Brown & Anor v AB

On an interlocutory application, a pleaded case should be struck out only where it discloses no reasonable grounds, is abusive, or is otherwise hopeless. Summary judgment requires the absence of a real prospect of success and no compelling reason for trial. Serious harm in defamation will ordinarily be determined at trial, particularly where the publication alleges assault and may be stored or republished. A late limitation defence cannot ordinarily be finally determined before the claimant has pleaded a response. A prolix and confusing statement of case may be struck out, but an arguable defence should generally receive one final opportunity to be properly pleaded.

The claimants, proprietors of a specialist school, sued the defendant, the mother of a former pupil, in defamation, malicious falsehood, harassment and nuisance. The claim concerned publications alleging that a claimant had verbally abused and struck the pupil with a walking stick, together with allegations concerning the school and its treatment of children.

Three applications were before the court: permission to amend the defence, the defendant’s application to strike out or obtain summary judgment on most of the claim, and the claimants’ application to strike out the amended defence or obtain judgment. The court also considered withdrawal of an admission and the proper approach to prolix pleadings.

1. Amendment and admissions. Permission was given to amend the defence and to withdraw an admission that the statement that lots of children had been treated badly was untrue. The admission had been withdrawn at an early stage, before disclosure or witness statements, and refusal would prejudice the defence more than withdrawal would prejudice the claimants. The original pleading did not clearly admit liability.
2. Strike out and summary judgment. Under CPR 3.4(2), the court focuses on the pleading and assumes the pleaded facts are true. It must be certain that the case is hopeless before striking it out. Summary judgment under CPR 24.2 requires a lack of any real prospect of success, not merely a low probability, and the court should avoid resolving competing evidence on paper.
3. The allegation that a professional in education had assaulted a child was inherently serious. Its electronic publication created a risk of indefinite storage and republication. The defamation claim therefore should not be shut out under section 1 of the Defamation Act 2013 or as a Jameel abuse. Limitation and malicious-falsehood issues required pleading and, where appropriate, trial determination.
4. The harassment claim was arguable because Protection from Harassment Act 1997, section 1(1), does not require an intention to make the claimant do or refrain from doing something. The gravity of the alleged conduct was fact-sensitive and could not be determined summarily on the limited evidence.
5. The Facebook allegation concerning long-awaited news disclosed no arguable defamatory, malicious or harassing publication and was struck out. The remaining claim survived, including the issues concerning privilege, causation, the solicitor’s involvement and alleged stress-related loss.
6. The amended defence was 55 pages long, contained extensive commentary and evidence, and failed to identify the issues with sufficient clarity. It was struck out. Since the defendant appeared to have an arguable defence, she was allowed one final opportunity to serve a fresh defence of no more than 25 pages, in legible format. If she failed to comply, the claimants could enter judgment for damages and other relief to be assessed. Disclosure of the CCTV recording was directed and mediation was encouraged.