A long-running saga came to an end at the High Court in London on 7 October 2011, in Adelson v Anderson [2011] EWHC 2497 (QB).  Judgment was given by Tugendhat J on an application to strike out a libel claim which had its origins in 2004, and which was largely based on allegations similar to those already the subject of a Statement in Open Court by Associated Newspapers, in an action by the same Claimant in 2008.

As well as addressing the impact of delay on such a claim, and the extent to which it can make it an abuse of process, the decision also focuses on the relationship between English and American defamation law, a subject of interest to litigants and campaigners on both sides of the Atlantic.

The Facts

Mr Adelson is a well known American businessman whose company, Las Vegas Sands Corp, develops and runs gaming resorts in the United States.  Ms Anderson is the International Affairs Co-ordinator of the trade union ‘Unite Here’. The words complained of, which exclusively concerned events in the USA, were published against the background of government proposals to reform UK gaming laws and establish ‘super’ casinos in Britain at the beginning of the last decade. The Defendant appeared on behalf of her trade union at a fringe meeting of the Labour party conference, run by British trade unions, in Brighton in September 2004. A pamphlet accompanied a  talk she gave about the Claimant’s business practices and history. Both talk and pamphlet made allegations about Mr Adelson personally, and about his approach to business and politics, which were serious enough to shock some of those present.

The history of the claim itself is long and convoluted. It was made for damages and an injunction, was issued in September of 2005 and served in March 2006. Orders and other directions relating to it were made in early 2007 but not complied with. Instead, a trial date which was fixed in July 2007 for the following year was adjourned so that an action by the same Claimants against Associated Newspapers, in respect of an article published in the Daily Mail at about the same time, could be allocated to the designated dates. That second action was settled by a Statement in Open Court in March 2008. The Claimant made attempts to get the ball rolling again after the settlement, and an unsuccessful mediation eventually took place in early March 2011. In its wake, the Claimants’ solicitors again stated their intention to proceed, the Defendants noting on their part the four year delay since the orders made in 2007. The Defendants then issued the application notice asking for the claim to be struck out for abuse of process under CPR 3.4 (2) (b), saying that the action would serve no useful purpose.

The Decision

The judgment examines the gravity of the defamation alleged by the Claimant in the context of the passage of time caused by delays in the litigation process. Tugendhat J focused on the vague evidence given by the Claimant, noting that it related to press reports in 2004 and 2005, and that the words complained of have not been repeated since that time. He stated that a lack of repetition over such a long period is a factor that the court can take into consideration in its assessment. While some libels may be so serious that they “remain damaging for many years or even a lifetime”, or are “incapable of eradication”, there are others which are diminished by the passage of time. Statutory support for this approach is found in the reduction of the period of limitation for libel claims from three years to one year in the Defamation Act 1996.

Also worth noting with regard to the gravity of the allegations is the relevance of the trade union/employment context in which they were made:

 “Strong words published by trade union leaders about an employer are part of common discourse in public life in England and Wales. A reasonable reader will recognise the interests of the speaker, and make allowance for that.”

The inferences to be drawn from the lapse of time between the initial publication and the renewal of interest in the claim were that the Claimant ceased to have the intention to prosecute the action to trial, and that he did not regard the allegations as particularly grave at the time. Little would have been achieved by his defeating the defence of justification at trial, particularly given the inclusion of the defence of qualified privilege. Further, the Claimant had no real prospect of obtaining an injunction, with no threatened repetition of the words in England and Wales, and no restraint of publication possible in the USA.

The time which the case would have taken to try was also a key factor in the decision, with considerable resources required, including assistance from expert witnesses on the complex issues raised on the pleadings surrounding labour disputes, regulatory matters and political donations in the USA. Given the assessment of the gravity of the defamation alleged, what was at stake did not justify the deployment of the potential resources required. The action was struck out.

Comment

The first point of interest concerns delay.  The decision outlines an apparent variation on the Jameel v Dow Jones ([2005] EWCA Civ 75) jurisdiction to dismiss a claim for abuse of process. Rather than being dependent on the balancing of reputational interests against time and costs, its availability arises from a more nuanced set of circumstances. The question of what is at stake may change over time: allegations which are serious when they are made can, where an action is not pursued vigorously, become a less cogent justification for the deployment of the court’s resources.

A further variable can be found in the subsequent fate of the Claimant. Where he is, as in this case, a businessman who carries on other activities in the aftermath of the allegations and does not suffer continuing damage from their repetition, that will influence the judgment of a reasonable person who is assessing his reputation.

If one is to attempt to clear one’s name and seek vindication through the courts, the decision underlines that it must be sought urgently; intermittent pursuit of the claim, even where it progresses to mediation proceedings, is not sufficient . Nor is showing a later interest in it, as the Claimant did here by attending the hearing.

Secondly, there is a point concerning the position in the United States.  The judge went into detail on a point made for the Defendant – and rejected – about the relevance  of the fact that an award of damages would be unenforceable in the USA. A witness statement referred to advice received from a practising American lawyer on the SPEECH Act, a federal version of the ‘Rachel’s Law’ statute introduced in New York State following a campaign by the Defendant in Bin Mahfouz v Ehrenfeld ([2005] EWHC 1156 (QB)] (a case in which an American author was found to have libelled a Saudi billionaire in a book published in the USA). The two statutes declare that foreign judgments for defamation will not be recognized by domestic courts unless they determine that

“the defamation law applied in the foreign court’s adjudication provided at least as much protection for freedom of speech and press in that case as would be provided by the first amendment to the Constitution of the United States”

Given the rather triumphalist tone of much of the US popular and academic commentary on this development, Tugendhat J, while making clear that an English court “should express no view about the law of the USA”, made a welcome survey of the position on the law surrounding freedom of expression and reputation in the two jurisdictions.

The presumption of falsity in English defamation law is something which critics both here and abroad have consistently fixed on, and is frequently mentioned in relation to the SPEECH Act. But the judge observed that in almost all cases that come to trial here, claimants choose to assume the burden of proving the falsity of allegations, whether required to in law or not, since unless they do so they are not likely to obtain substantial damages or an injunction. He used the Bin Mahfouz litigation which prompted the enactment of the U.S. statutes as an example of a case in which the claimants did provide evidence to the court that the allegations against them were false, in order to obtain a declaration of falsity under the Defamation Act 1996. The pointed reference suggests that the case may not have been the rock solid foundation for legislation in the US that some made it out to be. Similar principles often apply to proof of malice, and on this he cited his own very recent decision in Thornton v Telegraph [2011] EWHC 1884 (QB).

A point which the judge observed was not addressed in the witness statement on jurisdictional conflict is one which might prove crucial in future cases – the question of how the US legislation would apply where an English court found proof of falsity and malice to the same level as would be required in the USA. References to the extra protections offered for freedom of speech under English law in recent years, and to the question of how US courts would address freedom of speech protections guaranteed under English law but not across the Atlantic, suggest that the big  picture is far more complex than either the witness statement in the case or much commentary suggests: a glib dismissal of English defamation law by US defendants would, it seems, be unwise.

Gervase de Wilde is a student barrister and former journalist at the Daily Telegraph