Al-Ko Kober Ltd & Anor v Sambhi

Summary judgment may be granted where the defendant has no real prospect of successfully defending the claim, including a truth defence in defamation. A claimant need not establish every factual issue conclusively where the essential elements of the claim are clear.

Descriptions that a product is anti-sway, or that it reduces or helps to prevent instability, do not ordinarily amount to a claim that it will prevent snaking in all circumstances. A malicious falsehood claim may proceed without proof of special damage where the words are calculated to cause pecuniary damage. Processing personal data requires compliance with the applicable statutory conditions.

The claim arose from videos published on YouTube by the defendant, who marketed a competing caravan stabilising device. The claimants alleged defamation and malicious falsehood. The second claimant also alleged unlawful processing of personal data under the Data Protection Act 1998.

The defendant relied on a truth defence, alleging that the first claimant and the second claimant had falsely represented that the claimant’s stabiliser prevented snaking. The claimants applied to strike out the defence and for summary judgment. The central issues were whether the defence had any real prospect of success, whether the malicious falsehood claim was established, and whether the data-protection claims could be determined summarily.

1. Summary judgment. The claimants obtained summary judgment on the defamation claim. The first claimant obtained summary judgment on malicious falsehood. The second claimant obtained summary judgment under sections 4 and 10 of the Data Protection Act 1998.
2. On the defamation claim, publication, responsibility for publication, reference to the claimants and the pleaded meanings were undisputed. The defendant’s truth defence depended on proving that the claimants had claimed that the stabiliser prevented snaking. The evidence did not support that premise. Descriptions such as anti-sway, reducing sway, minimising sway and helping to prevent snaking did not reasonably convey an absolute guarantee that snaking would never occur.
3. The defendant therefore had no real prospect of establishing truth. The serious-harm requirement under section 1 of the Defamation Act 2013 was also satisfied. The statements were extreme and their likely effect on the claimants’ reputations was obvious.
4. The elements of malicious falsehood were publication of false words referring to the claimant or its business, malice, and special damage. The defendant’s conduct, the extreme language used, the absence of a reasonable basis for the allegations and the promotion of a competing product provided a compelling basis for inferring bad faith. Under section 3 of the Defamation Act 1952, special damage need not be proved where the words were calculated to cause pecuniary damage. That requirement was met.
5. Publishing personal data constituted processing under section 1 of the Data Protection Act 1998. The videos contained the second claimant’s personal data, including expressions of opinion about him. The processing did not satisfy any condition in Schedule 2, contrary to the first data-protection principle and section 4(4). Summary judgment was therefore appropriate under sections 4 and 10. The claim for damages under section 13 required a further hearing.
6. The defence did not comply with CPR 3.4, CPR 16.5 or Practice Direction 53. It was not a coherent response to the Particulars of Claim. Had it been necessary to decide the strike-out application, the defence would have been struck out. A final injunction in the terms of the earlier order was appropriate, but damages and consequential matters required further application or agreement.

First-instance decision. The judgment records an earlier interim-relief decision by Whipple J, [2017] EWHC 2474 (QB), but that decision was not appealed in the present judgment.