Ontulmus & Ors v Collett & Ors

A corporate claimant must plead a reputation capable of being injured by the publication. In a publication to a small number of individuals, that requirement may be met by pleading facts showing that the claimant had a relevant reputation in the mind of the publishee. The pleading need not use formal or jurisdiction-specific language where the substance is clear. Particulars of claim should contain the concise facts on which the claimant relies. Background material that does not support a constituent of the cause of action should be omitted, although it may be pleaded in a reply if it becomes relevant to a defence.

The claimants brought libel proceedings concerning publications made in Germany and Switzerland. The defendants applied under CPR rule 3.4 to strike out the claims on the grounds that the claimants had not pleaded the necessary foreign law or the corporate claimants’ trading reputations in the relevant jurisdictions. They also sought to strike out paragraphs 7–10 of the Amended Particulars of Claim as irrelevant background.

The claimants agreed to plead the relevant foreign law by amendment. The remaining issues were whether the corporate claimants had adequately pleaded reputations capable of being injured by the publications, and whether the background paragraphs properly formed part of the claim.

1. Foreign law. The court did not determine the objection concerning foreign law because the claimants agreed to plead the German and Swiss law on which they relied. It was common ground that the double actionability rule applied under section 13 of the Private International Law (Miscellaneous Provisions) Act 1995.
2. Corporate reputation. The passages from Jameel v Wall Street Journal Europe Sprl [2006] UKHL 44; [2007] AC 359 did not require the claimants to plead, in those terms, a pre-existing trading reputation in each foreign jurisdiction. The relevant question was whether a corporate claimant had pleaded that it had a reputation capable of being injured. That reputation may be established by the claimant’s reputation in the mind of one or more publishees.
3. The pleadings sufficiently alleged such a reputation. The allegation that Mr Muller had engaged the claimants to build him a yacht implied that he knew of their reputation. The allegations concerning Mr Lister likewise implicitly showed that he knew who the claimants were.
4. Background pleading. Under CPR rule 16.4(1)(a), particulars of claim must contain a concise statement of the facts on which the claimant relies. Material not relied upon in support of the cause of action should not be included merely because it may later bear on credibility or another issue. If it becomes relevant to a defence, it may be pleaded in a reply.
5. Paragraphs 7–10 of the Amended Particulars of Claim were therefore struck out. The application to strike out the corporate claimants’ claims was dismissed. The parties were invited to agree the form of order.