Practice and Procedure


PUBLISHED September 22, 2003

The defendant's application to strike out a libel action was dismissed, as the interference with the claimants' rights under Art.6 European Convention on Human Rights would be more serious if the application was granted than the interference with the defendant's rights under the same Article if the application was refused.Application by the fourth and only remaining defendant ('W') to strike out a libel action yet to proceed to trial. The claimants ('P') were the parents of a child who died in 1990 of a disease that was not diagnosed in time for treatment. P complained about the treatment their son had received from a hospital and a number of general practitioners at the medical practice where he had been a patient, including W. They brought a claim in negligence, an application to the European Commission of Human Rights and a complaint to a medical service committee, all of which were unsuccessful. There were also two police investigations, an inquest into the child's death and an enquiry by the Welsh Office. In a television programme broadcast in November 1992, P made complaints against the general practitioners, including W, that amounted to allegations of criminal conduct. In response to the programme, a notice was posted in the surgery reception area dismissing the allegations in respect of the practice. A writ for a libel action was issued in November 1995 against W and his colleagues in respect of that notice. On his application to strike out the libel action, W submitted that: (i) the proceedings were not brought to vindicate P's reputation but to preserve a potential forum in which to air their complaints should other avenues of doing so prove fruitless; and (ii) the proceedings were an abuse of process. In the alternative, W argued that: (a) P was responsible for delays not only in issuing the proceedings but also since the action began; (b) those delays made a fair trial impossible; and (c) a fair trial within a reasonable time under Art.6 of the European Convention on Human Rights was no longer possible.HELD: (1) P was not seeking collateral advantage beyond the proper scope of the action. There was a genuine desire to vindicate their reputation, although the motive for bringing the action was, to a large extent, to find the truth if possible. (2) P could not rely on the hopeless negligence proceedings as a good excuse for the inordinate delay in progressing with the libel action. However, given that a second police investigation had commenced in late 2000 and that the inquest had opened in December 2000, P's persistence in following those avenues was not hopeless or abusive. A serious miscarriage of justice could have resulted if steps had been taken to strike out the libel action or proceed to trial before completion of the investigations. (3) Given the particular circumstances, neither the purpose of the proceedings nor the manner in which they had been delayed had been an abuse of process. (4) A fair trial of the libel action was not precluded by the delay that had occurred. (5) Assuming a trial of the libel action took place even in one year's time, such a trial would not be within a reasonable time as required under Art.6(1) of the Convention. However, as already held, that delay was not P's fault. There was an apparent failure of public authorities to conduct appropriate investigations, the outcome of which it was reasonable for P to await. The court had to consider the extent of the proportionate interference that refusing or granting W's application would occasion to W's right to a fair trial within a reasonable time and P's rights to access to justice. Granting a stay would constitute a serious injustice to the P in preventing them from establishing their good name in the courts. The corresponding injustice to W in refusing a stay would be less serious as a fair trial remained possible on the facts of the case. Therefore, W's application was refused. (7) That conclusion also took into account the overriding objective of the Civil Procedure Rules 1998 SI 1998/3132 as stated in CPR 1.1. (8) Whilst P had not served a reply to the amended defence within time, the court should not consider staying or striking out the action on that basis.Application dismissed.

[2003] EWHC 2160 (QB)