John Alexander Melvin Hemming v Sonia Vanessa Poulton

On applications for summary judgment or strike-out, the court must assess whether a party has a realistic prospect of success without conducting a mini-trial. Meaning in defamation depends on the publication read as a whole. Repetition of an allegation does not automatically amount to adoption or endorsement.

Whether a publication has caused or is likely to cause serious harm under the Defamation Act 2013 is fact-sensitive and may depend on the circumstances and actual or probable impact of publication. Public-interest and data-protection journalism exemptions may likewise require factual determination. Harassment is also fact-sensitive: pressure exerted through legal representatives may form part of a course of conduct.

The claimant brought proceedings for libel and alleged breaches of the Data Protection Act 2018 and GDPR arising from comments made by the defendant in a published video interview about allegations made by Esther Baker and the claimant's threatened legal action concerning a documentary.

The defendant counterclaimed under the Protection from Harassment Act 1997. The claimant applied for summary judgment and/or strike-out of the Defence and Counterclaim. The defendant applied to amend her Defence and Counterclaim. The central issues were whether the pleaded meanings and defences had a real prospect of success, whether the data-protection claim could be summarily determined, and whether the harassment allegations were legally viable.

1. Summary judgment and strike-out. The applicable question was whether the relevant party had a real, rather than fanciful, prospect of success and whether there was any compelling reason for disposal without trial. The court had to avoid a mini-trial and resolve factual conflicts at trial where appropriate, applying Global Asset Capital Inc v Aabar Block SARL [2017] EWCA Civ 37.
2. Meaning. The repetition rule operates alongside the requirement to assess the publication as a whole. Repetition does not mechanically establish adoption of the allegation. Context, including whether the allegation was endorsed, repudiated or discounted, is decisive. The defendant therefore had a real prospect of showing that she reported Ms Baker's allegation without adopting or endorsing it. The pleaded meaning concerning baseless legal threats was also not sufficiently obvious for summary judgment.
3. Defamation defences. The circumstances relevant to serious harm, including the extent of publication, prior public availability of the information and the claimant's public status, could properly be considered at trial. The public-interest defence under section 4 of the Defamation Act 2013 required consideration of all the circumstances, including the defendant's role and the reasonableness of her belief. The pleaded case was fact-sensitive and was not hopeless.
4. Truth and honest opinion. The proposed truth particulars did not address the substance of the pleaded allegation that the claimant had raped Ms Baker. They could not remain as particulars of truth for that meaning. The proposed honest-opinion plea failed to identify an imputation said to be opinion and was struck out, subject to redeployment of relevant matters elsewhere in the amended pleading where appropriate.
5. Data protection. It was arguable that merely speaking about personal data, whether recorded or broadcast, did not necessarily constitute processing. The defendant also had a real prospect of showing that she was neither controller nor processor and that the journalism and public-interest exemptions in the Data Protection Act 2018 and GDPR applied. These issues could not be determined summarily.
6. Harassment. The allegations, taken together, were capable of amounting to a course of conduct which was oppressive and unreasonable. Conduct directed through a solicitor could contribute to harassment of the client, and separate incidents could acquire additional weight when viewed in context. The counterclaim therefore had a real prospect of success.
7. The claimant's application for summary judgment was refused. Strike-out was refused save for the limited removal of the specified truth particulars and the honest-opinion plea. The defendant's amendment application succeeded except in relation to the proposed introductory truth sub-paragraph concerning Meaning 1.