IS PRIME LTD v MOHAMMED ADIL SIDDIQUI & Anor

A common-law claim for malicious falsehood requires pleaded pecuniary loss. The claimant must provide particulars with as much certainty and particularity as is reasonable in the circumstances. Provisional or indicative particulars may suffice, but a claimant cannot avoid pleading any loss merely because further information or disclosure may later assist. A claim pleaded only as a formulaic general loss of business, without identifying specific losses or giving indicative details, may be struck out. The statutory alternative under Defamation Act 1952, section 3, remains available where the words were calculated to cause pecuniary damage in the relevant business.

The claimant brought proceedings for malicious falsehood arising from messages published by the first defendant on behalf of the second defendant. It pleaded an alternative claim under section 3 of the Defamation Act 1952, but also alleged that it had suffered, and would continue to suffer, loss of business at common law.

The defendants applied to strike out the common-law special-damage claim because the particulars of claim identified no specific loss and provided no meaningful particulars despite a request for further information. The central issue was whether the claimant could defer pleading its financial loss until the recipients of the messages were disclosed and the losses had crystallised.

1. Application granted in substance. The passages pleading the common-law claim for special damages were struck out. The statutory claim under section 3 of the Defamation Act 1952 was not challenged.
2. Special damage is an essential ingredient of malicious falsehood at common law. Until pecuniary loss has been suffered, there is no common-law cause of action. The pleading must identify the loss sufficiently to disclose the cause of action.
3. Following the principle stated in Ratcliffe v Evans [1892] 2 QB 524, the degree of certainty and particularity required depends on the subject matter and circumstances. The court should require as much detail as is reasonable, but neither less nor more. That principle did not excuse the claimant from pleading any particulars at all.
4. The claimant had pleaded a general loss of business and reduced trading volumes formulaically. It identified no specific customer, trade or transaction, and supplied no provisional or indicative estimate despite a request for further information. Those deficiencies meant that the particulars did not disclose the necessary pecuniary damage.
5. The court adopted the pleading requirements stated in Eric Bowman Remedy Co. v Jensen Salsbery Laboratories 17 F 2d 255 as reflecting English law. A claimant relying on general loss of custom should ordinarily plead facts showing the established business, sales before and after publication, causation, and why particular customers cannot be identified.
6. The court declined to order disclosure of the recipients of the messages on its own initiative. Disclosure might be available in rare and narrowly circumscribed circumstances on a properly framed and supported application, but it could not be used to fish for a case. The claimant remained free to seek amendment if later disclosure produced a properly particularised claim.