Rick Kordowski, who owns the ‘Solicitors from Hell’ website, attempted last week to persuade Tugendhat J that he should be granted summary judgment on his slander claim against Des Hudson, the Chief Executive of the Law Society.  This failed and instead the Court granted Mr Hudson’s cross application and struck the slander claim out as an abuse of process ([2011] EWHC 2667 (QB)).

In making the order for strike out Tugendhat J said that while someone who is bankrupt is entitled to access to justice, the fact that he does not have to pay court fees or fears the risk of being ordered to pay the costs of a successful defendant means that he does not have to conduct the usual costs analysis of whether the litigation is worthwhile. This analysis was therefore something the court would do in the exercise of its case management powers.

Mr Kordowski sued Mr Hudson in slander over a conversation that Mr Hudson had had with Professor Flood on 21 July 2011, which was posted on Professor Flood’s weblog. Professor Flood had written:

 “As I came out of the BBC yesterday with Des Hudson the Chief Executive of the Law Society he said Rick Kordowski was a criminal. I reminded Des that the police didn’t think so. He wasn’t happy.

We’d both been invited to discuss Solicitors from Hell on Radio 4’s You and Yours consumer affairs programme…”.

The Judge first noted that it was unusual for Mr Kordowski to have sued the alleged speaker of the words in slander in circumstances where the publication of the words complained of was on the Internet.   In slander there is a risk that there will be a dispute about the words actually spoken, and damages for slander to a single publishee are likely to be modest compared to damages for libel to the entire world.  The other reason is because bringing proceedings is expensive; however the Judge noted that Mr Kordowski is a bankrupt and accordingly he does not have to fear the risk of being ordered to pay the costs of a successful defendant even if his action were to fail.  Whether the costs of the proceedings are proportionate to the reputational and financial issues at stake is something therefore that the Court needs to take into account. Tugendhat J stated:

 “Mr Kordowski’s personal financial circumstances are not a reason why he should be precluded from suing for defamation. A bankrupt has as much right to access to justice as anyone else. But since bankruptcy may mean that a claimant does not have to decide whether or not the costs of proceedings are proportionate to the reputational issues and financial risks involved, the court is more likely to have to make that decision itself, in the exercise of its case management powers, in accordance with the Overriding Objective (CPR Part 1).” [5]

Mr Kordowski was applying for summary judgment under Section 8 of the Defamation Act 1996 (“the 1996 Act”).  The Judge found that this was not a case where summary disposal was appropriate:

Firstly the Defence served by Mr Hudson claimed that the conversation in issue did not use the words complained of. Mr Hudson said that following an exchange between himself and Professor Flood about Mr Kordowski’s methods of collecting payment to remove comments from the Solicitors from Hell website, what he had said was, “In my view this amounts to criminal behaviour which is why we have reported him to the police”.   There was therefore a conflict of evidence, which is a factor under section 8(4)(c) of the 1996 Act which the Court should have regard to when determining whether summary judgment was appropriate.

Secondly, while the allegation was a serious one relating to criminal behaviour, it was publication to single publishee and an allegation which Mr Kordowski had voluntarily republished on his own website when reporting about his legal action. The seriousness of the alleged wrong is a factor that the Court as to take into account under section 8(4)(d) of the 1996 Act and the low level of seriousness in the present case meant that summary judgment was not appropriate. Tugendhat J noted:

“Those who have suffered injury to their reputations and distress by reason of defamatory words published to the world at large do not commonly choose to repeat those allegations and republish them to the world at large. It is an unusual feature of this case that Mr Kordowski is not concerned to prevent republication, but has himself participated in republication of the words he complains of. That suggests that he does not share the objective that defamation claimants usual have, namely to prevent republication of the words complained of.” [35]

However the low level of seriousness of the allegation was also a factor relevant to Mr Hudson’s strike out application and supported that application. In addition there was no evidence of any real or substantial harm to Mr Kordowski and it would not be just to allow the case to proceed further bearing in mind the factors that need to be taken into account on the overriding objective. The Court therefore struck out Mr Kordowski’s claim as an abuse of process.

Comment

This decision follows others where actions have been struck out as a result of limited publication, see Wallis v Meredith ([2011] EWHC 75 (QB)), Bezant v Rausing [2007] EWHC 1118 (QB): McBride v Body Shop Int Plc [2007] EWHC 1658 (QB) and Noorani v Calver [2009] EWHC 561.  The important development in this case is that the Court took into account the fact that the Claimant was a bankrupt when considering the overriding objective of whether it was just for the action to continue.  The fact that a bankrupt claimant would, at best, recover minimal damage at huge expense to the parties and of court time, and if s/he loses would not be able to meet any adverse costs order that might be ordered is one that a court will take into account on a strike out application. This builds on cases such as Khader v Aziz [2010] EWCA Civ 716 where the Court struck out an action in which the appellant would at best recover minimal damages at huge expense to the parties and court time (see Khader [32]).

The case also serves as a reminder about the principle set out in Rassam v Budge [1893] 1 QB 571 and the relevant defences in slander case where there is a dispute as to what words were spoken.  The words which Mr Hudson claimed he said (“In my view this amounts to criminal behaviour which is why we have reported him to the police”) were comment, however in such circumstances a defendant cannot put forward a plea of fair comment as the defence must relate to what words the Claimant alleges were spoken.  A defence of fair comment would therefore be irrelevant and could be struck out.  If the action had continued and at trial it was found that the words spoken were not those suggested by Mr Kordowski, but those suggested by Mr Hudson then Mr Kordowski’s claim would have failed.

Sara Mansoori is a barrister specialising in media law at Matrix Chambers