On Thursday 12 May 2010, Mr Justice Eady struck out the libel action brought by Tower Hamlets-based Conservative Johanna Kaschke which she had begun on 28 April 2008 in respect of a blog posting by local labour party member David Osler on 7 April 2007 – in other words, three weeks after the limitation period expired for the initial publication. The Blog was entitled “Respect Member’s Baader-Meinhof ‘link’ ”. There is a report of the judgment.
Shortly after the original posting, the defendant published a posting including the claimant’s response to the original posting. Two years after the proceedings commenced and about a week before the trail was listed to commence, the defendant obtained legal representation and sought to amend his defence and applied to strike out parts of the claim on various grounds of limitation, no defamatory meaning and consent and to strike out the whole claim on the grounds that it was an abuse of process and “not worth the candle“in pursuing the case in accordance with the Court of Appeal decision in Jameel v Dow Jones  EWCA Civ 75
The judge appeared to doubt whether the article as a whole was defamatory, although there was no formal application to strike out the whole action on that basis. He said nevertheless;
“It is clear from Mr Osler’s wording in the offending post that he was quite prepared to accept Ms Kaschke’s denial of any wrongdoing and the fact that she had been compensated for wrongful imprisonment. I am quite satisfied that the posting does not link her to terrorism, in the sense of suggesting in any way that she was directly linked with it or that she approved of the extremist activities. He was merely choosing to highlight an unusual event in the history of someone who was at the material time active in politics in London. He was, in effect, taking her own assessment of the situation at face value. He went on, as a matter of comment, to point up the irony that she was now linking herself with another political grouping, the Respect Party, which contained members who thought (at least according to Mr Osler) that terrorism or assassination could in certain circumstances be morally justifiable.”
The judge noted that the headline did not refer to the claimant by name and in accordance with normal libel principles the reader is taken as reading the article as a whole. The article as whole accepted the claimant’s denial that she was guilty of any wrongdoing.
In relation to limitation, the judge found no justification to extend limitation to the first publication and held that the claimant would have to prove any later continuing publication taking place within 12 months prior to issue of proceedings.
In relation to the abuse argument the judge held that in the light of the meaning of the posting, the effect of the reply and hence the limited nature of the claim, the costs to be incurred and the time involved would far outweigh the limited benefit and damages that could be obtained at trial, even if the claimant were to succeed against the proposed defences of fair comment, qualified and (a very limited plea of) justification.
“The question arises, therefore, whether in the light of what actually appeared on Mr Osler’s posting, in April 2007, and in the light of the right of reply published on 26 May 2007, there is anything to be gained from the continuation of these proceedings by way of the legitimate objectives of any defamation action, namely the vindication or restoration of the claimant’s reputation. Is there anything requiring vindication? Needless to say, that question has to be judged by reference to any marginal damage that may have been done to Ms Kaschke’s reputation by Mr Osler’s posting over and above the impact on it of her own posting coupled with the republication of the 1975 Spiegel article.”
The judge commented that the fact of being sued for libel was an interference with freedom of expression in itself and the court must therefore be vigilant to recognise the small minority of cases where the legitimate objective of vindication is not required or, at least, cannot be achieved without a wholly disproportionate interference with the rights of the defendant.
For more serious allegations for example where there are damaging allegations of dishonesty, the Courts may be relectant to exercise this abuse jurisdiction, even where the extent of publication is limited since it deprives the claimant of the opportunity to vindicate his reputation see for example the decision of Mrs Justice Sharp in Stelios Haji-Ioannou v Mark Dixon  EWHC 178 (QB. However, this is the fourth libel action in the last two years that has been struck out under this abuse jurisdiction. The other three are Williams v MGN Ltd  EWHC 3150 (QB) and Lonzim Plc v Sprague  EWHC 2838 (QB) and Budu v BBC  EWHC 616 (QB).
The Kaschke case illustrates three important points;
- The Jameel abuse case is a flexible jurisdiction which can be used effectively and is now being used more frequently.
- Delay undermines the prime purpose of libel proceedings which is vindication and it is difficult to extend the one year limitation period unless there is concealment
- The word “link” should be avoided in headlines.