Cammish v Hughes

Defamation proceedings may be summarily dismissed as an abuse of process where changed circumstances leave no real and substantial tort to be tried. The court must consider whether continued litigation can yield a tangible and legitimate advantage proportionate to its cost and use of court resources.

A serious allegation of business incompetence may satisfy the defamatory threshold. However, an opinion deduced from disclosed facts remains comment even if the deduction is unreasonable. Where the judgment itself provides adequate vindication, publication was limited, damages would be small and an injunction is unnecessary, a trial may cease to serve any legitimate purpose. Dismissal may be made conditional on an appropriate costs order to reflect the claimant’s justified commencement of proceedings.

The respondent brought defamation proceedings after the appellant anonymously circulated documents suggesting that the respondent’s involvement in 15 dissolved companies showed serious business incompetence. The appellant initially denied authorship but admitted it in his defence. Publication was proved to a small number of recipients.

HH Judge Chambers QC, sitting as a High Court judge, determined that the words alleged serious business incompetence and met the required threshold of seriousness. He dismissed the appellant’s application for summary dismissal: [2012] EWHC 976 (QB). He was not asked to decide whether the words were fact or comment.

The appellant challenged the meaning and maintained that the proceedings should be dismissed under the abuse-of-process jurisdiction. The central issue was whether, following determination of meaning and the fact-or-comment question, any real and substantial tort remained to be tried.

1. Appeal allowed to the extent that the proceedings were summarily dismissed. The words bore the meaning found by the judge: they alleged that the respondent was seriously incompetent in business. The appellate court should not disturb a trial judge’s contextual evaluation of meaning unless satisfied that another meaning clearly applied. Applying the reasonable-reader guidance in Jeynes v News Magazines Ltd [2008] EWCA Civ 130, the criticism could not sensibly be confined to the dissolved companies.

2. The words were defamatory because they denigrated, or tended to denigrate, the respondent in the way of his business. The imputation concerned competence, rather than creditworthiness. It also passed the required threshold of seriousness. An allegation of serious business incompetence could affect livelihood and trust in the performance of commercial commitments. The law excludes statements of trivial content or import, consistently with article 10 of the European Convention on Human Rights.

3. The critical words were comment rather than fact. The author had stated the underlying fact of 15 company dissolutions and used an equals sign to separate it from the conclusion drawn. The conclusion of serious incompetence was a value judgment. The unreasonableness of that deduction did not convert it into fact, because honest comment may protect an opinion whether it is right or wrong. A court making a definitive determination of meaning should normally determine fact or comment at the same time.

4. If honest comment were pleaded for the objective meaning, the respondent would have to prove that the appellant did not believe the opinion expressed. It was at least arguable that the defence could be available where an author did not intend the objective meaning found by the court but honestly believed the statement according to the meaning he intended. That question had not been resolved by Joseph v Spiller [2011] 1 AC 852.

5. Applying Jameel v Dow Jones & Co Inc [2005] QB 946, there was no longer a real and substantial tort to be tried. Publication was limited; the judgment had vindicated the respondent by identifying the appellant’s inference as unreasonable; a trial could provide no better vindication; malice would be difficult to prove; damages would be small compared with costs; and no material need for an injunction remained.

6. Summary dismissal was conditional on the appellant paying the respondent’s costs down to and including service of the defence, subject to detailed assessment if not agreed. That condition recognised that the respondent had been justified in commencing proceedings to identify the anonymous author and guard against repetition.

1. Court of Appeal (Civil Division): In [2012] EWCA Civ 1655, the court upheld the High Court’s determinations of meaning and seriousness, decided that the words were comment, and allowed the appeal to the extent of directing summary dismissal on terms as to costs.

2. High Court of Justice, Queen’s Bench Division: In [2012] EWHC 976 (QB), HH Judge Chambers QC held that the words alleged serious business incompetence, satisfied the threshold of seriousness and were defamatory. He dismissed the application to terminate the proceedings without trial.