David v Gabriel & Ors

A defamation claim must identify the precise words complained of, together with the defamatory meaning relied upon. A claimant must also satisfy the statutory threshold of serious harm under the Defamation Act 2013. Bare assertions of malice do not suffice; facts must be pleaded which are more consistent with malice than its absence. Claims under other statutory causes of action must likewise identify the relevant conduct, statutory breach and, where applicable, the proper forum. Failure to provide essential particulars or a coherent legal basis may justify strike-out under the Civil Procedure Rules 1998.

The claimant brought proceedings against Marie Gabriel, Alice Wyman and East London NHS Foundation Trust arising from complaints made about his conduct as a voluntary governor of the Trust. The claim included defamation, discrimination under the Equality Act 2010, breaches of the Data Protection Act 1998, harassment, privacy and malicious falsehood.

The defendants applied to strike out the claims under CPR 3.4 or, alternatively, for summary judgment under CPR Part 24. The central issues were whether the claims were sufficiently particularised, whether the pleaded facts disclosed viable causes of action, and whether the High Court was the appropriate forum for the Equality Act claims.

1. Defamation. The defamation claims were struck out. A claimant must identify the precise words complained of, because publication of those words gives rise to the cause of action and the court must assess the meaning they bear. Providing only the gist, or referring generally to an entire report or document, is insufficient. The claimant had not identified the words, the alleged defamatory meanings, or, for the alleged slanders, the relevant dates and publishees (paras 11–21). The approach was supported by DDSA Pharmaceuticals v Times Newspapers [1973] QB 21.
2. The requirement in s 1 of the Defamation Act 2013 that publication has caused or is likely to cause serious harm is a threshold requirement. The limited publications relied upon did not overcome that threshold. The claims were therefore liable to be struck out under CPR 3.4 (para 22). The court also considered that qualified privilege would have defeated the claims on summary judgment if that issue had required determination.
3. A plea of malice requires more than assertion. The claimant must be able to plead and prove facts more consistent with malice than its absence, such as dishonesty or a dominant motive to harm reputation. The court would have upheld the qualified-privilege argument on that basis, but the issue was unnecessary to the disposal (paras 23–25). The court relied on Horrocks v Lowe [1975] AC 135, Somerville v Hawkins (1851) 10 CB 583 and Seray-Wurie v Charity Commission of England & Wales [2008] EWHC 870 (QB).
4. Equality Act claims. The pleaded case under s 29 of the Equality Act 2010 did not show less favourable treatment in relation to the supply of services. The proposed disability-discrimination case lacked a coherent connection between the disability relied upon and the alleged treatment. The suggested victimisation claim under s 27 identified no protected act. These claims were struck out, and the court considered that the county court was the appropriate forum for such claims (paras 26–30).
5. Other claims. The claim under the Data Protection Act 1998 failed to identify the relevant information or statutory breaches. The pleaded reliance on s 35(2) did not cure that defect. The harassment claim identified no sufficiently particularised course of conduct amounting to harassment, and the malicious-falsehood claim identified neither the allegedly false statements nor adequate particulars of malice. Those claims were also struck out under CPR 3.4 (paras 31–37).

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