Crossley & Anor v Wallace & Anor

A libel claim may be struck out where the words relied on are incapable of bearing a defamatory meaning which a reasonable jury could properly find. The judge must apply the overriding objective, including proportionality, even in jury actions. An appeal against a strike-out decision is a review, not a rehearing. Proceedings may be abusive where they seek to relitigate issues already finally determined in earlier litigation. Malice is relevant to a fair-comment defence, but it does not advance a claim where that defence is not relied on.

The claimants appealed against Master Miller’s order striking out their libel claim against their neighbours under CPR Part 3.4(2)(a) and (b), alternatively under the court’s inherent jurisdiction. The claim arose from a newspaper article reporting earlier nuisance and trespass litigation concerning sewage effluent discharged onto the respondents’ land.

The earlier County Court findings, upheld on appeal, established nuisance, trespass and the use of the stream bed as a sewage treatment plant. The central questions were whether the words attributed to the respondents were capable of defaming the claimants and whether the proceedings were an abuse of process.

1. Appeal dismissed. The appeal was by way of review and not rehearing. The court had to ask whether Master Miller had erred in law or fact, or had taken account of irrelevant matters or omitted relevant ones. No such error was established.
2. The general rule that defamatory meaning is for the jury is subject to the threshold question whether the words are capable of bearing a defamatory meaning in the circumstances. A judge may determine that issue where no reasonable jury, properly directed, could find the words defamatory.
3. Only the three sentences containing quotations attributed to the respondents were relevant to the claim against them. The remaining parts of the article were the journalist’s or sub-editors’ wording and could not found a claim against the respondents.
4. Read in the light of the established findings, the attributed words could not reasonably be understood as alleging that the claimants deliberately discharged raw human waste. Their permissible meaning was that the sewage treatment system had failed, causing offensive smells, sewage fungus and effluent to pass onto the respondents’ land, and that trespass had occurred. Those matters had already been found to be true.
5. The proceedings were a flagrant attempt to relitigate issues determined in the earlier nuisance and trespass proceedings. The overriding objective and proportionality were relevant to striking out libel proceedings, as explained in Wallace v Valentine [2001] 1WLR 1840.
6. Malice was not relevant to the respondents’ defence because the defence was not fair comment. In any event, there was no evidence that the respondents had acted maliciously or had said anything they did not honestly and reasonably believe to be true.

• High Court (Queen’s Bench Division): appeal against Master Miller’s strike-out order dismissed. The appeal was treated as a review rather than a rehearing.
• Earlier County Court proceedings: the Wallaces succeeded in nuisance and trespass proceedings before His Honour Judge Geddes. The judgment survived challenge in the Court of Appeal, followed by refusal of permission to appeal to the House of Lords.