King v Grundon

Defamation proceedings are an abuse of process where they cannot provide meaningful protection or vindication of reputation and the likely benefit is wholly disproportionate to the parties’ and court’s resources. The court may consider unspent and notorious foreign convictions in the relevant sphere as evidence of bad reputation, although a conviction is not conclusive proof of truth under section 13 of the Civil Evidence Act 1968. Internet publication carries no automatic presumption of substantial publication. The claimant must provide evidence supporting that inference. On summary judgment, justification succeeds where, for any reasonable defamatory meaning, a contrary jury conclusion would be perverse. Litigation correspondence is absolutely privileged if it has some reference to the proceedings.

The claimant brought a libel claim concerning an email sent to a solicitor and an online review of his self-published book. He complained of references to him as an armed kidnapper, contending that they alleged convictions for actual kidnapping while armed rather than conspiracy to kidnap and possession of a firearm. The defendant denied responsibility for the online review and applied under the Civil Procedure Rules to strike out the claim as an abuse of process or obtain summary judgment. He also relied on substantial truth and, in relation to the email, absolute privilege. The court considered whether the claim could achieve meaningful vindication, whether the publications were substantially true, and whether the email was protected by privilege.

Judgment for the defendant. The claim was struck out as an abuse of process. Alternatively, the defence of justification was bound to succeed and the email was protected by absolute privilege.

1. Abuse of process. Applying the principles in Jameel (Yousef) v Dow Jones Inc [2005] EWCA Civ 75, the court asked whether there was a real and substantial tort and whether the proceedings served the legitimate purpose of protecting reputation. The claimant’s conviction for serious kidnapping-related offences, his disbarment and the extensive reporting of those matters meant that he had no reputation in the relevant sector capable of meaningful vindication. The email had been sent to a solicitor and a foreseeable client who already knew of the conviction. There was no evidence of substantial publication of the Amazon review. Any possible damages or vindication would have been minimal, while continuing the claim would involve disproportionate expenditure and court resources.
2. Reputation and foreign conviction. Previous convictions relating directly to the relevant aspect of reputation could be considered as evidence of general bad reputation. Section 13 of the Civil Evidence Act 1968 prevented reliance on the conviction as conclusive proof of truth, but did not prevent reliance on it as evidence of bad reputation. The conviction was foreign, unspent and notorious. It was therefore proper to take it into account on the abuse application.
3. Summary judgment and truth. Under Part 24 of the Civil Procedure Rules, the court was to assess the whole case without conducting a mini-trial. The substance of the allegation was that the claimant was an armed kidnapper. The undisputed evidence established a conspiracy to kidnap, possession of a sawn-off shotgun and preparations to detain a person in an underground bunker. It would be perverse for a jury to conclude that the events were merely a game. The words were therefore substantially true.
4. Absolute privilege. Litigation documents and inter partes correspondence are protected by absolute privilege unless they have no reference at all to the subject matter of the proceedings. The email concerned ongoing litigation about the boat and the defendant’s query about the claimant’s involvement in that litigation. It therefore fell within the privilege. An injunction would in any event require a threatened real and substantial tort, and would be unjustified where the words were substantially true.