Full case report

Ames & anor v The Spamhaus Project Ltd & anor

Reference [2015] EWHC 127 (QB)
Court High Court (Queen's Bench Division)

Judge Mr Justice Warby

Date of Judgment 27 Jan 2015


Summary

Libel – serious harm – Jameel abuse – US publication – foreign claimants – real and substantial tort


Facts

The Claimants are entrepreneurs based in California. They set up in the US a successful direct email marketing company which was bought by a UK company in April 2011, for which they continued to work until December 2013.

The First Defendant, founded by the Second Defendant, tracks and reports on sources of spam on the internet.

Between December 2013 and May 2014 Ds published on their website a series of allegations against the Cs accusing them of unlawful activities in connection with spam.

Cs brought claims in libel over publication of the Ds’ website in England and Wales.

Ds applied to strike out the Cs’ claim in libel under CPR 3.4 and 24, suggesting that the Cs had no pre-existing reputation in the UK, and there had been very limited publication of the words complained of in the UK, so no real and substantial tort had been committed within the jurisidiction and/or no serious harm had been, or was likely to be, caused to the Cs’ reputations.

Cs applied to amend to rely on publication of the Ds’ website in the US.


Issue

(1) Did the Cs have a real prospect of success of establishing they had suffered serious harm in the jurisdiction?

(2) Should the claim be struck out as an example of Jameel abuse?

(3) Should the Cs be granted permission to amend to rely on US publication?


Held

(1) Each of the Cs had a real prospect of establishing that publication of the words complained of in the jurisdiction had caused him serious harm.

(2) The claim could not properly be dismissed as an abuse of the process of the court.

(3) The Cs should have permission to amend.


Comment

This decision is significant as the second to give detailed consideration to s.1 of the Defamation Act 2013 (after Cooke v MGN [2014] EMLR 31) and the first to consider the serious harm test alongside the Jameel abuse jurisdiction. Warby J held that the issue of serious harm is likely to be better dealt with by way of preliminary issue rather than applications under Parts 3.4 or 24, particularly when there are issues of fact relating to the extent of publication. Questions of meaning should be dealt with at the same time. It will be a rare case where the serious harm test is satisfied but the claim is nevertheless an abuse. The judgment appears to allow a greater role for inference from the gravity of the allegation to serious harm than does Cooke.

Following OPO v MLA [2014] EWCA Civ 1277 (currently under appeal on a different point) the Cs were permitted to rely on the presumption that foreign law was the same as English law for the purposes of the amended pleading.


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