Freer v Zeb & Ors

In a defamation claim, summary judgment or strike-out is appropriate where the claimant has no real prospect of proving a necessary element and no compelling reason for trial. An employer is not vicariously liable for defamatory statements made by employees about their private lives, merely because the statements were made at work. A claimant who does not know the publishees may rely on unidentified publishees only exceptionally, and must first provide credible evidence of publication and a good cause of action. A verified pleading is not evidence for that purpose. An apparently valid claim may also be struck out as an abuse of process where, viewed objectively, it is vexatious or oppressive and uses court proceedings to impose disproportionate expense, harassment or prejudice. The court should consider the overall litigation history, but an extended civil restraint order requires persistent vexatious conduct.

The claimant, acting in person, brought a slander claim against three defendants arising from alleged statements made at a pizza business. He alleged that the first defendant was present and was vicariously liable for statements made by the second and third defendants, said to be employees at the business.

The first defendant applied for disclosure, strike-out and summary judgment. He produced evidence that the business was operated by a company of which he was a director, that the second and third defendants were employed by that company, and that he had not heard the alleged statements. The claimant also relied on publication to an unnamed colleague and unidentified staff and customers.

The issues were whether the claim against the first defendant had any real prospect of success, whether the pleading and evidence on publication were sufficient, whether the proceedings were an abuse of process, and whether a civil restraint order should be made.

1. Disclosure. The claimant was not entitled, for the purposes of the application, to documents not referred to in the evidence relied upon by the first defendant. The possible existence of documents on standard disclosure was insufficient. Disclosure of company accounts was impossible where no such document existed and, in any event, would not determine the identity of the employees.
2. Vicarious liability. Applying the summary judgment test in Spencer v Sillitoe [2002] EWCA Civ 1579; [2003] E.M.L.R. 10, the claimant had no real prospect of proving that the first defendant personally employed the second and third defendants. The evidence showed that the business was operated by Horley Catering Limited and that the employees worked for that company.
3. The claim would also fail against the company. The alleged words concerned the defendants’ private relationship and personal disputes. They contained nothing indicating that the speakers were acting in the course of their employment, whether in an authorised or unauthorised manner. There was also no evidence that the words were spoken to the first defendant.
4. Publication. A slander claimant must, so far as possible, plead the precise words and identify the persons to whom they were spoken: CPR Practice Direction 53 and Bishop v Bishop [1901] P.325. Unidentified publishees may be permitted only exceptionally, where credible, uncontradicted evidence establishes publication and a good cause of action: Best v Charter Medical of England Ltd [2001] EWCA Civ 1588; Bareham v Huntingfield (Lord) 2 K.B. 193; Russell v Stubbs [1913] 2 K.B. 200n. A statement of truth is not evidence of a prima facie cause of action. The claimant had supplied no such evidence.
5. Abuse of process. The court adopted the principles in Wallis v Valentine [2002] EWCA Civ 1034, including the objective approach and the need for a clear and obvious case. The court may consider the whole picture, including related proceedings. This was an exceptional case involving speculative, vexatious and oppressive litigation, limited potential publication and damage, substantial duplication of expense, and conduct designed to cause problems, harassment and prejudice beyond those ordinarily encountered in proper litigation. The action was therefore struck out under CPR 3.4(2)(b).
6. A claim struck out as an abuse may be characterised as totally without merit for civil restraint purposes. However, the claimant’s conduct lacked the necessary persistence for an extended civil restraint order under CPR 3.11 and the associated practice direction. The order was refused.

Not an appeal. The High Court determined an application for disclosure, strike-out and summary judgment at first instance.