Nigel Smith v M

In extensive libel litigation arising from multiple internet publications, the court may intervene actively to secure fairness and prevent procedural abuse. Where a claimant brings numerous claims arising from an alleged campaign, damages must be assessed in the round by reference to the totality of the publications, avoiding overcompensation. The claims should nevertheless be considered individually because issues such as defamatory meaning, vulgar abuse, privilege, justification and abuse of process may differ. Potential defendants must have a fair opportunity to be heard before a stay is lifted or restrictive case-management orders are made.

The claimant had issued 37 libel proceedings against individuals concerning publications on internet bulletin boards and indicated that further claims might follow. The Senior Master stayed the proceedings and referred them for directions after concerns arose about the claimant’s litigation strategy, the number of claims and the interests of existing and potential defendants.

The claimant applied to lift the stay. The court also considered possible issues concerning defamatory meaning, defences, abuse of process, civil restraint orders and an application under CPR 7.7 for a copy of the claim.

1. The application to lift the stay was adjourned. The stay imposed by the Senior Master remained in force pending notification of the relevant defendants and an opportunity for them to make written or oral submissions. The court stressed the need for active case management under the overriding objective and fairness to all concerned.
2. The claimant’s proposed strategy of pursuing defendants separately was inappropriate in the circumstances. In libel proceedings, damages can be assessed only in the round, by reference to the overall picture. Assessing the effect of each publication separately and aggregating the resulting awards would risk substantial overcompensation.
3. The claims nevertheless required individual consideration. A Norwich Pharmacal order or settlement did not establish res judicata or determine that the words were defamatory. Each defendant remained entitled to argue that the words were not defamatory, including that particular statements amounted to mere vulgar abuse. Whether words were defamatory depended on the circumstances and the context in which reasonable readers would understand them.
4. Potential defences, including fair comment, qualified privilege and justification, might arise in individual cases. The claimant’s description of the bulletin board as a community of persons interested in the company provided a possible foundation for qualified privilege, subject to full argument and any issue of malice.
5. The court might also need to consider the Court of Appeal’s guidance in Jameel (Yousef) [2005] QB 946, including whether pursuing a particular claim would be an abuse of process because the game was not worth the candle.
6. The civil restraint order jurisdiction under CPR 3.11 was distinct from the Attorney General’s jurisdiction concerning vexatious litigation. It was too early to exercise the civil restraint jurisdiction because the court could not yet conclude that any claim was totally without merit.
7. The application under CPR 7.7 by the defendant known as Wing Pierce for a copy of the claim was granted. The court considered it proper that he should have the opportunity to see the allegations made against him.