Caine v Advertiser And Times Ltd & Ors

A claim may be struck out as an abuse of process where it seeks to re-litigate a final decision on the merits between the same parties. Cause of action estoppel applies where the earlier judicial decision was final, on the merits, determined a question raised later, and involved the same parties or their privies. A claim certified as totally without merit is one bound to fail, with no rational basis on which it could succeed.

An extended civil restraint order requires persistent claims or applications which are totally without merit. At least three such claims or applications are ordinarily required, but the court must also assess the litigant’s overall conduct and impose the least restrictive order necessary and proportionate to protect the court’s process.

The claimant brought three related claims concerning alleged defamatory material on a Facebook page. Claims 1 and 2 had already resulted in adverse orders, including a finding that Claim 2 was totally without merit. Permission to appeal and an application to reopen the appeal in Claim 2 had been refused.

Claim 3 alleged that the defendants remained liable because they had linked to, or “liked”, the Facebook page. The defendants applied under CPR 11.1 and CPR 3.4(2)(b) to strike out or stay Claim 3, alleging cause of action estoppel and abuse of process. They also sought an extended civil restraint order.

1. Claim 3 was struck out. It was in all material respects the same claim as Claim 2. The alleged continuing republication, the March 2018 emails and the decision in Magyar Jeti Zrt v Hungary were all available in, and considered during, Claim 2.

2. All elements of cause of action estoppel were satisfied. The earlier decision was judicial, pronounced by a tribunal with jurisdiction, final and on the merits, determined questions raised in Claim 3, and concerned the same parties. Cause of action estoppel is absolute as to points which had to be decided to establish the existence or non-existence of the cause of action.

3. Alternatively, Claim 3 was an abuse of process because it attacked a final decision of a court of competent jurisdiction and was vexatious in light of the history and outcome of Claim 2.

4. Claim 3 was totally without merit. A hyperlink cannot automatically make its provider liable for the linked content. Applying Magyar Jeti Zrt v Hungary, liability requires an individual assessment, including whether the provider endorsed, repeated or merely linked to the impugned content, knew or ought to have known that it was unlawful, and acted in good faith. The defendants’ “Like” links merely provided access to a changing Facebook page and did not endorse the particular matters complained of.

5. Publication and serious harm were also insufficiently pleaded. Liability required evidence that people accessed the defendants’ links and then accessed and read the impugned content. The claim contained no such allegations. It also failed to plead facts capable of establishing serious harm under section 1(1) of the Defamation Act 2013.

6. The court had jurisdiction to make an extended civil restraint order. A deputy High Court judge authorised under section 9(1) of the Senior Courts Act 1981 is included within “High Court Judge” in CPR Part 3.3 and Practice Direction 3C.

7. The claimant had persistently issued claims or applications which were totally without merit. Claims 1–3 alone supplied the necessary pattern, reinforced by earlier proceedings. An extended civil restraint order for two years was the least restrictive order necessary and proportionate. The defendants were granted the relief sought, subject to consequential orders on costs and form.

First-instance decision on applications concerning three High Court claims. The judgment records that earlier decisions in related proceedings had dismissed or struck out Claims 1 and 2, and that permission to appeal and permission to reopen the appeal in Claim 2 had been refused.