Baker v Hemming

On an interlocutory application in defamation proceedings, a party may be prevented from advancing a case where repeated opportunities to plead it properly have been ignored. A bare denial does not adequately identify the case that the opposing party must meet, particularly where the meaning, truth, malice or serious harm is in issue.

Summary judgment may be entered where the pleaded meaning is plainly defamatory, no substantive defence is advanced, and there is no real prospect of successfully defending the claim. However, qualified privilege ordinarily cannot be determined summarily where proportionality depends on disputed facts concerning the subject matter, scale, timing or repetition of the publication.

The claimant brought a defamation claim concerning three publications by the defendant. The defendant admitted the pleaded meanings in substantial part and relied on limitation, truth, qualified privilege, honest opinion and set-off. He also counterclaimed in defamation over a tweet by the claimant.

After an earlier adjournment, the claimant amended her pleadings but did not properly plead the alleged meanings of the tweet, particulars supporting malice or truth, or the factual basis for denying that her allegations against the defendant were false. She also added a data protection claim without permission.

Both parties applied to strike out the other’s case or obtain summary judgment. The central issues were the consequences of pleading non-compliance, whether the counterclaim should proceed to judgment, and whether the claimant’s defamation claim could be disposed of without a trial.

1. Defendant’s application. The claimant’s reliance on section 28 of the Limitation Act 1980, her plea of malice, and her denial that the allegations against the defendant were untrue were struck out for failure to comply with the order and the applicable pleading requirements. The allegation repeated in paragraph 20 of the Amended Reply was also struck out as an abuse of process.
2. The claimant’s bare denial of the natural and ordinary meaning pleaded for the tweet was struck out. A party defending a defamation claim must identify the meaning relied upon sufficiently to inform the opposing party of the case to be met. The approach to levels of meaning in Chase v News Group Newspapers Ltd [2003] EMLR 11 was noted in this context.
3. Judgment was entered for the defendant on the counterclaim, insofar as it relied on the natural and ordinary meaning that he had raped and sexually assaulted the claimant, stalked and defamed her to conceal it, and was a serial rapist. That meaning was plainly defamatory. Applying the serious-harm approach in Lachaux v Independent Print Ltd [2019] UKSC 27, [2019] 3 WLR 18, the claimant’s denial of serious harm had no real prospect of success. Damages were to be assessed.
4. The counterclaim based on the pleaded innuendo meaning was not summarily determined because the claimant disputed the relevant extrinsic facts and whether they supported that meaning.
5. The claimant’s defamation claim was not struck out in its entirety. The defendant had established truth only to the extent that the claimant’s allegations against him were untrue. The remaining meanings, limitation issues, qualified privilege, honest opinion and other matters required further pleading or, where factual disputes remained, trial. As explained in Campbell v Safra [2006] EWHC 819 (QB), qualified privilege was not suitable for summary determination where controversial facts affected proportionality.
6. The data protection claim based on the Data Protection Act 1998 was not part of the claimant’s case because permission to add it had not been sought or obtained. The court made only limited observations concerning the apparent reliance on a repealed Act.
7. The claimant’s application to strike out the defendant’s defence and counterclaim for abuse of process was dismissed. The claimant was given a final opportunity to serve a properly particularised Re-Amended Reply, failing which her defamation claim would be struck out.