Ansari v Knowles & Ors

A defamation claim may be struck out as an abuse of process under the Jameel principle only where it is not a real and substantial tort, or where the likely benefit of continuing is out of all proportion to the cost. Limited publication is not decisive. The nature of the allegation and the identity of those who received it may make a small publication seriously damaging.

The court must not turn such an application into a mini-trial of liability or quantum. A settlement with one alleged publisher does not automatically make a claim against another abusive, where separate vindication or further relief may remain available. Disproportionate costs should ordinarily be addressed by firm case management where the proceedings can be narrowed.

The claimant sued the first defendant, Dr Knowles, and his employer, Manchester Metropolitan University, for defamation arising from the alleged creation, publication and republication of a memorandum criticising the claimant’s professional competence and personal conduct. He also relied on two alleged slanders.

Before the appeal, the claimant settled his claim against Vilnius University, the employer of the memorandum’s author, for a lump sum inclusive of damages, interest and costs. Vilnius made a statement in open court concerning the allegations. Eady J held that the settlement neither extinguished the causes of action against Dr Knowles and the university nor made their continuation an abuse of process: [2012] EWHC 3137 (QB).

The appellants challenged only the latter conclusion, relying on the abuse-of-process principle in Jameel.

Appeal dismissed unanimously. Moore-Bick LJ gave the leading judgment, with which Aikens and Vos LJJ agreed.

1. The claim concerned a potentially serious publication to persons connected with the claimant’s employment. Although circulation was limited, its content and recipients meant that, assuming the claimant’s case to be true, it could not be characterised as lacking a real and substantial tort. The Jameel principle, derived from Jameel (Yousef) v Dow Jones Inc [2005] EWCA Civ 75, therefore did not justify striking out the claim on that basis.

2. The relevant further question was whether the claimant had, for practical purposes, already received all the redress he could obtain, so that further litigation was futile. The settlement with Vilnius did not answer that question. The statement in open court did not provide equivalent redress from Dr Knowles, who was assumed for this purpose to have participated in the publication. The inclusive settlement sum also did not permit the court to treat the claimant as having received a specified sum solely for damages.

3. A Jameel application should not become a mini-trial on incomplete evidence about liability or quantum. Save where a claim is plainly at an extreme, its merits should be taken at face value. If the allegation against a defendant has no real prospect of success, the proper course is an application under CPR Part 3 or CPR Part 24, not an abuse-of-process application founded on the likely costs and benefit.

4. The breadth of the pleaded justification and malice issues created a genuine risk of excessive cost. That risk called for firm case management and the use of preliminary issues, but it did not make the claim abusive. The order refusing to strike out the claim concerning the original publication was accordingly upheld.

• Court of Appeal (Civil Division) — dismissed the defendants’ appeal and upheld the refusal to strike out the defamation claim as an abuse of process: [2013] EWCA Civ 1448.
• High Court of Justice, Queen’s Bench Division — Eady J held that the settlement with Vilnius University did not extinguish the claims against the remaining defendants and that continuing them was not an abuse of process: [2012] EWHC 3137 (QB).