Samuel Collingwood Smith v Sonia Poulton

On an application to strike out pleaded particulars of harassment, the court must consider the alleged course of conduct as a whole. Individual incidents should not ordinarily be isolated where their relevance may depend on the wider factual context.

Strike out under CPR rule 3.4(2)(a) requires the pleaded case to be hopeless or bound to fail. Unsettled questions of law, particularly where the answer may depend on facts found at trial, should generally not be determined summarily. Even where the threshold is met, strike out remains discretionary and must be proportionate.

Journalistic material receives enhanced protection under article 10 of the ECHR, but publication is not absolutely protected. Targeting and conscious or negligent abuse of media freedom may found harassment, matters normally requiring assessment at trial.

This was an appeal by a third party against an order of Deputy Master Sabic KC dated 13 May 2024 in ongoing defamation, data protection and harassment proceedings. The Deputy Master refused to strike out pleaded particulars of Ms Poulton’s harassment counterclaim and Part 20 claims.

The challenged particulars concerned matters allegedly involving a settled party, communications with legal representatives, and publications on Mr Smith’s blog. Mr Smith relied on CPR rule 3.4(2)(a) and (b), absolute privilege, article 10 of the ECHR and the protection afforded to journalistic material.

The central issues were whether the particulars disclosed no reasonable grounds, were abusive or likely to obstruct the just disposal of the proceedings, and whether the Deputy Master had exercised her discretion correctly.

1. Appeal dismissed. The Deputy Master was entitled to refuse to strike out the challenged particulars. Mr Smith was directed under CPR rule 18 to clarify whether he would rely on the particulars concerning Mr Laverty as background or context and, if so, on what basis.
2. Harassment is assessed by reference to the course of conduct as a whole. The court should not isolate selected particulars where they may provide relevant context for the remaining allegations. The fact that a claim against one alleged participant had settled did not make evidence concerning that person necessarily irrelevant or inadmissible.
3. CPR rule 3.4(2)(a) involves two questions: first, whether the pleaded case discloses no reasonable grounds; and secondly, if so, whether strike out should be ordered in the court’s discretion. The pleaded facts are generally assumed to be true. Strike out is appropriate only where the case is hopeless or bound to fail. Unsettled legal issues, particularly those dependent on facts or evidence, should generally be determined at trial.
4. The Category 2 particulars raised an open question whether absolute privilege applies, or applies in the same way, to a harassment claim based on communications with legal representatives in litigation. Iqbal v Dean Manson Solicitors (No 2) showed that the issue was at least arguable. It was therefore inappropriate to determine it on hypothetical facts or by strike out.
5. Journalistic publications may constitute harassment where they form part of a targeted and oppressive course of conduct. Article 10 protection is not absolute. The pleaded allegations, read as a whole, raised arguable issues concerning targeting and abuse of media freedom. Those issues required assessment of the evidence and the course of conduct at trial.
6. Mr Smith’s application was also made too late. He had earlier opportunities to challenge the pleadings and had consented to amendments. The timing was inconsistent with the overriding objective and the requirements that applications be made as soon as necessary or desirable. This supplied an additional reason to refuse strike out, although no finding of bad faith or abuse of process was made.

• High Court (King’s Bench Division): Appeal against the order of Deputy Master Sabic KC dated 13 May 2024 dismissed. The refusal to strike out the harassment particulars was upheld.