Full case report

Lonzim Plc & others v Sprague

Reference [2009] EWHC 2838 (QB)
Court Queen's Bench Division

Judge Tugendhat J

Date of Judgment 11 Nov 2009


Summary

Defamation – Slander – Libel – Publication – Extent of publication – Internet publication – Abuse of process – Striking out – Summary judgment – Foreign publisher – Aggravated damages – Striking out – No real damage – Vindication – Injunction – Proportionality


Facts

Cs were an Isle of Man company (C1) and two individual executive directors of C1. D, resident in S Africa (SA), was a director of a company which owned a substantial shareholding in C1. The publications complained of were (i) words spoken by D at an AGM of C1 in London, (ii) words spoken by D to a SA journalist (SP), and (iii) the publication of those words in an article written by SP for the online edition of the Financial Mail (FM), a SA journal, which Cs claimed was published substantially here. Cs issued proceedings and obtained permission to serve them on D in SA.

D applied to strike out the whole action as an abuse of process on the ground that Cs had no real prospect of establishing any real damage to their reputations in this jurisdiction. Cs abandoned the SP slander claim (after D produced evidence that the offending publication had taken place in SA) and applied to amend to rely upon further publication on the FM website of words allegedly spoken by D.


Issue

In respect of the AGM slander claim:

(1) whether or not Cs’ case should be confined to the publishees Cs had been able to identify;

(2) whether or not Cs had any real prospect of establishing that there had been any other alleged publishees;

(3) whether or not the claim should be struck out as an abuse of process.

With regard to the FM libel claim:

(1) whether or not Cs had pleaded / laid a sufficient factual basis for an inference of substantial publication within this jurisdiction reasonably to be drawn;

(2) whether or not the claim ought to be struck out as an abuse of process.

As regards the proposed new FM libel claim, whether or not Cs should have permission to amend.


Held

Striking out the action as an abuse of process and refusing permission to amend.

As regards the AGM slander claim:

(1) Cs had no real prospect of identifying any further publication witnesses;

(2) The claim was an abuse of process (“I am at a loss to understand what vindication the Claimants might obtain from the verdict of a court, or why, or on what grounds, this claim in slander is being brought at all” (Judgment, para. 31)).

With regard to the FM libel claim:

(1) the evidence adduced by Cs suggested at best minimal publication of the offending words in this jurisdiction and certainly was not evidence of any real or substantial tort having been committed here;

(2) “…there is no prospect of an award of damages greater than a very modest sum, and no prospect of an injunction being granted. The costs and court resources that would be required to achieve this would be disproportionate” (para.47).

Permission


Comment

This is one of those rare cases where the court was prepared to find the criteria for abuse of process set out in Jameel v Dow Jones satisfied. Tugendhat J’s application of the principles in Al Amoudi v Brisard and Jameel to a case involving internet publication and an individual defendant based outside the jurisdiction who was not the commercial publisher of the relevant website contains some salutary lessons. In particular, the court emphasised the importance of obtaining solid evidence pointing towards substantial publication within the jurisdiction. As regards the slander claim, the judge makes some interesting observations about freedom of expression in the context of meetings of company shareholders: see para 33.


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Instructing Solicitors

Mishcon de Reya for the Claimants; Stephenson Harwood for the Defendant