BHX v GRX & Anor

A statement of case may be struck out where it fails to identify the precise words relied on in defamation or malicious falsehood. A claimant must identify the words, publication, recipients and relevant circumstances sufficiently to permit the court to assess meaning, falsity, damage and malice.

Defamation also requires a pleaded case of serious harm under Defamation Act 2013. Malicious falsehood requires a pleaded basis for special or pecuniary damage and causation. Misuse of private information requires identification of the information disclosed, to whom and when, so that reasonable expectation of privacy and seriousness can be assessed. Statements made in legal proceedings and certain related investigative communications are protected by absolute immunity. Conduct amounting to harassment must cross the threshold of oppressive and unacceptable conduct capable of sustaining criminal liability.

The claimant brought proceedings against his sister and her husband for defamation, malicious falsehood, misuse of private information or breach of privacy, and harassment. The claims arose from family disputes and related private Family Court proceedings concerning the defendants’ children, including alleged communications about the claimant’s arrest, alleged sexual misconduct, correspondence, and restrictions on contact.

After earlier case-management directions, the claimant served Amended Particulars of Claim. The court considered of its own motion whether the claims should be struck out under CPR 3.4 and dismissed under CPR Part 24. The central questions were whether the pleaded causes of action disclosed reasonable grounds, whether any defects could realistically be remedied, and whether the pleaded publications and conduct were legally actionable.

1. Disposition. The Amended Particulars of Claim were struck out. The claim was dismissed because there was no real prospect that the defects could be remedied. The claim was declared totally without merit.
2. Defamation and malicious falsehood. A claimant must plead the precise words complained of for each publication. Inferred or unknown publications, without the words used, are speculative and disclose no reasonable grounds. The text message sent to the claimant’s father was sufficiently identified, but the pleaded facts did not show serious harm to reputation under s.1 of the Defamation Act 2013. The father’s contemporaneous response demonstrated that any serious reputational harm was fanciful and unreal.
3. The malicious falsehood claim based on the same message failed because no special damage was pleaded and there was no credible basis for showing that publication was more likely than not to cause pecuniary damage under s.3 of the Defamation Act 1952. The alleged losses were not causally connected to that publication.
4. Statements made by the defendants’ solicitors in the Family Proceedings were protected by absolute immunity from suit. The immunity applied to the defamation, malicious falsehood, privacy and harassment claims based on that publication.
5. Misuse of private information. The claimant did not identify precisely what information was disclosed, to whom or when. The court therefore could not assess reasonable expectation of privacy, seriousness or the balancing of Articles 8 and 10. Even assuming disclosure to family members of information connected with the Family Proceedings, the pleaded case had no real prospect of establishing unlawful interference with Article 8 rights.
6. Harassment. The pleaded complaints principally concerned the defendants’ restriction of contact with their children and their response to Family Proceedings. Those acts were incapable of amounting to harassment on the pleaded facts. The claim also failed to identify a properly particularised course of conduct and had no real prospect of crossing the threshold of seriousness required for harassment under the Protection from Harassment Act 1997.
7. The claimant had been given repeated opportunities to formulate a viable claim. The defects arose from the absence of actionable wrongs, rather than a curable failure of pleading. A civil restraint order was not made at this hearing; directions were given for further evidence and submissions on that issue.

First-instance decision. The High Court struck out the Amended Particulars of Claim, dismissed the claim, and directed a further hearing concerning a possible civil restraint order.