Burrell v Clifford

A claim should not be struck out as an abuse of process merely because the likely damages are modest compared with the costs of litigation. The court must assess the real value of the claim, including any non-monetary relief, and the extent to which court resources would be used. A claim involving a serious arguable wrong and a real prospect of more than nominal damages is not rendered abusive by its modest scale alone. The court should consider proportionate costs budgeting, case management and, where appropriate, a well-judged Part 36 offer before resorting to strike-out.

The claimant alleged that the defendant had breached confidence and infringed his privacy rights by faxing confidential personal information to a newspaper in 2002. The defendant applied to strike out the claim on two grounds: limitation and abuse of process under the principles in Jameel v Dow Jones & Co [2005] QB 946.

The claimant relied on section 32 of the Limitation Act 1980, asserting that the breach had been deliberately concealed and was discovered only years later. The central questions were whether limitation was clearly established at this stage and whether the claim was so economically disproportionate, having regard to its likely value and the use of court resources, that it should be struck out.

1. Limitation. The limitation application was dismissed. On the claimant’s pleaded case, the fax was sent covertly and the claimant did not know of the transmission when it occurred. It was not clear that the alleged breach was unlikely to be discovered for some time within section 32(2) of the Limitation Act 1980. The defendant’s argument also depended on an allegation that the fax had been sent for publication, but the Particulars of Claim did not make that allegation. Even if publication had been intended, the timing and occurrence of publication were uncertain. The limitation issue therefore could not be resolved against the claimant as a matter of fact or law on a strike-out application.
2. Abuse of process. The court applied the proportionality principles in Jameel v Dow Jones & Co [2005] QB 946. The relevant assessment included the likely damages, the value of other relief, the parties’ costs and the burden on judicial and court resources. The smallness of a damages claim was not, by itself, sufficient.
3. The alleged misuse was serious if proved because information given for one purpose had been used for another. Although any distress damages were likely to be reduced because the claimant later published much of the information himself, there remained a real possibility of more than nominal damages. That distinguished the case from Sullivan v Bristol Film Studios Ltd [2012] EMLR 27, where the claim was regarded as nugatory. The claimant’s later publication, delay, limited disclosure and earlier attempt to join the defendant to related proceedings did not make the claim abusive at this stage.
4. The court should use proportionate costs budgeting, case management and, where appropriate, a Part 36 offer to control disproportionate expenditure. Since the claim had an arguable basis and a real prospect of more than nugatory damages, it was not an abuse of process. The defendant’s application was dismissed.