Siddiqi v Aidiniantz & Ors (Rev 1)

A proposed amendment must plead a coherent case with a reasonable basis and a real prospect of success. A defendant is not liable for another person’s publication merely because the defendant knew of it, failed to stop it, influenced the publisher or tacitly agreed with it. Publication liability requires knowing and active participation, authorisation or conduct amounting to more than minimal assistance. Interim relief restraining publication must be clear, specific and no wider than necessary. Where the substance of the complaint is reputational harm, the defamation rule applies even if the claim is framed as harassment, privacy or another cause of action.

The claimant brought proceedings against the alleged author of websites and four associated defendants. He claimed damages and injunctive relief for alleged conspiracy, wrongful interference, breach of confidence, harassment, misuse of private information and interference with Convention rights. He sought permission to abandon and replace his original statements of case.

The defendants applied to strike out the existing claims, obtain summary judgment for the associated defendants, resist the amendments, and oppose applications for an injunction and disclosure. The central issues were whether the proposed case disclosed a reasonable basis and real prospect of success, whether the associated defendants could be responsible for publication, and whether interim relief restraining online publication was justified.

1. Associates. Summary judgment was entered for the second to fifth defendants. The pleaded case did not identify any act by them which caused or authorised publication, and the evidence gave the claimant no real prospect of establishing responsibility. Mere knowledge, silence, influence, consent, directorship, shareholding or alleged funding was insufficient.
2. Publication liability requires participation in or authorisation of publication. Knowing and active involvement is required; a passive instrumental role is insufficient. Liability for continued publication may arise where knowledge and control support an inference of acquiescence or authorisation. Joint-tortfeasor liability requires assistance which is more than minimal and does more than merely facilitate the tort.
3. First defendant and amendments. The draft amendments were refused. The conspiracy and wrongful-interference claims had no real prospect of success or were inadequately pleaded. The direct Human Rights Act claim was legally hopeless because none of the defendants was a public authority or exercising a public function. Harassment, breach of confidence and misuse of private information were not necessarily hopeless causes of action, but the proposed pleadings were unclear, excessive and insufficiently particularised.
4. For harassment, the claimant had to identify a course of conduct involving at least two occasions, objectively calculated to cause alarm or distress, oppressive and unacceptable to the criminal standard. Publication could amount to harassment, but the court had to balance freedom of expression and privacy rights. If harassment of several persons was relied on, the claimant had to identify the persons, the course of conduct and the statutory intention required by section 1(1A)(c) of the Protection from Harassment Act 1997.
5. Injunction and disclosure. The injunction was refused. American Cyanamid principles did not apply. Under section 12(3) of the Human Rights Act 1998, the claimant ordinarily had to show likely success; where the nub of the claim was reputational harm, the stricter defamation rule required it to be clear that no defence would succeed. Delay, the inadequacy of the draft order and unresolved truth issues also told against relief. Disclosure was premature and could not be used to resolve truth at the interim stage.
6. The whole existing Particulars of Claim were struck out. The existing Claim Form was struck out save for a harassment claim in a form to be settled. Permission to substitute the proposed amended pleadings was refused. The injunction and disclosure applications were refused.