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
		12/04/2013

MRS JUSTICE NICOLA DAVIES:

1. This is the defendant's application for:

i) A ruling on meaning pursuant to CPR 53 PD para 4.1 that the words complained of ("the WCO") in the full and proper context in which they were published were not capable of bearing the meaning pleaded in paragraph 10 of the Particulars of Claim or any meaning defamatory of the claimant;

ii) Further or alternatively, that the claim be struck out pursuant to CPR 3.4(2) and/or the defendant be granted summary judgment pursuant to CPR Part 24 because:

a) the claimant has no real prospect of establishing that there was any substantial publication of the words complained of in a manner bearing the meaning complained of or any meaning defamatory of the claimant;

b) the claimant published the key parts of the words complained of himself and/or consented and/or acquiesced to publication of the words complained of, and/or has raised any right to complain of publication; and

c) no or no real damage has been caused to the claimant by any publication of the words complained of:

such that the claimant has no real prospect of succeeding in the claim in that the Particulars of Claim disclose no reasonable grounds of bringing the claim and as such the claim is an abuse of the court's process.

2. The claim arises from a discussion forum thread posted on the Scoobynet website. The thread was posted between 6 to 24 November 2009, specifically the words complained of were posted by the defendant on 22 November 2009.

Background

3. The claimant described himself as a noted figure in the online community with an interest in Subaru cars, providing technical mechanical work and trading Subaru parts. Ninety percent of his business was created through his activities within a website called Scoobynet, which is dedicated to Subaru cars. His commercial profile was said to have been achieved through advertising on the site and posting advice in the many discussion forums on the site. By 2009 when the WCO were published, the claimant stated that he had established a reputation within Scoobynet as a trusted expert and as a dealer who supplied goods at a fair price and who was also a Subaru hobbyist himself. The claimant went onto Scoobynet using his real name, Harvey, and "Harvey" is known to be him.
4. The defendant was a director of companies named as Aztec Performance Ltd which were dissolved in June 2009. Aztec was also involved in the advertising and selling of parts for Subaru cars. The defendant has used the name "Bob 5" on websites including Scoobynet. The defendant used the Scoobynet website and others in order to sell car parts.
5. During 2002 the claimant began his work on Scoobynet by organising "Group Buys" for individuals interested in purchasing the Hybrid Front Mount Intercoolers ("FMIC"), a specialist part for Subaru cars. Both the claimant and the defendant sold the FMIC on Scoobynet. In 2008, there was email correspondence between the claimant and the defendant relating to the price at which the specific part should be sold. It is the claimant's case that the defendant proposed that they should be sold at the same price on the basis that only the claimant and the defendant sold this particular part on Scoobynet. The claimant rejected the proposal as unethical and contrary to the interests of Subaru enthusiasts using Scoobynet. It is the defendant's case that it was the claimant who first proposed price fixing, suggesting in a telephone call that he and the defendant, on behalf of Aztec, should come to an agreement that would be "mutually beneficial".
6. On 6 November 2009, a discussion thread entitled "Just fitted FMIC on MY99 from Harvey" was posted on the Scoobynet website by a regular contributor. In the ensuing days, entries were posted dealing with the technical details of the relevant parts and the quality of service provided by the claimant.
7. On 22 November 2009 the claimant and the defendant posted entries on to the thread which concerned price fixing. Included in the thread was the defendant's response to the claimant which contained the WCO. It read:

"Harvey, YOU proposed the price fixing over the phone ("mutually beneficial" was the exact term) and I didn't see many other options considering the way you put it. It was a case of 'back off competing with the small line of products I do or else'. You then proceeded to deliberately get me to say things on email in agreement.

Our prices do the talking, one of your friends on this thread supplies the same product for around £577 delivered!!..."

The claimant refuted any suggestion that he had been responsible for or included in any price fixing.

8. In October 2012 the defendant's application was heard and written and oral submissions were received by the court. Judgement was reserved.
9. On 9 November 2012 Mr Hirst, Counsel on behalf of the claimant, informed the court in writing that Mr Smith had died on 7 November 2012. Mr Hirst further stated that as a defamation action is a personal action, expressly excluded from Section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 ("the 1934 Act"), the action is not transmissible to the estate of the deceased. There is nothing for the court to make any order in respect of, the action having abated.
10. In a written note, the defendant expressed his condolences at the death of the claimant. On his behalf it is agreed that the death of a party to a defamation claim causes the claim to abate. However, it was submitted, abatement following the hearing of an application does not prevent judgment being given: Cumber v Wane 1993 ER 613; [1721] 1 Str. 426. It is well established that a litigant should not be prejudiced by an act of the court: Turner v London & South-Western Railway [1874] 17 L.R.Eq. 561. Based upon this principle, in cases where argument has concluded, the court has reserved judgment but the plaintiff has died before judgment has been entered, the court has given judgment: Hubert v DeCamillis [1963] 41 D.L.R. (2d) 495 (B.C.S.C.) at 515 – 517.
11. The defendant concedes that the practice of the court in giving judgment nunc pro tunc as of the date of close of argument appears to be closed by CPR 40.7(1) which states:

"A judgment or order takes effect from the day when it is given or made, or such later date as the court may specify."

However, the defendant contends that this rule should not, and cannot have been intended, to lead to a party being prejudiced by a court reserving judgment.

12. In a written reply to the defendant's note reliance is placed by the claimant on the provisions of CPR 40.7. It being submitted that the authorities upon which the defendant relies have been rendered obsolete by its operation. The point is made that the power was previously abandoned pursuant to RSC Order 42 r. 3(2) namely that a judgment may take place on an earlier date. Reliance is placed upon Stead v Foster a decision of the Supreme Court of New South Wales no. 11932 of 1193 in which Levine J held that in a defamation action the jurisdiction of the court ceases at the date of death because the action abates and becomes defunct. The common law principle of actio personalis moritur cum persona applies. There is no jurisdiction to revive an abated personal action such as defamation after the death by any party. Further, Mr Hirst stated that his retainer and that of his solicitor ceased upon Mr Smith's death. By reason of Section 1 of the 1934 Act the legal advisors have no instructions from the executors of Mr Smith's estate.
13. It is the claimant's case that the consequence of applying the principle actio personalis moritur cum persona is that there is no jurisdiction to hand down judgment. Lord Wright in Rose v Ford [1937] AC 826 identified the unsatisfactory nature of this principle however, in terms of the practicalities of defamation actions, it is said to be correct. No one other than a claimant can give reliable evidence about his or her feelings or distress. No one other than a defendant – should a defendant die – can give reliable evidence to rebut a plea of malice. It cannot be right that some libel actions abate and others do not, depending on the arguments raised in them or the stage of proceedings. It is suggested that this was the thinking of Parliament when passing Section 1 of the 1934 Act with the effect that a libel action died with the relevant litigant. The defendant would not be able to appeal an adverse judgment nor would the claimant. Any question of prejudice is evenly weighed.
14. As to the operation of CPR 40.7, the claimant relies upon the Note at 40.7.1 which states:

"Effect of Rule

For reasons too numerous to mention, the fixing of the day when a judgment or order takes effect…may be important, not only to the parties but also to third parties affected by it. So it is important that there should be no room for doubt…in terms, r. 40.7 speaks of a judgment or order taking effect at a "later date". This raises the question whether the date has to be specified, or whether it is sufficient if it is to be calculated by reference to a particular event…where the practice of making a reserved judgment available to parties in advance of its delivery…is followed, at that time the judgment is not being "given or made" within the meaning of r. 40.7…it may be noted that, whereas former RSC ORD. 42 r. 3(2) provided that the court could direct that an order should be dated "as of some other earlier or later day" as the court may specify, r. 40.7 confines the alternative date to "such later date" as the court may specify (Rowan Company Inc v Lambert Eggink Offshore Transport Consultants V.O.F. [1999] to Lloyds rep. 443."

15. It is difficult to accept the defendant's submission that CPR 40.7 cannot have been intended to lead to a party being prejudiced by a court reserving judgment given the amendment of the rule deleting the earlier provision relating to an "earlier" day and specifically including the phrase "such later date". In my view, the wording of the rule is clear and does not permit an earlier date to be inserted for the day of any subsequent judgment. Further, the practical difficulties arising in a defamation action should one or other party die could serve to illustrate why, within this narrow context, an action would abate. Accordingly, I am satisfied that this cause of action abated on 7 November 2012 upon the date of the death of the claimant. There is no provision within the CPR to backdate any subsequent judgment. Accordingly, no judgment will be given.