Gentoo Group Ltd. & Anor v Hanratty

At the strike-out stage, the court asks only whether the claim is arguable and has some prospect of success. It should avoid conducting a mini-trial or deciding novel issues without trial findings. Circumstantial evidence that is insufficient individually may, taken together, support an inference of involvement in online publication. Whether the evidence ultimately establishes publication, including through a joint enterprise, should ordinarily be left for determination after the facts have been found.

The claimants brought proceedings against Mr Hanratty for defamation and harassment, alleging involvement in six defamatory publications on the Dadsplace website. The second action was issued after the usual one-year defamation limitation period. Eady J extended time under the Limitation Act, section 32A, and refused to strike out the defamation claim for lack of credible evidence. The harassment abuse issue was not reached. Permission to appeal the extension was not pursued, and permission to appeal the strike-out ruling was refused on paper by a single Lord Justice. The renewed application challenged the refusal to strike out, principally on the basis that the evidence did not arguably connect Mr Hanratty with the publications.

1. Disposition. The renewed application for permission to appeal was refused. The challenge to the extension of time was not pursued.
2. Interlocutory threshold. The relevant question was whether the defamation claim was arguable and had some prospect of success. Eady J was plainly right that the court should avoid holding a mini-trial when assessing that question.
3. Cumulative evidence. Evidence concerning private communications, concealment of the participants’ identities, handwriting, and other tell-tale signs could contribute to an inference of involvement. Although no item, taken alone, necessarily demonstrated management or control of the website, the evidence taken together was sufficient to prevent the claim being characterised as having no reasonable prospect of success. Handwriting evidence concerning an article not among the six complained of was not necessarily irrelevant to the issue of involvement.
4. Issues reserved for trial. The Court of Appeal declined to decide in the abstract whether particular conduct amounted to involvement in publication on a website, or to lay down the law on responsibility for publication through joint enterprise. Those questions required findings of fact by the trial judge. The refusal to strike out was therefore not shown to be one with which the Court of Appeal would interfere.

• High Court of Justice, Queen’s Bench Division: Eady J extended time for the defamation claim under the Limitation Act, section 32A, and refused to strike out the defamation claim. The related harassment abuse issue was not determined.
• Court of Appeal (Civil Division): Lady Justice Smith refused the renewed application for permission to appeal the strike-out ruling.