Smith v ADVFN Plc & Ors

At the permission stage, a stay of defamation proceedings may be challenged where the conclusion that the claims have no realistic prospect of success appears inconsistent with an accepted prima facie case, the absence of any strike-out application, or an earlier refusal to strike out a claim. Permission may nevertheless be refused for claims no longer pursued where resolving the issue would disproportionately consume court and litigant resources. Recording that an issue was arguable may provide sufficient protection if it becomes relevant to a later civil restraint order or similar application. Permission may also be granted concerning a prospective blanket stay where it is unclear whether the lower court left that order in force.

Smith v ADVFN Plc & Ors concerned 37 defamation claims arising from allegedly defamatory statements on an internet bulletin board. The Senior Master stayed the claims and directed that future claims should also be stayed without service. Eady J continued the stay and dismissed the application to set it aside or vary it in a judgment handed down on 25 July 2008, [2008] EWHC 1797 (QB). The appellant sought permission to challenge the stays in selected claims and the prospective stay. The Court of Appeal also clarified that no Civil Restraint Order had in fact been made. The central issue was whether the proposed challenges were arguable and, for inactive claims, whether an appeal would be proportionate.

Lord Justice Hooper granted permission to appeal in eight individual claims—Macdonald, Byrne, Tuppen, Collins, O’Brien, McIntyre, George Smith and Gourlay—and concerning the assumed continuing order that all future claims issued by the appellant should be stayed. Permission was refused in the remaining claims which the appellant no longer wished to pursue. No permission was granted in the later Turvey claim because the further consideration referred to Eady J had not yet taken place.

1. It was arguable that Eady J’s conclusion that the individual claims had no realistic prospect of success was inconsistent with the acceptance of a prima facie libel case against ADVFN, the absence of any application to strike out, and the fact that Master Fontaine had previously refused to strike out the Macdonald claim without an appeal against that refusal.

2. It was also arguable that, absent the conclusion on prospects of success, the stays might not have been continued. Eady J had stated both that the claims appeared bound to fail and that he could not formally conclude on abuse of process or the merits because no such application was before him.

3. Permission was refused for claims which were no longer active. Although it was arguable that stays should not have been imposed in those cases, testing the issue would be a disproportionate use of court and litigant time. Recording the arguability of the point was considered sufficient protection if the matter later became relevant to a Civil Restraint Order or similar application.

4. The applications to use PDF appeal papers and to redact the names of persons whose evidence was relied upon were refused. The appellant was warned that failure would likely expose him to costs, although the warning reflected his status as a litigant in person.

• Court of Appeal (Civil Division): Permission to appeal granted in eight individual claims and concerning the assumed continuing prospective stay; permission refused in the other claims and the procedural applications were refused.
• High Court of Justice, Queen’s Bench Division: Eady J continued the stays and dismissed the application to set them aside or vary them in judgment [2008] EWHC 1797 (QB). He later clarified that no Civil Restraint Order had been made.
• Senior Master: On 25 April 2008, 37 claims were stayed and future claims were directed to be stayed after issue without service.