Kim v Park & Ors

Strike-out is appropriate only where a defence has no real prospect of success; a weak defence is not enough. A defendant relying on section 1 of the Defamation Act 1996 must prove the statutory requirements, including reasonable care and absence of knowledge or reason to believe that the publication caused or contributed to a defamatory statement. Where the defendant will call no evidence, that defence may be struck out if cross-examination and disclosed documents cannot discharge the burden. A defence under Regulation 19 of the E-commerce Regulations may survive where material factual issues remain, including whether the service was provided for remuneration and when notice of unlawful publication was received.

The claimant applied to strike out the defendants’ defences in defamation proceedings concerning one newspaper article and three internet articles. The defendants had filed no witness statements and had given no disclosure beyond the claimant’s disclosure. The court considered whether the defences had no real prospects of success and whether the evidential position justified striking out parts of the defence before trial.

The issues included publication, meaning and damage in relation to the newspaper article; the statutory defence under section 1 of the Defamation Act 1996; and the defence under Regulation 19 of the E-commerce Regulations.

1. Strike-out test. The court held that the relevant question was not whether the defence was weak, but whether it had no real prospects of success. The test was high. The newspaper-article claim was not plainly bound to succeed because publication, meaning and damage remained matters for proof at trial.
2. Section 1 defence. Section 1 of the Defamation Act 1996 placed a legal burden on the defendant to establish that he was not the author, editor or publisher, had taken reasonable care, and did not know or have reason to believe that his conduct caused or contributed to publication of a defamatory statement. Since the defendants would call no supporting evidence, and cross-examination of the claimant could not establish the defence on the facts, paragraph 31 was bound to fail and was struck out.
3. Regulation 19 defence. Paragraph 32 was retained because live issues remained. These included whether the reader message board was a service provided for remuneration through the former paid advertisement, and when the defendants received notice that the publication was false and unlawful. Regulation 19 did not raise the negligence or reasonable-care issues arising under section 1.
4. Costs. Costs thrown away by the adjournment were treated as the claimant’s costs in the case, recoverable if the claimant succeeded but not if the claimant lost. The claimant received the costs of and occasioned by the second strike-out application and the day’s hearing; costs of the first application were reserved.