Reference:  EWHC 2859 (QB)
Court: Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 10 Nov 2010
Summary: Libel – Publication – Twitter – Preliminary issue – Substantial tort – Abuse of process
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Desmond Browne CBE QC - Leading Counsel (Defendant)
Andrew Caldecott QC - Leading Counsel (Claimant)
Instructing Solicitors: Carter Ruck for D; Collyer Bristow for C
C is a New Zealand cricketer and D was chairman and commissioner of the Indian Premier League and Vice President of the Board of Cricketing Control for India. C complained of two publications on 5 January 2010: (1) a posting on Twitter by the D on 5 January 2010; and (2) a publication a cricket website, Cricinfo. Both publications were available online for a very short period. C claimed that the publications suggested that he was guilty of match-fixing or that there were strong grounds to suspect that he was.
C obtained permission to serve proceedings on D in India. D applied to set that order aside on the ground that C had not demonstrated that a real and substantial tort has occurred within the jurisdiction. Before the hearing, D abandoned the forum argument but instead applied for the trial of a preliminary issue concerning the extent of the Tweet’s publication within the jurisdiction on the basis that the expert evidence suggested that publication of the Tweet was so limited that the action was an abuse of process under the principle in Jameel v Dow Jones & Co Inc. There were disputes on the evidence that could not be resolved on paper. C submitted that the evidence of publication of the Tweet was sufficient for the Court to be satisfied that the claim was not a Jameel abuse of process and in any event the question of the substantiality of a tort was not simply a numbers game; it also required an assessment of the seriousness of the allegation and its capacity to damage the Claimant.
Whether the Court should order a preliminary issue as to the extent of publication of the Tweet
Although C’s case on publication of the Tweet within the jurisdiction had been revised down, the Court was not prepared to accept that it was speculative. Even if D’s evidence on publication were to be accepted it was not clear that C’s claim would be struck out. There was more to abuse of process than the number of publishees. A claimant’s primary concern in a libel action is vindication, not damages for what has been suffered in the past. Vindication may also include either a retraction, or a verdict for the claimant, or a judgment to the effect that the allegation complained of is false. So a claimant can legitimately and reasonably pursue a claim where the publication that has already occurred is limited, when his purpose is to prevent, or at least limit, further publications to a similar effect being made in the future. The Jameel jurisdiction to dismiss an action as an abuse of process was useful, but it was not to be seen as an additional hurdle which claimants must overcome.
Trial of a preliminary issue on publication by the Judge sitting alone would have been possible by an application of s.69(4) Senior Courts Act 1981. The Court’s decision on Jameel abuse of process reinforces the view that, whatever the precise limits of the jurisdiction, it is not simply a numbers game.