Reference:  EWHC 1068 (QB)
Court: Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 17 May 2010
Summary: Defamation - Abuse of process - No real or substantial tort - Collateral purpose - Qualified privilege - Reynolds privilege
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David Sherborne (Claimant)
Instructing Solicitors: Schillings for C; David Price for D
In 2008 three former employees of C, a well known recruitment agency, made a series of serious allegations about it, the substance of which were that C had committed or condoned gross acts of racism on the part of its senior employees, to D. D, who carries on business as an independent news and press agency, communicated the allegations to a journalist, who in turn published them in the Sunday Mirror.
C commenced proceedings against the former employees. In their defence they asserted that D was involved in the publication to the journalist. C then brought proceedings against D for that publication. By his defence D pleaded a defence of traditional qualified alternatively Reynolds privilege and averred that the claim was an abuse of process. Malice was not put in issue in the reply.
C settled the claim against the former employees on terms which included a public statement, in which the former employees accepted that there was no evidence that C had acted in a racially discriminatory manner, and no evidence that it was an “institutionally racist company”. This statement was also added to the online version of the Sunday Mirror article.
C applied to strike out or be granted summary judgment in respect of D’s privilege defences, while D applied to strike out the proceedings as an abuse of process on the grounds that (i) no real and substantial tort had been committed; and (ii) the claim was brought for a collateral purpose.
(1) Whether the action should be stayed as an abuse of process on the grounds that no real and substantial tort had been committed;
(2) Whether the claim was brought for the dominant purpose of achieving a collaterial purpose;
(3) Whether the privilege defences should be struck out or summary judgment granted.
(1) The claim was an abuse of process. D had informed C that he had no intention of publishing the allegations, and while there was nothing wrong in a claimant seeking an undertaking from a defendant not to repeat words complained of, as a matter of law a claimant was not entitled to an injunction unless there was good ground for apprehending a wrongful repetition. There was no legitimate aim in pursuing vindication or damages as D was not the originator of the words complained of, the action was brought on a publication to a single individual and the republication gave proper coverage to C’s case, so any damages would likely be modest. Significantly, C had already received vindication both from the originators of the words complained of, in the form of the public statement, and from the newspaper in the form of the republication on its website of the public statement, such that continuing with the claim could not yield any real benefit for C.
(2) While there was some evidence that the claim against D was brought in order to obtain evidence that the employees had published the allegations, the purpose of the action was the entirely legitimate one of achieve vindication in respect of very serious allegations.
(3) Had the claim not been struck out, the privilege defences raised important issues which might be fact sensitive and would therefore not have been struck out or summary judgment granted to C in in respect of them.
Another example of a Court putting to an end litigation which, in its view, can achieve little for a claimant. While it was accepted that the allegations made against C were extremely serious, the central focus of the Court’s reasons focus upon events which postdated the issue of proceedings. As Mr Justice Tugendhat observed:
“[C] had every reason to pursue its legal rights, and to do so forcefully. It chose, quite properly, not to sue [D] in the first instance … once the [former employees] had denied responsibility for publication, it was prudent for [C] to preserve its rights against [D].
But the fact that [C] acted reasonably in preserving its rights and suing [D], is not a reason why it should be entitled to continue pursuing [D] once it has become clear that it has achieved its objective in the action against the [former employees].”