Nigel Smith v Advfn Plc and Others
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE EADY,Mr Justice Eady |
| Judgment Date | 25 July 2008 |
| Neutral Citation | [2008] EWHC 1797 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case Numbers: HQ07X03107, HQ07X01546, HQ07X01547, HQ07X01599, HQ07X01732, HQ07X02617, HQ07X02619–HQ07X02621, HQ07X02925, HQ07X03076, HQ07X03106, HQ08X00135, HQ08X00826, HQ08X00923, HQ08X01190–HQ08X01199, HQ08X01201–HQ08X01203, HQ08X01262, HQ08X01263, HQ08X01322, HQ08X01564–HQ08X01568, HQ08X01584 |
| Date | 25 July 2008 |
[2008] EWHC 1797 (QB)
The Honourable Mr Justice Eady
Case Numbers: HQ07X03107, HQ07X01546, HQ07X01547, HQ07X01599, HQ07X01732, HQ07X02617, HQ07X02619–HQ07X02621, HQ07X02925, HQ07X03076, HQ07X03106, HQ08X00135, HQ08X00826, HQ08X00923, HQ08X01190–HQ08X01199, HQ08X01201–HQ08X01203, HQ08X01262, HQ08X01263, HQ08X01322, HQ08X01564–HQ08X01568, HQ08X01584
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Aidan Eardley (instructed by Edwin Coe) for the Claimant
Richard Parkes QC (instructed by Field Fisher Waterhouse LLP) for ADVFN Plc
Andrew Katsapaou, Charles Love, Wynne Pearce and Michael Tuppen appeared in person
Hearing date: 9 June 2008
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The subject-matter of the 9 June hearing
I refer to my ruling when this litigation was adjourned on 12 May 2008, and will not repeat the background which I there attempted to summarise: [2008] EWHC 1250 (QB).
At the hearing on 9 June Mr Smith had the advantage of being represented by Mr Eardley, who developed the case for lifting the stay imposed by the Master on 25 April and proposed a number of directions for the most convenient way of progressing all the cases so far issued and outstanding. ADVFN Plc was represented by Mr Parkes QC and a number of defendants appeared and made submissions in person. Others had written to me beforehand setting out their individual concerns.
While Mr Parkes submitted that the stay should remain in place for the time being, at least until some outstanding costs orders (totalling about £25,000) were complied with, he nonetheless recognised that there was a prima facie case against ADVFN in libel. That claim raises one issue which is unique to the company, namely the pleaded defence under s.1 of the Defamation Act 1996, which Mr Eardley suggested was apt for preliminary disposal. Mr Parkes reserved his position for the time being as to whether his client might wish to take any other pre-emptive argument (for example, based on qualified privilege or abuse of process).
Meanwhile, the Defendants who appeared in person and those who made submissions to me in writing seek to maintain the stay in place and, in some cases, there has been a suggestion that the individual claim should be struck out as having no realistic prospect of success (either because at least one defence is bound to succeed or because the litigation in its context may be regarded as an abuse of process). No formal applications were made for this purpose and the Claimant did not therefore have a chance fully to address the point.
One of the matters which the Master referred to me for consideration was whether or not the circumstances would justify the making of a civil restraint order against Mr Smith. Some of the litigants in person also canvassed this possibility. Before I could make an extended order I would need to be satisfied that he has persistently issued proceedings or applications that can be categorised as totally without merit.
There is no doubt that a significant number of Defendants are troubled by the prospect of long drawn out and expensive litigation which they cannot afford and in respect of which they may have no realistic prospect of recovering costs even in the event of ultimate success. As I mentioned in my earlier ruling, Mr Smith is exempt from paying court fees and may reasonably be presumed to have no significant funds with which to meet any costs order. That fear is naturally confirmed by his apparent inability, so far, to pay the costs already outstanding in favour of ADVFN.
The Defendants who appeared before me were Mr Wynne Pearce (HQ08X01194), Mr Charles Love (HQ07X03076), Mr Andrew Katsapaou (HQ08X01569) and Mr Michael Tuppen (HQ08X00135). They made their submissions with economy and restraint and helped me to put matters in context.
The Claimant's inability to fund the litigation
I turn first to ADVFN. It is now well recognised that the court's ability to order costs to be paid as the case progresses has brought a salutary discipline to litigation, which helps to prevent things getting out of hand and tends to focus minds on priorities and proportionality. That is especially so with those who are free from the usual discipline imposed by the requirement to pay court fees when issuing proceedings or applications.
It is obviously a relevant question to ask whether someone who had to pay court fees would have thought it proportionate to any legitimate gain to issue 37 sets of proceedings (with apparently more to come). If there is a genuine desire for vindication over any significant defamatory allegation, it is reasonable to suppose that this objective could generally be achieved by a more targeted strategy. Inevitably, one is left with the impression that Mr Smith and his solicitors are determined, as I described it on 12 May, to pick off the potential defendants one by one and to make it clear to them that it would be cheaper to apologise and pay up at an early stage. It may be, therefore, that his fees exempt status is being used as a tactical weapon. What is more, one of the common complaints from the litigants in person is that this impression is confirmed by the failure to comply with the defamation protocol by spelling out the exact nature of the complaint before issuing proceedings.
It may be true that a significant number of actions were started in March of this year in order to avoid a limitation defence, with more flesh to be put on the bones later, but that does not explain why nothing was done before that date. Norwich Pharmacal applications had been made in April 2007, but no steps were thereafter taken. No explanation has been given for this delay. Obviously in the absence of any explanation the question arises whether there is indeed a genuine need for vindication or compensation.
I am asked to scrutinise these cases with particular care having regard to the principles addressed by the Court of Appeal in Dow Jones Inc v Jameel (Yousef) [2005] QB 946 (cited in my earlier ruling) and to ask whether they actually represent, in each case, a genuine attempt to vindicate Mr Smith's reputation and whether there is any legitimate or tangible advantage to be gained which outweighs the considerable demands which would be made upon public and private resources. (As Mr Tuppen pointed out, the public purse has already been effectively subsidising the strategy through the fees exemption.)
For the moment, at least, I see no reason why ADVFN should continue to be vexed with this litigation until Mr Smith complies with the outstanding costs orders. They cannot simply be ignored.
The nature of bulletin boards
It is necessary to have well in mind the nature of bulletin board communications, which are a relatively recent development. This is central to a proper consideration of all the matters now before the court.
This has been explained in the material before me and is, in any event, nowadays a matter of general knowledge. Particular characteristics which I should have in mind are that they are read by relatively few people, most of whom will share an interest in the subject-matter; they are rather like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or “give and take”.
The participants in these exchanges were mostly using pseudonyms (or “avatars”), so that their identities will often not be known to others. This is no doubt a disinhibiting factor affecting what people are prepared to say in this special environment.
When considered in the context of defamation law, therefore, communications of this kind are much more akin to slanders (this cause of action being nowadays relatively rare) than to the usual, more permanent kind of communications found in libel actions. People do not often take a “thread” and go through it as a whole like a newspaper article. They tend to read the remarks, make their own contributions if they feel inclined, and think no more about it.
It is this analogy with slander which led me in my ruling of 12 May to refer to “mere vulgar abuse”, which used to be discussed quite often in the heyday of slander actions. It is not so much a defence that is unique to slander as an aspect of interpreting the meaning of words. From the context of casual conversations, one can often tell that a remark is not to be taken literally or seriously and is rather to be construed merely as abuse. That is less common in the case of more permanent written communication, although it is by no means unknown. But in the case of a bulletin board thread it is often obvious to casual observers that people are just saying the first thing that comes into their heads and reacting in the heat of the moment. The remarks are often not intended, or to be taken, as serious. A number of examples will emerge in the course of my judgment.
The Defendants who appeared in person
Several of the Defendants have made the point that Mr Smith would be well aware of all this and that he has shown himself to be unrestrained in “dishing it out”. Indeed, some of the remarks of which he now complains were themselves prompted by the way he was behaving towards others. In particular, he had been very critical of someone known as “Wiganer”. This led in turn to criticisms of his behaviour. This was mainly on the basis that there was in his...
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