Clarke t/a Elumina Iberica UK v Bain & Prolink Holdings Corp
Reference:  EWHC 2636 (QB)
Court: Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 19 Nov 2008
Summary: Defamation - Libel - Jurisdiction - Foreign publication - Aggravated damages - Striking out - Case management - Proportionality
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Godwin Busuttil (Defendant)
Instructing Solicitors: Stitt & Co for the Claimant; Reynolds Porter Chamberlain LLP for the Defendants
C sued Ds, the CEO of a US corporation and the corporation itself, for libel in respect of a series of alleged defamatory publications in England and one in China (the Chung email). C also claimed aggravated damages, a claim in part related to the Chung email and in part based upon other alleged publications by Ds.
Ds applied to strike out those parts of the claim based upon the Chung email on the ground that the court had no jurisdiction to determine them. C consented to the application so far as it concerned the Chung email as a cause of action, but insisted that he was nonetheless entitled to rely upon the Chung email in aggravation and applied to amend to expand his plea of aggravated damages with reference to it. Ds also applied to strike out the plea of aggravated damages in so far as it was based upon publications other than those sued on as causes of action.
(1) Whether, as a matter of law and/or case management, it was permissible for C to rely in aggravation of damages upon alleged publications by Ds which disclosed a cause of action in defamation other than those in fact sued on as causes of action;
(2) Whether C, in a libel action against foreign defendants, was entitled to rely upon a publication in China in aggravation of damages.
(1) On case management grounds, such as are described by Gray J in Collins Stewart v Financial Times, the parts of C’s claim for aggravated damages based upon publications other than those sued on as causes of action were struck out and permission to amend with reference to the Chung email was refused.
(2) “It would be surprising if a claimant, after being refused leave to rely on a cause of action in respect of a publication outside the jurisdiction could simply move his plea from the substantive claim to the part of the pleading dealing with damages… I do not need to decide the case on this separate ground, and I do not do so. Had it been the only ground, then I would have decided that what the Claimant is seeking to do… ought not to be permitted, at least on the facts of this case” (at -).
The judgment gives a valuable account of when it may be appropriate for a libel claimant to rely in aggravation of damages upon publications other than those sued on, and applies the case management principles outlined by Gray J in Collins Stewart to a claim involving a personal, as opposed to a corporate, claimant. The Judge also builds on the foundations he laid in Adelson v Associated Newspapers in respect of proportionality when considering the scope of an aggravated damages plea in a libel claim.