Subotic v Knezevic

Defamation proceedings may be dismissed as an abuse of process where publication and reputational impact in the jurisdiction are so limited that the litigation cannot yield a real and substantial tort or any tangible and legitimate advantage. Vindication must concern the claimant’s reputation in the jurisdiction, rather than wider publication abroad. The power is exceptional and requires careful consideration. Publication numbers are not decisive, and high costs alone do not justify dismissal. The court may assess the evidence available on the application and take account of the realistic prospect of further evidence, while leaving disputed trial issues for trial.

The claimant brought libel proceedings concerning Balkan-language newspaper and internet publications allegedly read in England and Wales. He sought an adjournment, permission to re-re-amend the Particulars of Claim to add further publications, and continuation of the action.

The evidence showed minimal publication in England and Wales, no identifiable loss there, and reputational and business effects principally abroad. The central issue was whether continuing the proceedings would serve a legitimate purpose or amount to a Jameel abuse of process.

1. The adjournment was refused. The application had been outstanding since June 2013, the late change of legal representatives was unexplained, and the proposed Balkan claims were materially different and had not previously been pleaded. A late amendment would also have raised issues concerning domicile and applicable foreign law.
2. The court applied the principle in Jameel v Dow Jones [2005] EWCA Civ 75; [2005] QB 946: proceedings should be stopped where they serve no legitimate purpose and no real and substantial tort has been committed in the jurisdiction. The relevant question may also be expressed as whether the litigation is worth pursuing in light of its practical advantages, expense and demands on court resources.
3. Vindication is an important purpose of defamation proceedings, and an injunction may reduce the risk of republication. However, where the claim concerns publication in England and Wales, vindication must relate to reputation in that jurisdiction. Wider vindication for publications abroad cannot justify continuing the English proceedings.
4. The power to dismiss for abuse is draconian and exceptional. The court must not decide disputed trial issues, but may examine the evidence before it and assess what further evidence is realistically likely to become available. The exercise is not a numerical exercise: even publication to one person may cause serious damage. High costs alone are insufficient.
5. On the evidence, hard-copy publication was negligible, internet publication was minimal, no contemporaneous independent publishees had been identified, and no loss in England and Wales had been shown. The action could not produce a benefit worth the cost and effort of trial. Permission to re-re-amend was refused and the action was dismissed as a Jameel abuse of process.

This was a first-instance decision on applications in ongoing libel proceedings. The judgment records earlier interlocutory orders and an unsuccessful appeal concerning case management, but gives no citation for that appeal.