Full case report

Awdry Bailey and Douglas v Kordowski

Reference [2011] EWHC 785 (QB)
Court High Court, QBD

Judge Tugendhat J

Date of Judgment 1 Apr 2011


Summary

Libel – strike out – summary judgment – publisher  –  section 1 Defamation Act 1996 – qualified privilege – abuse of process – amendments – online publication


Facts

D was the publisher of a website “Solicitors From Hell” (“the website”). The Cs brought a libel action in respect of a posting on the website which had been written by the ex-husband of a client of the Cs. The posting contained defamatory allegations about C2’s conduct during the author’s divorce proceedings. D had not taken any steps to put the allegations to the Cs before publication, and his response to the Cs letter before action included a statement that he had no money and no assets. In the same letter D invited C to subscribe to a scheme whereby the Cs could ensure the permanent removal of the words complained of upon payment of a fee.

D served a Defence purportedly relying on s.1 Defamation Act 1996 on the basis that he was not the author of the words complained of and subsequently served a witness statement in which he claimed that the words were fair comment and true and published having regard to “the duty and interest of others”.

The Cs sought an order that the Defence be struck out pursuant to s.3.4(2)(a) and judgment be entered for the Cs because the defence disclosed no reasonable grounds for defending the claim. D subsequently served more documents including a 3rd Witness Statement which enlarged upon the purported defence of qualified privilege. D then produced a Witness Statement from the author of the posting which attached a print out from the author’s blog which contained similar allegations to the words complained of. D applied to adduce the author’s witness statement as evidence and for the 3rd Witness Statement to stand as his Defence.


Issue

(1) Did the Defence disclose any reasonable grounds for defending the claim?

(2) Should D be permitted to rely on the additional evidence?

(3) Should D be given another opportunity to amend his Defence and/or adduce further evidence?


Held

Striking out the Defence and entering judgment for the Cs:

(1) None of the documents or witness statements disclosed any reasonable ground for defending the claim. D had explicity admitted being the publisher of the words complained of. It was obvious that the reciprocal duty and interest for common law QP did not exist in this case, and the conditions for a Reynolds defence were equally lacking. There was no public interest in the publication of the words complained of. The author’s witness statement lacked particularity and simply attributed to C2 all the grievances the author had about the divorce.

(2) D’s application was dismissed and was wholly without merit

(3) D would not be permitted a further opportunity to amend his Defence. D was an experienced litigant and was abusing the process of the court by seeking to cause the Cs to incur costs which he said they have no prospect of recovering.

A final injunction was issued at the hearing and D was ordered to pay Cs’ costs.

D’s application to the Judge for permission to appeal was refused.


Comment

The latest in a series of libel actions against this defendant, see for example Farrell v Kordowski where an interim injunction was made and damages were subsequently assessed at £10,000, but it is believed that this is the first case where the Court has given written reasons in respect of liability.


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Instructing Solicitors

Awdry, Bailey & Douglas for the Claimants, the Defendant in person