Is The Game Worth The Candle?

‘Abuse of process’ halts defamation claims

There’s something for the media to be cheerful about, despite the rise and rise of restrictive privacy law.

Courts are increasingly intervening to stop unmeritorious defamation claims that waste time and resources.

Besides recent rulings liberalising the test for “responsible journalism” and qualified privilege, there’s now another argument being deployed in the media’s favour: abuse of the process of the court.

Judges are showing little patience for technically arguable claims that lack genuine merit.

It’s partly a delayed response to Lord Woolf’s reforms in the Civil Procedure Rules 1999 and their (oddly necessary) requirement for courts to “deal with cases justly”. It’s also partly aimed at protecting free speech from unnecessary restriction.

Three cases mark the trend.

Jameel v Dow Jones

The Court of Appeal, in Jameel v Dow Jones & Co. Inc. [2005] EWCA Civ 75, made clear that claimants suing for defamation where there was only limited publication risked having their claims stayed as an ‘abuse of process’.

The defendant published an online article available to subscribers. It included a hyperlink to a so-called list of donors. The claimant said it implied he was involved in funding al Qaeda.

Only five subscribers in this country had followed the hyperlink. Two did not recall reading the claimant’s name. The other three were his solicitor, and a couple of his own business associates.

Case law had held that publication to just one third party was sufficient to found a libel action and that if the relevant words were defamatory, damage to reputation was automatically presumed without proof. However, Jameel posed a problem: how is that compatible with freedom of expression under the Human Rights Act?

The court decided judges should be pro-active and stop claims where the alleged defamation is not a “real and substantial tort”.

Lord Justice Phillips MR (as he then was) said: “It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice.”

Imposing a ‘stay’ to stop the claim, he said any damages and vindication following trial would only be “minimal”.

He added: “The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick.”

Smith v ADVFN

The yeast from Jameel has leavened other defamation rulings.

In Smith v ADVFN Plc and Others [2008] EWHC 1797 (QB), the claimant issued libel claims against 37 different defendants, alleging they defamed him in postings on an internet bulletin board.

The postings accused him, for example, of being “a destructive twerp” and “a bulletin board bully”.

The judge, Eady J., imposed a ‘stay’, saying the words were more akin to slander than libel and that a defence of “mere vulgar abuse” might therefore be available. But he was clearly influenced by ‘abuse of process’ arguments, too.

Faced with elaborate pleadings about swear words, he wondered “whether this is the sort of material that should find its way for resolution into the High Court”.

One poster had written: “Bulletin board posters taking other posters to court coz he called me names. It’s absolutely pathetic and [claimant] should be totally ashamed of himself here. GROW UP…Life’s too short for crap like this.”

Of that, the judge said: “This might be thought to echo the sentiments expressed by Lord Phillips MR in Jameel”.

He added: “Are there really genuine issues which require to be resolved, or is it the case that this litigation when viewed as a whole, and in its proper context, is such as to bring the administration of justice into disrepute?” Clearly the latter, he felt.

Ewing v News International

Terence Patrick Ewing is a serial litigator-in-person. He was declared a vexatious litigant back in 1989, which means he may only issue proceedings if he has first obtained permission from the High Court.

Eleven months after the Sunday Times and the Weston & Worle News published articles about Ewing’s objections to a proposed development in Weston-super-Mare, he issued libel proceedings without permission. Not surprisingly, both papers vigorously opposed the claims, and applied to have them struck out.

The applications were heard in July this year by Mr Justice Coulson, not one of the regular libel judges (Ewing v News International Ltd and Others [2008] EWHC 1390 (QB)). In a strikingly robust judgment”, Ewing’s claims were rejected as having no real prospect of success and being an abuse of process.

The judge said Ewing had left it far too late to sue, he was out now out of time, and he had produced no evidence to prove publication of the website versions of the articles.

After referring to Jameel and weighing various factors, he refused Ewing permission to continue, saying: “I am in no doubt that the bringing of the claims against the proposed defendants would be an abuse of the process of the court and would be an entirely disproportionate exercise.”

So, claimants should take note. Increasingly, defamation claims against publishers must have real merit, to survive.


Tony Jaffa is head of Foot Anstey’s Media & Publishing Team. He advises a substantial number of newspaper, magazine, and web publishers at home and abroad.

Nigel Hanson started as a criminal lawyer, then worked as a journalist on the Oxford Mail and as a freelance before joining Foot Anstey in 2004, specialising in media law.

Published 09/09/2008. The author of this article is Nigel Hanson