Smith v ADVFN Plc
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE TUGENDHAT,Mr Justice Tugendhat |
| Judgment Date | 13 December 2010 |
| Neutral Citation | [2010] EWHC 3255 (QB) |
| Date | 13 December 2010 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ/10/0845 |
[2010] EWHC 3255 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: The Honourable Mr Justice Tugendhat
Case No: HQ/10/0845
Mr Jonathan Crystal and Mr Max Eppel for the the Claimant
Hearing dates: 3 December 2010
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.
Mr Justice Tugendhat:
On 11 May 2010 the Court of Appeal dismissed an appeal by Mr Smith in respect of a number of defamation actions brought by him. The dismissal of the appeal was by consent. The proceedings had been stayed by the order of the Senior Master darted 25 April 2008. On 25 July 2008 Eady J had dismissed Mr Smith's application to set aside the Order of 25 April. The result of the Court of Appeal's decision on 11 May was the proceedings all remained stayed.
In his judgment explaining the dismissal of the appeal [2010] EWCA Civ 657 Ward LJ observed that that left the actions in a position which he referred to as being in limbo. He said this at para 9:
“It seems to me, as I pointed out to Mr Crystal early in the course of his submissions, that the effect of continuing the stay meant that these claims were in limbo. Mr Smith faced the difficulty that he could not advance them against any respondent because of the stay, and his prospects of applying afresh to lift the stay would obviously be adversely affected by the existing order. At the same time there was nothing conclusive about it. The judge recognised that he did not have formal applications before him either to strike out these claims as an abuse of process or summarily to dispose of them as having no realistic prospect of success. He did not formally have an application for any civil restraint order and could not deal with that part of the case, and so it seemed to me and to my Lords that even if the order was upheld, as our preliminary view was certainly it should be, that would not bring any sense of finality to this litigation. So we put to Mr Crystal that, in the event of the court dismissing the appeal, we should nonetheless go on to direct of our own motion that Mr Smith should show cause why each of the surviving claims should”.
The Court of Appeal therefore ordered that the cases listed the Schedule to its order be referred to the Judge in this court:
“a. for [Mr Smith] to show cause why each of the claims [other than claim No HQ07X03107] should not be struck out or be the subject of summary judgments against him;
b. for the determination of whether [Mr Smith] should made the subject of a civil restraint order”.
The Schedule listed cases in three sections:
A) under the heading “Claims that [Mr Smith] wishes to pursue if the stay is lifted”: 13 cases (including claim No HQ07X03107);
B) under the heading “Claims that have been disposed of”: 10 cases
C) under the heading “Claims that will be dealt with unless and until formal notice of discontinuance is served by [Mr Smith]”: 18 cases.
On 22 June 2010 I gave directions for that hearing to take place. The directions provided for the hearing of 12 cases in Schedule A (Claim No HQ07X03107 was excluded). The Order records that Mr Smith undertook to file notices of discontinuance in respect of the 18 cases in Schedule C. Mr Smith has since discontinued one of these 12 cases (Claim No HQ09X0452). So I am now concerned only with 11 cases.
Ward LJ summarised situation as follows:
“2. Mr Smith, the appellant, was successful some time before late 2005 in setting up an action group to recover compensation for investors in some fraudulently conducted company. Knowing of that success, and I hasten to add I do not know much about the extent of that success, investors in another company called Langbar International Limited (“Langbar”) approached him for help following the discovery of what is alleged to be serious fraud in the conduct of that company. Those approaches were made via the bulletin boards on a financial information website of a company whose website is ADVFN. com. Some days thereafter the appellant set up the Langbar Action Group website, which he says had grown to about 450 members. His efforts to secure compensation for them did not meet with universal approval, with the result that a group of shareholders and others whom he describes as “the malcontents” openly and vociferously opposed his actions. Their disaffections were “posted” on the ADVFN Langbar bulletin boards, usually under a pseudonym or an avatar, whatever that means, the appellant's name being “Anonymous”.
3. It is his case that what he calls a hate campaign which amounts to cyber-bullying has been waged against him as the messages stacked up on this ethereal bulletin board. As they stacked up, so he suggests a profusion of defamatory statements were published about him. He says that some 267 defamatory statements had been made by 71 offenders, though some may be the same person using a different pseudonym. He says that the offenders have continued to publish defamatory material and there is no sign of that abating.
4. His response was to issue claims for damages for defamation once he had determined through Norwich Pharmacal proceedings the real identity of the authors. At first these claims were assigned to different masters of the Queen's Bench but as the trickle became a discernible flood the Senior Master intervened and ordered on 25 April 2008 as follows, first:
“[the particular claim before him, being one against a Mr Murjani] and the claims listed in the Schedule to this order are to be re-assigned to Master Fontaine if not already assigned to her. [I interpolate that on the schedule were a list of 36 defendants including the eight who are the respondents to this appeal.]”
Claim No HQ07X03107 differed from the other claims. It was subject to a separate stay by the order of Eady J of 25 July 2008. That separate stay was pending payment of ADVFN Plc's costs pursuant to the orders of Mackay J dated 13 March 2008 (subsequently varied by Sir Charles Gray on 21 May 2008), of the Court of Appeal dated 15 April 2008, and of Sir Charles Gray on 23 April 2008, by which it had been further ordered that Mr Smith pay the costs of ADVFN Plc and in addition the costs ordered to be paid in accordance with that same order. By the same order Eady J summarily assessed ADVFN Plc's costs of the application before him at £14,000, the costs of Mr Tuppen and of two other respondents in smaller sums. That order remains unsatisfied to this day.
Two of the 11 cases in Schedule A of the order of the Court of Appeal differ from the other 9 in that the defendants in these 2 cases are not alleged to have defamed Mr Smith on the internet. In Claim No HQ09X04542 the Defendants are the Ministry of Justice and a member of the bar (“Mr Smith's barrister”) who had represented Mr Smith at the hearing before Eady J at the hearing on 9 June in respect of which Eady J gave his judgment on 25 July 2008. It will be necessary to return to this. In Claim No HQ09D05276 the Defendants are Thomson Reuters (Legal) Ltd, the publishers of Gatley on Libel and Slander 11 th ed, and all of the editors of that book. The claim is in respect of references in the footnotes to the judgments of the Court of Appeal and Eady J. These two actions were commenced in 2009. The reason why they are stayed is that the order of the Master dated 25 April 2008 stayed not only all actions brought by Mr Smith up to that date and listed in a schedule, but also provided:
“4. Until further order, all claims issued in the future by [Mr Smith] are to be stayed after issue, and service is not to be effected and the Central Office shall keep all sealed copies of the Claim Form on file”.
The internet publications complained of
This litigation first came before Eady J on 12 May 2008. He stayed the proceedings for the Defendants to be notified. But he delivered a judgment [2008] EWHC 1250 (QB) in which he set out the background.
One of the claims in Schedule A with which I am concerned is Claim No HQ08X00135, in which the Defendant is a Mr Tuppen. On 9 June Mr Tuppen had appeared before Eady J, together with three other defendants. The cases against these other three defendants have been discontinued.
On 25 July 2008 Eady J delivered his judgment [2008] EWHC 1797 (QB). He remarked at para 6:
“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.”
At para 9 Eady J said:
“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,...
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