Kasima Whittingham v Sam Jones

Strike out is appropriate where a defamation pleading is materially deficient and cannot be amended into a claim with a realistic prospect of success. A claimant must identify the publication, the words complained of, the publishees and the facts relied on to establish serious harm. In a limited-publication case, serious harm must be proved by evidence or a properly supported inference drawn from the meaning, circumstances and impact of the publication. The court must assess each statement or imputation separately and cannot aggregate insufficient harm. Emotional distress suffered by the claimant does not establish serious harm to reputation. Safeguarding or related communications are not immune from libel claims merely because of their subject matter, although privilege may provide a strong defence.

The claimant, a parent whose children had previously attended the defendant headteacher’s school, brought a libel claim concerning two emails sent to the chair of governors. The emails stated that the claimant threatened and intimidated colleagues and that staff were wary of interactions with her.

The claim form and particulars referred broadly to alleged publications and possible republication, without identifying the precise words, all publishees or a properly particularised case on serious harm. The defendant applied under CPR 3.4(2) and CPR Part 24, relying also on defective service, non-compliance with the pre-action protocol and alleged abuse of process arising from safeguarding considerations. The central issue was whether the claim could be amended into a viable libel claim.

1. Application granted. The claim was struck out under CPR 3.4(2)(a) because the pleadings disclosed no reasonable grounds and could not be amended to advance a claim with a realistic prospect of success. The court did not determine the application on defective service or abuse-of-process grounds.
2. Service at the school rather than the defendant’s usual or last known residence was defective under CPR 6.9(2). However, the defendant had acknowledged service while contesting jurisdiction and had not made a timely CPR Part 11 application. In light of the apparent effect of Hoddinott v Persimmon Homes (Wessex) Ltd, the jurisdiction objection may have been waived, although the court heard no full argument and noted later uncertainty about that decision’s scope.
3. The claimant had failed to comply with the pre-action protocol. That breach would ordinarily have been dealt with in costs rather than strike out if a viable claim could have been formulated.
4. Defamation pleadings must comply strictly with Practice Direction 53B. The claimant could now identify and plead the words in the two emails and their publication to the chair of governors, but could not establish a proper basis for wider publication or republication.
5. For section 1 of the Defamation Act 2013, the issue is the factual impact of publication on the claimant’s reputation. In a one-publishee or small-circulation case, inference is substantially constrained. The vague wording of the emails, the chair’s role in resolving complaints and the absence of evidence that her view of the claimant had changed meant that serious harm had no realistic prospect of being proved. The two emails could not be treated cumulatively, and the claimant’s own distress was irrelevant to the section 1 inquiry.
6. Safeguarding-related communications are not automatically immune from libel proceedings. Qualified privilege, defeated by malice, and in some contexts absolute privilege may provide protection. A claim may be hopeless because of such defences, but that does not make it abusive merely because it concerns safeguarding.
7. The claim was not certified as totally without merit because, although bound to fail in its pleaded and proposed form, it was neither incoherent nor wholly irrational. The parties were invited to agree an order, including costs.

This was a first-instance application in the High Court. The defendant applied to strike out the claim or obtain summary judgment; the claim was struck out without permission to amend.