Tinkler v Ferguson & Ors

The court may strike out proceedings as an abuse where their continuation would substantially relitigate an earlier dispute or collaterally attack findings already made. The inquiry is a flexible, merits-based assessment of the overall balance of justice. Different parties and the earlier commencement of the impugned proceedings are powerful considerations, but neither prevents a finding of abuse.

A malicious falsehood claimant relying on section 3(1) of the Defamation Act 1952 must plead an identifiable form of pecuniary loss and a mechanism by which the publication was more likely than not to cause it. Reputational harm alone is insufficient. A claim may also be struck out where any residual tort is insubstantial and cannot be tried proportionately.

The appellant brought proceedings against four company directors concerning a regulatory announcement published during a boardroom dispute. His remaining claim alleged malicious falsehood. In separate, expedited commercial proceedings, the announcement and the wider dispute were examined extensively, and serious adverse findings were made against him.

Nicklin J struck out the malicious falsehood claim in [2020] EWHC 1467 (QB). He held that its continuation would be an abuse of process and that the pleaded case did not satisfy section 3(1) of the Defamation Act 1952. The appellant challenged both conclusions. The central questions were whether the claim constituted duplicative litigation or a collateral attack, and whether it disclosed an arguable case that the publication was more likely than not to cause pecuniary damage.

1. The appeal was dismissed. The malicious falsehood proceedings were properly struck out as an abuse of process. They made the same essential complaint about the same individuals as the earlier commercial proceedings and sought to revisit matters exhaustively examined there. On the unusual facts, their continuation amounted to a collateral attack even though the parties were not formally identical and the malicious falsehood proceedings had begun first.

2. The power to prevent abuse is flexible and is not confined to fixed categories. It protects both the private interest against repeated vexation and the public interest in the proper administration of justice. The court must undertake a close, merits-based assessment of all the circumstances. Litigation between different parties will only rarely be abusive, but identity or privity of parties is not an absolute requirement.

3. The overlap between the two actions was substantial. The earlier judgment had considered the announcement within the full sequence of events and had found that the directors could not be criticised for believing that the appellant had destabilised the company. A further trial would require much of the same evidence from the same witnesses. It would be manifestly unfair to the respondents and an improper use of court resources.

4. The judge had erred in finding a breach of the Aldi case-management guidance. The coexistence of the proceedings had been disclosed openly, and trying them together had not been practicable. That error was superfluous and did not undermine the independent conclusion that the claim was abusive.

5. Any issues not directly resolved by the earlier judgment disclosed no substantial tort. Their limited value did not justify the financial and opportunity costs of trial, and no proportionate means of adjudication was available. The claim therefore also fell within the Jameel jurisdiction.

6. The claim disclosed no reasonable cause of action under section 3(1) of the Defamation Act 1952. A claimant must identify both the pecuniary loss allegedly likely to occur and the mechanism of its causation. Reputational harm alone is insufficient. The pleaded allegations were vague and speculative, while the later lawful dismissal and adverse commercial judgment were overwhelmingly more plausible causes of loss.

7. The proposed fresh evidence concerning an intention to sell shares was irrelevant and failed the second Ladd v Marshall condition. The late amendment of the strike-out application was within the judge’s case-management powers, caused no ambush and left no viable amendment that the appellant could make.

1. Court of Appeal (Civil Division): In [2021] EWCA Civ 18, the court unanimously dismissed the appeal and upheld the strike-out for abuse of process and absence of reasonable grounds.
2. High Court, Queen’s Bench Division: Nicklin J struck out the malicious falsehood claim in [2020] EWHC 1467 (QB) as an abuse of process and for failure to disclose an arguable claim under section 3(1) of the Defamation Act 1952.