Smith v ADVFN Plc & Ors (Rev 1)

In internet defamation claims, the claimant must prove publication, reference and a sufficiently serious defamatory meaning. Where publication is speculative or minimal, the alleged meaning is of low seriousness, and substantial damage is absent, the claim may amount to no real and substantial tort and may be struck out as an abuse of process. The court may also consider the availability of privilege, fair comment or honest comment, and the absence of a realistic case of malice. Persistent issue of claims which are totally without merit may justify an extended civil restraint order. A general case-management order staying future claims may assist temporarily, but cannot circumvent the specific requirements governing civil restraint orders.

The claimant had issued numerous defamation claims arising from statements posted on internet bulletin boards. Earlier proceedings had been stayed by order of the Senior Master. Eady J had refused to lift the stay and concluded that several claims had no real prospect of success. The Court of Appeal dismissed an appeal by consent and directed the claimant to show cause why the surviving claims should not be struck out or summarily determined, and whether a civil restraint order should be made.

The present hearing concerned eleven claims. Most involved internet publications. Two concerned a legal text and the reporting of an earlier judgment, and one concerned an alleged judicial error and related negligence. The central issues were whether the claims were wholly without merit, whether they should be restrained or otherwise managed, and whether an extended civil restraint order was justified.

1. Internet defamation claims. The court respectfully agreed with Eady J that the claims considered previously had no real prospect of success. The words complained of were often abuse rather than defamatory statements, and realistic defences of qualified privilege, fair comment or honest comment arose. The claimant had no realistic case of malice. Further, he had not shown that a significant number of readers had understood the words to refer to him.
2. In an internet defamation claim the claimant must prove publication. If publication is not proved, or the number of proved publishees is very small, that may support the conclusion that there is no real and substantial tort and that the claim is an abuse of process. Other relevant considerations include the seriousness of the alleged meaning and whether substantial damage has been suffered or is likely.
3. The claims against Mr Turvey and Thomson Reuters were also wholly without merit. Their pleadings did not cure the defects identified in the earlier claims. The claim concerning the reported judgment had no real prospect of success and was met by a plain defence of privilege.
4. The claim concerning the Ministry of Justice and the claimant’s barrister was likewise without merit. The remedy for judicial error is ordinarily an appeal, unless the judge corrects the error. Here the error had been corrected by a supplemental judgment. Judicial immunity also applied to the Ministry of Justice on the facts, and material damage could not be shown.
5. An extended civil restraint order was justified because the claimant had persistently issued claims which were totally without merit, within Practice Direction 3C para 3.1. The Master’s general case-management order staying future claims had practical advantages as a short-term measure, but it could not substitute for, or circumvent, the specific requirements of the Practice Direction.

1. Court of Appeal: On 11 May 2010 the claimant’s appeal was dismissed by consent. The surviving claims were directed to the High Court for consideration of strike-out or summary judgment and a possible civil restraint order.
2. High Court (Queen’s Bench Division): The court determined that the claims before it were wholly without merit and addressed the civil restraint and case-management issues.