Practice and Procedure


PUBLISHED June 9, 2003

An application to strike out a defamation claim failed where there were disputed facts relevant to several issues in the case. An application for security for costs also failed as it was difficult to understand how a judge could have any significant impact on the trial judge's discretion on costs by virtue of what could only be a preliminary view as to the merits at an early stage.Application by the defendant newspaper group ('the Telegraph') in a defamation claim brought by the claimant ('K'). The Telegraph sought: (i) to strike out K's defamation claim pursuant to CPR 3.4 as an abuse of process; or (ii) for summary judgment under CPR 24.2 on the basis that the claim had no realistic prospect of success in the light of the plea of justification and/or that of qualified privilege; or alternatively (iii) that K ought only to be able to proceed with the claim upon a payment into court by way of security for the Telegraph's costs. K sought remedies against the Telegraph in respect of allegations contained in two articles published in the Sunday Telegraph dated respectively 21 October and 9 December 2001 that K was involved in terrorist activity. There was also an application to amend to plead, additionally, publications on the internet making allegations similar to those contained in the 9 December article. K sought permission to amend his particulars of claim to confine himself to a lesser defamatory implication. In addition K sought an order striking out certain parts of the Telegraph's defence as offending the repetition and/or conduct rule in that the suspicion of police officers did not support a plea of justification and in particular that they did not in themselves establish reasonable grounds to suspect. The Telegraph argued that: (i) as K's litigation was funded by a conditional fee agreement ('CFA') there would be an enormous incentive on the part of defamation defendants to buy out of litigation to save on ultimate costs irrespective of merits. This meant that solicitors might be inclined to take on cases where their own assessment of the merits was less than evens which amounted to an abuse of process and an abuse of the CFA regime; (ii) the factual allegations were incontrovertible; and (iii) that, whatever explanation might be offered, the facts gave rise to reasonable grounds to suspect K of terrorist involvement.HELD: (1) Parliament expressly extended the CFA regime to apply to defamation cases with a view to widening access to justice for the vindication of reputation. (2) The modern principles relating to security for costs as explained in Olatawura v Abiloye (2003) 1 WLR 275, were that the court should always be on its guard against exorbitant applications for summary judgment in a misguided attempt to obtain conditional orders for security for costs. The court should be reluctant to be drawn into an assessment of the merits beyond what was necessary to establish whether the Part 24 test had been fulfilled. It was difficult to understand how a judge could have any significant impact on the trial judge's discretion on costs by virtue of what could only be a preliminary and provisional view as to the merits at an early stage. (3) This case was a good example of how one's assessment of the merits of a claim could fluctuate back and forth as new points were addressed. Where there were disputed facts upon which one or more of the defences might turn, a judge should hold back from predicting the outcome and give the relevant party credit for the possibility that the facts relied upon may be proved at trial. (4) It was necessary to remember that the defence of justification depended on establishing at least "reasonable grounds to suspect" K of involvement in terrorist activity. This had to be assessed from an objective point of view and also with the proposition that K was entitled to rely upon facts outside the Telegraph's knowledge at the time of publication. (5) The relevant passages in the Telegraph's defence clearly offended a number of principles. K's application to strike out those passages would succeed. (6) K's proposed re-amendments to the claim form and amendments to the particulars of claim were also allowed. (7) The Telegraph's primary application was rejected as it was impossible to anticipate a jury's decision on any of the contested factual issues relevant to justification or qualified privilege, still less to rule that it would be perverse of a jury to accept K's case. (8) There was no doubt that there were matters requiring investigation and cross-examination.The Telegraph's applications dismissed. K's submissions upheld.

[2003] EWHC 1312 (QB)