Ewing v News International Ltd & Ors

Leave under section 42(3) of the Supreme Court Act 1981 should be granted to a vexatious litigant carefully and sparingly. The court must decide whether there are reasonable grounds and will normally assess whether the proposed claim has a real prospect of success. In a libel case, it must consider the likely issues in the round, including justification, privilege, reputation, damages and proportionality. Abuse of process includes claims whose likely cost and course are disproportionate to any legitimate outcome. Previous conduct, including conduct giving rise to the restraint order, is relevant. Limitation may be disapplied only as an exceptional and equitable course, having regard particularly to the claimant’s delay and its explanation.

The claimant, a vexatious litigant subject to a civil proceedings order, sought leave under section 42(3) of the Supreme Court Act 1981 to sue four newspaper companies. He alleged that articles published in the Sunday Times, on the Times website and in the Weston and Worle News were defamatory, and also advanced claims concerning privacy, confidentiality, data protection and harassment.

The proposed defendants opposed leave. The issues included whether some defendants were not publishers, whether the hard-copy claims were time-barred under the Limitation Act 1980, whether time should be disapplied, and whether the proposed claims had reasonable grounds, a real prospect of success or amounted to an abuse of process.

1. Disposition. Leave under section 42(3) of the Supreme Court Act 1981 was refused. The claims concerning the hard-copy articles were statute-barred. The online libel claim and the ancillary claims also lacked a real prospect of success and were abusive or disproportionate.
2. The jurisdiction must be exercised with due care and caution, carefully and sparingly. Section 42(3) requires both reasonable grounds and that the proposed proceedings are not an abuse of process. In the ordinary case, reasonable grounds require consideration of whether the claim has a real, rather than fanciful, prospect of success.
3. In a defamation claim, showing that words are capable of bearing the pleaded meaning is only the beginning. The court must assess the claim overall, including likely defences, the claimant’s evidence, reputation, likely damages, proportionality and the overriding objective. Previous conduct, including the conduct underlying the civil proceedings order and subsequent litigation conduct, is relevant.
4. The hard-copy claims fell within the one-year period in section 4A of the Limitation Act 1980. It would not be equitable to disapply that period under section 32A. The claimant gave no adequate explanation for failing to assert libel for almost a year. The earlier orders extending time for consideration of the applications did not themselves disapply limitation, particularly as they were made before the defendants knew of the proceedings.
5. Even assuming limitation could be overcome, the evidence gave the defendants real prospects of justification and qualified privilege under Reynolds v Times Newspapers Ltd [2001] 2 AC 127. The claimant had provided only bare denials. The proposed claim was likely to become a personal vendetta, with little prospect of more than nominal damages, and would impose disproportionate costs.
6. The online claim additionally lacked credible evidence that the material had been accessed and downloaded. The ancillary claims were likewise untenable. The privacy complaint concerned information in the public domain and a photograph taken in a public house; the data-protection claim identified no contravened provision; and the harassment claim established neither a course of conduct nor exceptional circumstances.

First-instance decision. No appellate history is stated in the judgment.