Kordowski v Hudson

Summary judgment in defamation is inappropriate where the evidence discloses a genuine conflict on what was said or where a pleaded defence has a realistic prospect of success. In deciding whether proceedings should continue, the court must consider the seriousness and extent of the publication, the likely harm, proportionality, the parties’ financial positions and the resources required for trial.

Under the Jameel abuse principle, a slander claim may be struck out where it does not serve the legitimate purpose of protecting reputation and would impose disproportionate costs on the parties and the court. A bankrupt claimant remains entitled to access to justice, but bankruptcy may make proportionality a matter for the court. Publication to one person may still justify a trial, although the limited publication and absence of substantial harm may make the proceedings abusive.

The claimant brought an action for slander against the Chief Executive of the Law Society. He alleged that the defendant had said to Professor John Flood, during a brief conversation, “That man is a criminal”. The defendant denied using those words and relied on a different formulation, namely that the claimant’s conduct amounted to criminal behaviour and had been reported to the police. He also pleaded justification.

The claimant applied for summary judgment under the Defamation Act 1996. The defendant applied to strike out the claim as an abuse of process under CPR 3.4(2). The central issues were whether the conflict about the words spoken prevented summary disposal and whether a slander published to a single publishee, in the circumstances, served a legitimate reputational purpose.

1. The claimant’s application for summary judgment was dismissed. The evidence disclosed a genuine conflict about the words spoken. It was impossible, on the documents, to conclude that the defence had no realistic prospect of success. The likely conflict concerning justification provided an additional reason why summary relief was inappropriate.
2. Under section 8(3) of the Defamation Act 1996, summary judgment requires both the absence of a defence with a realistic prospect of success and no other reason why the claim should be tried. Section 8(4)(c) requires attention to conflicts of evidence, while section 8(4)(d) requires attention to the seriousness of the alleged wrong. A serious allegation may weigh against summary disposal, even where publication was limited.
3. The defendant’s strike-out application was granted. The court applied the principle in Jameel v Dow Jones that proceedings may be an abuse where they do not serve the legitimate purpose of protecting reputation. The court must balance freedom of expression under article 10 against protection of reputation, while applying the overriding objective.
4. The allegation of criminality was serious in content, but the alleged publication to a single publishee, the absence of evidence of real or substantial harm, and the claimant’s own republication of the allegation meant that the alleged wrong was of comparatively low seriousness in this case. The claimant’s bankruptcy did not bar access to justice, but his financial position was relevant to the proportionality and resource-allocation assessment.
5. The fact that an allegation of criminality may found slander without proof of special damage did not make the claim necessarily a real and substantial tort. The action was an abuse of the process of the court and was struck out. The court expressly stated that the same reasoning would not necessarily apply to a libel published to the public at large.