Reference:  EWHC 75 (QB)
Court: Queen's Bench Division
Judge: Christopher Clarke J
Date of judgment: 28 Jan 2011
Summary: Libel - Abuse of process - Jameel - Publication only to Claimant's solicitor - Reliance on Defendant's refusal to specify further publishees as evidence of further publications
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Instructing Solicitors: Mishcon de Reya for Cs; David Price for D
C2 was a property development company and C1 a founder of that company. D was a chartered surveyor formerly employed by C2. Cs’ solicitors wrote to D threatening various claims against him. D replied, referring to conversation with C1 that had become heated and a subsequent visit from “two burly men with East European accents who threatened me and told me to “phone the man who you have offended and say “sorry”.” Cs’ solicitors denied that their clients had been behind this incident, if it had occurred. Over the next few weeks Cs solicitors made 4 requests of D as to the identities of all third parties to whom he had published this allegation. D refused to answer these requests, saying that he did not know who was behind the visit of the 2 men but undertaking not to repeat the allegation that the Cs were behind it. This undertaking was later repeated through his solicitors.
Cs issued proceedings. They then made an application for disclosure in respect of third party publications, on the basis that D’s refusal to answer Cs’ requests for information about publication to third parties meant an inference that such publications had occurred could be drawn. Tugendhat J found the inference sought to be entirely baseless, and dismissed the application as “fishing” and not meeting the jurisdictional threshold. During the hearing Cs’ counsel made it clear that the present action only related to the publication to Cs’ solicitors and that the alleged third party publications as to which information was sought would potentially be the subject of a future action but were not part of the present action.
D applied to strike out the claim as an abuse of process under the principles in Jameel v Dow Jones, and on the basis that that the publication was made on an occasion of absolute privilege and/or that it was contrary to the public interest to allow Cs to bring a claim for libel in relation to a publication to their solicitor in the course of pre-action correspondence. The latter part of the application was not being pursued at the hearing.
Whether the claim should be struck out as an abuse of process in accordance with Jameel v Dow Jones, ie whether or not there had been a real and substantial tort.
Striking out the claim as an abuse of process:
The publication relied on was “as numerically minimal as it could get”, and was to Cs’ professional agent who had been acting in respect of a commercial dispute with D and “had been busily engaged in stating that the allegation is false”. Cs did not require vindication and any that could be achieved would be illusory or, at best, minimal. Solicitors are routinely the recipients of defamatory publications about their clients. The court was entitled, in the light of the overriding objective and the interests of proportionality, to discourage and prevent the use of its time, at great expense, on actions in which the only publishee was someone in Cs’ camp. In the light of the undertaking given by D, and of the proceedings brought against him, there were no reasonable grounds for thinking that he was likely to republish the allegation complained of and as such the continuation of the claim could not be justified on the footing that it was necessary to obtain final injunctive relief. Being sued at all was a serious interference with freedom of expression. The proceedings did not assert a real and substantial tort.
The second libel claim involving property development companies to be struck out as an abuse of process under Jameel within a fortnight, after Woodbridge v Stapleton. A case in which publication is only to a professional agent of the claimant, and where an undertaking not to repeat has (repeatedly) been given, is always likely to be deemed disproportionate and struck out as an abuse of process. Potential claimants should ensure that they have evidence of substantial publication before issuing proceedings – as this case demonstrates, mere refusal by the defendant to answer queries does not amount to such evidence.