England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE MOLONEY QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		5th February 2013

Lord Justice Pitchford:

1. Mr McGrath, in his skeleton argument, correctly pays tribute to the care with which HHJ Moloney QC addressed the multiplicity of issues with which he was faced. I too would like to pay tribute to the judge, not just for his infinite care but also for the clarity with which he expressed his judgment. The judge summarised his findings under four headings before coming to the conclusion that, against all but one of the defendants in this action for defamation, the claim should be halted. In Section A he examined the responsibility of the defendants for publication of what Mr McGrath and the second claimant alleged were defamatory remarks.
2. In Section B he examined very many alleged defamatory words in order to decide what meaning those words were capable of bearing, and, having so decided, reaching a conclusion whether they were or may be defamatory of the claimants. In Section C he examined the claim for aggravated and exemplary damages, and finally in Section D he examined the question whether or not the continued progress of the action against the defendants would be an abuse of process of the court.
3. Mr McGrath has provided the court with a skeleton argument which he describes as reduced, in which he sets out, in 42 paragraphs of close type, criticisms of the judge's judgment. I propose, as this is a renewed leave application, to describe the judge's findings in the most summary of terms.
4. In Section A the judge, exercising his jurisdiction under the Civil Procedure Rules Part 24, found that Amazon, the third defendant, whose website was used for several of the postings alleged to be defamatory, was bound to succeed upon its defence under Regulation 19 of the Electronic Commerce Regulations 2002. That was because Amazon was never made aware by Mr McGrath or anyone else exactly what words were posted on its website which were defamatory of him or of the second claimant, MCG Productions Limited. Mr McGrath has criticisms to make of the judge's findings in this respect. It is important to note however that, for the purpose of judging the application to strike out made by the defendants, the judge nevertheless assumed that the defence would fail.
5. In Section B the judge held that a limited number of messages posted on both the Amazon and Dawkins websites could be regarded as defamatory. Having read those messages, I am of the view that the judge erred generously in favour of the claimants in reaching his decision which of those messages could be regarded as defamatory.
6. His findings in this respect were important to the ultimate consideration of the issue of abuse of process.
7. In Section C the judge found that the second claimant could not succeed in its claim for aggravated damages and that neither claimant could establish a claim to exemplary damages.
8. Finally in Section D the judge examined the question whether, in the light of the findings he had made, continuation of the claim was an abuse of process. This was, to my mind, without question the most important section of his judgment; it was determinative of the proceedings against the first three defendants. The judge directed himself in accordance with authority, namely Jameel v. Dow Jones [2005] QB 946 and Kaschke v. Osler [2010] EWHC 1075 (QB). The applicant should note that the exercise of this jurisdiction is in no sense a judgment on the honesty of the claims. It is a judgment upon the use to which the courts in this jurisdiction can legitimately be put. It was explained by Lord Phillips, then the Master of the Rolls, in Jameel at paragraph 69:

"If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and the vindication will be minimal. The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick."

9. At paragraph 54 he had said:

"An abuse of process is of concern not merely to the parties but to the court. It is no longer the role of the court simply to provide a level playing-field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice."

10. Finally, at paragraph 70 for present purposes, Lord Phillips said:

"If we were considering an application to set aside permission to serve these proceedings out of the jurisdiction we would allow that application on the basis that the five publications that had taken place in this jurisdiction did not, individually or collectively, amount to a real and substantial tort. Jurisdiction is no longer in issue, but, subject to the effect of the claim for an injunction that we have yet to consider, we consider for precisely the same reason that it would not be right to permit this action to proceed. It would be an abuse of process to continue to commit the resources of the English court, including substantial judge and possibly jury time, to an action where so little is now seen to be at stake. Normally where a small claim is brought, it will be dealt with by a proportionate small claims procedure. Such a course is not available in an action for defamation where, although the claim is small, the issues are complex and subject to special procedure under the CPR."

11. It is worth emphasising, since Mr McGrath relies on the historical right to apply for a jury trial, that Lord Phillips in a defamation case regarded the complication of a jury trial on complex issues as one of the reasons why the court should regard its resources jealously on behalf of other litigants.
12. The judge at paragraph 88 of his judgment identified the following features of the claim, which were undeniable in consequence of the evidence and arguments he had heard:

"a. the limited extent of publication (in the case of the Dawkins website but not the Amazon one);

b. the limited defamatory meanings (in the light of my rulings on that issue above);

c. the limited margin between the truth about the Claimants' activities, as admitted by them, and the defamatory stings of which they may properly complain;

d. the mitigating/extinguishing effect of the Claimants' own publications and responses on Amazon (but not on Dawkins);

e. in the light of all the above, the limited remedies which the Claimants may expect by contrast with the considerable anticipated costs of trial."

13. When he came to consider the extent of damage to the claimant's reputation measurable in damages, the judge made the following findings as "clear beyond argument":

"i. C did seek to promote sales of his own book by means of false reviews, purporting to be the favourable reaction of real independent readers when in fact he had written them himself.

ii. He did seek to take advantage of the reputation of Prof Hawking (a disabled man) to promote his own book, by inserting a puff for his book into the Amazon site for the Hawking book under the false guise of a review of that book.

iii. He did participate in the online Amazon debates using false identities purporting to be real people agreeing with and defending him, when in fact they were just his aliases.

iv. The book is published by his own company, which is a very small business that has only published his book and has no independent premises of its own.

v. The book contains no scientific source references to back up its purported scientific contentions.(This is admitted by C at para. 72.2 of his submission dated 8 November 2011, in which he refers approvingly to his own Yahoo review of his book, again pretending to be independent.)."

Nonetheless, the judge found that he should approach the issue of abuse of process upon the basis that there had been significant publication and, secondly, that while the averments made and were alleged to be defamatory were not of the utmost gravity, they were, on his own findings, "by no means trivial allegations".

14. I would paraphrase the judge's findings as follows. The first claimant himself set out anonymously to submit to Amazon what purported to be a review of a well known book. His purpose was not to submit an objective review but to promote his own unknown book. He used a series of aliases in an attempt to create a spurious discussion of the merits of both publications. Mr McGrath calls this satire. I have no doubt that the jury would reject this assertion out of hand and I would call it humbug. He was found out, and as a result attracted a stream of accusations and abuse, mostly from the fourth defendant, including abuse in vulgar language; in other words, he gathered the fruits of his own deception. In these circumstances the judge found that the damage if any to the claimant's reputation was at best marginal. Furthermore, in the case of most of the remarks capable of bearing a defamatory meaning, the judge found that the defendants were:

"overwhelmingly likely to succeed in defending it on the basis of justification and/or fair comment/honest opinion."

15. On the material before the judge, I respectfully agree with his conclusion. As to the need to protect the claimants from further publication, the judge held that they were secure save in the case of the fourth defendant by undertakings given. The costs incurred by the defendants had already exceeded £70,000. I find the judge's reasoning compelling and I do not detect any error of approach.
16. Mr McGrath has taken in his written documents some procedural points which, with respect to him, are bad ones. The judge was exercising his jurisdiction under Parts 3 and 24 of the Civil Procedure Rules; he was not dealing with summary proceedings under Section 8 of the Defamation Act 1996. There had been no order for trial by jury; the judge was considering at the interlocutory stage, as was Lord Phillips in Jameel, whether there was any prospect of success and, if so, whether nevertheless to permit the action to proceed would be an abuse of the process of the court. The judge, it seems to me, was extremely careful at each stage to remind himself of the seriousness of reaching such a conclusion.
17. Mr McGrath's skeleton argument, which he has read to us in full this evening, is overwhelmingly, in my opinion, a textual analysis of the judge's judgment in which he expresses respectful disagreement with the judge's findings. What he does not do, in my view, is demonstrate that the judge's decisions were wrong. Like Laws LJ before us, I can find no substantial basis for concluding that this appeal has any prospect of success and I would refuse the application.

Lord Justice Ward:

18. I so entirely agree with my Lord; there is nothing I can usefully add, and it follows that this application for permission must be dismissed.

Order: Application refused