Cairns v Modi

In a libel action, the extent of publication should not ordinarily be tried as a preliminary issue merely to support an application to strike out for abuse of process. The Jameel jurisdiction is intended to reduce complexity and cost, not create an additional hurdle for claimants.

The significance of limited publication cannot be assessed by numbers alone. Vindication is a claimant’s primary concern, and a claim may properly proceed where there is a real prospect of further publication if proceedings are not pursued. A preliminary factual trial may be premature where the defence has not been served and the issue may not need to be determined.

The claimant brought a libel action concerning a Tweet and an online article. The defendant applied for the extent of publication of the Tweet within England and Wales to be tried as a preliminary issue. The application was connected with a proposed application to strike out the Tweet claim as an abuse of process on the basis that publication within the jurisdiction was insufficiently substantial.

The court had to decide whether the publication issue should be determined before the defence was served and before the substantive proceedings progressed.

1. Applications dismissed. The court refused to order a preliminary trial of the extent of publication of the Tweet and invited the parties to agree directions for service of a defence and the further progress of the action.
2. The court accepted that the claimant’s estimate of publication had been revised downwards, but declined to treat the claim as speculative. It was not appropriate at this stage to decide whether the defendant’s evidence would justify striking out the Tweet claim. Abuse of process involved more than the number of publishees.
3. Vindication was the claimant’s primary concern, rather than compensation for past damage alone. Vindication could include a retraction, a verdict for the claimant, or judgment that the allegation was false. A claim based on limited publication could therefore be legitimate where there was a real prospect of further publication if the claim were not pursued.
4. The jurisdiction recognised in Jameel v Dow Jones & Co [2005] QB 946 was useful, but should not become an additional hurdle that increased the complexity and cost of litigation. The court was reluctant to order a trial of a factual issue as part of, or preliminary to, an abuse application.
5. Although abuse applications could often be determined from the claimant’s case, that was not always so. In the present circumstances, where no defence had been served and the possible defences remained uncertain, there was insufficient advantage in trying publication separately. The applications were therefore dismissed.