Sylvan Clement Francis v Paul Pearson

Inordinate delay in libel proceedings does not, without more, amount to an abuse of process. The court must first decide whether the claimant’s conduct was abusive, focusing on whether the claim was deliberately or effectively warehoused and on the objective reasons for the delay. Only then does it decide whether strike-out is a proportionate discretionary response.

The exceptional Jameel jurisdiction requires an assessment of the value of vindication and other legitimate benefits to the claimant, against the likely cost and burden of continuing litigation. Financial value alone is insufficient. A claim with an arguable basis and a genuine reputational purpose should not be struck out unless continuation is plainly pointless or wasteful and proportionate case management cannot provide an adequate solution.

The claimant brought separate libel claims against two neighbours concerning emails circulated to residents of a gated housing estate. The publications allegedly accused him of assault, stalking and serious anti-social behaviour.

The defendants applied to strike out both claims for abuse of process based on delay and, alternatively, on Jameel grounds. The claimant opposed strike-out and sought permission to re-amend his Particulars of Claim and, in one action, his Reply. The claims had been issued in February 2020, the original pleadings had been struck out in October 2020, amended pleadings had later been served, and the proceedings had then remained inactive for approximately 14½ months.

The central questions were whether the delay amounted to abuse, whether strike-out was proportionate, and whether the proposed amendments should be permitted.

1. Strike-out for delay. The applications to strike out for abuse of process were dismissed. Libel proceedings should ordinarily be pursued expeditiously, but delay alone, even if inordinate and inexcusable, is insufficient. The court must identify abuse, such as continuing or suspending proceedings without a genuine intention to bring them to a conclusion.
2. The applicable approach has two stages: first, determine whether the claimant’s conduct was an abuse of process; secondly, if it was, exercise the discretion whether to strike out. The issue depends on why the proceedings were put on hold and the objective strength of that reason, having regard to the length of the delay. Pre-action delay may support an inference of warehousing and may aggravate the consequences of later inactivity, but it does not itself establish abuse.
3. The evidence did not establish that the claimant lacked a genuine desire to pursue the claims. He had undertaken preparatory work, had taken steps to progress the proceedings, and had resumed activity before the defendants indicated that they would seek strike-out. The inactivity resulted from a combination of delay by the claimant, the defendants and the court. The claimant’s conduct therefore did not amount to abuse.
4. Even if there had been abuse, strike-out would not have been granted. The claimant would suffer real prejudice through loss of an opportunity for vindication and protection against repetition. The defendants had not demonstrated meaningful evidential prejudice, and they themselves had contributed to the delay. The court accordingly considered strike-out disproportionate.
5. Jameel abuse. The alternative applications were also dismissed. The jurisdiction is exceptional and requires assessment of the value, in the widest sense, of what the claimant seeks and the likely cost, in the widest sense, of achieving it. Vindication of legal rights has value beyond the financial worth of the claim. These were arguable claims with a legitimate reputational purpose, and their continuation was not shown to be pointless or wasteful. Proportionate costs and case management should instead be addressed at the CCMC.
6. Amendments and next steps. Permission was granted to plead graffiti as a possible source of reputational damage because, if proved, it could be relevant and would not materially increase costs. The parties were urged to reconsider ADR and to address any remaining dispute on meaning, defamatory tendency and fact or opinion through an appropriate preliminary determination.

The original Particulars of Claim in both actions were struck out by Senior Master Fontaine on 9 October 2020, with liberty to apply for permission to amend. Amended pleadings were subsequently served. This court dismissed the defendants’ later strike-out applications, granted permission for the disputed amendment, and gave directions and guidance for progressing the claims.