'Homes from Hell: Chasing the Dream' may have its own injustices

08 January 2013

Author: Olivia O'Kane
Practice Area: Media and Defamation

O'Dwyer v ITV Plc [2012] EWHC 3321 (QB)

The facts:

Mr O'Dwyer, a former British soldier, appeared on the programme 'Homes from Hell: Chasing the Dream' on 19th July 2011 which documented his campaign against a firm of Cyprian property developers. The campaign arose out of the claimant's placing of a deposit on a luxury villa on a secluded plot of land in Cyprus. However, once Mr O'Dwyer visited the site he realised that there were several houses overlooking what he believed would be his private residence. By this time, building was at an advanced stage, with £100,000 already having been spent on the £250,000 luxury villa. Thereafter, relations between the claimant and the developers, by the name of Karayiannas and Sons, broke down eventually resulting in two charges of assault against Mr Karayiannas and his son, Marios and a public insult charge against Mr O'Dwyer himself for displaying an insulting banner outside Karayiannas' offices.

The claimant, who was a self-represented litigant, claimed damages for libel against ITV. He also claimed an injunction, an apology from the broadcaster and, in a draft amended Claim Form, damages for misuse of private information, infringement of copyright and of "a right not to have a work subject to derogatory treatment" and damages for "breach of freedom of expression". Mr O'Dwyer pleaded both ordinary and natural meaning and innuendo meanings. The gist of the natural and ordinary meanings which he attributes to the words and images complained of is [para. 6]:

i) That he is a foolish, obstinate, greedy and unreasonable person for having refused the developers' offer to repay him in 2006, thereby putting his family in a dire situation for over 5 years (this is based on the passage between 21:37: 22 to 21:38:10);

ii) That he had committed a criminal offence of insult under Cyprus law, alternatively that there were reasonable grounds to suspect that he had, or that he had behaved offensively or aggressively (this is based on the passage between 21:42: 31 to 21:42:54).

The gist of the innuendo meanings which he claims to be defamatory is that he is a hypocrite. The extrinsic facts relied on to support the innuendo are said to be facts published on two websites.

Courts Findings:

The Court applied the well known principles on meanings. In deciding what meaning words are capable of bearing for the purposes of defamation the court must have in mind the guidance given in Skuse v Granada Television, summarised most recently by Sir Anthony Clarke MR in Jeynes v News Magazines Limited[2008] EWCA Civ 130 at paragraph 14:

"The legal principles relevant to meaning ... may be summarised in this way: (1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any "bane and antidote" taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, "can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation..." .... (8) It follows that "it is not enough to say that by some person or another the words might be understood in a defamatory sense."

The Court was also mindful that on meaning applications the court must also bear in mind Jameel v The Wall Street Journal Europe SPRL [2003] EWCA Civ 1694;[2004] EMLR 6, at para 14 where all members of the court agreed with Simon Brown LJ, as he then was, who said:

"...every time a meaning is shut out (including any holding that the words complained of either are, or are not, capable of bearing a defamatory meaning) it must be remembered that the judge is taking it upon himself to rule in effect that any jury would be perverse to take a different view on the question. It is a high threshold of exclusion. ... the meaning of words in civil as well as criminal libel proceedings has been constitutionally a matter for the jury. The judge's function is no more and no less than to pre-empt perversity. That being clearly the position with regard to whether or not words are capable of being understood as defamatory or, as the case may be, non-defamatory, I see no basis on which it could sensibly be otherwise with regard to differing levels of defamatory meaning. Often the question whether words are defamatory at all and, if so, what level of defamatory meaning they bear will overlap."

Finally, the Court also referred itself to the importance of understanding any publication within its overall and entire context.  A principle of particular significance is that expressed in Jeynes at para [15] (5) "The article must be read as a whole, and any "bane and antidote" taken together".

It was noted that the Programme is about a dispute between Mr O'Dwyer and the developers of the house in Cyprus that he wanted to buy. Where the differing views of parties to a conflict are expressed in a single publication the hypothetical reasonable viewer must be taken to understand that the mere statement by the publisher of one view cannot be taken in isolation from the whole.

In relation to the applicable law in England & Wales in relation to amendments, in general, all amendments should be permitted that do not cause irretrievable prejudice to the other party. But this is subject to the proviso that the draft amendment discloses a reasonable ground for bringing the claim (in the words of CPR r3.4(2)(a)), and a claim upon which the claimant has a real prospect of succeeding (in the words of CPR r24.2(2)(a)(i)). If the proposed amendment does not satisfy these tests then to give permission for the amendment would be pointless. The amended claim would be struck out, or summary judgment would be given against the claimant, as soon as the amendment had been made.

The claimant conceded that his original Claim Form and Particulars of Claim were defective and sought to have them amended, also adding various other causes of action. The amendment was resisted by ITV and it applied to have the case struck out. Tugendhat J dismissed the application to amend and struck out the entire action.

An example of meanings pleaded by Mr O'Dwyer which ITV submitted were not capable of being defamatory is the very first natural and ordinary meaning that he pleads. Para 16 of the draft reads:

"16. In their natural and ordinary and/or inferential meaning and in the context in which they were published, [the words at 21:37:22 to 21:37:43 and at 21:38:45] were understood to mean:

16.1 that while in Cyprus, the developers indicated he was, subject to his partner's agreement, prepared to give the Claimant his money back, and that once home that offer was crystallised.

16.2 that the Claimant rejected a sincere offer of his money back.

16.3 that regardless of any offer, the Claimant wanted the house in any event".

Counsel for ITV submitted that all that the reasonable viewer could understand is that he declined the offer for the reasons he is recorded as stating (at 21:37:57), namely that he would prefer to buy it and sell it on. Miss Addy is plainly right in this submission. The Court held that these are not capable of being defamatory meanings.

Conclusion:

The application of the law relating to natural, original and innuendo meaning was not controversial in this particular case.  Tugendhat J referred to the fact that the claimant had only a second year law student to assist him with his case and the opening paragraphs of his amended Particulars of Claim requesting guidance from the court. He stated that although the court is under an obligation to do justice, the English legal system is adversarial and a litigant who explicitly seeks the guidance of the court, as Mr O'Dwyer did, is seeking what he may suppose to be free legal advice. In practice, the course adopted by Mr O'Dwyer in this case in seeking guidance from the court was "extravagantly costly whoever it may be who has to bear those costs" [60].

The judge went on to consider the problem with defamation litigation of this nature and in particular the difficult position that defendants to such actions may find themselves in. He stated that this is pertinent particularly as regards conditional fee agreements (CFAs) whereby defendants can run up significant costs without any prospect of recovery if they are successful simply out of the fact that the claimant has instructed his solicitors that he is without funds. On the other hand, if the defendant is unsuccessful he may be ordered to pay damages as well as the costs of the claimant's solicitors including a mark up in respect of a success fee. The defendant's position then is "wholly unenviable" [para. 62] (Tugendhat J, citing Eady J in Turca v News Group Newspapers Ltd. [2005] EWHC 799 QB at para. 6).

Of greater relevance however, are the judge's comments that the above scenario is one which can and does arise where a claim is pursued by a self-represented litigant. He states, at para. 65, that "changes in the law relating to CFAs may improve the situation of some defendants. But it will not make any difference in cases where claimants are self-represented. It is not clear that there is anything that the court or the legislature can do about this. The potential injustice to a defendant in the position of ITV is such that the court must exercise its powers of case management in the light of the overriding objective with great care".

Perhaps most importantly are Tugendhat J's final remarks that "if a case cannot succeed the sooner that is decided the better for everyone" [para. 65]. Miss Addy as counsel for ITV in this matter subsequently commented that such judicial obiter"may foreshadow a more activist approach to weak actions or defences by unrepresented parties".

This case illustrates the ‘price' media defendants must pay when weak cases are issued and self litigants are involved in these cases.  However, the courts acknowledge the importance of their role in exercising their most basic powers in relation to case management and in expediting proceedings to ensure justice can be administered as fairly and cost effectively as possible.

Olivia O'KaneAssociate

Defamation and Privacy

T: 028 9034 8827E: olivia.okane@carson-mcdowell.com

Olivia is one of the media experts that contributes to debates on issues of media responsibility on the legal blog "The International Forum for Responsible Media"

ANNEX: Transcript complained of

The parts of the Programme of which Mr O'Dwyer complains are set out by him in the body of the Particulars of Claim in small segments, with the full transcript, as prepared by him, attached as an Annex. It is convenient to set out the parts of the transcript in the order in which they were broadcast and these are set out as from Mr O'Dwyer's Annexe as follows:

21: 01:42

Continuity AnnouncerTense times now though, battles with builders and under floor surprises in Homes from Hell

...

21:03:13

Narratorthe former British soldier fighting a one man war

...

21:03:19

Narratoragainst his Cypriot builders...PoliceI, Police Sergeant Andreas Constandinou ask you and you are obligedConorPolice Sergeant Andreas ConstandinouPoliceTo come to the police station of Paralimni in half an hour from now

...

21:34:52

NarratorFormer paratrooper Conor O' Dwyer and his wife Michaela set their hearts on settling down in the Cypriot sunshine with their two daughters.... In a new home with a private pool...

21:35: 27

NarratorThey placed a deposit on the house of their dreams - a luxury four bedroom villa off plan - for two hundred and fifty thousand pounds.They thought they'd found the perfect plot.

21:35:40

ConorPrivacy in the garden was one of our main criteria. We already had a bungalow on the left hand side...And on the right, we couldn't go wrong there either because there was going to be a road the full length - even across the road was to be other bungalows.MichaelaYeahConorSo privacy in the garden was secured.

21:36:01

NarratorIn February 2006, an excited Conor went to see the build for himself...

...

21:36:23

NarratorBut when he got to the plot where his home was being built it wasn't as secluded as he was expectingConorI could see that where there was to be a road next to us, three 2-storey houses were built and they all had balconies, looking straight down into our garden... and..er.. I could have cried

...

21:37:06

NarratorThe property's privacy, so important to Conor and Michaela .... Had gone. Though there was nothing in the contract or in the plans that guaranteed it

21:37:15

NarratorThe developer, Karayiannas & Sons, had changed the site plan...Conor was devastated

21:37:22

ConorWell, the very next morning 9 am I was in the developers office... Initially he admitted to what he had done and then you know, said, well: 'go home Conor, speak to your wife come up with a solution and, you know, if it's a matter of giving your money back then I'll have a word with my partners and we can see what we can do'

21:37:43

NarratorBy now Conor and Michaela had spent one hundred thousand pounds towards their two hundred and fifty thousand pound villa. The builder offered to give Conor his money back...

21:37:57

ConorWe said to the developer that despite what he'd done to us, preparations to move were so far advanced that we would have the house in any event and hopefully we would sell it on quite quickly. But it was no longer our dream home.Michaela No

21:38:11

NarratorConor and Michaela were desperately upset. They felt betrayed. They had bought into a dream only to see it compromised

21:38:20

NarratorIn their anger they recorded meetings with the developer.... To post on the internet in an attempt to make other buyers aware of their experience..... their actions incensed the developers who thought they were negotiating in good faith. Relations broke down.With his hard earned reputation at stake, Karayiannas was adamant he didn't want to sell the house to Conor any more...[Conor driving]

21:38:45

NarratorBut Connor wasn't about to let go of the house and on a visit to the site a chance meeting with the developers turned explosive.

...

21:39:48

NarratorChristoforos Karayiannas and his son Marios were arrested. They were found guilty of assault in a civil court and paid damages to Conor. What had been a feud was now a war... with neither side prepared to back down. Conor wanted the house, Karayiannas wanted Conor out of his life

21:40:09

NarratorBut Conor wasn't going anywhere. With his dream in tatters, he began a campaign that would consume his life.

...

21:40:38

NarratorWhen Conor went to Cyprus in January 2008, things escalated again

21:40:44

ConorWell, we're just coming into the village of FrenarosNarratorIn the centre of town close to the villa, Conor's car and Marios Karayiannas' car crashed into each other[Conor's photos of the crashed cars, wide and tight]

21:40:54

NarratorThere was another confrontation

21:40:58

ConorThe assault took place here. And I was left bleeding on the , sitting on the steps there

21:46:06

Conor... and this was the village that my children were going to school in..

21:41:12

NarratorConnor spent several days in hospital. Christoforos Karayiannnas and his son Marios each received a ten month suspended sentence for Actual Bodily Harm

21:41:25

NarratorKarayiannas & Sons' lawyers said the assault was a result of Conor's campaign deliberately to provoke the developers

21:41:36

NarratorIn 2009 the O'Dwyers were offered their money back plus interest. They refused. To walk away, they wanted their money back plus interest, plus an increase in the house's value, plus legal fees and expenses

21:41:55

ConorWe're off to the offices of Christoforos Karayiannas & Sons Ltd, umm to protest and raise awareness of our situation

...

21:42:31

NarratorOn the streets and on the internet Conor has been relentless in his quest, Karayiannas developers feel they have been victimised, pressured and defamed. They say they have built over a thousand houses and never experienced a situation like this

21:42:44

ConorWe've just had turn up there Christoforos Karayiannas, he's gone past in a very angry manner and erm, and he's been shouting at the err, the police on site

21:42:54

NarratorIn Cyprus it's a criminal offence to publicly insult someone and Karayiannas is insulted by Conor's banner

...

21:45:00

NarratorThe next day Conor was charged by the Cypriot Police with public insult to Karayiannas & Sons

21:45:12

NarratorToday he's on the campaign trail again. This time at the Presidential Palace in the Cypriot capital of Nicosia

21:45:24

ConorHalf- twelve mad dogs and Englishmen!

21:45:31

ConorWell, this is a mock up of my villa.I'm out everything, you know, over one hundred thousand pounds to the developer, and an equal amount in lawyers fees, flights, rented accommodationAnd my money's in the developers bank, my contact's in the land registry and somebody else is in my house

21:45:57

NarratorConor chased his dream, now he's chasing a victory through the Cypriot courtsConorThere is a march coming down the road. I don't know what it is about

21:46:06

Narrator- and he won't give up until the bitter end...

21:46:09

ConorFive years ago I bought in Cyprus and I'm left to sleeping outside in a cardboard boxCrowdFight for your rightsConorThank you... and you, don't give up! Don't give up! Thank you. I'm sleeping there...CrowdBravoConorI'm sleeping there.CrowdBravo, Bravo, well doneConorThank you

21:46:31

ConorThat's what they call solidarity, but erm it's nice, you know, it's really touching

21:46:37

ConorI have no doubt I'll win in the end - you know, it's just the speed of things

21:46:46

NarratorA man's campaign for a home in Cyprus... to a woman's campaign for a safe place for her children

...

21:58:39

NarratorIn Cyprus Karayiannas and Son have set up their own website challenging Conor O'Dwyer

21:58:45

NarratorConor and Michaela are continuing their protest and believe their civil case will be heard later this year

...

NarratorIf you have a Homes from Hell story you'd like us to investigate you can email us at 

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