Smith v Advfn Plc & Ors

Permission to appeal requires the applicant to identify an error of law in the order below. A court may assess numerous defamation claims together and individually, including whether the words are abuse rather than defamatory and whether obvious defences such as qualified privilege or fair comment apply. Where repeated unmeritorious proceedings threaten defendants and consume judicial resources, an extended civil restraint order may be justified. The court may also take account of the limited or unproved damage likely to result. An apology prompted by threatened or actual proceedings, without an admission of defamation or damage, does not establish liability.

The appellant brought numerous claims for damages arising from allegedly pejorative comments on an internet bulletin board. The High Court, presided over by Tugendhat J, treated the claims as unmeritorious, struck them out and made an extended civil restraint order requiring permission before further proceedings could be commenced.

The proceedings had followed earlier procedural stages involving the Senior Master, Eady J and the Court of Appeal, after which they returned to the High Court. The appellant sought permission to appeal, alleging errors in the assessment of the defamation claims and in the making of the restraint order. The central issue was whether the High Court had erred in law.

Application refused. The two-judge court unanimously refused permission to appeal.

1. Permission threshold. Lord Justice Stanley Burnton stated that an applicant seeking permission to appeal had to show that the judge below had erred in law. The appellant failed to identify any such error.
2. Assessment of the claims. The High Court was entitled to examine the various defamation claims in the manner adopted by Tugendhat J. The statements were generally capable of being treated as abuse rather than defamatory publication. Even if defamatory, there were manifest potential defences of qualified privilege and fair comment, with no realistic plea of malice. The court could also take account of the limited or uncertain damage, the difficulty of proving that individuals had read the statements, the likelihood that they would regard them as abuse, and the absence of any allegation of special damage.
3. Civil restraint order. The repeated commencement of unmeritorious proceedings could interfere with defendants’ freedom of expression and impose substantial costs and demands on court time. Burnton LJ held that Tugendhat J was fully entitled to make the extended civil restraint order. In light of the appellant’s persistence, the order was required to protect further defendants and the court from proceedings incapable of producing substantial liabilities.
4. Additional matters. Lord Justice Aikens agreed. He considered that the allegation that counsel had deliberately failed to correct an earlier judgment was unsupported and, in any event, could not establish a viable negligence claim. Earlier observations made by Mackay J in 2008 did not demonstrate that the claims had present merit; Tugendhat J had been required to assess the claims at the later hearing and had done so carefully.
5. Burnton LJ additionally observed that apologies prompted by threats of proceedings or actual proceedings, and which did not admit defamation or damage, did not amount to admissions of liability.

The formal order was: application refused.

• Court of Appeal (Civil Division): On 13 July 2011, the court refused permission to appeal in Smith v Advfn Plc & Ors. [2011] EWCA Civ 1552
• High Court, Queen’s Bench Division: Tugendhat J struck out the relevant defamation and damages claims and made an extended civil restraint order. Earlier procedural steps before the Senior Master, Eady J and the Court of Appeal were also recorded, after which the proceedings returned to the High Court.