For the second time in less than a week a defendant has succeeded in striking out a libel claim on the basis that “no substantial tort” was committed.  On 13 May 2010 Mr Justice Eady struck out the libel claim in Kaschke v Osler ([2010] EWHC 1075, see our post here). 

Today Mr Justice Tugendhat struck out the claim in Hays plc v Hartley ([2010] EWHC 1068 (QB)).   Meanwhile, Mr Justice Eady was ordering a stay in the claim of His Holiness Sant Baba Jeet Singh Ji Maharaj v Singh (see the news report here).  It has been a good week for libel defendants.

We have already considered the argument in the Hays case.  In brief, the claimant is a large recruitment company and the defendant is a publicity agent who sold a story about a discrimination claim to the Sunday Mirror.   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.

In giving judgment in favour of the defendant Mr Justice Tugendhat said out that because the claimant was a corporation any damages had to be kept within modest bounds [24] and no Article 8 rights were in play – all that was relevant was Article 10 [25].   He pointed out the the reputation of the claimant had already been vindicated by a public statement withdrawing the defamatory allegations made by the employees whose story had been sold to the press by the defendant (“the Public Statement”).  In that statement the employees accepted that there was “no evidence to suggest that Hays Plc is an institutionally racist company”.

When considering whether there was any “real and substantial tort” committed such as to justify the bringing of a libel action, the Judge looked at the remedies which were available.  He said this:

“That damages would on any view be modest is accepted by [the claimant’s counsel]. In so far as the damages may have value as money they are not worth pursuing. If the Claimant pursued this action to trial and won, there is little prospect that it would be able to enforce any award that it might have. The Defendant would be unable to pay any significant part of the damages and costs that might be awarded against him. Damages in defamation actions have an additional value: they are symbolic. They mark the seriousness of the defamation and are a part of the vindication. But in the present case, the sum itself could not be so high as to add any value in terms of vindication to the Public Statement” [59].

As a result, after the Public Statement was made, the action was an abuse, as the Judge put it “There is simply nothing of value that it can achieve for the Claimant” [60].

The Judge then went on to consider an alternative abuse argument based on Article 10, holding that even if

“an award of £5,000 is a legitimate aim for the Claimant to pursue in this action at this stage, then this action is in my view not a proportionate means of pursuing it” [61]

He said that libel defences are not the only way in which the law gives effect to the principle of freedom of expression

“the Claimant must be pursuing the legitimate purpose of protecting its reputation. If it is not doing that, or if the means by which it is doing it are disproportionate, the court may have regard to the principle of freedom of expression in deciding whether or not the claim should be allowed to go forward at all” [62]

As a result, the action was struck out as an abuse of the process – although the Judge emphasised that this did not imply any wrongful state of mind on the part of the claimant or its advisers.

This case is another example of the robust exercise of the “abuse” jurisdiction in libel cases and the way in which it can be used to dispose of “insubstantial” claims where no real reputational damage has been caused.