Stocker v Stocker

For strike-out purposes, a pleaded defence should proceed to trial if the facts alleged, assuming they are proved, might support it. The ordinary threshold is whether the pleading is incapable of success or would require a perverse finding. A stricter probability test applicable to fraud, malice and related allegations does not automatically apply to consent in defamation, particularly where the case concerns alleged provocation rather than deception. Consent may relate to publication of the defamatory imputation, rather than necessarily the precise words used.

Sexual abuse is capable, as a matter of ordinary language, of occurring despite apparent consent. Disclosure must be based on a focused assessment of relevance and proportionality. Medical records should be searched where there is a real possibility that relevant material will be found, but irrelevant material may be redacted.

The claimant brought a libel action against his former wife concerning statements made in a Facebook exchange and an email. He alleged that the publications imputed attempted strangulation, threats, repeated arrests, abuse and other serious misconduct.

At a case and costs management conference, the claimant applied to strike out the defence of consent, part of the justification defence relating to sexual abuse, and sought disclosure and inspection of the defendant’s medical records. The court also determined the defendant’s costs budget.

1. The application to strike out the consent defence was dismissed. Under CPR 3.4(2)(a) and (c), the court should not strike out a pleading where the facts alleged, if proved, might support the defence, unless the pleading fails to comply with a rule and striking out is just and convenient. If the application is substantively one for summary judgment, the claimant must show that the defendant has no real prospect of success and that there is no other compelling reason for trial.

2. The probability test associated with fraud, malice and similar allegations was not established as applicable to consent. The pleaded case alleged that the claimant procured or authorised the publication of defamatory allegations, or connived at their continuation. That was not necessarily an allegation of dishonesty or deception. The pleaded inferences were arguable and were not fanciful. The factual issues were closely connected with the abuse of process defence and other issues that would proceed to trial.

3. It was arguable that consent to publication of the allegations or imputations complained of could suffice, without proof that the claimant authorised the precise words used. The scope of the consent defence was relatively uncharted and was better determined after findings of fact at trial.

4. The application to strike out the sexual-abuse aspect of the justification defence was dismissed. Consent to a sexual act did not, by definition, exclude sexual abuse. The pleaded allegation that the claimant insisted on activities known to be abhorrent, humiliating or painful, on the basis that they were his right, required a fact-sensitive assessment.

5. The disclosure application was granted in limited form under CPR 31.12. The defendant was required to search her medical records, disclose records falling within standard disclosure, and permit inspection subject to the possibility of redaction of irrelevant material. A liberty to apply was included so that she could seek permission to withhold adverse documents where appropriate.

6. The defendant’s costs budget was substantially reduced. The court approved a total budget of £422,924, concluding that the proposed future costs were disproportionate and that a seven-day trial should be assumed rather than a ten-day trial.

First-instance decision. The judgment records no prior appellate decision.