The Francis libel claims – frankly, delay not an abuse of process

Background

The claimant and defendants were all residents of a modern, gated housing estate known as Montague Park in Windsor. The claim against the first defendant, Paul Pearson, related to an email sent by him to 27 other residents of the estate in March 2019, with the subject line “Do you serve an ASBO on a neighbour”. In that email, he described how two police officers attended his address to gather evidence, and that the threshold of obtaining an ASBO “has not only been met but exceeded” against someone who he realised was a “complicated character”, but thought was becoming a friend when they “shared a beer and had a laugh together”.

The claim against the second defendant, Susannah Burston, related to an email sent by her to ten residents of the same estate in April 2019, with the subject line containing a folded hands emoji, in which she alleged that there had been “incidents of witnessed physical assault, stalking and much much more”.

Mr Francis asserted that the emails had included allegations that he had assaulted a neighbour and a third party, had stalked a neighbour, and that he had also conducted a campaign of anti-social behaviour that included sending hate mail, and so were defamatory.

The defendants sought to strike out each claim:

• as an abuse of process by virtue of want of prosecution and/or inordinate and inexcusable delay; or
• in the alternative, on Jameel grounds, i.e. on the basis that the claims disclosed no real or substantial tort, and that it would be disproportionate to allow them to proceed.[2]

Procedural history

The claimant’s solicitors sent letters of claim to the defendants in July 2019, requesting a reply by 19 August 2019. The second defendant complied, but not the first defendant. Both claims were issued in February 2020.

The claim against the first defendant identified four publications and sought an injunction and damages and aggravated damages not exceeding £50,000, while the claim against the second defendant identified two publications, again claiming damages and aggravated damages up to £30,000.

Over the following months, the parties argued various amendments to their pleadings, with various delays in response and agreement. In June 2021, the amended particulars of claim were served, which limited the first claim to the March email and the second claim to the April email.

After that:

• A reply was served in October 2021 in the first claim, and in November 2021 in the second claim.
• It was then agreed that both claims would be stayed until March 2022, during which time an unsuccessful mediation took place.
• In April 2022, the claimant requested a CCMC in relation to the first claim, and wrote to the court to consent to a meaning determination on paper in relation to the second claim. Both defendants decided that they would take no further steps in the proceedings for the time being.

There then followed a period of 14-and-a-half months during which no procedural steps were taken by any party. During that period:

• The claimant instructed leading counsel and sent the defendants re-amended particulars of claim in both actions, to which the claimant asked the defendants to consent, and a draft amended reply in relation to the first action.
• The solicitors for the defendants indicated that an application to strike out both claims would be made, which was made in October 2023, following which the claimant issued an application for permission to amend some days later.

The parties’ positions

Defendants

The defendants submitted that:

• These were libel proceedings, which should be pursued with vigour, but that five years had elapsed since publication and the claims were yet to reach a CCMC. This was a significant delay, and the most recent period of inactivity was longer than the one-year limitation period. The claimant clearly had no interest in pursuing matters to trial and had abused the court’s process by deciding at his convenience whether and when he should pursue his claims.
• The claimant had not explained his inactivity and why he had not sought vindication with speed, suggesting that he had warehoused his claims, and that, in an effort to avoid dismissal, he engaged leading counsel very late in the day to show artificial interest.
• While the second defendant ought to have served a defence, the claimant could have applied for a judgment in default, but did not do so because he could not care less about the claims.
• Further, the case would rely on witness evidence, and so a risk of prejudice arose out of the delay.  Former neighbours had since moved, and the lapse of time would make it difficult to engage them.

Claimant

The claimant maintained that:

• A 14-and-a-half month lapse in a defamation case was, admittedly, significant, but mere delay was not abusive, and he had not sought to warehouse the claims.
• During the delay, the claimant could evidence that he took steps to prepare his case from May 2022, and the court could not properly infer an intention on his part to put the case on hold or to warehouse his claims.
• In first claim, the claimant was waiting to hear from the court, thereby precipitating the lapse in time, and in the second claim, the claimant was waiting to hear from the second defendant’s solicitors.
• Very real prejudice would be suffered if the claims were struck out, as the libels were not trivial and, while circulated to a small number of people, these people were important to the claimant and were likely to circulate throughout the estate.

The defendants argued that the Jameel application flowed from the abusive delay, and it would be fanciful to think that vindication would be achieved. This case did not involve mass publication, nor was it about permanent, persistent or ongoing publication. Allowing the claims to progress would waste court and party resources. Further, they argued that this was not an especially serious libel, with only a slight likelihood of damage, such that it was wholly disproportionate to continue the proceedings.

The claimant contended that this was not a claim that was obviously pointless or wasteful and was not abusive, and that there was no basis for the court to exercise its Jameel discretion: the value of vindicating the claimant’s right went beyond the claim’s financial worth, and the claims were valid, since he had been accused of serious wrongdoing.

Decision

In his judgment, HHJ Lewis noted that the authorities make clear that delay on its own is an insufficient basis to strike out a claim, and that there must be evidence of abuse. In this case, the evidence before the court did not support an inference that there had been an abuse of process, or that the claimant did not have a genuine desire to pursue and conclude his claims.

Yet the judge noted that the proceedings had been going on for far too long, and that the claimant could have done more to progress the claims. The judge noted that the claimant could have issued proceedings more promptly, and could have taken the initiative to chase the court to list the CCMC.

That said, the judge noted that the claimant did raise concerns promptly through his solicitors, and that the first defendant did not reply at all. Further, the judge noted the length of correspondence between the claimant and the second defendant, and that there may be many reasons why a party may pause before issuing High Court, multi-track proceedings against two neighbours. As a result, the judge did not see an inference to be drawn from the timing of the proceedings that the claimant was not committed to taking steps to vindicate his reputation.

Further, the judge also found evidence that the claimant took steps to prepare his cases and to progress matters proportionately and in accordance with the overriding objective, by allowing the first defendant time after issue to respond to the letter of claim, and that his solicitors were proactive in chasing the defendants’ solicitors repeatedly to progress matters. In addition, the judge found that the claimant “broke the silence” and took steps to progress proceedings.

The judge held that the objective reason for the lapse of time was a combination of factors: the court had not dealt with matters in the first claim, the second defendant had not dealt with matters in relation to that claim, and neither the defendants nor the court had taken steps to progress matters either. In summary, the defendants had not demonstrated an abuse of process.

As a result, the judge dismissed the applications to strike out the proceedings on both grounds. His reasoning was that:

• Real prejudice would be suffered by the claimant if the claims were struck out. He would be deprived of vindication in his community in a scenario where the defendants stood by their publications and there was a real likelihood that matters may be repeated.
• The defendants’ evidence did not set out any meaningful case on prejudice. Evidence suggested that recollections did not fade in this case.
• The defendants bore some responsibility for the delay in this case, requiring chasing for correspondence. The first defendant failed to reply to the letter of claim, and the second defendant failed to serve a defence to the amended particulars of claim.
• Further, the second defendant adopted a rather unhelpful approach to meaning by not opposing the application, and then not issuing the application, even though it was clear from the correspondence that this was something that her solicitors were going to do.

Comment

This judgment serves as a useful reminder of the high bar to be surpassed when making an application to strike out on Jameel grounds, particularly when arguing inordinate and inexcusable delay.

The judgment also notes how, in certain circumstances, the court may even be willing to attribute its own delay in making progress in proceedings as a contributory reason for not meeting that bar. The decision also highlights the importance for all parties to a dispute to engage with the process of litigation in a timely manner, particularly when seeking to rely on delay on the part of an opponent.

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Article written for Entertainment Law Review.