Analysis of delay and Jameel abuse in libel proceedings: Francis v Pearson [2024] EWHC 605 (KB)
Summary
In a judgment handed down in March 2024, Lewis J considered applications by the Defendants to strike out libel claims being brought by Mr Francis against two of his neighbours, Mr Pearson and Ms Burston.
Both applications were dismissed. The judgment addresses two core issues: (i) the extent to which delay amounts to an abuse of process; and (ii) the circumstances in which a claim may be struck out on “Jameel” grounds.
Factual background
The parties all resided in the gated “Montague Park” estate in Windsor. Mr Francis brought claims in defamation in relation to: (i) an email sent by Mr Pearson in March 2019 to twenty-seven resident; and (ii) an email sent by Ms Burston in April 2019 to ten residents.
The emails included allegations against Mr Francis of sending hate mail, antisocial behaviour, assault, stalking and bullying. Mr Francis maintained that the allegations in the emails were completely untrue and issued proceedings in February 2020 (and so within the one year limitation period for libel claims).
The parties amended and served their pleading in the proceedings and engaged in an unsuccessful mediation in the period from February 2020 to April 2022.
After a significant period of inactivity in the proceedings, in June 2023, Mr Francis instructed Leading Counsel and his solicitors sought consent to further amendments to his pleadings.
Mr Pearson and Ms Burston applied for the claims be struck out on two alternative bases:
- Mr Francis’ delay in pursuing the proceedings amounted to an abuse of process under the Civil Procedure Rules. Mr Pearson and Ms Burston relied on Mr Francis’ failure to vigorously pursue the proceedings (5 years having passed and neither claim having reached a case management conference), significant periods and patterns of delay, Mr Francis’ apparent lack of interest in pursuing matters to trial and the impact of delays on witness evidence in the case.
- The claims demonstrate no real or substantial tort and that it would be disproportionate to allow them to proceed further on the basis of Jameel v Dow Jones [2005] QB 946. Mr Pearson and Ms Burston argued that it was fanciful to think that Mr Francis’ would achieve vindication, there was no mass or ongoing publication of the alleged defamatory statements and the libel was not especially serious (such that the likelihood of damage was slight), the proceedings were disproportionate and a waste of resources to no proper end.
In response, Mr Francis claimed that he had taken steps to prepare his case during periods of inactivity, certain of the delays were down to Mr Pearson and Ms Burston and if the claims were to be struck out, he would suffer undue prejudice in being unable to vindicate his reputation.
The applications to strike out the claims were dismissed on both grounds.
- Abuse of process
The Court applied the test in Asturion Foundation v Alibrahim [2020] EWCA Civ 32 to consider: (i) whether Mr Francis’ conduct amounted to an abuse of process; and (ii) if so, whether to exercise its discretion to strike out the claim.
While defamation proceedings should be pursed expeditiously and there had been unacceptable delay in both claims, delay on its own “however inordinate and inexcusable” was not sufficient to strike out a claim. Mr Francis could have done more to progress the claims, but (i) there were legitimate reasons why a prospective claimant in a defamation claim might reflect for a few months, such as to consider cost; (ii) there was evidence of Mr Francis progressing matters proportionately and in accordance with the overriding objective; and (iii) the Court, Mr Pearson and Ms Burston were also responsible for delays in the proceedings.
Lewis J also commented that he would not in any event have considered it an appropriate exercise of the Court’s discretion to strike out the claims, in particular, because Mr Francis would likely have suffered real prejudice as a result of being prevented from vindicating his reputation.
- Jameel abuse
In assessing Jameel abuse, Lewis J explained that the Court must consider: (i) the value of what is legitimately sought by the proceedings; and (ii) the likely cost of achieving that. The purpose of this assessment is to avoid entirely pointless and wasteful litigation, but the jurisdiction is exceptional and the Court must thoroughly consider the merits of a claim to avoid unjustifiably depriving parties from access to justice.
Lewis J acknowledged the mounting costs of both claims, but found that Mr Francis had a legitimate and proper purpose in pursuing his claims. Undue prejudice would be suffered by him if the claims were struck out and accordingly, it was not appropriate to grant the applications on Jameel grounds.
It was emphasised though that it was important to ensure cases were managed proportionately, and robust costs and case management would be required going forwards. Lewis J recommended that further alternative dispute resolution also be explored.
Comment
This judgment serves as a useful reminder that defamation proceedings should be brought expeditiously and without delay, but the Court will not readily strike out claims even where delay is present.
The case also confirms that the Court is unwilling to strike out claims on Jameel grounds without unambiguous evidence that it would be wholly disproportionate to allow them to proceed. Separately, the Supreme Court also recently confirmed the strict limits of Jameel abuse in the case of Mueen-Uddin v Secretary of State for the Home Department [2024] UKSC 21.
Co-authored by George Mason
