Kaschke v Osler

Defamation proceedings may be struck out as an abuse of process where the claimant cannot realistically obtain meaningful vindication and any damages would be wholly disproportionate to the cost and public resources required for trial. The court must balance protection of reputation against freedom of expression and the proportionate use of judicial resources.

A claimant relying on continuing or repeated online publication must identify specific publications within the statutory limitation period. There is no presumption that an archived online posting continued to be published. Material incapable of referring to the claimant or bearing a defamatory meaning may be removed from the claim, although it may remain relevant as context.

The claimant sued the defendant over a blog article and subsequent comments concerning her arrest in Germany in 1975 and alleged links with left-wing extremism. The defendant accepted that she had not committed a criminal offence and had received compensation for wrongful imprisonment. He later published her right of reply and removed the original article.

The defendant applied to strike out the claim as an abuse of process, relying on the limited additional reputational damage, the disproportionate cost of a jury trial, limitation, and the inability of particular passages to bear a defamatory meaning. The central issue was whether continuation of the proceedings could achieve a legitimate and proportionate vindication.

1. The claim was struck out as an abuse of process. Applying the approach in Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946, the court asked whether a real and substantial tort had been committed and whether continuation could achieve a legitimate objective of vindicating reputation.
2. The claimant’s own website material and the defendant’s subsequent right of reply substantially reduced any possible additional harm caused by the blog. The article did not allege that the claimant had participated in violence or terrorism, and the reference to the possible assassination of Tony Blair concerned other members of the Respect Party, not the claimant.
3. If the claimant overcame the pleaded defences, any damages would be very modest and wholly out of proportion to the cost and public resources required for a two-week jury trial. The case therefore fell within the unusual category in which the legitimate objective of vindication could not justify the interference with freedom of expression.
4. The claim was also confined in principle to publications within the 12-month period before issue. Under the Defamation Act 1996, no sufficient reason existed to disapply the limitation period. Any continuing publication had to be proved by specific examples; an online posting being accessible in an archive created no presumption of republication. The approach in Al Amoudi v Brisard [2007] 1 WLR 113 was applied.
5. Several pleaded extracts were incapable of referring to the claimant or bearing a defamatory meaning. The passages concerning George Galloway and Tony Blair did not accuse the claimant of approving political assassination. The translated Der Spiegel passage had been published by the claimant herself and could not independently found an action, though such material could remain relevant as context.
6. The alternative defence of accord and satisfaction was rejected. The right of reply did not amount to a binding agreement in full and final satisfaction of the claim. The amended defence and further disclosure application were unnecessary, and consolidation with another claim was inappropriate after the strike-out ruling.