Full case report
Freer v Zeb & Ors
Reference  EWHC 212 (QB)
Court High Court Queen's Bench Division
Judge Victoria Sharp QC
Date of Judgment 18 Feb 2008
Defamation – Slander – Publication – Summary Judgment – Abuse of process – Vicarious liability – Civil restraint orders
Slander proceedings were brought against two defendants over statements said to have been made in a pizza delivery restaurant. The Defendants were a woman that the Claimant had recently been in a relationship with and a colleague, alleged to be a new partner. The first Defendant, a local trader, was alleged to be vicariously liable for the damage caused. The statements were of a purely private nature. Publication was pleaded to one unnamed non-defendant and passing customers. Within a week the Claimant had launched 6 separate claims against his ex-partner or a witness for her in criminal proceedings against him. Four claims were in defamation, one for false imprisonment and one for delivery up of possessions. Another of the slander claims was identical in most material aspects, save that other employers were sued. D1 sought summary judgment on grounds of abuse, no prospect of proving vicarious liability or publication and applied for a civil restraint order.
Whether there was a reasonable prospect of the Claimant succeeding on (a) vicarious liability, (b) publication and/or whether the claim should be struck out as an abuse of process.
Dismissing the claim,
(1) The First Defendant’s company was the correct defendant to sue but there was no prospect of establishing that the statements had been made within the scope of employment.
(2) There was no evidence that publication had taken place. This should be remedied by a witness statement from the only unnamed publishee, confirming the statements were heard, their content and describing and confirming who else was present otherwise the claim would be struck out.
(3) The claim was an abuse of process. Damages would be nominal, publication and damage to reputation would be modest and the cost of proceedings disproportionate. Comparison with a virtually identical claim (same words complained of, different occasion) indicated vexatious conduct.
(4) The claim was totally without merit but did not pass the threshold for the Court to make a civil restraint order.
When making an application to strike out for abuse, the Court is entitled to have regard to other litigation brought against the same parties or arising from the same subject matter. This makes a trawl of the publicly available information on the Court file worthwhile when contemplating such applications.
Stevens Drake for D1; C in person.
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.