Smith v Baker (Rev 1)

Strike out and summary judgment are discretionary remedies. A court must distinguish pleading defects from the merits and consider whether a lesser sanction is appropriate. Summary judgment requires a realistic, rather than fanciful, prospect of success; the court must avoid conducting a mini-trial and must consider evidence likely to be available at trial.

In defamation proceedings, a party must plead the facts and matters supporting each defence, including truth, honest opinion, public interest and privilege. Previous similar publications by others do not reduce serious harm or mitigate damages. Where meaning, truth or factual disputes remain, those issues ordinarily require trial. A litigant in person remains subject to the rules, but that status may affect the proportionate sanction for procedural default.

The claimant brought a defamation claim concerning three sets of tweets. The defendant counterclaimed in defamation and harassment concerning eleven blog posts about related litigation and allegations of sexual abuse.

The claimant applied under CPR 3.4(2) and CPR 24.2 to strike out the defence and counterclaim and obtain summary judgment. He alleged defective pleading, lack of realistic prospects, abuse of process under the rule in Henderson v Henderson, res judicata and collateral attack on an earlier judgment. The central issues were whether the pleadings should be struck out, whether any matters were already determined, and whether the remaining disputes could properly be resolved without a trial.

1. Application and governing standards. The application for strike out and summary judgment was dismissed, save for specified parts of the defence and counterclaim. Under CPR 3.4(2), strike out is discretionary. The court should consider whether a lesser sanction is appropriate and apply the principles governing relief from sanctions. Under CPR 24.2, summary judgment requires no real prospect of success and no other compelling reason for trial.
2. Summary judgment. The court had to assess whether the pleaded case was realistic rather than fanciful, without conducting a mini-trial. It had to consider both the present evidence and evidence likely to be available at trial. Disputes about meaning, truth, harassment and the factual significance of the claimant’s conduct could not properly be resolved summarily.
3. Defamation pleadings. The defendant’s pleadings failed to comply with Practice Direction 53B. Defences of truth, honest opinion, public interest and privilege required the facts and matters relied on to be identified. A concise pleading still required sufficient details to answer who, what, when, where and how. Evidence should not ordinarily be annexed to the pleading. Previous similar publications by others were legally irrelevant to mitigation and to the serious harm test, applying Dingle v Associated Newspapers and Lachaux v Independent Print Ltd.
4. Abuse of process and res judicata. The counterclaim was not an abuse under the rule in Henderson v Henderson. It concerned different publications and was brought against the claimant in the action in which he sued. Matters not yet determined in related proceedings were not res judicata, although the court might later consider consolidation or a stay.
5. Collateral attack. The defendant could not plead meanings asserting that Mr Hemming raped or sexually assaulted her where that issue had already been determined. She could plead allegations concerning other men and could contest allegations that she was a fantasist, which remained open.
6. Sanction and directions. The failure to file a reply was a trivial technical breach in the circumstances. The defendant’s status as a litigant in person was relevant to the exercise of discretion, although it did not remove the obligation to comply with the rules. The defence and counterclaim were to be substantially amended, with further directions to follow. No unless order was made, but substantial non-compliance in amended pleadings was likely to result in the relevant parts being struck out.

First-instance decision. No appellate history was stated in the judgment.