Robins v Kordowski & Anor

A defence to a defamation claim has no realistic prospect of success where allegations of lying and dishonesty are pleaded as comment but are plainly statements of fact, and the defendant has no particularised evidence capable of proving them true.

A lawyer’s statement on behalf of a client is ordinarily based on instructions. Its falsity, or the client’s later inconsistent conduct, does not by itself support an inference that the lawyer lied or breached a duty.

A judgment on liability with damages to be assessed does not dispose of a claim for the purposes of summary disposal under section 8 of the Defamation Act 1996. A procedural error in requesting default judgment does not irrevocably abandon other remedies. The court may grant a declaration, proportionate damages and an injunction where the statutory requirements are satisfied.

The claimants, a solicitor and his firm, brought libel proceedings against the publisher of the Solicitors from Hell website and the author of complaints published there. The publications alleged that the solicitor had lied, pursued hopeless litigation for his own benefit and disregarded his client’s interests.

Judgment for damages to be assessed was entered against the publisher in default of defence, although the claimants had used the request procedure under rule 12.4(1) of the Civil Procedure Rules 1998 despite also claiming an injunction. The publisher applied to set aside that judgment. The claimants sought summary disposal under section 8 of the Defamation Act 1996, together with damages, a declaration and an injunction.

The court determined whether the proposed defences had a real prospect of success, whether the procedural error prevented summary relief, and what relief should be granted.

1. The application to set aside the default judgment was refused, and the claim was summarily disposed of in the claimants’ favour. The publications plainly alleged that the solicitor had lied and acted in his own interests while disregarding those of his client. The publisher had no real prospect of establishing a different meaning or successfully defending those allegations.

2. The defence of honest comment had no realistic prospect of success. Applying Spiller v Joseph [2010] UKSC 53, the allegations that the solicitor lied and acted unscrupulously were allegations of dishonesty presented as fact, rather than recognisable comment. Such meanings could be defended only by proving their truth.

3. The proposed truth defence lacked particularised supporting evidence. Statements made by lawyers on behalf of clients are ordinarily based upon instructions. A statement’s subsequent falsity, or a client’s inconsistent action, does not permit an inference that the lawyer lied, exceeded authority or acted against the client’s interests. An allegation of dishonesty against any person must be pleaded with particularity and proved by evidence. The publisher had neither direct evidence nor any realistic prospect of obtaining privileged communications capable of supporting the allegations.

4. The use of rule 12.4(1), instead of an application under rule 12.4(2) and Part 23 of the Civil Procedure Rules 1998, did not irrevocably abandon the claims for non-monetary relief. Following Loutchansky v Times Newspapers Ltd [2001] EWCA Civ 1805, a judgment on liability with damages to be assessed does not dispose of the claim for the purposes of section 8 of the Defamation Act 1996. Alternatively, rule 3.10 empowered the court to remedy the procedural error.

5. There was no defence with a realistic prospect of success and no other reason for a trial. All potential defendants had been joined, the claim against the author had settled, there was no material conflict of evidence, the internet allegations were serious, and a full trial would impose unrecoverable costs upon the claimants.

6. Damages of £10,000 were awarded. That sum was required to mark the seriousness of allegations of lying and dishonesty and to vindicate the claimants. The author’s earlier retraction, apology and payment of costs did not justify denying damages against a publisher who offered no retraction or apology.

7. The court declared false and defamatory the allegations that the solicitor had lied, acted dishonestly or breached his duty to his client. In the absence of an undertaking or assurance against repetition, the publisher was restrained from further publishing those or similar defamatory allegations.

• High Court (Queen’s Bench Division): On 30 March 2011 Henriques J granted an interim injunction restraining publication until trial or further order.

• Default judgment: On 12 April 2011 judgment for damages to be assessed was entered against the first defendant in default of defence.

• Present decision: The court refused to set aside the default judgment and granted summary relief under sections 8 and 9 of the Defamation Act 1996.