NEUTRAL CITATION NUMBER [2012] EWHC 349 (QB)
Case No: HQ10D01015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 

Court No. 14
The Royal Courts of Justice
Strand
London
WC2A 2LL

Date: Monday, 6th February 2012

Before:

THE HONOURABLE MR JUSTICE TUGENDHAT
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B E T W E E N:

AMILTON NICOLAS BENTO 

and

THE CHIEF CONSTABLE OF BEDFORDSHIRE POLICE

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Transcript from a recording by Ubiqus
Cliffords Inn, Fetter Lane, London EC4A 1LD
Tel: +44 2 7269 0370

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MR H TOMLINSON, QC, and MS S MANSOORI appeared on behalf of THE CLAIMANT
MR R RAMPTON, QC, and MS C EVANS appeared on behalf of THE DEFENDANT 
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JUDGMENT ON STRIKE-OUT APPLICATION

MR JUSTICE TUGENDHAT:  

1.	The first issue I have to decide in this pre-trial review of this libel action is the application made by notice dated 24th January this year by the defendant for an order that there be struck out of the particulars of claim and the reply, paragraphs 7(f) and 12 respectively, certain matters which are pleaded in aggravation of damage.  The application is made under CPR 3.4(2)(b) and/or the inherent jurisdiction of the Court.  
2.	This libel action arises out of the tragic death of a young Polish woman, Kamila Garsztka, who had come to England, as have many of her compatriots, to work here.  She disappeared on 13th December 2005 at a time when the claimant was, or had recently been, her boyfriend.  Her body was found in Priory Lake, Bedford on 24th January 2006.  The claimant was subsequently charged with her murder and was convicted on 25th July 2007.  The conviction was quashed by the Court of Appeal on 26th February 2009 on the ground that it was unsafe and a retrial was ordered.  On 7th July 2009, the Crown Prosecution Service informed Bedfordshire Police that the case against the claimant had been discontinued.  On 14th July, the Crown formally offered no evidence.  
3.	On 9th July, there was issued on behalf of the defendant a press release containing what are now the words complained of.  They are as follows:  
'Bedfordshire Police were told by the Crown Prosecution Service Tuesday evening that the case against Nico Bento had been discontinued.  We are extremely disappointed on behalf of Kamila's family for whom this reopens a devastating chapter in their lives.  The police conducted the most thorough and ethical investigation in this case and did their utmost to secure justice for the family.  

'The role of the police in cases such as these is to assemble the available evidence and present it to the CPS.  In this case, the evidence initially presented resulted in a conviction at Luton Crown Court where the decision of the jury was unanimous.  The CPS have now taken the view that confusion in regard to the expert evidence in this case means there is no longer a realistic prospect of conviction.  The police investigation found no evidence whatsoever that Kamila killed herself.  Therefore, as with all unresolved murder investigations, this case will not be closed and will be continually kept under review in an effort to discover new evidence and build a stronger case.'  

The meaning which the claimant attributes to those words is a natural and ordinary meaning that he was guilty of murdering Kamila and wrongly escaped justice as a result of confusion in regard to the expert evidence.  
4.	The substantive claim is pleaded on two pages of the particulars of claim.  There are a further three pages of pleading as to matters said to go in aggravation of damage.  The part with which I am concerned covers effectively two of those pages and reads as follows:  
'7(f).  The fact that the press release contains a mix of half-truths, misrepresentations and false statements including inter alia:  

'(i) The misleading and untrue statement that the investigation was "thorough."  In this regard, the claimant will rely, inter alia, upon the facts that:  

(1) Despite a recommendation from the Forensic Science Service at an early stage of the investigation that the police stage a reconstruction of the CCTV evidence which appeared to be a crucial piece of evidence against the claimant, no such reconstruction took place until the 3rd December 2008.  

(2) Despite the fact that the claimant had reported Kamila missing on 14th December 2005 and that her clothing, which had been discovered dry on the towpath, had been handed in to the same officer on the same day, it was not until six weeks later that her body was found and a further two weeks after that before the connection was made.  

'(ii) The misleading and untrue statement that the investigation was "ethical."  In this regard, the claimant will rely, inter alia, on the facts that:  

(1) Approaches made to experts other than those produced by the Crown were not disclosed to the claimant's legal representatives.  

(2) When pressed by the claimant's legal representatives on a reference in an expert's report to the police having previously had the CCTV evidence examined in the UK, the CPS claimed that there was no written report because the expert concerned was "not able to assist."  In fact, the expert concerned was able to assist but his instructions had been withdrawn.  

'(iii) Whilst stating (correctly) that the claimant was convicted by a unanimous jury at Luton Crown Court, the press release wholly omitted any reference to the facts that this was:  

(1) On the basis of evidence provided by an expert who was subsequently discredited.  

(2) Without the benefit of the subsequently carried out CCTV reconstruction which supported the claimant's case.  

'(iv) In the circumstances, it was incorrect and misleading for the press release to state that mere "confusion" regarding the expert evidence was the reason why there was no longer a realistic prospect of conviction.  

'(v) It was also inaccurate and misleading to state that the "investigation found no evidence whatsoever that Kamila killed herself," thereby implying that all the evidence suggested that she had been killed by another, namely the claimant.  In this regard, the claimant will rely, inter alia, on the following: 

(1) The pathologist's evidence was, given the absence of evidence of violence, more consistent with suicide than murder.  

(2) The fact that a number of witnesses who were living with Kamila at the time of her disappearance spoke of her crying in her room alone, talking about depression and suicide.  

(3) On 12 December 2005, the day before she disappeared, Kamila had gone to Brighton and before she left had packed up all her clothes and most of her other belongings in suitcases and had discarded some further articles in dustbins.  

(4) Witnesses who were living with Kamila at the time also described what they had been told by her brother and cousin about telephone calls that the two had had with her on the night of 12 December 2005, during which Kamila had talked to them about standing on a bridge (the same word in Polish as a pier) in Brighton looking down into the water and wondering what to do next.'  

5.	The defence pleads two defences.  The first is qualified privilege and the second is justification.  The defence is a document covering some 25 pages which sets out the background of the matter.  The plea of qualified privilege is summarised in paragraphs 6(27) and 6(28) which read as follows:  
'6(27).  The purpose of the press release was:  

(1) To provide the information which the police were under a public duty to give to the public in which they anticipated the media would be likely to seek on the public's behalf...  

(2) To engender and maintain public confidence in the police, in particular in the local Polish community, by confirming that the case was not closed and that they would continue to investigate Kamila's death.  This was of particular importance where the public may have believed that since no one had been convicted, the killer (whoever it was) must still be at large.  

(3) In anticipation of a forthcoming broadcast on Newsnight to protect the police against further one-sided and misleading criticism about their handling of the expert evidence issue.  Such criticism had the obvious potential to cause serious and unwarranted harm to public confidence in the police which the police therefore had an interest and a duty to seek to prevent and the public a corresponding interest in having prevented.  

'6(28).  In all the circumstances, the publication of the press release was made:  

(1) In discharge of the duty resting on the police as the most authoritative source of information on the matter to provide information to the public that the public was entitled to have about a matter of the highest public importance and concern.  

(2) In defence of the conduct of the police in the investigation of Kamila's death and hence in service of the public interest that lies in the maintenance of public confidence in the police.'  

6.	The plea of justification is to the following meaning, which is attributed to the words complained of by the defendant:  
'In their natural and ordinary meaning the words complained of meant:  

(1) that the decision of the CPS to discontinue the prosecution against the claimant was wrong because there was sufficient evidence to justify proceeding with his retrial in the reasonable expectation that he would be convicted of killing her and/or (2) that the evidence against him was such that the claimant remained the prime suspect.'  

7.	The defence then sets out the evidence upon which the police would justify those meanings.  It is, as one would expect, substantially but not entirely the evidence which was before the jury at the Crown Court at Luton and before the Criminal Division of the Court of Appeal when a retrial was ordered.  
8.	There is a reply which is also a document of some length, about 22 pages.  In the reply there is what is said to be in effect a repetition of the same points as arise out of the particulars of claim at paragraph 7(f) which are sought to be struck out.  There is no allegation of malice.  The order for mode of trial at present in force, but which I shall be asked to reconsider later during this pre-trial review, is an order for trial by Judge and jury with an estimate of 20 days.  The plea in aggravation of damages was served as long ago as 16th March 2010 and, submits Mr Tomlinson, has not been objected to until recently.  
9.	The objection that is raised now on behalf of the defendant is primarily on grounds of relevance and proportionality but it is submitted that in addition the allegations to the effect that the investigation was neither ethical nor thorough are allegations which were made to the Independent Police Complaints Commission by letter dated 16th September 2009 written on behalf of the claimant.  They resulted in an inquiry subject to the Police Conduct Regulations 2008 and to the Police Complaints and Misconduct Regulations 2004.  That investigation or inquiry has not yet concluded and it is said that it is disproportionate and inappropriate that the same matter should be investigated in the course of the libel action as is the subject of the investigation into the complaint made to the IPCC, in particular when the procedures for investigating such matters are statutory and more appropriate in the context of the inquiry following the letter of 16th September 2009.  
10.	Moreover, Mr Rampton submits that the issue of aggravated damages will, of course, only arise in the event that the claimant succeeds on liability, having defeated the defences both of qualified privilege and justification.  In that event, the words complained of bear what, on any view, is so serious a defamatory meaning that the award of damages, without considering matters of aggravation, would be likely to be very substantial and if the matters pleaded in aggravation were taken into account, the extent to which they might reasonably be expected to increase the damages is not significant or not significant in relation to the time and cost that would be expended in seeking to prove them.  
11.	Further, Mr Rampton notes that the claimant, who is young man who has returned to Portugal, he being a Portuguese national, is apparently without means and is pursuing this claim funded by a conditional fee agreement and a policy of after-the-event insurance but this policy, the defendants have been informed, is one which covers a liability of no more than £100,000.  It is quite plain that if this matter goes to trial the base costs would be many times that figure and the likelihood is that there would also be an uplift if the claimant were successful.  Mr Rampton submits there is a potential unfairness to the defendant in having to contest the disproportionate aggravated damages claim in circumstances where if the defendant were to win, he would be unable to recover the vast majority of his costs which it is estimated would be so far in excess of the limit of £100,000.  
12.	The solicitors for the claimant have sought to address this issue consensually in correspondence.  On 1st February, that is last week, they made an offer.  The offer was to agree not to pursue the parts of the plea of aggravation of damages to which objection is taken on the conditions set out, as they now are, in the skeleton argument for the claimant as follows:  
'(1) That the defendant does not seek in any way to rely at trial on the alleged nature or quality of the investigation in support of his case on qualified privilege, justification or damages.  

'(2) That the claimant is able to give short evidence as to his feelings about the press release as a whole.  

'(3) That the Court is not presented with a misleading picture of the position at trial by the agreement as to a sensible formula which could be put before them in relation to this matter.  

'The claimant proposes that an agreed statement be put before the Court.  The statement proposed is: "The Chief Constable asserts in the press release that there was a 'thorough and ethical investigation' and that there was 'confusion in regard to the expert evidence.' This is strongly disputed by Mr Bento.  Mr Bento contends that the investigators failed properly to conduct themselves in a number of vitally important respects and that the investigation was fundamentally flawed as a result.  Mr Bento has made a complaint to the Independent Police Complaints Commission about these matters and they are the subject of an ongoing investigation."'

13.	A claimant is always entitled in a libel action to give evidence as to his feelings about the words complained of.  Mr Rampton points out that whether or not the investigation was thorough and ethical, the statement that it was in the press release is not, and is not said to be, defamatory of the claimant.  Nevertheless, it seems to me that the claimant would in practice be entitled to give evidence along the usual lines as to his feelings in response to the publication of the words complained of.  That, therefore, does not seem to me to mean that the second condition creates any very great problem.  Indeed, it does not seem to me that it is a condition that needs to be stated as such at all.  
14.	The first and third conditions are more problematic.  As I have already noted there is no plea of malice in this case and it is not clear to me at this stage to what extent the individual policemen will be able to give relevant evidence about the inquiry other than evidence which goes to the guilt or innocence of the claimant of the accusation made against him.  There are witness statements served which are made by police officers but at present I have to say I am keeping an open mind as to the extent to which police officers will be able to assist the Court other than by producing, as I have said, evidence which goes directly to the question of guilt or innocence.  The first condition sought to be imposed by the claimant seems to me to be expressed too widely.  That is not to say that I would find it easy to express the condition in any other way but it is, it seems to me, an objection to it that it is expressed too widely at the moment.  The same seems to me to be true of the third condition.  
15.	It seems to me what I must do first of all is to go back to the pleading of aggravated damage and decide whether it is a proportionate and proper use of the Court's time in this libel action for those matters to be ventilated in the way pleaded.  In my judgment, it clearly is not an appropriate use of the Court's time.  I accept the submission that the extent to which the damages would be increased if the claimant succeeds, as one must assume for this purpose that he will by the proof of all those matters, is of little significance.  The claimant has an understandable wish to have investigated the thoroughness and other aspects of the investigation which led to his conviction but that wish is satisfied so far as appropriate by the inquiry following the complaint to the IPCC.  Whether or not that is so, it does not seem to me that that makes it an appropriate matter for investigation in this libel action.  It is important that the Court should so manage the case that the real issues are addressed with as little distraction by other issues which are not necessary to the resolution of the main issues.  
16.	While the proposal from the claimants to impose conditions may be very well meant, it does not seem to me to be an issue upon which I have to make any decisions.  What, of course, would have to be dealt with at the trial, in the light of all the evidence at the trial, is an appropriate direction to the jury as to the relevance, if any, of the words in the press release about the inquiry being thorough and ethical but that cannot be drafted at this stage.  It would have to be prepared, no doubt following submissions from counsel, by the Judge in the light of the circumstances as they were at the time at which the direction falls to be given, assuming the mode of trial remains as it is at the moment, a trial by a Judge sitting with a jury.  
17.	On grounds of case management, I shall strike out paragraph 7(f) of the particulars of claim and, to the extent that it is referred to in paragraph 12 of the reply, the corresponding references.  
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