Mardas v New York Times Company & Anor

In a defamation claim, the existence of a real and substantial tort cannot be determined by an arbitrary minimum number of publications. A modest publication may be sufficient, particularly where the allegation is seriously defamatory, the claimant has a local reputation to vindicate, or publication continues online. Contested evidence about the scale of publication should ordinarily be resolved at trial rather than summarily. Disproportionate costs, the age of the allegations and pressure on court resources may justify careful case management, but do not alone make the claim an abuse of process. Where a tort is arguably committed within England and Wales, the claimant may sue here for the local publication, although recovery cannot extend to publications in other jurisdictions.

The claimant brought two defamation actions concerning an article published by the defendants, the New York Times Company and International Herald Tribune SAS. The article alleged that he was a fraud and had fabricated or exaggerated allegations of sexual impropriety concerning the Maharishi.

The Master struck out both actions on 10 June 2008. He relied on case-management and proportionality considerations, the limited evidence of publication within England and Wales, and Jameel v Dow Jones Co Inc [2005] QB 946. Permission to appeal was granted. The central issues were whether the disputed extent of publication could properly be resolved summarily and whether the claims constituted an abuse of process because the likely damages were modest compared with the costs of trial.

1. The appeals were allowed. The Master had erred in law by striking out the actions as an abuse of process.
2. The question was whether there had been, or arguably had been, a real and substantial tort within the jurisdiction. That question was not governed by an arbitrary numerical threshold. Shevill v Presse Alliance [1996] AC 959 showed that a relatively small local publication could found a claim. The allegations of charlatanism and deliberate lying were not trivial.
3. It was inappropriate to determine the extent of publication on incomplete and conflicting evidence. The disputed figures concerning hard-copy circulation, electronic editions and website access should be investigated through disclosure and, if necessary, expert evidence. The same applied to the evidence concerning possible hard-copy publication of the International Herald Tribune. These issues were matters for trial.
4. The continuing availability of the article online was relevant. It could support an inference of continuing readership and made the principles discussed in Loutchansky v Times Newspapers Ltd [2002] QB 783, Gutnick v Dow Jones [2002] HCA 56 and King v Lewis [2005] EMLR 45 pertinent.
5. Costs and proportionality required sensible case management, but could not by themselves deprive the claimant of access to justice. The concerns identified in Aldi Stores Ltd v WSB Group Plc [2007] EWCA Civ 1260 were applicable. The age of the allegations was likewise insufficient by itself, applying Polanski v Condé Nast Publications Ltd [2005] 1 WLR 637.
6. If the claimant established a real and substantial tort in England and Wales, he was entitled to seek appropriate compensation and vindication here. There was no legal basis for declining jurisdiction as so-called libel tourism or forum shopping. However, damages could relate only to publication within this jurisdiction, consistently with Berezovsky v Michaels [2000] 1 WLR 1004 and Shevill v Presse Alliance.
7. Evidence that similar allegations had appeared elsewhere was irrelevant to liability and mitigation and would not be admissible for those purposes, applying Associated Newspapers Ltd v Dingle [1964] AC 371.

• High Court (Queen’s Bench Division): Appeals allowed against the Master’s orders of 10 June 2008 striking out both defamation actions.
• Permission to appeal: Granted by Sir Charles Gray on 10 August 2008.