Smith v ADVFN Plc & Ors

A case-management stay may be continued where the circumstances of multiple claims and the burden and expense imposed on defendants justify maintaining procedural control. But a stay that leaves claims in limbo does not itself determine their merits, strike them out, or impose a civil restraint order. After dismissing an appeal, the court may direct the claimant to show cause why surviving claims should not be struck out for abuse of process or summarily dismissed, and why a civil restraint order should not be made.

The appellant brought numerous proposed defamation claims arising from postings on ADVFN’s financial information bulletin boards. The Senior Master re-assigned and stayed the claims, directing consideration of restraint orders, prospects of success, consolidation and further case-management directions. Eady J refused the appellant’s application to vary or discharge the stay and continued a further stay of the claim against ADVFN pending payment of costs.

The appellant appealed, raising proposed issues concerning libel or slander, vulgar abuse as a defence, and the management of multiple internet defamation claims. The Court of Appeal instead focused on the case-management disposition and the absence of finality produced by the continuing stay.

1. Appeal dismissed by consent. The Court upheld the continuation of the stay as a case-management decision. The number of claims, the circumstances in which defendants had been brought into the proceedings, and the expense of defending them were relevant to the case-management concerns.
2. The continuing stay did not finally determine the claims. They remained in limbo, and the judge had not had formal applications before him to strike them out as an abuse of process, summarily dismiss them for having no realistic prospect of success, or make a civil restraint order.
3. Despite dismissing the appeal, the Court directed on its own motion that the claimant show cause why each surviving claim should not be struck out for abuse of process or otherwise, summarily dismissed, and why he should not be made subject to a civil restraint order.
4. The matter was returned to Eady J for further directions. He could decide whether to hear the issues himself or refer them to another judge of the Queen’s Bench Division. The appellant was to identify the claims he wished to pursue, those that were completed or otherwise abandoned, and those falling within the show-cause direction unless discontinued.
5. The existing costs-related stay concerning ADVFN was preserved and that claim was excluded from the directed process, subject to ADVFN’s decision whether to participate.

• Court of Appeal (Civil Division): [2010] EWCA Civ 657 dismissed the appeal by consent, upheld the stay, and directed further consideration by Eady J.
• High Court of Justice, Queen’s Bench Division: Eady J refused the application to vary or discharge the Senior Master’s stay and continued the stay of the claim against ADVFN pending payment of costs.
• Senior Master, Queen’s Bench Division: re-assigned and stayed the listed and future claims, directing consideration of restraint orders, prospects of success, consolidation and further case management.