Cammish v Hughes

The Court of Appeal reviewed an application to dismiss ongoing defamation proceedings on the ground that there was no "real and substantial" tort to be tried under the Jameel v Dow Jones test. The court agreed with the trial judge's finding as to the objective meaning of the published words, namely that they imputed that the claimant was a seriously incompetent businessman, and that that meaning met the threshold of seriousness for defamation. However the court determined that the impugned passages were expressions of comment rather than statements of fact. Because the publication was limited, the defence of honest comment was available in principle and malice would be difficult to prove, the court concluded that the litigation had served its purpose and that there was no longer a real and substantial tort to be tried. The appeal was therefore allowed to the extent that the proceedings were summarily dismissed on terms requiring the defendant to pay the claimant's costs up to and including service of the defence.

Background and parties:

• The respondent, Robin Cammish, was a director of QP Group Ltd and chairman of a local action group opposing planning permission for two biomass plants. The appellant, Clive Hughes, circulated an anonymously sent bundle which included a typewritten page and a handwritten note implying that Mr Cammish had dissolved many companies because he was incompetent and was "coming to Swansea to tell you how to do it".

Procedural posture and relief sought:

• The respondent brought defamation proceedings. The appellant applied in the High Court (HHJ Chambers QC) to dismiss the proceedings without trial on the ground that there was no real and substantial tort to be tried (relying on the Jameel principle). The application was dismissed below and the defendant appealed to the Court of Appeal.

Issues framed:

1. What was the natural and ordinary meaning of the words complained of?
2. Whether the words were statements of fact or expressions of comment (and if comment, whether a defence of honest comment could be available).
3. Whether the words reached the threshold of seriousness for actionable defamation.
4. Whether, applying the Jameel test, the proceedings should be dismissed as no longer serving a legitimate purpose.

Court's reasoning and outcome:

• The Court of Appeal applied established guidance on meaning and endorsed the trial judge's conclusion that a reasonable reader would infer from the bundle that the claimant was a seriously incompetent businessperson.
• The court held that those imputations were defamatory and met the statutory/common-law threshold of seriousness for business reputation.
• On fact or comment, the court concluded the critical passages were comment: the use of an equals sign after factual material signalled a value judgment and the impugned conclusion (serious incompetence) was a value judgment rather than an ascertainable fact.
• Because the publication had been very limited, because paragraphs 12–13 of the judgment (explaining the normal reasons for dissolved companies) provided substantial vindication, and because the only realistic contest at trial would be malice (difficult to establish on the evidence), the court concluded there was no longer a real and substantial tort to be tried under Jameel and ordered summary dismissal on terms requiring the appellant to pay the respondent's costs up to and including service of the defence.

Wider context: the court emphasised proportional use of judicial resources and the balancing of article 10 rights with reputation protection in deciding whether to permit continued defamation litigation where its practical utility has substantially diminished.

Appeal allowed to the extent of directing summary dismissal of the proceedings. The court agreed with the trial judge on the objective meaning and seriousness of the words but concluded they were expressions of comment; given limited publication, partial vindication already achieved by the judgment and the practical difficulty of proving malice, there was no longer a real and substantial tort to be tried and the action was summarily dismissed subject to a costs order requiring the appellant to pay the respondent's costs up to and including service of the defence.

Appeal from HHJ Chambers QC sitting as a High Court judge, Cardiff District Registry: [2012] EWHC 976 (QB). This Court delivered judgment allowing the appeal in part and directing summary dismissal of the proceedings: [2012] EWCA Civ 1655.