Kaschke v Gray & Anor

Defamation proceedings may be struck out as an abuse of process where any likely award would be very modest and wholly disproportionate to the cost, time and public resources required for a trial. The court must balance the claimant’s legitimate need for vindication against the interference with freedom of expression and the proportionate use of judicial resources.

The assessment is fact-sensitive. Relevant matters may include the limited additional sting of the publication, admissions or material already in the public domain, any right of reply, the likely scale of publication, and the availability of evidence in mitigation of damages. A previous strike-out in related proceedings is not, by itself, determinative, but may reinforce the proportionality assessment.

The claimant brought libel proceedings against the first and second defendants concerning blog posts which allegedly suggested that she had once been suspected by West German authorities of membership of the Baader-Meinhof group.

The applications followed the strike-out of a related action against David Osler by Eady J in Kaschke v Osler, [2010] EWHC 1075 (QB), on the basis that any damages would be very modest and disproportionate to the cost of a jury trial. The defendants argued that the present claim was similarly abusive and that the earlier strike-out independently made continuation improper.

The central issue was whether the present proceedings offered any realistic prospect of a tangible and legitimate advantage sufficient to justify their cost and interference with freedom of expression.

1. The claims were struck out as an abuse of process. Applying the principle in Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946, the court had to consider whether a real and substantial tort had occurred and whether continuation of the proceedings would serve the legitimate objective of vindicating reputation in a proportionate way.
2. The claimant’s own admissions showed that she had been arrested in 1975 on suspicion of involvement in a criminal gang with terrorist aims, had been released without charge and had received compensation for wrongful imprisonment. The defendants did not allege that she had committed terrorism or that the suspicions were true. Against that background, the additional reference to Baader-Meinhof was likely to add only marginal reputational damage.
3. The relevant comparison was between the pleaded meaning and the admissions and other material emanating from the claimant. That material was admissible in mitigation of damages under the principles in Burstein v Times Newspapers Ltd [2001] 1 WLR 579 and Turner v Newsgroup Newspapers [2006] 1 WLR 3469. The material could be relevant even without proof that it caused or preceded the publication, where it was directly relevant to the subject matter of the libel or the claimant’s reputation in the relevant sector.
4. The court also considered the limited evidence of publication on the second defendant’s website and the prompt offer of a prominent right of reply. These matters reinforced, but were not essential to, the conclusion that any damages would be very modest.
5. The previous strike-out of the Osler action and the freedom of others to repeat the relevant words were not freestanding grounds for dismissal. They were, however, legitimate factors in the overall proportionality assessment. The separate abuse argument based simply on the earlier strike-out added nothing because the present claim had not failed on its merits or been abandoned.

The judgment itself was a first-instance decision on applications by the remaining defendants to strike out the libel claim as an abuse of process.