Sayed Zulfikar Abbas Bukhari v Syed Tauqeer Bukhari

On an application to strike out a defence or obtain summary judgment, a defective pleading should ordinarily be given an opportunity for correction where there is reason to believe the defect can be remedied. This is especially so where the litigant is acting in person and has made positive efforts to improve the pleading.

A defence to harassment by publication must address the statutory basis relied on and engage with the defendant’s Convention rights. A truth defence to libel must identify the imputation said to be substantially true and plead sufficient particulars to show how it is said to be true. Inadequate particulars do not automatically justify strike-out or summary judgment where a proper amended case may still be possible. Summary judgment is inappropriate where the issue requires assessment of evidence at trial, including serious harm and the truth of multiple imputations.

The claimant brought claims for libel and harassment based on hundreds of tweets and videos published by the defendant, a cousin. Earlier preliminary-issue proceedings determined the meanings of the statements and whether they were defamatory. The defendant then served a defence and sought permission to amend it.

The claimant applied to strike out the defence and draft amended defence, and for summary judgment. The issues included whether the harassment defences were adequately pleaded, whether the defence to serious harm was sufficient, whether the truth defence was properly particularised, and whether the defects should be cured by a further amendment.

1. Application dismissed. The defence and draft amended defence were materially defective, but the claimant was not entitled to strike them out or obtain summary judgment. The defendant was given a further opportunity to amend, with the precise order to be determined after the judgment.
2. For harassment by publication, the draft defence sufficiently indicated reliance on the reasonableness defence under section 1(3)(c) of the Protection from Harassment Act 1997. The defendant’s pleaded status as a political commentator, the claimant’s public position, the alleged public interest, and the engagement of article 10 rights meant that the defence could not be said to have no real prospect of success at this stage.
3. Reliance on section 1(3)(a) was inadequately pleaded because the defendant did not identify the alleged crimes or specify whether his purpose was prevention or detection. That defect could still be remedied. The defective truth plea also affected reliance on truth in the harassment claim.
4. The defence to serious harm was inadequately reasoned because it denied serious harm without explaining the denial. The defect was readily curable. The issue was unsuitable for summary determination because publication, readership, credibility and the effect of proving some but not all imputations required factual assessment. The possible application of section 2(3) of the Defamation Act 2013 reinforced the need for trial.
5. The truth defence was wholly inadequate in relation to serious allegations of criminality, theft, fraud, dishonesty and threats. It did not consistently identify the claimant’s alleged conduct, knowledge, involvement, the transactions relied on, or the particulars of the alleged threats. Nevertheless, material in the original defence and witness statement, together with the defendant’s efforts to improve the pleading, provided reason to believe the defects could be corrected.
6. The court applied the approach in Kim v Park that a party should normally be given an opportunity to cure a defective pleading where there is reason to believe the defect can be remedied. The point at which repeated amendments become an abuse of process had not yet been reached.