Johnson v Ministry of Justice

At common law, a claimant alleging defamation need establish only that the publication had a tendency substantially to affect the attitude of ordinary reasonable people towards the claimant. Damage to reputation is then presumed, subject to rebuttal by admissible evidence.

A defendant may rely on the claimant’s wider conduct, including conduct before and after publication, to establish justification. Findings in an earlier judgment may not themselves establish the truth of those matters where the rule in Hollington v F Hewthorn & Company Ltd applies, but the underlying factual material recorded in that judgment may be admissible as hearsay. Summary judgment is appropriate where that material makes the defence of justification bound to succeed or continuation of the claim would be an abuse of process.

The claimant brought defamation proceedings against the Ministry of Justice concerning the publication of his name on a website listing persons subject to a General Civil Restraint Order. The entry appeared during 2013, although the claimant was subject only to a Limited Civil Restraint Order at the relevant time.

A previous application had resulted in summary judgment for the period after the Defamation Act 2013 came into force, but permission was given for the pre-2014 claim to continue. The defendant made a further application to strike out or obtain summary judgment, relying on the claimant’s extensive litigation history and the judgment of the Divisional Court declaring him a vexatious litigant. The issues included abuse of process, the pleaded defence of justification, admissibility of the earlier judgment and its underlying material, and non-compliance with paragraph 2.8 of PD53.

1. Further application and abuse of process. The defendant was not prevented from making a further summary judgment application. It had not known the claimant’s full litigation history when the earlier application was made. Applying the broad merits-based approach associated with Johnson v Gore-Wood & Co and Stuart v Goldberg Linde, there was no reason why the defendant should then have known that material.
2. Defamation and justification. Under the pre-2014 common law, the claimant needed to establish only that the publication had the requisite defamatory tendency. Damage was presumed, subject to rebuttal within the limits identified at common law. The defendant could plead and prove the claimant’s whole litigious conduct, before and after publication, by way of justification. On the assumed admissibility of the source material, the defence was bound to succeed because the essential or substantial truth of the sting would be established. Alternatively, any recoverable damages would be so modest that continuation of the claim would constitute an abuse of process within Jameel v Dow Jones & Co Inc.
3. Earlier judgments and hearsay. The court was bound by the rule in Hollington v F Hewthorn & Company Ltd, so the Divisional Court’s findings could not themselves establish the truth of the matters relied upon. However, the underlying factual material recorded in the judgment could be received as hearsay, subject to the Civil Evidence Act 1995 and the CPR. That material was capable of sustaining the defence of justification. The court declined to create an exception to Hollington.
4. Procedural default. The claimant had not served the mandatory Reply required by paragraph 2.8 of PD53. Relief from sanctions would have been refused if necessary, although that conclusion added little because the proposed Reply disclosed no substantive answer to the defence.
5. Disposition. The claim had no real prospect of succeeding. Summary judgment was therefore entered for the defendant.

Not stated in the judgment.