Full case report
Adelson v Anderson
Reference  EWHC 2497 (QB)
Judge Tugendhat J
Date of Judgment 7 Oct 2011
delay – Jameel abuse – availability of witnesses – enforceability of English judgments in the USA
C was a well known American businessman whose company, Las Vegas Sands Corp, developed and ran gaming resorts in the United States. D1 was the International Affairs Co-ordinator of D2, the trade union ‘Unite Here’. The words complained of, which exclusively concerned events in the USA, were published against the background of government proposals to reform UK gaming laws and establish ‘super’ casinos in Britain at the beginning of the last decade.
D appeared on behalf of her trade union at a fringe meeting of the Labour party conference, run by British trade unions, in Brighton in September 2004. A pamphlet accompanied a talk she gave about C’s business practices and history. Both talk and pamphlet made allegations about C personally, and about his approach to business and politics, which were serious enough to shock some of those present.
The history of the claim itself was long and convoluted. It was made for damages and an injunction, was issued in September of 2005 and served in March 2006. Orders and other directions relating to it were made in early 2007 but not complied with. Instead, a trial date which was fixed in July 2007 for the following year was adjourned so that an action by the same C against Associated Newspapers, in respect of an article published in the Daily Mail at about the same time, could be allocated to the designated dates. That second action was settled by a Statement in Open Court in March 2008.
C made attempts to get the ball rolling again after the settlement, and an unsuccessful mediation eventually took place in early March 2011. In its wake, C’s solicitors again stated their intention to proceed, Ds noting the four year delay since the orders made in 2007. Ds then issued the application notice asking for the claim to be struck out for abuse of process under CPR 3.4 (2) (b), saying that the action would serve no useful purpose.
Should the claim be struck out in its entirety pursuant to CPR Part 3.4(2)(b) as an abuse of process?
a) Does pursuit of the action any longer serve a useful purpose?
b) Does delay give rise to the inference that C places little value on vindication, and long ago lost interest in pursuing the proceedings to trial?
Granting the Defendants’ application
(1) The claim was struck out in its entirety on the basis that what was then at stake in the action did not justify the deployment of the resources of the English court. The case would have taken a considerable time to try and the court would possibly have required assistance from witnesses from the USA on the issues raised on the pleadings relating to labour disputes, regulatory matters, and political donations and so on. Considerable time would have been required.
a) The allegations did not rank among the most serious libels in the first place, and their impact would in any event have been mitigated by what any reasonable reader had learnt about C’s activities since they were published in 2004. The trade union/employer context weighed in the balance; strong words published in relation to such a relationship are part of common discourse in public life in England and Wales.
b) J inferred that, although C at some point did intend to prosecute the action to trial, he ceased to have that intention after the settlement of the ANL action in March 2008. He also inferred from the delay that C did not regard the allegations as particularly serious in 2004 and 2005. He had available to him, and made use of, other means of vindicating his reputation. There was no prospect of an injunction in relation to republication of the words in England and Wales, and no evidence of any threat to repeat them in the jurisdiction.
The decision shows that, where a question of whether a claim is an abuse of process fit to be struck out under the Jameel jurisdiction arises, delay may play its part in any eventual dismissal. Even where allegations are serious in the first place, if the action is not pursued with a genuine desire for vindication, any claim may be inferred to be no longer worth being pursued, or heard by the court. The question of what is at stake may be modified by the passage of time.
A need for assistance from witnesses based in another jurisdiction may also be a factor in striking out such a claim, where the use of the resources of an English court is in question.
The judgment also contains an interesting coda on the enforceability of English defamation judgments in the USA. In light of the existence of the SPEECH Act, a US statute which provides that foreign judgments in defamation actions will not be recognized by domestic courts unless they determine that the foreign law offers at least as much protection for freedom of speech as the First Amendment, the Judge surveyed the respective positions on the law of reputation and freedom of expression in the two jurisdictions.
Considering the practical operation of the presumption of falsity in English law, the Judge questioned what the position would be under the Act where an English court found proof of falsity and malice to the level required in the USA. He also pointed to the existence of protections for freedom of Expression which exist in England but not the USA.
Harbottle and Lewis LLP; Simons Muirhead and Burton
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.