Kaschke v Gray & Hilton (No 2)
Reference:  EWHC 1907 (QB)
Court: Queen's Bench Division
Judge: Stadlen J
Date of judgment: 23 Jul 2010
Summary: Libel - Abuse of process - Strike out - Damages award out of proportion to time and costs
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Instructing Solicitors: Claimant and First Defendant in person; Bryan Cave Solicitors for the Second Defendant
The Claimant (C) was a political activist who ran a number of websites. She complained about an article written by D1 and posted on his blog and D2’s website. The meaning complained of was that she was once suspected by the West German authorities to be a member of a far left group of terrorists, Baader Meinhof, who had carried out bombings, robberies and murders in the 1970s. It was accepted by C that she had been arrested in West Germany on suspicion with involvement in a terrorist gang and had spent 3 months in prison, following which she was paid compensation for wrongful imprisonment. However, C claimed her reputation was damaged by the implication that it had been the Baader Meinhof gang. D1 and D2 applied to strike out the action on the grounds that any award of damages was likely to be modest and out of all proportion to the time and costs of litigating a 2 week jury trial.
Whether the claim should be struck out as an abuse of process – in particular whether the likely award of damages would be out of all proportion to the time and costs of litigation, applying the abuse of process principles in Jameel v Dow Jones & Co Inc.
Granting the application:
Although the doctrine was applied only in rare cases, there was jurisdiction to strike out a claim as an abuse of process where the claimant could not establish that a real and substantial tort had been committed. The court would consider whether any damages recovered might be so small as to be totally disproportionate to the very high costs of litigating a libel action.
In this case, C had openly accepted that she had been arrested in West Germany on suspicion of involvement in a criminal terrorst gang and there was little substance in the distinction which she sought to draw between being suspected of involvement with a criminal gang with the aim of committing terrorist offences, and the specific identification of the gang as being the Baader-Meinhof. She was therefore likely only to obtain very modest damages even if she succeeded on liability. Such an award would be out of all proportion to the time and money spent on litigation and trial. Accordingly, C’s claim was struck out.
Another decision to bolster the line of authorities on abuse of process following Jameel v Dow Jones, Williams v MGN and Lonzim Plc v Sprague. The key basis on which the case was struck out was the marginal distinction between the Claimant’s accepted position on the facts, and the defamatory sting of which she complained. A two week jury trial to vindicate the Claimant for damage to her reputation based on that marginal distinction was not worth the candle.