Smith v Baker

Strike-out applications concerning defective pleadings require a holistic and proportionate assessment. A pleading may be struck out where it fails to disclose a properly arguable defence or claim, or provides no real prospect of establishing it. However, substantial defects do not justify striking out an otherwise understandable claim with triable issues. In a harassment claim, the truth of communications does not by itself prevent them from amounting to harassment. A party may also require the claimant to prove matters that remain genuinely in issue, such as meaning, serious harm, harassment and loss.

The claimant renewed an application to strike out the defendant’s amended defence and counterclaim and sought summary judgment. The proceedings concerned alleged defamatory tweets and blogs, together with claims under the Protection from Harassment Act 1997. The defendant relied on truth, public interest, qualified privilege, disputes about meaning and serious harm, and denied harassment and loss.

The court considered whether the amended pleadings had cured defects identified in an earlier judgment, whether the remaining claims were abusive or disproportionate, and whether any issues remained for trial.

1. The renewed application was granted in part. The amended defence was struck out except to the extent that the defendant could continue to challenge meaning and serious harm in relation to specified publications, and require proof of harassment and loss.
2. The pleaded defences of truth, public interest and qualified privilege were inadequately particularised. The matters pleaded did not provide a proper factual basis for those defences, and there was no real prospect of the truth defence succeeding on the pleaded facts.
3. The harassment defence was also inadequately pleaded. The defendant could nevertheless make submissions on whether the tweets amounted to harassment and on loss, although she could not introduce her own evidence on those points.
4. Parts of the counterclaim were struck out for irrelevance, lack of particularity, pleading evidence rather than material facts, collateral attacks on earlier judgments, or failure to identify the case being advanced. Other parts were retained where the pleading was comprehensible and disclosed triable issues.
5. It would be exceptional to strike out a triable claim solely because of pleading defects. The court should assess the pleading holistically and proportionately. Despite its length and difficulty, the counterclaim remained understandable after the identified passages were removed. The possibility of injunctive relief also meant that the limited potential damages did not make continuation disproportionate.
6. Truth is not, by itself, a reason to strike out a harassment claim, since true communications may still amount to harassment. The court declined to enter judgment because issues concerning meaning, serious harm, harassment and loss remained for determination.

The judgment records an earlier written decision dated 30 September 2020, which refused the claimant’s earlier strike-out and summary-judgment application and permitted amendment of the pleadings. No appellate history is stated.