Full case report
Anglia Research Ltd v Finders Genealogists Ltd
Reference  EWHC 297 (QB)
Court High Court Queen's Bench Divison
Judge HHJ Moloney QC
Date of Judgment 17 Feb 2016
Pre-action disclosure – defamation – harassment – Norwich Pharmacal – serious harm
The Applicants had made a series of Norwich Pharmacal applications in respect of fake anonymous Twitter accounts in the names of two directors and three online postings which either confirmed the truth of a vexatious and defamatory petition about the Second Applicant activated by a third party on Change.org or directed the readers of well-known consumer websites to the Change.org petition. Disclosure from the relevant internet platforms showed that all those responsible were employed by or linked to the Respondents, key competitors in the ‘heir hunting’ business of tracing heirs to unclaimed estates. A further targeted email from the Respondents distributing a copy of the Change.org petition and warning clients off dealing with the Applicants came to light. The Applicants applied for pre-action disclosure in respect of all documents which evidenced an organised distribution of the defamatory petition to the Applicants’ clients or prospective clients. The Respondents admitted responsibility for much of the activity, including the email to the Applicants’ client, denied there was any claim in relation to the activities and resisted disclosure on the basis that the email to the client was an isolated incident and on the grounds that the issuance of a claim form in respect of the website statements to protect against limitation denied the Court any jurisdiction over pre-action disclosure.
(1) Whether a claim form already issued protectively in respect of libels on two websites published by the Respondents meant that there was no jurisdiction under CPR 31.16;
(2) If there was jurisdiction, were the threshold requirements of CPR 31.16(3) met?
(3) If there was jurisdiction and the threshold requirements were met, should the court exercise discretion to order pre-action disclosure?
(1) The disclosure application referred to, in the evidence served and the preceding correspondence, disclosure in relation to both publications and causes of action which formed no part of the issued claim form. Disclosure was being sought in respect of matters which could form the basis of a second or further claim forms but would not be abusive duplication as the publications in issue were capable of founding separate claims. It was unexceptional where defamation was a cause of action in question that claims would need to be issued within a year, whilst further claims were still being investigated. Concurrent defamation claims would not be abusive per se where founded on new publications.
(2) The threshold requirements of CPR 31.16(3) were met. The parties to the application were likely to be parties to any subsequent proceedings. The documents sought would fall into standard disclosure. As the disclosure would allow the Applicants to understand the nature of any alleged wrongdoing against them more fully, disclosure would be likely to dispose fairly of the second action if commenced, or to assist in the dispute being resolved without proceedings, or to save costs.
(3) It was appropriate to make an order for pre-action disclosure. The disclosure sought was narrowly focused, the alleged claim that systematic use had been made of the defamatory material against a competitor was not fanciful and had not been refuted and the Applicants were, without disclosure, in the dark, but would face threshold questions of seriousness if claims were brought in libel and harassment, to which the disclosure was relevant.
Pre-action disclosure is not much used in libel, presumably because the majority of cases are concerned with statements which are made in public and the facts of the publication are discoverable. The CPR 31.16 jurisdiction is also a difficult one to satisfy (an ‘exceptional’ jurisdiction), and comes with the disincentive of an unattractive default costs position in favour of respondents. Nevertheless, where as in this case a claimant is pondering potentially tortious activity of unknown scale or frequency, where the potential loss is unknown because not all of the the publishees are known, the jurisdiction can be useful, particularly where the alternative may be a costly trial of preliminary issue on serious harm (in defamation proceedings). The costs order made in this case, that each party bear its own, is also a further warning to respondents who dig their heels in against disclosure applications which are strong on their facts and seek narrow, select disclosure.
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