Hughes v Alan Dick & Co Ltd
Reference:  EWHC 2695 (QB)
Court: Queen's Bench Division
Judge: Eady J
Date of judgment: 23 Oct 2008
Summary: Defamation - Slander - Absolute privilege - Qualified privilege - Malice - Default judgment - Setting aside - CPR r.13.3(1)
Richard Munden (Defendant)
Instructing Solicitors: VLS for the Claimant; TLT for the Defendant
C complained of words allegedly spoken by an employee of D to an officer of the Border and Immigration Agency and a police officer, concerning the employee’s suspicion that C’s wife was carrying cash improperly acquired by C.
A copy of the claim form, but not a response pack, was sent to D, who was at that time not represented by solicitors. D did not respond to the claim and C obtained default judgment. At the subsequent CMC D appeared and indicated a desire to defend the claim on the grounds of absolute and qualified privilege and justification. D applied to set the default judgment aside and to have the claim dismissed as an abuse of process. C applied for summary disposal.
(1) Whether the default judgment should be set aside under r.13.3(1)(a) or (b);
(2) Whether the claim should be dismissed as a Jameel abuse of process;
(3) Whether C should be granted summary disposal.
(1) The default judgment would be set aside. There was a realistic prospect of success on the basis of absolute privilege, qualified privilege and/or justification, and D had acted with appropriate speed such that there was no reason for the court to exercise its discretion against D. Further, C’s failure to serve a response pack with the claim form and the resulting confusion on the part of D’s employees was a “good reason” within r.13.3.1(b) to set the judgment aside;
(2) Although the claim plainly had significant hurdles to overcome and publication was on a very limited scale, it related to a serious allegation for which C was entitled to seek a remedy and therefore could not be said to amount to an abuse of process;
(3) C came “nowhere near” discharging the relevant burden. It could not be said that malice was bound to succeed.
This claim raises various issues as to the extent of absolute privilege, particularly in respect of publications concerning suspected crimes in the light of Westcott v Westcott. The judgment also touches on the supposed “game not worth the candle” jurisdiction to strike out claims following Jameel. Taken to its logical conclusion, Jameel could tend to suggest that slander actions where publication was limited to a handful of people would be potentially vulnerable to being struck out. Eady J’s decision rejects this general proposition, but leaves the parameters of “the game’s not worth the candle” jurisdiction as uncertain as ever.