Full case report
Kenny v Commissioners for Her Majesty’s Revenue & Customs & Another
Court Queen's Bench Division
Judge Master Gidden
Date of Judgment 13 Dec 2018
Slander – Strike out – Summary Judgment – s.1 Defamation Act 2013 – serious harm – abuse of process (Jameel)
The Claimant was a former employee of Her Majesty’s Revenue & Customs. He brought a slander claim in respect of an allegation made by his line manager during a meeting that the Claimant had been heard “joking about Auschwitz” to another employee. There was only one other person present in addition to the Claimant and his line manager – a senior manager. The employee concerned joined the meeting and confirmed that the Claimant had not been joking about Auschwitz. The senior manager accepted this as true and the next working day, the line manager apologised by email.
The Claimant was very distressed by the allegation he had been joking about Auschwitz. He also contended that the apology was not genuine and the baseless allegation formed part of the reason for his later dismissal. He had brought separate employment tribunal proceedings in respect of that dismissal.
The Defendants (HMRC and the line manager) applied to strike out the claim and for summary judgment on the grounds that the words complained of were not defamatory; there was no serious harm within the meaning of s.1 of the Defamation Act 2013; there was no cause of action in slander as no special damage was pleaded and the claim was an abuse of process in accordance with the principles set out in Jameel (Yousef) v Dow Jones & Co Inc  QB 96.
It was also contended the claim was statute-barred being issued after the expiry of the limitation period. The Claimant contended that the claim form had been received at the Court Office in time but wrongly returned to him. It had been date stamped by the Court office the day prior to the limitation period expiring but this date was struck through and it in fact bore a date after the expiry of the limitation period.
- Whether an allegation that a person had been “joking about Auschwitz” was defamatory within the meaning of s.1 of the Defamation Act 2013.
- Whether the claim was an abuse of process in accordance with the principles set out in Jameel (Yousef) v Dow Jones & Co Inc  QB 96.
- Whether the claim was statute-barred.
Striking out the claim:
1. The Claimant’s upset was not the appropriate test; the issue was whether publication caused serious harm to his reputation within the meaning of s.1 Defamation Act 2013
2. Whilst some might regard joking about Auschwitz as ignorant, disrespectful or odd, the scope for levity on this topic was well within the range of the Article 10 right to freedom of expression. The words complained of were not defamatory and did not satisfy the serious harm test.
3. The prompt apology, the limited publication and the absence of special damage meant that it was appropriate to strike out the case as an abuse of process on a Jameel basis.
4. In the circumstances it was not necessary to consider whether the claim was statute-barred and the Court had proceeded on the basis that the claim was issued in time for the purposes of the application.
Like Freer v Zeb  EWHC 212 and Bezant v Rausing  EWHC 1118, this is another example of a case where limited publication and limited damage are considered relevant to a decision to strike out.
The decision may also be of interest because it involves consideration of what is socially acceptable in the present climate in the context of serious harm to reputation and the right to freedom of expression.
Solicitors for HMRC
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