonathan david morley .

akromo

IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION

BETWEEN:

FRANK KOFI OTUO

and

JONATHAN DAVID MORLEY

and

Claimant

1st Defendant

2nd Defendant

WATCH TOWER BIBLE & TRACT SOCIETY OF BRITAIN

HQ14D02898

AMENDED DEFENCE
BY ORDER OF SIR DAVID EADY DATED 23 MARCH 2016 ________________________________________________________

The Parties

At the material time, the First Defendant served as an elder in the London, Wimbledon Congregation of Jehovah’s Witnesses (hereinafter “Wimbledon Congregation”). An elder is an ordained and appointed religious minister in a local congregation of Jehovah’s Witnesses.
The Second Defendant is a legal entity of Jehovah’s Witnesses, incorporated in 1999 as a company limited by guarantee and duly registered with the Charity Commission in England with charitable status (Charity number 1077961). It is one of the bodies that provide support in the United Kingdom and Ireland for the religious activities of

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Jehovah’s Witnesses, a known Christian religion acknowledged as such by domestic authorities and many decisions of the European Court of Human Rights.

The Claimant is a former Jehovah’s Witness. At the material time, the Claimant was “disfellowshipped” (or excommunicated) from the religion of Jehovah’s Witnesses and he had requested reinstatement into the religion. The Claimant has never been a member of the Second Defendant.
As to paragraph 2 of the Re-Amended Particulars of Claim, it is admitted that the First Defendant is one of the appointed elders in the Wimbledon Congregation. The body of elders of the Wimbledon Congregation was responsible for the oversight of the spiritual activities of the Wimbledon Congregation.
It is further admitted that at the material time, the First Defendant served as the Co- ordinator of the Wimbledon Congregation body of elders. This is not a superior position to that of the other Congregation elders. The role of Coordinator involves chairing meetings of the body of elders and coordinating part of the spiritual programmes that are provided in the Congregation.
It is denied that the First Defendant was appointed to oversee any “affairs” of the Second Defendant in the Wimbledon Congregation. The Wimbledon Congregation is an independent charity with its own Trustees (who are appointed from among the elders serving at any given time).
It is further denied that there was any malicious slander of the Claimant at the meeting or at any other time.
It is admitted that at the material time the First Defendant acted within the scope of his duties and role as a congregation elder. However, it is denied that either the First Defendant or the Second Defendant are liable for malicious slander of the Claimant.

Background

9. Paragraph 3 of the Re-Amended Particulars of Claim is admitted to the extent that the objective of the meeting was to discuss the Claimant’s request for reinstatement and that, in line with the religious beliefs and practices of Jehovah’s Witnesses, the Claimant had been disfellowshipped in July 2012 as one of Jehovah’s Witnesses on the basis of the sin

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of fraud (according to the religious teaching of Jehovah’s Witnesses). It is also admitted that the Claimant does not accept that he is disfellowshipped.

However, it is denied that the Claimant was seeking reinstatement into the “Second Defendant’s Organisation” since the Claimant has never been a member of the Second Defendant. It is also denied that the group of four congregation elders (the “Committee”) who made the decision to disfellowship the Claimant (the “Committee”) had any reason to believe that the allegation of fraud made against the Claimant by Mr Robert Wee was false or malicious.
Paragraph 4 of the Re-Amended Particulars of Claim is not admitted save that:
1. it is admitted that the Claimant was invited to a meeting with the Committee – the invitation was given to the Claimant at a brief meeting with two elders on 8 January 2012;
2. the meeting with the Committee was convened on 13 January 2012;
3. it is denied the Claimant was “summoned” to the meeting with the First Defendant, he was invited; and
4. it is denied that the Claimant’s attendance at the judicial committee hearing was “mandated”, although it is admitted that pursuant to the beliefs and practices and internal religious procedures of Jehovah’s Witnesses he could have been disfellowshipped in his absence if he did not provide good reason for not attending.
Paragraph 5 of the Re-Amended Particulars of Claim is admitted, save that:

a. b.

the Claimant was informed of the decision to disfellowship him at a second meeting with the Committee on 30 March 2012, not at the meeting on 13 January 2012; and

it is denied that the accusation of fraud was the only basis for the decision to disfellowship the Claimant. It is averred that disfellowshipping is a part of the Scripturally based internal religious procedures of Jehovah’s Witnesses which does not involve the determination of any private or public law rights and is therefore non- justiciable before a secular court.

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Paragraph 6 of the Re-Amended Particulars of Claim is admitted to the extent that the announcement of the Claimant’s disfellowshipping is the subject of a separate claim (No.HQ13D03735).
Paragraph 6 of the Re-Amended Particulars of Claim is denied to the extent that it alleges that the announcement of the Claimant’s disfellowshipping defamed him.

The words complained of

15. As to Paragraph 7 of the Re-Amended Particulars of Claim, it is admitted that the words complained of were spoken by the First Defendant.

16. On 18 March 2016, Sir David Eady ruled that the words spoken by the First Defendant were capable of meaning:

a.

b.

c.

The Claimant had been disfellowshipped a year before the reinstatement meeting on the ground of fraud.

The Claimant was guilty of fraud.

The Claimant was unrepentant.

Sir David further ruled that these meanings are capable of being defamatory of the Claimant.
It is averred that in the particular circumstances in which the words were spoken, the words in fact meant that:
1. The Claimant had been disfellowshipped for the sin of fraud (according to the religious beliefs and practices of Jehovah’s Witnesses) a year before the reinstatement meeting.
2. The Committee had decided that the Claimant had committed the sin of fraud (according to the religious beliefs and practices of Jehovah’s Witnesses), a year before the reinstatement meeting.
3. The Claimant did not accept that the conduct for which he was disfellowshipped constituted the sin of fraud (according to the religious beliefs and practices of Jehovah’s Witnesses).

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19. The relevant circumstances were:

The reinstatement meeting was convened by religious ministers, solely for religious purposes.
The dealings between the Committee and the Claimant were at all material times governed by and based on the Holy Scriptures and the religious beliefs and practices of Jehovah’s Witnesses.
The Committee had no remit to adjudicate on secular, legal definitions or concepts of fraud.

Paragraph 8 of the Re-Amended Particulars of Claim is admitted. The persons in attendance at the meeting were the Committee.
Paragraph 9 is denied. It is averred that the words in fact carried the meanings pleaded at paragraph 18 above.
It is averred that, in the particular circumstances in which the words complained of were spoken, the natural and ordinary meaning of the words, as pleaded in paragraph 18, does not give rise to a real and substantial tort.
As a matter of fact, the only other persons who heard the words spoken were the same three individuals on the Committee that decided that the Claimant he would be disfellowshipped on the basis of the sin of fraud. There was nothing new to those three individuals in:

a. b.

a statement that the Claimant had been disfellowshipped for the sin of fraud (according to the religious beliefs and practices of Jehovah’s Witnesses);

a statement that the Committee and others had found that the Claimant had committed the sin of fraud (according to the religious beliefs and practices of Jehovah’s Witnesses); or

c.
that would adversely affect the Claimant’s reputation.

a suggestion that the Claimant did not accept the Committee’s decision;

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Accordingly, any damage to the Claimant’s reputation in the minds of the listeners, that is, the Committee members was insignificant and the Claimant’s claim does not therefore disclose a real and substantial tort.

Defence of Qualified Privilege
Further or in the alternative, it is averred that the words complained of were spoken under circumstances to which qualified privilege attached and the Claimant has not provided any particulars or evidence of malice.
The relevant circumstances are as follows:
1. In September 2011, a third party who was a fellow believer of the Claimant complained to the elders in the Wimbledon Congregation that the Claimant had defrauded him.
2. The Committee carefully considered the third party’s complaint and found sufficient evidence to uphold the complaint and disfellowship the Claimant (an announcement was made in July 2012 that the Claimant was no longer one of Jehovah’s Witnesses).
3. The Claimant made several requests to be reinstated as one of Jehovah’s Witnesses during the period after his disfellowshipping.
4. A reinstatement meeting was convened on 22 July 2013 following an express request for reinstatement by the Claimant.
5. The purpose of the meeting was to assess whether the Claimant was now fit, in accordance with the religious practices and beliefs of Jehovah’s Witnesses, to be reinstated as one of Jehovah’s Witnesses.
6. The only persons present at the meeting, other than the Claimant, were the Committee of four elders who had decided to disfellowship the Claimant a year earlier for the sin of fraud in accordance with the religious beliefs and practices of Jehovah’s Witnesses.
7. All in attendance were aware that the focus and intention of the Committee was to assess the Claimant’s attitude towards the conduct for which he had been disfellowshipped.

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The individual members of the Committee, had reciprocal religious and moral duties and interests to explore in a full and frank manner how the Claimant felt about the decision to disfellowship him and the basis for that decision, in order to determine whether he was now fit, in accordance with the religious beliefs and practices of Jehovah’s Witnesses, to be reinstated to the religion.
The Claimant was fully aware that the elders on the Committee were acting in their capacity as religious ministers and in fulfillment of their ecclesiastical duties would have to examine spiritual issues involving sin and repentance, how the Claimant felt about the disfellowshipping decision, and the steps he had taken since the decision. The Claimant knew that the reinstatement meeting was private and confidential and involved only the Committee and the Claimant.

Defence of Truth

Further or in the alternative, if (which is denied) the natural and ordinary meaning of the words spoken, as pleaded in paragraph 18 above, was defamatory of the Claimant, it is averred that the meaning is true.
As a matter of fact, the Claimant had been disfellowshipped on the basis that the Committee found he had committed the sin of fraud (according to the religious practices and beliefs of Jehovah’s Witnesses), the Committee found him unrepentant, and the Claimant did not accept that decision or the basis for it.
It is averred that whether or not the Committee was correct to find that the Claimant had committed the sin of fraud (according to the religious beliefs and practices of Jehovah’s Witnesses) is not justiciable before a secular Court.

Innuendo

Paragraph 10 of the Re-Amended Particulars of Claim is admitted, save that it is averred that the basis for the disfellowshipping was the sin of fraud (according to the religious beliefs and practices of Jehovah’s Witnesses).
It is averred that an allegation of fraud was made by Mr Robert Wee against the Claimant in September 2011. The allegation was put to the Claimant by the Committee and ultimately lead to the decision to disfellowship the Claimant.

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Malice

Paragraph 11 of the Re-Amended Particulars of Claim is admitted to the extent that the Claimant denied and continues to deny the allegation made by Mr Wee.
Paragraph 11 of the Re-Amended Particulars of Claim is denied to the extent that it alleges the First and Second Defendants conspired to harm the Claimant, by “being indifferent to the truth or falsity of the defamatory allegations complained of” or at all.
It is not understood whether the Claimant wishes to advance a plea of malice. In any event, no facts or matters are provided to support such a claim. For the avoidance of doubt, any assertion of malice on the part of the Defendants is denied. It is averred that the Committee followed the standard procedures of Jehovah’s Witnesses for handling sin and acted with honesty and integrity throughout.

Claimant’s Alleged Damage

Paragraph 12 of the Re-Amended Particulars of Claim is denied.
Paragraph 13 of the Re-Amended Particulars of Claim is denied.
Paragraph 14 of the Re-Amended Particulars of Claim is denied. It is averred that the Claimant’s fitness to be reinstated as one of Jehovah’s Witnesses is not relevant to a claim for defamation and in any event non-justiciable before a secular court.
Paragraph 15 of the Re-Amended Particulars of Claim is denied to the extent that it alleges that the alleged slander has been “republished” in the London Evening Standard (the “Standard”) and that the alleged republication has “subjected the Claimant to further ridicule and humiliation in his neighbourhood and community-at-large”.
Paragraph 15 of the Re-Amended Particulars of Claim is admitted to the extent that the Standard published a report dated 23 September 2014 which stated that the Claimant had issued proceedings against the First and Second Defendants for defamation.
It would appear that the Standard obtained its information from documents filed at Court by the Claimant and/or from the Claimant himself. The Defendants note that the report does not contain the alleged defamatory words complained of in this claim. In so far as the article contains any defamation of the Claimant, which is not admitted, it is denied that the Defendants are responsible for the same.

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Paragraph 16 of the Re-Amended Particulars of Claim is denied. Further, the Claimant did not provide any “notice of proceedings in a pre-action protocol” before issuing the instant claim and therefore the Defendants do not understand the Claimant’s assertions in this paragraph.
Paragraph 17 of the Re-Amended Particulars of Claim is admitted to the extent that a report on the Claimant’s claim was published in the Standard on 23 September 2014. However, it is denied that there was any republication of the alleged slander which is the subject of this claim. It is further denied that the Defendants were responsible for anything written in the report which caused the Claimant loss or damage.

45. Paragraph 18 of the Re-Amended Particulars of Claim is denied. The Defendants repeat paragraph 39 above and aver that the Claimant’s disfellowshipping and the consequences thereof is not the subject of this claim and would not be justiciable before a secular court in any event. Further, none of the matters pleaded constitute special damage.

Paragraph 19 of the Re-Amended Particulars of Claim is not admitted, save that it is denied that the alleged slander of the First Defendant has caused the Claimant any “spiritual harm” or “mental distress”.
Paragraph 20 of the Re-Amended Particulars of Claim is denied. The Defendants repeat paragraph 45 above.
Paragraph 21 of the Re-Amended Particulars of Claim is denied that the Defendants have “barred” any members of the Claimant’s family from seeing him.
Paragraph 22 of the Amended Particulars of Claim is denied. The European Convention of Human Rights is not directly binding on the Defendants. In any event, even if the Claimant could establish that the words complained of constituted actionable slander and were not spoken on an occasion protected by qualified privilege, which is denied, given the context in which the words complained of were spoken, the words spoken could not and did not interfere with the Claimant’s right to respect for his private and family life.
Paragraph 23 is not admitted and the Claimant is put to strict proof of the matters pleaded. The Defendants repeat paragraph 45 above.
Paragraph 24 is not admitted and the Claimant is put to strict proof of the matters pleaded. The Defendants repeat paragraph 45 above.

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52. Paragraph 25 of the Re-Amended Particulars of Claim is denied. The Defendants repeat paragraphs 45 and 49 above.

53.Paragraph 26 of the Re-Amended Particulars of Claim is denied. The European Convention of Human Rights is not directly binding on the Defendants. Furthermore, the Claimant’s claim under Article 9 appears to arise in relation to his disfellowshipping which is not the subject of this claim and is in any event non-justiciable before the secular court. The Defendants aver that Article 9 in conjunction with Article 11 of the European Convention on Human Rights protects the right to determine the membership of a religious community as held by the Grand Chamber of the European Court of Human Rights in Sindicatul “Păstorul cel Bun” v. Romania (no. 2330/09, 136, 137, 165, 9 July 2013).

For all of the reasons in this Amended Defence, it is denied that the Claimant is entitled to any relief claimed at paragraphs 27-29 or at all.
As to paragraph 28, the Defendants make no admission of the damages claimed by the Claimant and put him to strict proof of his alleged loss.

56.As to paragraph 29, the Claimant has failed to provide any details of alleged “unreasonable behaviour” on the part of the Defendants. In the absence of any particulars, this allegation is denied.

Legal Department Watch Tower Bible & Tract Society of Britain Solicitors for the Defendants 7 April 2016

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England and Wales High Court (Queen's Bench Division) Decisions

England and Wales High Court (Queen's Bench Division) Decisions