On 5 and 6 May 2010 Mr Justice Tugendhat heard an interesting strike out application in the case of Hays plc v Jonathan Hartley. The defendant was seeking to strike out the claim on the basis of the Jameel jurisdiction or alternatively on the basis that the claimant had a “dominant collateral motive”. The claimant was, in turn, seeking to strike out the defence of qualified privilege. The case raises interesting issues as to the developing strike out jurisdiction in libel cases and the operation of the defence of qualified privilege in relation to the activities of those who sell stories to the press.
The claimant is a large recruitment company. The defendant is publicity agent (his website is here), journalist and owner of KNS News. In December 2008 three of its former employees commenced discrimination against the claimant. One of the employees contacted the defendant who, in turn, contacted a Sunday Mirror journalist and sold him the story. The Sunday Mirror subsequently published an article in relation to the employment proceedings – with the striking headline “‘KKK chants and racist abuse at top firm”. On 31 March 2009 the claimant a libel claim against the employees in relation to the publication to the Sunday Mirror for the purposes of publishing the article. On 20 July 2009 the claimant issued its action against Mr Hartley, the publication complained of being to “the Sunday Mirror” with the article being relied on solely in relation to damages.
Meanwhile, on 8 December 2009, the employment proceedings were settled and a joint statement was made in which the employees accepted that the incidents of which they complained were not motivated by racial discrimination and that there was no evidence to suggest the claimant was an institutionally racist company. They expressed “regret” that the dispute had entered the public domain through the Article. This statement can be found at the end of the article on the “Sunday Mirror” website
The cotentions advanced by the defendant in support of his strike out application can be found in the Skeleton Argument of his solicitor advocate, David Price. In short, the defendant argued that as a result of a number of factors including the fact that the publication was “minimal”, that his sole involvement was as “messenger” and the claimant was a multi-national corporation which had suffered no damage, the claim was an abuse of the process. It is also contended that the action was brought for a collateral purpose.
The claimant’s contentions can be found in the Skeleton Argument of its counsel, David Sherborne. Its basic point is that that the defendant communicated defamatory allegations to a national tabloid newspaper and must therefore prove one of the well-established „defences‟ if he is to escape liability. It suggests that the defendant is seeking to establish
“a new form of qualified privilege which might be termed “the Max Clifford‟ defence, which allows a person to publish defamatory allegations to the press in return for substantial financial gain without any possible liability”.
In relation to the defendant’s strike out application the claimant argued that although the damages were likely to be modest and the costs substantial there was still a “substantial tort” and the “strike out” jurisdiction should be exercised sparingly.
Mr Justice Tugendhat reserved judgment. We will report the judgment when it is delivered.