Goldman v Li & Anor

In a libel action, the claimant bears the burden of proving publication. Where the claimant adduces no evidence capable of establishing publication to the relevant defendant, the court may strike out the action because there is no case to answer. Argument, pleading history and assumptions by counsel cannot replace evidence. An inference may be drawn only where the evidence supports it; the court is not required to assume publication. The court may also correct an accidental failure to remove admissions from pleadings where the intended order is clear and no prejudice is shown.

The claimant brought several libel actions arising from witness statements used in disciplinary proceedings following his dismissal. The proceedings initially contained admissions that the statements had been published to persons involved in the disciplinary process. After Friend v Civil Aviation Authority, the defendants sought to withdraw those admissions.

The remaining action concerned the chairman of the regional health authority, who denied receiving the statements. A preliminary issue was ordered on publication, and the claimant was debarred from calling evidence after failing to comply with an unless order. Mr Justice Eady struck out the actions. The claimant sought permission to appeal, arguing that publication could be inferred from the circumstances and pleading history.

1. Application dismissed. The claimant had to prove that the defamatory statements were published to Mr Bains. The evidence before the court contained nothing capable of doing so. Mr Bains’s evidence gave cogent reasons why, as a non-executive chairman, he would not have received witness statements relating to first-instance disciplinary proceedings.
2. The court rejected the suggested inference that Mr Bains must have received copies. Evidence that he was verbally briefed, or that documents concerning other disciplinary proceedings had been communicated to him, did not establish publication of the statements in issue. Counsel’s earlier assumption that publication had occurred was not evidence. Nor did inconsistencies or changes in witnesses’ recollections prove publication.
3. The judge was therefore entitled to strike out the action. The claimant’s proposed course of inviting a jury to assume publication, without adducing supporting evidence, could not succeed because there would be no case to answer.
4. The court also corrected the pleadings. The order made by Master Tennant had plainly been intended to remove all admissions of publication. Their accidental survival resulted from a mistake, and the claimant identified no prejudice. Leave was granted to amend the pleadings so that the surviving admissions were struck out.
5. A possible future slander claim was not considered. Any such claim would require fresh proceedings and pleadings and would have to overcome the requirements of the Limitation Act. The court would not grant general leave to amend in the absence of an application and draft amendment.

• Court of Appeal (Civil Division): Permission to appeal dismissed. The order striking out the action against Mr Bains was upheld, and leave was given to correct the pleadings by removing admissions that had survived by mistake.
• High Court of Justice, Queen’s Bench Division: Mr Justice Eady struck out the libel actions on the basis that the claimant had adduced no evidence capable of proving publication.