Mahfouz & Anor v Brisard & Anor

Under sections 8 to 10 of the Defamation Act 1996, summary disposal requires separate consideration of whether the claim or defence has a realistic prospect of success and whether there is any other reason for a trial. Serious libel claims may be disposed of summarily where publication, defamatory meaning and the absence of any realistic defence are established, even if publication was limited. The court may grant appropriate relief under section 9, including damages up to the statutory maximum, an injunction and publication of a correction, apology or judgment summary. A declaration of falsity is discretionary and may be inappropriate where the claimant seeks wider vindication from a judgment concerning a dispute with limited connection to England, particularly where publication of a judgment summary provides adequate vindication.

The claimants brought libel proceedings concerning allegations in the book Forbidden Truth. Judgment in default had already been entered against the second defendant. The first defendant opposed the claimants’ application for summary disposal under sections 8 to 10 of the Defamation Act 1996.

The court had to decide whether the first defendant had a defence with a realistic prospect of success, whether there was any other reason for trial, and what summary relief was appropriate. The issues included damages, injunctive relief, a declaration of falsity, and publication of a correction, apology or judgment summary.

1. Summary disposal. The application against the first defendant was suitable for summary disposal. The defamatory meanings were extremely serious, publication within the jurisdiction was established, authorisation had already been determined, and no affirmative defence had been pleaded. The first defendant therefore had no defence with a realistic prospect of success, and there was no other reason for a trial.
2. Section 8(1) confers a discretion. The questions whether a claim or defence has a realistic prospect of success and whether there is another reason for trial are distinct. The factors in section 8(4) relate to the latter question.
3. The court rejected the submission that the claim should proceed because little was known about the claimants or because they had not previously appeared in court concerning the allegations. They had reputations in England which they were entitled to protect and were entitled to seek vindication for serious charges.
4. Relief. The court interpreted section 9(1) as permitting all, some or none of the listed forms of relief, according to the circumstances. Each claimant was awarded the statutory maximum of £10,000. An injunction restraining further publication of the libels or words to similar effect was also granted.
5. A declaration of falsity was refused. In light of Jameel v Dow Jones & Co Inc. [2005] QB 946 and the reasoning in Berezovsky v Michaels [2000] 1 WLR 1004, the limited publication, the claimants’ limited connection with England and the apparent intention to use the declaration abroad made such relief inappropriate. A direction for publication of a summary of the judgment provided a suitable form of vindication.