Reference:  All ER (D) 96 (May)
Court: High Court
Judge: Sharp J
Date of judgment: 11 May 2012
Summary: Libel - strike out - Jameel abuse
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Jonathan Scherbel-Ball (Defendant)
Instructing Solicitors: Kingsfords
The Claimant was a former English barrister who was convicted in New Zealand in 2003 of conspiracy to unlawfully detain a person without his consent with intent to imprison and unlawful possession of a firearm. At his trial, the Claimant had asserted that he had been simply playing ‘a game’ and that he lacked any criminal intent. The Claimant was sentenced to seven years imprisonment and his subsequent appeal against conviction and sentence were rejected by the New Zealand Court of Appeal. In 2005, he was disbarred by the Honourable Society of Middle Temple. Upon his return to the UK, the Claimant had self-published a book about his experiences and protesting his innocence.
The Claimant sued for libel in respect of two publications:
1. An email written by the Defendant (a former engineer who had known the Claimant) to his former partner’s solicitor which referred to the Claimant as having been “convicted of armed kidnap in New Zealand in 2003”.
2. A comment posted on the amazon.co.uk listing for the Claimant’s book, which referred to the Claimant as an “armed kidnapper”.
The Defendant applied to strike out the claim and/or for summary judgment on the grounds that:
a. the continuation of the litigation would not achieve any substantive vindication of the Claimant’s reputation and it was an abuse of process to continue the action pursuant to Jameel v Dow Jones & Co  EWCA Civ 75;
b. the statements were substantially true; and/or
c. the first publication formed part of party/party correspondence in respect of ongoing litigation and therefore was protected by absolute privilege.
1. The case was a “paradigm example” of ‘Jameel abuse’. The Claimant’s convictions were admissible as evidence of his bad character – Goody v Odhams  1 QB 333 applied. The convictions were not spent under the Rehabilitation of Offenders Act 1974 and they had also been widely reported in England & Wales, along with details of the Claimant’s strike off from the Bar. The conviction not only related to the relevant sector of the Claimant’s reputation but also related directly to the words complained of. Therefore it was ‘fanciful’ to suggest that the Claimant had any reputation capable of being vindicated, see also Williams v MGN Ltd  EWHC 3150 (QB).
2. There was no evidence that either publication had been read by a large number of people. There was no evidence from which to infer that the second publication had been read by a substantial number of people within the jurisdiction – Al-Amoudi v Brisard  EWHC 1062 (QB). While Jameel abuse is not simply a ‘numbers game’, in this case there was no evidence that anyone who had read either publication thought any less of the Claimant as a result of the publications, so there was no “real and substantial tort”. It would therefore be ‘wholly disproportionate’ to allow the claim to continue and effectively have a rerun of the Claimant’s trial in New Zealand.
3. Justification was bound to succeed because the sting of the defamatory allegation was substantially true. The difference between being an ‘armed kidnapper’ and an ‘armed kidnap plotter’ was, for the purposes of a libel claim, a distinction without a difference. Although the Claimant asserted that he had been wrongfully convicted in New Zealand, it would be perverse for a jury to believe the Claimant’s contentions that he was merely participating in ‘a game’.
4. The first publication by the Defendant was an email sent to a solicitor enquiring whether the solicitor was still acting for the Defendant’s former partner in litigation between them in Portugal. The Defendant had contacted the solicitor after having received letters from his former partner relating to that ongoing litigation which he believed that the Claimant had written on her behalf. It was important for the parties to litigation to communicate without fear of ancillary claims, particularly in the CPR era where inter parties correspondence is encouraged by the pre-action protocol. In these circumstances, the email had reference to the ongoing litigation and was protected by absolute privilege.
Sharp J struck out the claim.
This case represents yet another example of the growing number of decisions where the courts will actively strike out a claim which cannot achieve substantial vindication of a Claimant’s reputation in accordance with Jameel v Dow Jones & Co  EWCA Civ 75. This is significant, not least in light of the proposal in the draft Defamation Bill 2012 to introduce a requirement that a defamatory publication has caused or is likely to cause “serious harm” to a claimant’s reputation.
Although the Claimant’s foreign convictions were not conclusive proof of his guilt by virtue of s.13 of the Civil Evidence Act 1968, they had been widely reported within the jurisdiction and were admissible as evidence of his generally bad reputation.