Morrissey v McNicholas & Anor

A defamation claim should be struck out for delay only where the delay amounts to an abuse of process, substantially prejudices a fair trial, or means that the proceedings no longer serve the legitimate purpose of protecting reputation. The court must assess the claimant’s explanation, the evidence of prejudice, the seriousness and reach of the imputation, and the continuing value of vindication. The balance between freedom of expression under article 10 and protection of reputation remains central. Delay may justify criticism or procedural directions without making strike-out a proportionate response. A claim should proceed where a fair trial remains possible and vindication remains realistically important.

The claimant brought a libel claim against the editor and publisher of NME concerning an article published in December 2007. He alleged that editing and presentation of interview material conveyed that, despite his denials, he was a racist who expressed extremist right-wing views. The defendants applied under CPR Part 3.4(2) to strike out the claim as an abuse of process.

They relied on delay, the absence of a continuing legitimate purpose in protecting reputation, and prejudice to a fair trial caused principally by fading memories. The claimant relied on the seriousness and extent of the publication, the continuing importance of vindication, and his explanation for delay, which included major litigation and difficulties involving his former manager.

1. The application was dismissed. The parties were invited to agree directions for an early trial, and the judge observed that alternative dispute resolution might be appropriate provided it caused no further unacceptable delay.
2. Applying Grovit v Doctor [1997] 1 WLR 640, the court considered whether the claimant’s delay supported an inference that he no longer intended to prosecute the action or had an improper motive. His explanation was credible on the papers. Although he ought to have progressed the claim, strike-out would be a disproportionate sanction.
3. The principle in Jameel v Dow Jones [2005] QB 946, as adopted in Lait v Evening Standard Ltd [2011] EWCA Civ 859, required the court to stop defamation proceedings that did not serve the legitimate purpose of protecting reputation, while maintaining a proper balance between article 10 freedom of expression and reputational protection. This was an unusual case for strike-out under that principle because the imputation was serious, publication was wide, the claimant remained prominent, and the publication was significant within the relevant field.
4. Under the approach in Birkett v James [1978] 297, loss of memory and the burden of a longstanding allegation of malice amounted to some prejudice, but the evidence did not establish that a fair trial was no longer possible. The delay had not reached the necessary threshold.
5. Overall, the balance between the defendants’ article 10 rights and the claimant’s right to protection of reputation required the action to proceed.