Wallis v Valentine & Ors

Permission to appeal in a defamation claim should be granted where the proposed appeal is arguable and cannot fairly be characterised as unarguable. The interaction between the statutory right to jury trial in libel cases and summary judgment under Part 24 required full consideration, particularly where the issue concerned publication rather than whether the words were defamatory. A court may distinguish between technical publication and publication likely to cause actual reputational harm. A claim brought principally to cause harassment and expense may amount to an abuse of process, but the strike-out decision might require reconsideration if the underlying summary judgment on publication was set aside.

The claimant brought libel proceedings against the defendants arising from letters and an affidavit concerning a long-running dispute between neighbouring households. The deputy judge granted summary judgment under Part 24(2) on the issue whether the affidavit had been published to anyone other than the claimant’s partner. He also struck out the particulars of claim as an abuse of process under Part 3.4(2)(b), finding that the proceedings were pursued for harassment and expense and that the limited publication was unlikely to damage reputation.

The claimant sought permission to appeal, relying principally on Safeway Stores v Tate [2001] 2 WLR 1377 and Alexander v Arts Council of Wales [2001] EWCA Civ 514. The central issue was whether the judge was entitled to determine the publication issue summarily.

1. Permission granted. Lord Justice Buxton granted permission to appeal against the Part 24(2) summary judgment and, conditionally, against the strike-out order under Part 3.4(2)(b).
2. The Court of Appeal could not treat the proposed challenge to the Part 24 decision as unarguable. Safeway Stores v Tate had stated in broad terms that Part 24 could not override the statutory right to jury trial in libel cases. Alexander v Arts Council of Wales had nevertheless recognised that a judge could remove an issue from a jury after considering the evidence where no jury could properly reach any conclusion other than the judge’s conclusion.
3. The present issue concerned whether publication had occurred, and had been decided without a jury. The deputy judge had come close to finding that no jury could possibly conclude that there had been publication to anyone else, but had not said so expressly. In light of the recent authorities, the issue required consideration by the full court.
4. On the material before the court, the deputy judge was entitled to strike out the claim. The proceedings could properly be viewed as pursued for harassment and expense, and publication to a person already familiar with the dispute was unlikely to have caused actual reputational harm. Technical publication must be distinguished from publication likely to have a detrimental effect on reputation.
5. The strike-out appeal was permitted only because its basis depended in part on the finding under Part 24. The Part 24 issue should be determined first. The deputy judge’s factual findings and assessment were matters with which the Court of Appeal would not ordinarily interfere.

Paragraphs 3 to 5 of the deputy judge’s order were stayed pending the appeal, with liberty to the defendants to apply.

• Court of Appeal (Civil Division): Permission granted on 5 March 2002 to appeal against the summary judgment under Part 24(2) and conditionally against the strike-out under Part 3.4(2)(b). Paragraphs 3 to 5 of the order were stayed.
• Queen’s Bench Division: His Honour Judge Previte QC, sitting as a deputy judge, granted summary judgment under Part 24(2) and struck out the particulars of claim under Part 3.4(2)(b) on 5 December 2001.