Smith v ADVFN Plc & Ors

The court may maintain a stay over numerous related defamation claims where their collective pursuit offers no realistic prospect of vindication or compensation proportionate to the burden on defendants and public resources. Internet bulletin-board postings must be interpreted in their conversational context. Strident insults may amount to mere vulgar abuse, while honestly held opinions remain capable of protection as fair comment even if formed hastily, irrationally or on incomplete information.

Related claims should proceed together, if at all, where separate trials risk inconsistent decisions or over-compensation. A civil restraint order must not be made without giving the affected party a proper opportunity to address that remedy.

The claimant had issued, or intended to issue, numerous libel claims concerning postings on a financial internet bulletin board. A Master stayed the proceedings on 25 April 2008. The claimant applied to lift the stays and proposed coordinated directions for the existing claims, including the action against the bulletin-board operator.

The court considered the informal context and readership of the postings, the apparent strength of defences including fair comment, qualified privilege and mere vulgar abuse, the claimant's outstanding costs liability, and the disproportionate demands of the litigation. It also considered whether the claims should progress together and whether an extended civil restraint order was appropriate.

1. The application to lift the stays was refused. The claims had to be assessed collectively and in accordance with the overriding objective. The court could consider their apparent merits and practical consequences when exercising its case-management power under Rule 3.1(2)(f) of the Civil Procedure Rules, although no formal strike-out or abuse application was before it. The claims should progress, if at all, together. Separate proceedings risked inconsistent findings and over-compensation: paras [102]–[104].
2. Bulletin-board communications resemble casual conversation more closely than permanent journalistic publications. Their limited readership, pseudonymous participation, spontaneity and expectation of robust give and take inform the meaning reasonably attributed to the words. Remarks made in the heat of an exchange may be understood as mere vulgar abuse rather than serious factual allegations: paras [13]–[17].
3. Many claims concerned opinions about bullying, threats and demands for money. These fell within classic fair-comment territory. The relevant requirement was that the opinion be honestly held. A defence could remain available where the opinion was reached hastily, irrationally or on incomplete information. Formulaic allegations of malice could not provide a realistic prospect of success where the defendants plainly believed what they said: paras [106]–[108].
4. The court applied the proportionality principles associated with Dow Jones Inc v Jameel (Yousef) [2005] QB 946. The proceedings offered no legitimate or tangible advantage sufficient to justify the burden imposed on numerous defendants and the public purse. Maintaining the stays was therefore necessary to ensure compatible use of the court's process: paras [11], [23], [37]–[38], [102]–[103].
5. Earlier Norwich Pharmacal orders did not establish that the claims should proceed. Such relief had been obtained without notice and created no issue estoppel against the defendants. It did not remove the court's responsibility to manage each claim in the context of the wider litigation: para [67].
6. The principal judgment stated that an extended civil restraint order would be made. The supplemental judgment corrected the operative position. No such order was made because counsel had been discouraged from addressing that issue and had to receive a proper opportunity to make submissions. The continuation of the stays was unaffected: supplemental judgment, paras [1]–[3].

• High Court (Queen's Bench Division), 25 July 2008: The court refused to lift the stays imposed by the Master. A supplemental judgment confirmed that no civil restraint order had been made.
• High Court (Queen's Bench Division), 12 May 2008: In an earlier ruling, [2008] EWHC 1250 (QB), the court adjourned the litigation and summarised its background.
• Master, 25 April 2008: The related proceedings were stayed and the possible making of a civil restraint order was referred for consideration.