Page:Lehrmann v Network Ten Pty Limited (Trial Judgment).pdf/282

 IIThe English Cases on Abuse of Process by a Claimant

989 Anticipating my findings that Mr Lehrmann had sexual intercourse with Ms Higgins but guarding against the possibility neither defence was made out, the respondents submit that this would necessarily mean that Mr Lehrmann: first, cheated on his girlfriend despite using his apparently monogamous relationship with her as a reason to deny Ms Higgins' allegations; secondly, perverted the course of justice in lying to the police; and thirdly, instructed his counsel to cross-examine Ms Higgins on a false basis twice and presented her as a fantasist. Following the reopened case, the respondents also fourthly allege Mr Lehrmann breached his Hearne v Street obligation and then wilfully mislead this Court, by way of submissions and evidence, in his denial of engaging in such conduct (collectively, the Relevant Misconduct).

990 The Relevant Misconduct is said to be so serious that no damages ought to be awarded.

991 More particularly, relying on a line of English authority, they submit this is the kind of "very exceptional case of abuse of process" where it would be open to the Court to reduce to a vanishing point any damages on account of Mr Lehrmann's conduct: Wright v McCormack [2023] EWCA Civ 892 (at [76] per Warby LJ). In that case, Warby LJ (with whom Singh and Andrews LJJ agreed) considered Joseph v Spiller [2012] EWHC 2958 (QB) and FlyMeNow Ltd v Quick Air Jet Charter GmbH [2016] EWHC 3197 (QB), two decisions in which nominal damages were awarded in circumstances where the plaintiff had advanced a false case and supported it with false evidence in an attempt to deceive the court: Wright (at [62]–[63]); see also C Gatley, R Parkes R and G Busuttil, Gatley on Libel and Slander (Thomson Reuters, 13th ed, 2022) (at 10-005).

992 In Joseph v Spiller, Mr Justice Tugendhat held (at [166], [177]) the relevant conduct was "a sophisticated deception" which involved relying on a false document to mislead the court (at [55]), and that the plaintiff "abused the process of the court by deliberately pursuing a false claim for special damages" (at [177]). That deception, "massive as it was", did not affect the whole claim, because adequate vindication of reputation was given in the reasons for judgment and an award of nominal damages was considered appropriate (at [178]).

993 By parity of reasoning, it is said in the present case that Mr Lehrmann has asserted "he has been destroyed by a manipulative fantasist" and that "he is true victim of a vendetta". It is submitted that this is more than a case involving dishonesty about some aspect of a claim – it Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369