Dar Al Arkan Real Estate Development Com. v Al Refai & Ors

Summary judgment is inappropriate where covert concerted conduct is alleged, the evidence is incomplete, and the defendant’s role cannot fairly be assessed before disclosure. A person may be responsible for publication without knowing the precise words eventually published, provided the evidence may establish a common design to publish material of the relevant kind and an act in furtherance of that design. A court should avoid determining an isolated issue summarily where the claims are inter-related and doing so may distort the eventual trial. These considerations applied to allegations that a public-relations adviser participated in a campaign involving a website and related email. The applications for summary judgment were therefore refused, subject to one pleading issue being adjourned.

The claimants alleged that the defendants conducted a campaign to damage their reputations and businesses. They brought claims including conspiracy, procuring breach of contract, unlawful interference, defamation and malicious falsehood. FTI Consulting Group Limited applied under Part 3.4(2) and CPR 24.2 to strike out or obtain summary judgment on claims concerning defamatory and allegedly malicious material published through a website and email.

FTI denied involvement in creating or launching the website. The central issues were whether the evidence gave the claimants a real prospect of establishing that FTI was responsible for publication as a joint tortfeasor, whether knowledge of the precise words was necessary, and whether the email issue should be determined separately.

1. Applications refused in substance. The court considered the applications by reference to summary judgment. The applicable principles were those stated in Easyair Limited v Opal Telecom Limited [2009] EWHC 339 (Ch) and Credit Suisse International v Ramit Plana OOD [2010] EWHC 2759 (Comm). The court should not conduct a mini-trial, particularly where disclosure remained outstanding and the alleged activities were covert.
2. The evidence permitted the claimants to argue that FTI was party to a common design involving publication of adverse material through a website. The principles in Fish & Fish Limited v Sea Shepherd UK [2013] EWCA Civ 544 required a common design that at least one participant would commit the relevant tort and an act in furtherance of it which was more than de minimis and did not merely facilitate the tort. The pleading, although framed principally as conspiracy, set out a sufficient factual basis for a joint-tortfeasor case.
3. It was not fatal that the claimants could not show that FTI knew the precise words eventually published. R v Cooper (1846) 8 QB 533 and Parkes v Prescott (1868-69) LR 4 Ex 169 supported the proposition that responsibility may arise where a defendant requests publication of material of a general or summarized kind, subject to whether the authority was followed.
4. The court declined summarily to determine FTI’s responsibility for publication on the website. The apparent similarities between the earlier template and the website, the incomplete evidence, and the covert nature of the alleged activities meant that the court could not be sufficiently confident of FTI’s role before disclosure. The email issue should likewise be determined at trial because it was inter-related with the website issue and the claimants had a sufficient case that it formed part of the common design.
5. The malicious-falsehood claim was not suitable for summary determination. The pleaded case was that FTI acted with an improper dominant purpose, not necessarily dishonestly, consistent with Spring v Guardian Assurance plc [1993] 2 All ER 273. The separate pleading issue concerning confidential or proprietary information was adjourned; otherwise the applications were refused.