Cartus Corporation Cartus Ltd v Siddell & Anor

A quia timet injunction restraining threatened defamation requires evidence that publication is intended and sufficiently imminent. Where the claimant cannot prove intended publication, the court need not determine the meaning of unpublished words or whether they would be protected by truth or qualified privilege.

Any threatened words must be pleaded with reasonable certainty. Meaning or imputation is derived from the words complained of, and sufficient particularity is necessary both to enable the defendant to plead a defence and to frame an injunction precisely. Prior restraint remains exceptional where publication is proposed to be defended as true.

The claimants sought continuation of an interim injunction granted without notice by Supperstone J. The injunction restrained the defendants, former directors of a forwarding company, from publishing a document called The Ugly Truth and a covering letter which allegedly defamed the claimants.

By the hearing, the defendants no longer intended to publish those documents, although they contemplated a more limited publication. The claimants sought rulings on meaning, strike-out of the pleaded defences of truth and qualified privilege, and a final injunction. The central issues were whether there was a sufficient threat of publication and whether the possible future words had been identified with adequate certainty.

1. Outcome. The claimants were not entitled to the injunction sought. The court declined to determine the meanings of The Ugly Truth and the covering letter, or whether publication would be protected by truth or qualified privilege.

2. Threat of publication. A claimant seeking a quia timet injunction must prove that the threatened conduct is calculated to infringe its rights, including evidence that defamatory material is about to be published. The amended Defence, signed by both defendants, established that they no longer intended to publish the documents. The possible publication contemplated by the defendants was materially narrower.

3. Unpublished words and defences. In the absence of publication, or proof of intended publication, determining meaning and considering potential defences would be an arid exercise. The possible truth or qualified-privilege defences therefore did not require determination.

4. Particularity. A threatened publication must be identified with reasonable certainty. Meaning or imputation is derivative from the words complained of. It cannot stand alone. The defendants had indicated possible imputations but had not identified the words which would convey them. The court could not frame a precise injunction or assess the possible defences without that information.

5. Prior restraint and the earlier order. It is very unusual to restrain a proposed libel before trial where the defendant intends to defend it as true and the defence is not manifestly hopeless. The judge nevertheless considered that the original interim injunction would have been granted, although probably in narrower and more explicit terms. The judgment also noted that an injunction’s territorial extent should be made express where overseas publication is contemplated.

6. Procedural criticisms. The correct test for proceeding without notice under Human Rights Act 1998 s 12(2) is whether there are compelling reasons, not merely good reasons. The error was immaterial because the judge would have reached the same conclusion. A claimant trading for profit must plead facts supporting serious financial loss under Defamation Act 2013 s 1(2), but the omission did not affect the earlier interim decision on these facts.

The judgment records that Supperstone J granted a seven-day interim injunction without notice on 20 March 2014. The continuation application was subsequently heard by Nicol J. The court refused the further and final injunction sought.