Bukhari v Bukhari

In a libel claim involving numerous publications, proportional case management may require a defendant to state his case on meaning, defamatory status and fact or opinion for every publication relied upon before a preliminary trial. The court must assess proportionality by reference to the publications actually complained of, rather than a wider body of material included in pleadings for other purposes. A sample-based approach is not required where the number of publications in issue remains manageable. The court should actively identify the issues at an early stage and ensure that judicial resources are used proportionately.

The claimant brought libel and harassment proceedings against the defendant, who had published numerous Tweets and videos concerning him. The application concerned only the libel claim. The parties agreed that meaning, defamatory status and whether the publications contained statements of fact or opinion should be tried as preliminary issues.

The dispute was whether the defendant should state his case in relation to every publication complained of, or whether the claimant should select a limited number of sample publications. Earlier case-management orders had produced conflicting directions. The central issue was the proportionate procedure for determining the preliminary issues.

1. Disposition. The court directed that the defendant state his case on meaning, defamatory status and whether the publications contained allegations of fact or opinion in relation to each Tweet and video complained of in the libel claim. The preliminary trial was then to take place after that exercise. The parties were invited to provide a draft order in similar terms to the consent order previously agreed.
2. Proportionality. The overriding objective required a procedure that dealt with the claim justly and at proportionate cost. The claimant was entitled to rely on all publications actually forming part of the libel claim in support of damages and injunctive relief. The court distinguished the much larger number of Tweets and videos identified in the pleadings for the purposes of the wider harassment case.
3. Scale and pleading. It was not disproportionate to require the defendant to state his case on the restricted number of publications in the libel claim. The court considered that the meanings could be determined without undue difficulty, and that any relevant contextual Tweets could be pleaded as context. The possibility that some meanings would be obvious and attract little argument supported, rather than undermined, the proposed course.
4. Active case management. The direction was consistent with the court’s duty to manage cases actively, including identifying the issues at an early stage and allocating an appropriate share of court resources. The court accepted the general case-management principle in Jameel v Dow Jones & Co Inc [2005] QB 946, while distinguishing the particular pleading criticisms discussed in Bokova v Associated Newspapers Limited [2018] EWHC 2032 (QB) and Sube v News Group Newspapers Ltd [2018] EWHC 1234 (QB).