Wallis v Valentine

In a libel action in which there is a right to jury trial, summary judgment is available only where the evidence, taken at its highest for the claimant, could not properly support the factual conclusion necessary to the claim. The judge decides whether a real issue exists; a jury does not decide an issue on which a contrary verdict would be perverse.

An improper motive or animosity does not itself make proceedings abusive. Abuse arises where court process is misused for an improper collateral advantage, or where the claim is initiated or conducted to cause expense or harassment rather than to vindicate a right. The inquiry is objective. The CPR overriding objective, including proportionality, applies equally to jury actions.

The claimant brought libel proceedings against his neighbours concerning two letters and an affidavit. Publication of the letters to his partner was admitted. He also alleged that the affidavit had been published to the purchasers of the defendants’ hotel.

His Honour Judge Previté QC, sitting as a deputy judge in the Queen’s Bench Division, gave the defendants summary judgment on the wider-publication allegation under CPR Part 24.2. He also struck out the entire claim as an abuse of process under CPR Part 3.4(2)(b).

The claimant appealed. The central issues were whether there was evidence fit to be left to a jury on publication, and whether the claim’s continuation was an abuse of the court’s process.

1. Appeal dismissed unanimously. Sir Murray Stuart-Smith LJ held, with Potter and Peter Gibson LJJ agreeing, that the deputy judge was entitled to give summary judgment on the allegation of publication of the affidavit to persons other than the claimant’s partner.

2. In a libel action, a claimant’s entitlement to a jury does not prevent summary judgment where there is no evidence on which a properly directed jury could reach the necessary factual conclusion. The court accepted the evidence of the defendants, their solicitor and the purchaser that the affidavit had not been disclosed. Although one passage of a letter was capable in isolation of the claimant’s reading, the correspondence as a whole and the evidence admitted no realistic basis for a finding of wider publication. Such a verdict would have been perverse. The court applied Alexander v Arts Council of Wales [2001] 1 WLR 1840 and Safeway Stores plc v Tate [2001] 2 WLR 1377.

3. The strike-out was also upheld. The court adopted the principles in Broxton v McClelland and Another [1995] EMLR 485: personal animosity and an ulterior motive do not alone establish abuse, but proceedings are abusive where the process is misused for an improper collateral purpose or is initiated or conducted to impose expense, harassment or similar prejudice rather than to vindicate a right. That second category includes initiating the claim itself.

4. The relevant inquiry at an interlocutory stage is objective, as explained in Goldsmith v Sperrings Limited (1977) 1 WLR 478. A claimant’s asserted subjective belief is not conclusive. The overriding objective and proportionality applied despite the potential jury trial, consistently with Schellenberg v British Broadcasting Corporation [2000] EMLR 296.

5. The very limited publication, the likely modest or nominal damages, the claimant’s litigation history, the disproportionate prospective costs and use of court resources, and the objective evidence of a vindictive purpose justified the conclusion that further prosecution of the claim would be an abuse of process.

• Court of Appeal (Civil Division) — dismissed the claimant’s appeal: [2002] EWCA Civ 1034.
• High Court of Justice, Queen’s Bench Division — His Honour Judge Previté QC, sitting as a deputy judge, granted summary judgment on the wider-publication allegation and struck out the claim as an abuse of process on 5 December 2001.