Pedder v News Group Newspapers Ltd
Reference:  EWHC 2442 (QB);  EMLR 348
Court: Queen's Bench Division
Judge: Gray J
Date of judgment: 7 Oct 2003
Summary: Defamation - Libel - Abuse of process - Human Rights -Whether an attempt to re-litigate issues already decided against Claimants in a similar action should be struck out as an abuse of the process - whether the Defendants could rely upon the Claimants being on a conditional fee agreement without ate insurance to justify striking out the claim
Instructing Solicitors: Farrer & Co
Female captain and male s/sgt sued on stories in Sun (and Mail & Standard) alleging they had an affair while on exercise Saif Saraea in Oman in autumn 2001. They sued Associated and News Group. Both pleaded justification. Associated action tried in July 2003; jury verdict for the Defendant. News Group then applied to strike out claim over Sun articles as an abuse.
Whether it was an abuse of the process to re-litigate against a second Defendant the same or nearly the same issues as were resolved by jury in Associated case against the Claimants.
(1) Even though on a strict analysis it was possible that the jury in the Associated trial decided that the words meant only reasonable grounds to suspect, and therefore did not conclude that an actual sexual relationship had been justified, the court must take a realistic, robust and practical attitude under the CPR, and the Claimants’ action against News Group did represent an attempt to re-litigate an issue which had effectively been decided against them, so should be struck out as an abuse;
(2) In case it was necessary, following Bradford & Bingley Building Society v Seddon  1 WLR 1482, for News Group to establish an additional element to justify dismissal for abuse, that element was to be found in the fact that the Claimants were CFA funded with no ATE insurance. They could therefore pursue the claim at no risk to themselves in costs, while exposing News Group to a substantial irrecoverable costs burden, which imposed a chilling effect on News Group’s freedom of expression.
Gray J followed the guidance of Eady J in Schellenberg, encouraged by the Court of Appeal’s unreported decision against one of his own judgments in Oates v Associated Newspapers (CA, 19.5.2000). What is required is not precise analysis of the issues in each action but a robust and realistic assessment of whether in substance the same issues have already been determined the first time around. It is worth noting Gray J’s sympathy for the plight of a defendant faced with substantial irrecoverable costs and CFA-funded claimants with nothing to lose by fighting on.