Powell & Anor v Boladz & Ors

Delay does not, by itself, make a libel trial unfair or constitute an abuse of process. The court must assess the particular circumstances, including the reasons for delay, related investigations, the evidence available and the effect on both parties’ rights.

A genuine desire to vindicate reputation may coexist with a desire to establish the truth. Motive is not, by itself, material where the proceedings are properly pursued. Where both parties rely on Article 6 rights, the court must weigh access to justice against the right to a trial within a reasonable time and apply the overriding objective. Disproportionate costs alone do not justify striking out a claim.

The claimants, acting in person, brought a libel action concerning a notice published by a medical practice after television programmes broadcast their allegations about the treatment and death of their son. The action had been issued and pursued over many years while related negligence proceedings, official complaints, police investigations, an inquiry and an inquest continued.

The remaining defendant applied to strike out or stay the action on grounds including abuse of process, inordinate delay, inability to secure a fair trial, breach of the reasonable-time requirement in Article 6, and defective pleading. The central issues were whether the delay justified terminating or staying the libel action and whether the claimants’ proposed Reply could properly advance allegations of dishonesty.

1. Application refused. The court declined to strike out or stay the libel action.
2. The claimants’ purpose was not confined to vindication and damages; they also wished to establish the truth about their son’s death. That did not make the action abusive. Motive and intention were not decisive where a legitimate claim was being properly pursued. The claimants had a genuine desire to vindicate their reputations, and no collateral advantage beyond the proper scope of the action had been established.
3. The delay was inordinate but, in the particular circumstances, excusable. It was reasonable for the claimants to await the outcome of related investigations and proceedings, especially the renewed police investigation and pending inquest. The existence of other proceedings did not, without more, require a stay or strike-out.
4. A fair trial remained possible. Delay alone was insufficient. The principal issues depended substantially on documents, and the effect of any deterioration in recollection was likely to fall more heavily on the claimants. The fact that criminal proceedings could no longer properly be brought did not determine whether the civil libel action could proceed.
5. Article 6 required a trial within a reasonable time as well as a fair trial. A trial at the date contemplated would not satisfy the reasonable-time requirement. However, both sides invoked Convention rights. Applying the overriding objective, the court balanced the defendant’s right to a timely trial against the claimants’ right of access to justice. A stay would cause the claimants serious injustice by preventing them from seeking to establish their good name, while a fair trial remained possible.
6. The imbalance between litigation costs and prospective damages was not, by itself, a reason to strike out the claim. Case-management powers could be used if necessary.
7. The proposed Reply did not comply with Part 53 Practice Direction paragraphs 2.8 and 2.9. Allegations of dishonesty required particularity and responsible counsel could not plead or persist in serious allegations without reasonably credible supporting material. The defendant remained entitled to raise the pleading point later.
8. The parties were given an opportunity to address the court on further directions.