Tinkler v Ferguson & Ors

A later claim may be abusive even where it has a different cause of action and different nominal parties. The court must make a broad, merits-based assessment of whether issues could and should have been raised earlier, including the risks of collateral attack, inconsistent findings and duplicated use of court resources. Parties in complex multi-party litigation must put related future claims before the court in time for effective case management.

In malicious falsehood, section 3(1) of the Defamation Act 1952 removes the need to prove special damage only where the publication is calculated to cause pecuniary damage. The claimant must still plead a plausible causal mechanism linking the falsehood to financial loss. Reputation damage alone is unavailable. A vague or speculative case may be struck out.

The claimant brought a malicious falsehood claim against five directors concerning an announcement issued by Stobart Group Limited. He had abandoned his libel claim. The defendants applied to stay or strike out the remaining claim, arguing that it duplicated issues decided in the related Stobart Action and amounted to a collateral attack on the judgment in that action.

The related action had been determined by HHJ Russen QC: [2019] EWHC 258 (Comm). The defendants also argued that the claimant had not pleaded an arguable case under section 3(1) of the Defamation Act 1952, and that the proceedings were abusive under the Jameel jurisdiction. The central questions were whether the claim should be treated as abusive and whether the pleaded case disclosed a properly arguable claim for malicious falsehood.

1. Disposition. The Malicious Falsehood Action was struck out as an abuse of process. The claim could and should have been brought with, or case-managed alongside, the related Stobart Action. It was also struck out on the alternative ground that the pleaded case did not disclose a properly arguable claim under section 3(1) of the Defamation Act 1952.
2. The court’s power to prevent misuse of its procedure was wider than res judicata or issue estoppel. Applying Hunter v Chief Constable of the West Midlands [1982] AC 529, Virgin Atlantic Airways v Zodiac Seats UK Ltd [2014] AC 160 and Henderson v Henderson (1843) 3 Hare 100, the relevant question was whether the claimant was misusing the court process. The assessment had to be broad and merits-based, taking account of finality, efficiency, economy, private interests, the public interest and the risk of inconsistent findings.
3. Different parties and a different form of action did not prevent abuse. There was sufficient identification between the company’s earlier claim and the later claims against its directors. Both actions concerned the same essential dispute and the same publication. The rule in Hollington v Hewthorn [1943] KB 587 was an evidential rule. It did not prevent the court from examining earlier litigation to determine whether later proceedings were abusive.
4. The guidelines in Aldi Stores v WSP Group plc [2008] 1 WLR 748 were mandatory in complex multi-party litigation. A party wishing to pursue related proceedings had to put the proposed claims before the court before trial, so that appropriate sequencing and case-management directions could be considered. The failure to do so materially contributed to the abuse in this case.
5. Section 3(1) relieved a claimant in malicious falsehood from alleging or proving special damage where the words were calculated to cause pecuniary damage in the specified circumstances. It did not remove the need to show that the loss flowed directly from the falsehood. The claimant had to identify the nature of the alleged loss and the mechanism by which the publication was likely to cause it. Damage to reputation could not found an award in malicious falsehood.
6. The pleaded case was vague and speculative. It relied substantially on reputational harm and did not explain how the announcement, in the context of the claimant’s subsequent dismissal and the later judgment, retained a real capacity to cause pecuniary loss. The defects had been repeatedly identified and there was no realistic prospect that repleading would improve the position.
7. The court did not determine the separate Jameel ground. Any concluded view on that issue would have been obiter. The court also considered the pleaded case of malice against Mr Laycock inadequate and speculative, although that issue was not necessary to the disposal.

High Court (Queen's Bench Division): A preliminary meaning judgment was given in the Malicious Falsehood Action on 17 December 2018: [2018] EWHC 3563 (QB). The claimant’s appeal from that judgment was dismissed by the Court of Appeal on 15 May 2019: [2019] EWCA Civ 819. This judgment determined the defendants’ later application to strike out or stay the remaining claim.