The recent decision of the Mr Justice Christopher Clarke in Wallis v Meredith ([2011] EWHC 75 (QB)) resulted in the Claimant’s case being struck out on the basis that there had been no real or substantial tort following Jameel v Dow Jones & Co Inc ([2005] QB 946).   The Defendant, Mr Meredith, had been an employee of the claimant company which had been founded by Mr Wallis. Following Mr Meredith’s redundancy the relationship between the parties broke down and the Claimants instructed Mishcon de Reya who began to correspond with Mr Meredith on their behalf. During the course of the correspondence Mr Meredith alleged in a letter to the Claimants’ solicitor that “two burly men with Eastern European accents threatened him” and that he suspected the Claimants of being behind the attack. The Claimants sued on that allegation and the Defendants applied to strike out the claim on Jameel grounds.

Mr Justice Chistopher Clarke did not accept the Claimants’ argument that further publishees could be inferred as a result of Mr Meredith’s repeated failure to confirm that he had not repeated the allegation to others (an inference that Mr Justice Tugendhat had found “entirely baseless” at an earlier hearing.). The judge stated that the court must determine whether there is a real and substantial tort by reference to the tort complained of in the Particulars of Claim. In the present case he noted [60]:

“The publication relied on is to one person only, who is the claimants’ solicitor. I doubt that he is likely to have thought the worse of his client on account of it particularly in the light of his client’s denials; and there is no evidence to that effect or of any harm from that publication or even of any concern on the part of Mr Wallis as to what Mr Morallee might be thinking of him. Although, as Eady J put it in Mardas v New York Times Company [2009] EMLR 8 at 15 “whether there has been a real and substantial tort within the jurisdiction (or arguably so) …cannot depend upon a numbers game”, each case must be determined on its own facts, and much may depend on the identity of the publishee(s) or the publisher, the publication relied on is as numerically minimal as it could get, and was to the claimants’ professional agent, who was acting in respect of a commercial dispute with Mr Meredith. It does not seem to me that the claimants require vindication in respect of such a publication to a solicitor who has been busily engaged in stating that the allegation is false; and that any “vindication” by success in the action will be illusory or, at best, minimal.”

The judge also noted that solicitors are routinely the recipients of defamatory imputations about their clients. He stated that such publications are likely to be covered by qualified privilege on the basis of a common and corresponding interest, and perhaps of absolute privilege, so that any claim based on them will in the end be likely to fail. As such “the court is entitled, in the light of the overriding objective and the interests of proportionality, to discourage and prevent the use of its time, at great expense, on actions in which the only publishee is the claimant’s solicitor and thus someone in the claimants’ camp” [61].

Discussion

This decision, like previous ones in Bezant v Rausing [2007] EWHC 1118 (QB): McBride v Body Shop Int Plc [2007] EWHC 1658 (QB) and Noorani v Calver [2009] EWHC 561 confirms that the Court will look carefully at claims in order to determine whether there is any real or substantial tort or that there would be any tangible or legitimate advantage to their continuance such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources.  The test as to whether or not there was a real and substantial tort is the same test as applied in deciding whether to grant permission to serve out (following Jameel).

While the determination of this test has been said in Mardas v New York Times Company [2009] EMLR 8 not to be a “numbers game”, numbers play an important part in determining whether the action is an abuse of process. Here the fact that the publication was only to one person who was in the Claimants’ camp was an important factor in the Court’s decision. Similarly, in Bezant v Rausing, where the claim was struck out as an abuse of process, publication of the alleged libels was confined to two individuals, one of whom was at the time Mr Bezant’s accountant and the other his daughter.

Finally, there is useful guidance on setting out a claim for slander. While the precise words used and the names of the persons to whom they were spoken (and when) must, so far as possible, be set out in the Particulars of Claim if not already contained in the Claim Form (CPR PD 53 para 2.4) the Court confirmed the narrow exception summarised by Sharp J in Freer v Zeb & Ors [2008] EWHC 212 (QB) [31]. This exception applies if it would be unreasonable for the Claimant to identify the publishees, or if it is reasonable to suppose that the provision of further information or disclosure by the defendant will identify the publishee concerned then the claim may be allowed to stand pending such disclosure. In such circumstances, providing the claimant can show by uncontradicted evidence that publication by the defendant has taken place and that he has a good cause of action in defamation, the name(s) of the publishees need not to be given.  This exception did not apply to the facts of this case.