The High Court has approved a cost budget of £100k a side in a dispute between the national supermarket Sainsbury’s and a solicitor who says he was slandered by a security guard who apparently shouted “you are a shoplifter….you should be in jail” when walking out the store.
The Claim
In court papers filed in June 2023 Mr Andrew Jonathan Milne, an SRA-regulated-solicitor, said that on 24th June 2022 he had visited a Sainsbury’s store located at Woodchurch Road, Prenton, Wirral.
After paying for four items, understood to be “four bottles of Oral Rinse mouthwash, each costing £6″, Mr Milne says that whilst enroute to his car he heard a man shouting at him. The man “was clearly an official security guard employed by Sainsbury’s” and apparently shouted the following words which defamed Mr Milne:
Stop thief
You are a thief.
You are a shoplifter.
You should be in jail.
I am arresting you for shoplifting.
You are a thief . . . you are stealing my bag . . . you have stolen goods in your
bag.
I am arresting you, thief.
It was claimed that “the words complained of meant and were understood to mean that the Claimant is a thief, a shoplifter” which had “imputed that the Claimant had committed a criminal offence“.
Mr Milne says he had been brought up in the area around Prenton and continues to visit it. “He was the Head Server at the local parish church and the head boy of a local school. He is therefore well known in the Prenton area” said the claim.
Alleging that “serious harm” has been caused to his reputation we’re told “it is highly likely that as the Claimant goes about his business in the area local to the supermarket that he will again encounter the witnesses to the incident, who will believe that he is a shoplifter.“
Mr Milne “was and continues to be deeply embarrassed by the publication of
the words complained of” concludes the written submissions, which had been prepared by leading defamation and privacy barrister William Bennett KC
The Defence
In a 7-page-defence written, by barrister Lily Walker-Parr, Sainsbury’s deny any accusations of wrong-doing.
They say in any event “the security guard who was present at its Woodchurch Road store at the time of the incident and who was then-employed by a third-party security company, namely Mitie Group Plc“. They say it is denied that the guard “spoke the words complained of and he has no recollection of the same.“
Sainsbury’s say their ‘Violence and Aggression Policy’ in force at the time of the alleged incident instructs all employees not to engage in the confrontation or detention of shoplifters or others involved in criminal activity. “Accordingly, any such action, if taken by an employee, would amount to an act committed outside the course of their employment for which the Defendant would not be vicariously liable.“
The supermarket say they identified an inconsistency in Milne’s claim: “The words complained of differ from those recorded in the letter of claim dated 18 November 2022 (though not received by the Defendant until served with the particulars of claim). Specifically, the allegation “I am arresting you for shoplifting” appears in a different position in the sequence of allegations and the letter of claim did not mention the words “You are a thief. . . you are stealing my bag”.“
They add that “even if the Claimant was at one time the Head Server at the local parish church and the Head Boy of a local school (which are not admitted) it is denied that this would result in the Claimant being well known ‘in the Prenton area’ from 2022 onwards. They are historical, decades-old accolades achieved when the Claimant was a schoolchild, and he is therefore unlikely to be known or remembered by a substantial number, or indeed any, of the alleged publishees on this basis.“
Sainsbury’s say that if they are wrong about the above then they would intend to rely on a qualified privilege defence, submitting that “there was a social, legal and/or moral duty on the Security Guard to prevent theft, namely shoplifting“.
They also say: “there was also a corresponding interest on (i) the part of members of the public in the immediate vicinity, in receiving information which could cause them to assist in the immediate apprehension of suspected shoplifters; and (ii) the Claimant himself, to ensure that he did not commit a criminal offence by leaving the premises without paying for the goods in his possession.“
The defence concludes that “the claim is bound to fail and/or is ‘not worth the candle’, in that the costs and court time required by this litigation are likely to be disproportionate to the minimal, if any, vindication obtained.“
The Costs hearing
At a costs and case management hearing held before judge Master Brown on 14th March 2024 written submissions filed on behalf of Sainsbury’s criticised Mr Milne’s “grossly disproportionate” and “unreasonable” costs budget.
The budget had apparently been filed at the court 4-months late “two-working-days after the date [Milne] had mistakenly believed to be the deadline“.
It was said that it was “unreasonable and excessive” for Mr Milne to complete the work as a so-called grade A fee earner, charging between £398 and £546 per hour. As the proprietor of his own law firm, Mr Milne is able to re-charge work through ‘Andrew Milne & Co’, rather than rely on the litigant-in-person rate of £19/hour.
It is suggested Mr Milne “should be expected to delegate tasks to more junior fee earners” such as a paralegal “to ensure costs are not unnecessarily incurred”
At the 17-minute-hearing we were told that the parties had in fact agreed a costs budget between themselves of £100,890.50 each. That’s equivalent to 16,815 bottles of Oral Rinse mouthwash.
A 2-day-trial is expected to be held between 1st February and 15th March 2025, however the claim was paused “until 15 April 2024 to allow the parties to attend a Mediation“.
Case
KB-2023-002763 – Milne v Sainsbury’s Supermarkets Ltd
Court/List
Media and Communication
Part 7 Claim – Defamation – libel and slander
Hearing
Before Master Brown 11:30am Room E102 RCJ 14th March 2024
Mouse in the Court 