Full case report
Smith v Dha
Reference  EWHC 838 (QB)
Court Queen's Bench Division
Judge Nicola Davies J
Date of Judgment 12 Apr 2013
Defamation – CPR 40.7 – Death of Claimant – Abatement of Action – Power to revive
In 2010 C sued D over a web posting in a specialist internet forum for Subara car enthusiasts, many of whom bought parts through the website, which alleged that he had tried to initiate a price-fixing agreement with C. The forum thread in question had remained on the internet, unknown to C, and had received some 2000 aggregate non-unique views. D pleaded defences of qualified privilege and justification and issued an application that C had consented to publication of the posting, that there was no prospect of proving publication online and that there was no evidence of any damage to C. The application was heard in October 2012 after a lengthy period in which C had suffered from acute ill health and was unable to deal with the litigation. On 7 November 2012, after argument had taken place, but before judgment was handed down, C died and his death was reported to the Court. D expressed his condolences but invited the Court to hand down judgment even though the cause of action had abated on the death of C. C’s representatives argued that the common law principle of actio personalis moritur cum persona applied and there is no jurisdiction to revive an abated personal action such as defamation after the death by any party.
Whether in a personal action which abates on death of a litigant there is any jurisdiction to hand down a reserved judgment
The Court making no order the action having abated:
1. The cause of action in libel abated on the date that the Claimant died and it becomes defunct and there was no jurisdiction to revive or continue it in order to hand down judgment on an argument which had taken place.
2. CPR 40.7, which abandoned a previous provision of the Rules of the Supreme Court (RSC Order 42 r. 3(2)) for a judgment to take effect “on an earlier date”, was a clear rule: “A judgment or order takes effect from the day when it is given or made, or such later date as the court may specify.” A judgment cannot be backdated to the date of the relevant hearing.
A defamation action is a personal action, expressly excluded from Section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934, and is not transmissible to the estate of the deceased. The 1934 act recognises the centuries-old common law principle actio personalis moritur cum persona. Although there may be a perceived unfairness to a surviving party, this decision refers to exampes of reasons why defamation actions must abate on the very rare occasion that a litigant dies. Damages cannot be properly assessed without evidence from a claimant. A plea of malice cannot be tested without a defendant. The prejudice to both parties is equally weighed.
Irwin Mitchell LLP for C; PSB Law for D
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