England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/12/2010

Mr Justice Tugendhat :

1. On 11 May 2010 the Court of Appeal dismissed an appeal by Mr Smith in respect of a number of defamation actions brought by him. The dismissal of the appeal was by consent. The proceedings had been stayed by the order of the Senior Master darted 25 April 2008. On 25 July 2008 Eady J had dismissed Mr Smith's application to set aside the Order of 25 April. The result of the Court of Appeal's decision on 11 May was the proceedings all remained stayed.
2. In his judgment explaining the dismissal of the appeal [2010] EWCA Civ 657 Ward LJ observed that that left the actions in a position which he referred to as being in limbo. He said this at para 9:

"It seems to me, as I pointed out to Mr Crystal early in the course of his submissions, that the effect of continuing the stay meant that these claims were in limbo. Mr Smith faced the difficulty that he could not advance them against any respondent because of the stay, and his prospects of applying afresh to lift the stay would obviously be adversely affected by the existing order. At the same time there was nothing conclusive about it. The judge recognised that he did not have formal applications before him either to strike out these claims as an abuse of process or summarily to dispose of them as having no realistic prospect of success. He did not formally have an application for any civil restraint order and could not deal with that part of the case, and so it seemed to me and to my Lords that even if the order was upheld, as our preliminary view was certainly it should be, that would not bring any sense of finality to this litigation. So we put to Mr Crystal that, in the event of the court dismissing the appeal, we should nonetheless go on to direct of our own motion that Mr Smith should show cause why each of the surviving claims should".

3. The Court of Appeal therefore ordered that the cases listed the Schedule to its order be referred to the Judge in this court:

"a. for [Mr Smith] to show cause why each of the claims [other than claim No HQ07X03107] should not be struck out or be the subject of summary judgments against him;

b. for the determination of whether [Mr Smith] should made the subject of a civil restraint order".

4. The Schedule listed cases in three sections:

A) under the heading "Claims that [Mr Smith] wishes to pursue if the stay is lifted": 13 cases (including claim No HQ07X03107);

B) under the heading "Claims that have been disposed of": 10 cases

C) under the heading "Claims that will be dealt with unless and until formal notice of discontinuance is served by [Mr Smith]": 18 cases.

5. On 22 June 2010 I gave directions for that hearing to take place. The directions provided for the hearing of 12 cases in Schedule A (Claim No HQ07X03107 was excluded). The Order records that Mr Smith undertook to file notices of discontinuance in respect of the 18 cases in Schedule C. Mr Smith has since discontinued one of these 12 cases (Claim No HQ09X0452). So I am now concerned only with 11 cases.
6. Ward LJ summarised situation as follows :

"2. Mr Smith, the appellant, was successful some time before late 2005 in setting up an action group to recover compensation for investors in some fraudulently conducted company. Knowing of that success, and I hasten to add I do not know much about the extent of that success, investors in another company called Langbar International Limited ("Langbar") approached him for help following the discovery of what is alleged to be serious fraud in the conduct of that company. Those approaches were made via the bulletin boards on a financial information website of a company whose website is ADVFN.com. Some days thereafter the appellant set up the Langbar Action Group website, which he says had grown to about 450 members. His efforts to secure compensation for them did not meet with universal approval, with the result that a group of shareholders and others whom he describes as "the malcontents" openly and vociferously opposed his actions. Their disaffections were "posted" on the ADVFN Langbar bulletin boards, usually under a pseudonym or an avatar, whatever that means, the appellant's name being "Anonymous".

3. It is his case that what he calls a hate campaign which amounts to cyber-bullying has been waged against him as the messages stacked up on this ethereal bulletin board. As they stacked up, so he suggests a profusion of defamatory statements were published about him. He says that some 267 defamatory statements had been made by 71 offenders, though some may be the same person using a different pseudonym. He says that the offenders have continued to publish defamatory material and there is no sign of that abating.

4. His response was to issue claims for damages for defamation once he had determined through Norwich Pharmacal proceedings the real identity of the authors. At first these claims were assigned to different masters of the Queen's Bench but as the trickle became a discernible flood the Senior Master intervened and ordered on 25 April 2008 as follows, first:

" [the particular claim before him, being one against a Mr Murjani] and the claims listed in the Schedule to this order are to be re-assigned to Master Fontaine if not already assigned to her. [I interpolate that on the schedule were a list of 36 defendants including the eight who are the respondents to this appeal.]"

7. Claim No HQ07X03107 differed from the other claims in that it was subject to a separate stay by order of MacKay J dated 13 March 2008 (subsequently varied by Sir Charles Gray on 21 May 2008), of the Court of Appeal dated 15 April 2008, and of Sir Charles Gray on 23 April 2008, by which it had been further ordered that Mr Smith pay the costs of ADVFN Plc. On 25 July Eady J assessed those costs at £14,000 to be paid to three named respondents. That order remains unsatisfied to this day.
8. Two of the 11 cases in Schedule A of the order of the Court of Appeal differ from the other 9 in that the defendants in these 2 cases are not alleged to have defamed Mr Smith on the internet. In Claim No HQ09X04542 the Defendants are the Ministry of Justice and a member of the bar ("Mr Smith's barrister") who had represented Mr Smith at the hearing before Eady J at the hearing on 9 June in respect of which Eady J gave his judgment on 25 July 2008. It will be necessary to return to this. In Claim No HQ09D05276 the Defendants are Thomson Reuters (Legal) Ltd, the publishers of Gatley on Libel and Slander 11^th ed, and all of the editors of that book. The claim is in respect of references in the footnotes to the judgments of the Court of Appeal and Eady J. These two actions were commenced in 2009. The reason why they are stayed is that the order of the Master dated 25 April 2008 stayed not only all actions brought by Mr Smith up to that date and listed in a schedule, but also provided:

"4. Until further order, all claims issued in the future by [Mr Smith] are to be stayed after issue, and service is not to be effected and the Central Office shall keep all sealed copies of the Claim Form on file".

The internet publications complained of

9. This litigation first came before Eady J on 12 May 2008. He stayed the proceedings for the Defendants to be notified. But he delivered a judgment [2008] EWHC 1250 (QB) in which he set out the background.
10. One of the claims in Schedule A with which I am concerned is Claim No HQ08X00135, in which the Defendant is a Mr Tuppen. On 9 June Mr Tuppen had appeared before Eady J, together with three other defendants. The cases against these other three defendants have been discontinued.
11. On 25 July 2008 Eady J delivered his judgment [2008] EWHC 1797 (QB). He remarked at para 6:

"There is no doubt that a significant number of Defendants are troubled by the prospect of long drawn out and expensive litigation which they cannot afford and in respect of which they may have no realistic prospect of recovering costs even in the event of ultimate success. As I mentioned in my earlier ruling, Mr Smith is exempt from paying court fees and may reasonably be presumed to have no significant funds with which to meet any costs order. That fear is naturally confirmed by his apparent inability, so far, to pay the costs already outstanding in favour of ADVFN."

12. At para 9 Eady J said:

"It is obviously a relevant question to ask whether someone who had to pay court fees would have thought it proportionate to any legitimate gain to issue 37 sets of proceedings (with apparently more to come). If there is a genuine desire for vindication over any significant defamatory allegation, it is reasonable to suppose that this objective could generally be achieved by a more targeted strategy. Inevitably, one is left with the impression that Mr Smith and his solicitors are determined, as I described it on 12 May, to pick off the potential defendants one by one and to make it clear to them that it would be cheaper to apologise and pay up at an early stage. It may be, therefore, that his fees exempt status is being used as a tactical weapon."

13. At para 13 to 17 he referred to the bulletin boards on which the words complained of appeared. He concluded:

"From the context of casual conversations, one can often tell that a remark is not to be taken literally or seriously and is rather to be construed merely as abuse. That is less common in the case of more permanent written communication, although it is by no means unknown. But in the case of a bulletin board thread it is often obvious to casual observers that people are just saying the first thing that comes into their heads and reacting in the heat of the moment. The remarks are often not intended, or to be taken, as serious. A number of examples will emerge in the course of my judgment."

14. At para 24 he said:

"In a number of these cases, it is obvious to me that there would be strong defences of qualified privilege or fair comment and, in some cases, arguments running along the lines of "mere vulgar abuse". No such issues, as I have said, are formally before me at the moment, since no-one has issued an application for summary judgment or to strike out any part of a pleading on any of those grounds; nevertheless, such factors weigh heavily in the exercise of the court's discretion and case management powers and, specifically, since I am now asked to continue the stay imposed by the Master. The court has a wide discretion to impose or maintain a stay, which is now embodied in CPR 3.1(2)(f). The only reason for lifting a stay, of course, is to allow a genuine claim to progress towards trial in order to achieve some legitimate advantage: that is to say, vindication or compensation."

15. Eady J discussed the claim against Mr Tuppen in paras 28 to 33 of his judgment. At para 28 he said:

"Mr Michael Tuppen told me that when he wrote the words to which Mr Smith took offence in his case, he was at first unaware of Mr Smith's identity. He only knew him at that stage by one of his dozens of "avatars" – in this case "Anomalous". On 23 April 2007, he wrote "Assuming I am not being taken in by a complete load of bollocks! then: Anomalous behaviour is unacceptable good luck to all victims!!!"."

16. The words cited in this paragraph are taken from those complained of in para 8 of the Particulars of Claim, the first of some 8 or more sets of words complained of. The allegedly defamatory meaning attributed to these words by Mr Smith is that his "behaviour was unacceptable and that he had 'victims'". Mr Smith also gives particulars of reference, because he was himself using the pseudonym (or avatar) of "Anomalous". He gives no particulars of the extent of publication, merely asserting that "it is to be inferred that a large and unquantifiable number of those who read [the words complained of] understood them to refer to [himself]".
17. Eady J concluded at para 38 that the claims against Mr Tuppen and the other three defendants who appeared on 9 June had no real prospect of success. The principal reason that Eady J gave was (in para 24) that the words complained of were in many instances not defamatory, but abuse, and that there were defences of qualified privilege and fair comment, and (in para 37) that there could be no realistic plea of malice against the defendants.
18. I respectfully agree and would add that there was an equally unrealistic prospect of Mr Smith proving any significant number of publishees read the words complained of and understood them to refer to himself. As pleaded, the case on publication to readers who knew his identity is in his own words based entirely on inference, but would be better described as speculative.
19. In a claim for defamation on the internet the claimant has to prove that there has been publication: Al-Amoudi v Brisard [2006] EWHC 1062 (QB); [2007] 1 WLR 113. This can be difficult to do. If it is not done, or if the number of publishees who can be proved to have read the words complained of is very small, then that can be one of the factors which may lead the court to conclude that there has been no real and substantial tort alleged (Jameel v Dow Jones & Co [2005] QB 946). The court may then strike out the claim as an abuse of process. Other factors which may lead the court to this conclusion include the low level of seriousness of any allegedly defamatory meaning relied on, and the failure to identify any substantial damages that the claimant either has suffered, or is likely to suffer.
20. Since the judgments of Eady J and the Court of Appeal Mr Smith has made a witness statement dated 14 September 2010. Paras 27 to 41 are on the claim against Mr Tuppen. The furthest he goes in relation to qualified privilege is to say that he believes that Mr Tuppen is not a Langbar shareholder, and so that he cannot rely on qualified privilege. He then advances various arguments as to why Mr Tuppen must be taken to have made false statements. None of these come near to a plea of malice that would be required to defeat a defence of qualified privilege or honest comment. It is to be recalled that to defeat a defence of honest comment a claimant has to establish, not that the defendant was motivated by spite, but that he did not genuinely hold the view that he was expressing: Tse Wai Chun Paul v Albert Cheng [2001] EMLR 777, Gatley para 12.25.
21. Nor does Mr Smith address the weakness of his case on meaning, to which Eady J referred (saying that the words complained of were not intended to be taken as serious: para 17 of his judgment). Nor does Mr Smith say anything to strengthen his case on the number of publishees, or damage to his reputation whether under the pseudonym "Anomalous" or under his real name. There is no indication that in relation to the actions with which I am concerned, Mr Smith has considered adopting "a more targeted strategy", as contemplated by Eady J in para 9 of his judgment.
22. The position in relation to the claims against the other defendants in the actions considered by Eady J is similar. There has been no material change in circumstances since Eady J and the Court of Appeal delivered their judgments.
23. The submissions of Mr Crystal addressed the difficulties that face a claimant who has been defamed by numerous people on numerous occasions, as can happen on the internet more readily than through other media. But it is not the number of claims alone that caused Eady J and the Court of Appeal to reach the view that they did. The submissions of Mr Crystal were all in relation to the case management points that were made before Eady J and the Court of Appeal.
24. I respectfully share the views that Eady J expressed in relation to the cases he considered. But there were some cases which were not before him.
25. Claim No HQ09X02450 against Mr Turvey was issued on 9 June 2009. This is the date given by Mr Smith: there is no date on the claim form. So it was not the subject of the judgment of Eady J.
26. The Particulars of Claim are dated 5 October 2009. The drafting shows no appreciation of the force of the criticisms made by Eady J in his judgment over one year earlier. The words complained of are similar in substance to those complained of in the actions Eady J did consider. The Particulars of Claim run to over 300 paragraphs. Numerous publications are complained of, and the particulars of publication and reference are as weak as those in the other actions. The same considerations apply to this claim as to those which were considered by Eady J. It is wholly without merit.

Claim No HQ09D05276

27. Claim No HQ09D05276 against Thomson Reuters (Legal) Ltd and others is in a different category from any of those considered by Eady J. The first passage complained of is in para 3.6 of Gatley, dealing with trivial claims. The footnote refers to the judgment of Eady J on 25 July. The meaning complained of is that Mr Smith's claims "are wholly trivial and wholly without merit". It is obvious that this claim has no prospect of success. There is a plain defence of privilege. Mr Crystal did not address me on this claim. It is wholly without merit.

Conclusions on claims other than Claim No HQ09X03388

28. Before turning to Claim No HQ09X03388, I must decide whether to make a civil restraint order. An extended civil restraint order may be made under Practice Direction 3C para 3.1 "where a party has persistently issued claims or made applications which are totally without merit".
29. That is plainly the case here. I have already described two of the claims (which were not considered by Eady J) as wholly without merit.
30. In relation to the claims that were considered by Eady J, the same must apply. The reason advanced by Mr Crystal for not reaching that conclusion is that a claimant in Mr Smith's position is faced with a difficulty. If he issues too few claims, he will not obtain vindication against all the defendants in respect of all the different meanings he complains of. If he issues too many, then he exposes himself to accusations of abuse of process, such as have been made against Mr Smith in these cases.
31. That argument would have some force if the claims themselves had a real prospect of success. But in the circumstances set out above, that is not so. Having heard Mr Crystal, I reach the same conclusion that Eady J reached in his judgment at paras 105 to 108 (see below). It may be that if the claims had been drafted after careful selection, choosing those where the meaning was sufficiently serious to be arguably defamatory and likely to cause significant damage, and where substantial publication could be proved, then there might have been some claim or claims that would have had some merit. But if there were any such claims they were concealed amongst all the claims which are unmeritorious for the reasons stated above.

Claim No HQ09X03388

32. Claim No HQ09X03388 is in a different category again. The claim form is dated 24 July 2009. It arises out of the fact that in his judgment of 25 July 2008, at paras 105 to 108, Eady J concluded that the claims he addressed were totally without merit, and that he proposed to make an extended civil restraint order. This was an error, for reasons Eady J set out in a Supplemental Judgment that he published shortly afterwards. The Supplemental Judgment consists of 3 paragraphs, and makes clear that no civil restraint order was in fact made. The error identified was that at the hearing on 9 June Eady J had discouraged counsel from developing his submissions on whether or not it was appropriate to grant a civil restraint order. This had slipped Eady J's mind when he came to circulate his judgment in draft, and when he handed it down. It was also overlooked by Mr Smith's barrister, who would otherwise have drawn the error to the attention of the judge on receipt of the draft before handing down.
33. The claim is against the Ministry of Justice in respect of the reports which appeared of the judgment as handed down, and which omitted to report the Supplemental Judgment. The claim is against Mr Smith's barrister for negligence in failing to prevent the defamation of Mr Smith which occurred by reason of the error in the judgment.
34. The letter from HMCS dated 23 July 2009 correctly states that the remedy for a judicial error is an appeal, if the judge does not himself correct the error. In the present Eady J did correct the error in his Supplemental Judgment. There is no real prospect of a claim succeeding against the Ministry of Justice in such a case for the further reason that the defence of judicial immunity, which Mr Smith accepts would apply to Eady J, must also apply to the Ministry of Justice on the facts of this case.
35. Further, in the light of my conclusions in respect of all the other claims, this claim too has no real prospect of success. Mr Smith will not be able to prove that the publication complained of caused, or was likely to cause, any material damage to him. It must also be categorised as wholly without merit.

The order of the Master

36. The order of the Master dated 25 April 2008, para 4, set out in para 8 above, has had an effect similar to a civil restraint order, but it has not been made pursuant to Practice Direction 3C. It was made pursuant to the court's general case management powers in CPR Part 3. The advantage of the order is obvious, applying as it does to future claims. It prevents defendants being put to the trouble and expense of a claim before consideration can be given by the court to the need for a civil restraint order. An order made by a Master cannot be a substitute for civil restraint orders, since specific provision is made for civil restraint orders in Practice Direction 3C. The requirements of that Practice Direction cannot properly be circumvented. But as a short term measure, pending the consideration by the appropriate level of judge of a civil restraint order, the form of order made by the Master has practical advantages. Ward LJ set out the Master's order in full at para 4 of his judgment. He did not specifically comment on para 4, but plainly he did not overlook it. To that extent it carries the implicit approval of the Court of Appeal.