Defamation - Civil Evidence

LIBEL : PUBLICATION : STRIKING OUT : WEBSITES : WITNESS STATEMENTS : EVIDENCE OF PUBLICATION : STRIKING OUT CLAIM WITHOUT GIVING CLAIMANT OPPORTUNITY TO RECTIFY DEFECT

A master had been wrong to strike out a libel claim as he had not given the claimant an opportunity to rectify a defect in his particulars of claim, namely his failure to identify any person alleged to have read the words complained of on the defendant's website.

The appellant (K) appealed against an order striking out his claim for libel against the respondent publishers (X). The parties were all Koreans living in the United Kingdom. K had established a college in the UK teaching A-Level subjects to Korean students. The fourth respondent's website was one of the major publications serving the ex-patriate Korean community and K had complained about articles published on that website. The meanings that K had attributed to the articles were mainly that he was involved in a fraud on parents of Korean students. X's defence included a denial of publication. X maintained in its defence that the claim was defective as it failed to identify named individuals to whom the article was published and the master struck out the action for that reason. However, in his judgment the master referred to the fact that K had informed him that he already had witnesses who said they had seen the defamatory articles. Following receipt of the draft judgment, K had submitted statements from thirteen witnesses but the master indicated that that further information was too late and refused to admit them. K submitted that he should have been given an opportunity to put right his failure to identify in the particulars of claim any publishees and he had rectified it by submitting the witness statements.

HELD: The master had taken an unduly restrictive view in saying that the information which K had provided after the judgment was too late to have any effect on his decision to strike out the proceedings. The master had been entitled to hold that on the material he had before him at the hearing, K could not succeed at trial simply on the basis that publication to readers of the articles on the website could be proved only by inference. It followed from that that K could succeed only by calling evidence of publication to identified readers. However, where the court held that there was a defect in a pleading it was normal for the court to refrain from striking out that pleading unless the court had given the party concerned an opportunity of putting right the defect, provided that there was reason to believe that he would be in a position to put the defect right. In his judgment, the master recorded that K had informed him that he already had witnesses. It was therefore wrong for the master to strike out the claim without giving K an opportunity to rectify the defect in his case (see paras 38-41 of judgment).

Appeal allowed

[2011] EWHC 1781 (QB)

QBD (Tugendhat J) 8/7/2011