Wallis & Anor v Meredith

Defamation proceedings may be struck out as an abuse of process where the pleaded publication does not disclose a real and substantial tort or a tangible and legitimate advantage in continuing the claim. Each publication gives rise to a separate cause of action, and further publications relied on for aggravated damages must be identified by what was said, when, and to whom. Assertions of further publication and a defendant’s failure to answer enquiries do not establish the credible evidence required for exceptional pleading or disclosure relief. Where the only identified publishee is the claimant’s solicitor, the court may consider the identity of the publishee, the likely harm, proportionality, privilege, and any adequate undertaking. An injunction requires reasonable grounds to apprehend repetition.

The claimants brought defamation proceedings concerning a letter in which the defendant alleged that two men had threatened him at home after a dispute with the claimants. The pleaded publication was to the claimants’ solicitor. The Particulars of Claim also referred to alleged further publications and relied on the defendant’s refusal to identify other publishees.

The defendant applied to strike out those parts of the pleading and, subsequently, the claim as an abuse of process. The claimants also sought pre-action disclosure under Civil Procedure Rules 1998, rule 31.16, to identify alleged further publishees. Tugendhat J rejected that application. The issues before Christopher Clarke J were whether the pleaded further publications could stand and whether the remaining claim disclosed a real and substantial tort.

1. Further publications. Each publication constitutes a separate cause of action. The Particulars of Claim must identify the publications relied on. The exceptional course of allowing an unidentified publishee to remain in the claim requires uncontradicted and credible evidence that the defendant made a defamatory statement of a specified nature to a particular person. Assertions of belief and failure to answer repeated questions were insufficient.
2. Paragraphs 6.3 and 6.4 of the Particulars of Claim were implicitly premised on additional publications. They attempted to rely on unidentified publications in aggravation of damages and to reserve reliance on publications which might be discovered. That was impermissible, and those paragraphs were struck out.
3. Real and substantial tort. Applying Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946, the court had to determine whether the pleaded claim served the legitimate purpose of protecting reputation and whether it disclosed a real and substantial tort. The only identified publication was to the claimants’ solicitor, who was acting for them and had been stating that the allegation was false. There was no evidence of reputational harm or that the solicitor thought worse of his clients.
4. The court was entitled, having regard to proportionality, the overriding objective, likely privilege, the minimal likely damages, and the absence of any legitimate vindication, to prevent the use of court resources on the claim. The claimants could not rely on possible wider publication to justify the proceedings where no such publication had been shown.
5. The defendant’s undertaking not to repeat the allegation was adequate. There were no reasonable grounds to apprehend repetition, so injunctive relief was unnecessary. The proceedings did not assert a real and substantial tort or a tangible and legitimate advantage sufficient to outweigh the expense and use of court resources. The claim was dismissed.

Not stated in the judgment.