Pedder & Anor v Associated Newspapers Ltd

In a libel action to be tried by a jury, summary judgment or strike-out should be exercised sparingly. The judge may withdraw an issue only where the evidence, taken at its highest for the claimant, is such that a properly directed jury could not properly reach the necessary conclusion. Some evidence which a jury might reasonably accept is sufficient for the issue to remain for trial.

Interlocutory judicial intervention is more limited in jury actions than in ordinary civil proceedings. Abuse of process is fact-sensitive and, where neither res judicata nor issue estoppel applies, the party alleging abuse must show a special reason why the issue should not be tried again. A prior confidential investigation, without prior litigation or a collateral purpose, did not justify striking out a genuine libel claim.

The claimants, a former Army captain and a serving sergeant, sued Associated Newspapers Ltd over articles in the Evening Standard and Daily Mail. They alleged that the publications falsely conveyed that they had conducted an illicit sexual relationship during a military exercise in Oman, misused military transport, and lied to Army officers about when the relationship began.

The defendant applied under CPR 3.4 and CPR 24.2 to strike out the claim or obtain summary judgment, relying on disclosed evidence, an Army Board of Enquiry, and the earlier decision in Schellenberg v BBC. The central questions were whether the claim had a real prospect of success and whether its continuation would amount to an abuse of process.

1. Applicable test. The court followed the approach stated in Alexander v Arts Council of Wales, applying the R v Galbraith test. In a libel action for jury trial, the judge may determine an issue summarily only where a properly directed jury could not properly reach the necessary factual conclusion. The power must be exercised sparingly. The presence of some evidence which the jury might reasonably accept ordinarily requires the issue to remain for trial.
2. Meaning and justification. The claimants had a real prospect of establishing that the word affair conveyed an illicit sexual relationship during the Oman exercise. They also had a reasonable prospect of establishing that the publications accused them of lying about when the sexual relationship began. Although the defendant relied on substantial factual material, a properly directed jury could reasonably reject the defence of justification.
3. Damages. It was open to a reasonable jury to award more than nominal damages if it accepted the claimants’ case on meaning and justification. The Army Board’s findings did not conclusively prevent such an award. The judge left open whether those findings would be admissible on damages.
4. Abuse of process. The court distinguished Schellenberg v BBC. That case involved prior litigation, an unfavourable trial history, and an attempt to salvage a claim after settlement. Here there had been no prior litigation, no collateral purpose, and a genuine prospect of substantial damages. Applying the guidance in Bragg v Oceanus Mutual, the defendant had not shown the special circumstances required to prevent the claim proceeding.
5. The applications to strike out the claim and for summary judgment were refused.