Hays Plc v Hartley

A defamation claim may be struck out as an abuse of process where, after subsequent events, it can achieve no real benefit in protecting or vindicating the claimant’s reputation. The court must consider the legitimate purpose of the proceedings, the value of any remaining remedies, proportionality, and the defendant’s freedom of expression under Article 10. A claimant’s earlier legitimate purpose in preserving its rights does not justify continuing proceedings once their objective has been achieved. A collateral-purpose allegation requires an ulterior purpose unrelated to the litigation and a finding that the proceedings would not otherwise have been brought.

Hays Plc sued Jonathan Hartley, a news and press intermediary, in defamation. Hartley admitted republishing serious allegations of racism made by former employees to a journalist and pleaded qualified privilege. The employees’ employment and defamation disputes were later settled. The settlement included a public statement substantially vindicating Hays, and the statement was placed on the Sunday Mirror website.

Hays nevertheless continued the claim, seeking damages, vindication and an injunction. Hartley applied to strike out the action as an abuse of process, arguing that it could achieve no real or substantial benefit and was being pursued for a collateral purpose. Hays separately applied to strike out the qualified-privilege defence.

1. The action struck out. The continuation of the claim after the settlement was an abuse of the process of the court. The claimant had already obtained substantial vindication from the public statement issued by the employees and its publication on the Sunday Mirror website.
2. The proper purpose of defamation proceedings is to protect and vindicate reputation. A claim may nevertheless be abusive where, in practical terms, it can achieve no further valuable vindication, damages would be modest and largely irrecoverable, and the litigation would consume disproportionate court and party resources. The relevant circumstances included that Hays was a corporation, the publication was to one journalist, Hartley was an intermediary rather than the originator, and the republication had fairly included Hays’s response.
3. Hays had acted legitimately in bringing proceedings while the employees denied responsibility for publication. That earlier purpose did not make the later continuation legitimate once the settlement had achieved the relevant objective. Avoiding adverse costs on discontinuance was not, by itself, a collateral purpose within the principle explained in Goldsmith v Sperrings.
4. There was no realistic basis for seeking an injunction. An injunction requires good ground for apprehending wrongful repetition. Hartley had made clear that he had no intention of republishing the allegations, and the facts disclosed no realistic prospect of repetition.
5. Article 10 required consideration of whether continuation was a proportionate means of pursuing any remaining legitimate aim. Even if a claim for £5,000 were legitimate, continuing this action would be disproportionate given the modest and probably irrecoverable award, the costs, the demands on court resources, the defendant’s limited role, and the vindication already achieved.
6. The court did not determine the difficult issue whether an intermediary could rely on Reynolds privilege where another participant in the publication had performed the necessary responsible-journalism functions. The issue was important and fact-sensitive. Nor was it necessary to decide the separate argument concerning liability for MGN’s republication.