McGrath & Anor v Dawkins & Ors

A defamation claim may be stopped as an abuse of process where the likely damage and vindication are modest, the issues and procedure are complex, and the costs and court resources required are disproportionate. The assessment concerns the legitimate use of the court, not the claimant’s honesty. At the interlocutory stage, the court may consider both prospects of success and whether continuation would be abusive. Limited publication, narrow defamatory meanings, the claimant’s own publications or responses, likely defences, protective undertakings and the cost of a possible jury trial may all be relevant. The jurisdiction is exercised under Parts 3 and 24 of the Civil Procedure Rules, rather than section 8 summary proceedings under the Defamation Act 1996.

The appellants brought defamation proceedings concerning material published on the Amazon and Dawkins websites. The Queen’s Bench Division, presided over by His Honour Judge Moloney QC, examined publication, defamatory meaning, damages and abuse of process. It concluded that the action should be halted as against the first three defendants, while the claim against the fourth defendant was not brought to an end on that basis. The appellants challenged the judge’s findings and procedural approach. The Court of Appeal considered a renewed application for permission to appeal. The central issue was whether the judge had erred in assessing the prospects of success and whether continuation of the proceedings would improperly consume court resources.

1. Disposition. The renewed application for permission to appeal was refused. Ward LJ agreed with the judgment of Pitchford LJ.
2. The lower court had carefully examined responsibility for publication, defamatory meaning, damages and abuse of process. The Court of Appeal found no substantial basis for concluding that its decisions were wrong. The lower judge had, if anything, approached the issue of defamatory meaning generously to the appellants.
3. The abuse-of-process jurisdiction was properly exercised under Parts 3 and 24 of the Civil Procedure Rules. At the interlocutory stage, the court could consider both whether the claims had any real prospect of success and whether, notwithstanding that prospect, continuation would constitute an abuse. The exercise was not a determination of the appellants’ honesty. The court was concerned with whether English judicial resources were being used legitimately and proportionately.
4. The principles in Jameel v. Dow Jones [2005] QB 946, and the authority of Kaschke v. Osler [2010] EWHC 1075 (QB), supported that approach. A defamation action may be abusive where the likely damage and vindication are limited and the costs of trial are disproportionate. Relevant considerations included the extent of publication, the limited defamatory meanings, the narrow difference between the admitted truth and the defamatory sting, the mitigating effect of the appellants’ own publications and responses, the likely remedies and the substantial costs already incurred.
5. The historical availability of jury trial did not prevent the court from protecting its resources. The complexity of defamation issues and the possibility of substantial judge and jury time could reinforce the conclusion that a small claim should not proceed. The lower judge’s conclusion was compelling, particularly as the defendants were very likely to succeed on justification, fair comment or honest opinion, and undertakings protected the appellants from further publication in the relevant cases. The procedure was not summary proceedings under section 8 of the Defamation Act 1996.

1. Court of Appeal (Civil Division) — On 5 February 2013, the renewed application for permission to appeal was refused: [2013] EWCA Civ 206.
2. Queen’s Bench Division — His Honour Judge Moloney QC considered the defamation claims and concluded that continuation against the first three defendants would be an abuse of process.