Smith v Dha

A defamation claim is a personal action and abates on the claimant’s death. Where the claimant dies after argument but before judgment, the court has no power to deliver a judgment retrospectively. CPR 40.7(1) provides that judgment takes effect when given or made, or on a later date specified by the court. Its wording does not permit the court to insert an earlier effective date, even where judgment was reserved and the result may otherwise cause prejudice.

The claimant brought a defamation claim concerning words published by the defendant on an online discussion forum. The defendant applied for a ruling on meaning, strike-out and summary judgment. Following the hearing and while judgment was reserved, the claimant died. The parties addressed whether the claim had abated and whether the court could nevertheless give judgment nunc pro tunc as at the close of argument.

1. The claimant’s defamation action abated on 7 November 2012, the date of his death. Defamation is a personal action and is excluded from transmission to the estate by section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934. The court therefore had no surviving claim upon which to adjudicate.
2. The court rejected the submission that judgment could be entered retrospectively to avoid prejudice caused by the reservation of judgment. CPR 40.7(1) states that a judgment takes effect from the day when it is given or made, or such later date as the court may specify. The wording is clear and does not permit an earlier date to be inserted.
3. The amendment removing the former power to date an order as of an earlier day reinforced that conclusion. The practical difficulties arising when a party dies in a defamation action illustrated why the action abates in this narrow context.
4. Accordingly, no judgment was given.