Tamiz v Guardian News & Media Ltd [2013] EWHC 2339 (QB)

Case No HQ13D00758[2013] EWHC 2339 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/07/2013
Before
Mrs Justice Sharp
Between
PAYAM TAMIZClaimantGUARDIAN NEWS & MEDIA LIMITEDDefendant
The Claimant in person for in personCatrin Evans (instructed by Gill Phillips Director of Editorial Legal Services) for DefendantHearing Hearing dates: 24 June 2013
Judgment

Introduction

[1]The Defendant, Guardian News & Media Limited, is the publisher of the Guardian online newspaper. It applies to strike out this libel action under CPR 3.4 and/or for summary judgment to be entered against the Claimant under CPR 24.2.[2]A number of grounds are relied on but I am not invited to resolve them all unless it is necessary for me to do so. The application has focused on the following principal issues: i) Whether parts of the claim are statute barred; ii) Whether the words complained of are only capable of being comment; iii) Whether the Defendant has a complete defence to the action on the ground that the Claimant consented to publications complained of (at least, those of which he is now able to complain insofar as they are not statute barred); iv) Whether the claim has any real prospect of success; and v) Abuse of the process (in the form recognised in Jameel v Dow Jones and Co [2005] EWCA Civ 75).[3]In the event, it has not been necessary for me to resolve two further issues; first, as to meaning, that is whether the words complained of are capable of bearing the meaning attributed to them by the Claimant or any meaning defamatory of the Claimant; and an associated issue, that is whether the Defendant is liable for the publication of words which did not appear on its website, but were accessible via a hyperlink.[4]The Claimant, Mr Tamiz, lives in Kent. He has some legal training (a degree in Law and Business Administration) and is training to be a solicitor. He also has some previous experience of litigation: including as a litigant in person, see for example, Tamiz v Google[2013] EWCA Civ 68.[5]The Claim Form was issued on the 20 February 2013, accompanied by Particulars of Claim dated 19 January 2013. By agreement no defence has yet been served.[6]The claim is brought in respect of two short items published on the internet in the Guardian online newspaper, which originally appeared on the 27 April 2011 (though the Claimant is not able to complain as to these first versions for limitation reasons). In each of the items there was a hyperlink to an article published in the Evening Standard (the Evening Standard article). The Evening Standard article concerned derogatory comments allegedly made by the Claimant about women in two places online: first, in a Facebook group called “Girls in THANET…you are all slags, hoes, brasses and bheads” (the Facebook Group); and secondly, on his publicly available Facebook profile page.[7]The items and the Evening Standard article were subject to a number of amendments after publication following complaints by the Claimant. The Evening Standard article was eventually removed entirely, and replaced by an apology to the Claimant. The items remain online in their final form, and provide access to the apology via the hyperlink.[8]The words complained of are contained in only one of the several amended versions of the items, and the Evening Standard and are set out in paragraphs 36, 37 and 39 below. In the light in particular of the Defendant’s Jameel application, it is nonetheless necessary to refer to the somewhat convoluted history of this matter, and various amendments made both before and after the publication of the words complained of.[9]Two of the applications (whether parts of the claim are statute barred, or whether the words complained of are capable only of being comment) are not dependent on the underlying facts. As to the remainder, Ms Evans who appears for the Defendant, submits they are based on facts which are admitted or uncontested or plain and obvious from the documents, including the Claimant’s admitted comments on his own profile (amongst other matters); and can be determined on the assumption that the Claimant was not a member of the Facebook Group or author of any of its posted comments – a matter he denies.

Summary judgment

[10]On an application for summary judgment under CPR rule 24.2 the applicant must establish that the respondent has no real prospect of success and there is no other compelling reason why the claim should be disposed of at trial. The word “real” directs the court to the need to consider whether there is a realistic as opposed to a fanciful prospect of success: Swain v Hillman [2000] 1 All ER 91. The respondent must have a case which is better than merely arguable.[11]The rules provide for the service of evidence in support of the application and in response: see CPR para.24PD.1. The court should not conduct a mini trial but it does not have to accept everything said by a party, particularly where such statements are contradicted by the contemporary documents; summary disposal where appropriate, saves the costs and delay of trying an issue the outcome of which is inevitable: ED&F Man Liquid Products Ltd v Patel [2003] EWCA 472, paragraph 10, per Potter LJ and Three Rivers DC v Bank of England (No.3) [2001] UKHL/16 per Lord Hope of Craighead at [95].[12]The court should also consider the evidence that could reasonably be expected to be available at trial or the lack of it: see CPR PD para.24PD1.3 and Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ, 550 C.A. The court can make that assessment it seems to me on a sensible appraisal of the issues and evidence which are before it on the application: but in my view, it does not mean that the decision should be made on a speculative basis, nor does the rule assist a litigant who has simply failed to put in credible evidence when such evidence is plainly called for. Though the overall burden of proof rests on the applicant, if credible evidence is adduced in support of the application, the respondent then becomes subject to an evidential burden of showing some real prospect of success or some other reason for a trial: see the note at para. 24.2.5 in Civil Procedure, 2013, Vol 1 p.689.[13]In the context of libel actions, and the right to a jury trial (as things currently stand) judgment should not be given at any stage which has the effect of depriving the parties of a jury decision in any case where the defence or claim, as the case may be, may depend upon a finding of fact which would be properly open to a tribunal: see Alexander v Arts Council Miller v Associated Newspapers Ltd [2003] EWHC 2799 (QB) at [13]; Wallis v Valentine [2003] EMLR 8 at [13] and further, the approach of Eady J in Bataille v Newland [2002] EWHC 1692 (QB) at pp6-7 cited at para 32.32 of Gatley on Libel and Slander (11th ed).

The evidence on the Application

[14]The Defendant’s Application Notice was issued on the 18 April 2013. It set out in detail (over 3 pages) the order the court was being invited to make, and the grounds for the application. It was accompanied by an 18 page witness statement from Ms Phillips, the Defendant’s legal advisor, dated 18 April 2013 (Phillips1) with an attached exhibit of 117 pages. Phillips1 dealt in detail amongst other matters, with the communications between the parties after the items were first published on 27 April 2011 and the discussions which led to various amendments the Defendant made to what was published online. Amongst the documents exhibited to Phillips1 were what were described in the index to the exhibit as “Extracts from Claimant’s Facebook page” and “Extracts from Facebook group “Girls in Thanet.” A short supplemental statement from Ms Phillips (Phillips2) was served on 14 May 2013, dealing with the number of online “hits” for the items during the relevant period, and exhibiting some further Facebook extracts.[15]The Claimant agreed to serve his evidence in reply no later than 10 days before the hearing (therefore by 13 June 2013) but in the event, served none. At the start of the hearing, in application intimated by a letter received very shortly before the court sat, he invited me to adjourn the Defendant’s application for two reasons. He said he had been taken by surprise or “ambushed” by the grounds of the Defendant’s application as set out in Ms Evans’s skeleton argument given to him on 19 June 2013. He also said that he had made a request for further information of the Defendant on the 18 June 2013 in relation to the authenticity of what were said to be screen grabs from his Facebook profile and the Facebook Group “Girls in THANET…” exhibited to Ms Phillips’s witness statements. He said this further information was relevant to determine who had provided the screen grabs to the Defendant, when this had been done and “the full extent of the evidence the Defendant had to prove the allegations it intends to justify at the hearing”. He said he needed this information and more time to prepare his response and serve evidence in reply.[16]The application was opposed by the Defendant on the basis it was an attempt by the Claimant to derail the hearing for no good reason and to defer answering the evidence lodged with the application.[17]When asked to identify which matters in the skeleton had taken him by surprise the Claimant referred to matters which had in fact been referred to in the Application Notice. When this was pointed out to him, he said he had not received the Application Notice (or at least that part which contained the grounds on which the application was made). It is apparent however from the correspondence between the parties that the Claimant was sent the Application Notice both under cover of a letter dated 18 April 2013 and as an attachment to an email to him from Ms Phillips on the same day. Moreover, Phillips1 was itself a very substantial document, which set out in detail the matters which were central to the Defendant’s application.[18]As for the second ground, the Claimant, though in person, is not without legal experience or training. He had more than two months to respond to the Defendant’s evidence, which dealt almost exclusively with his conduct and others matters within his knowledge. The request for further information raised matters which were not relevant it seemed to me to the resolution of the Defendant’s application. But in any event, there was no reason why they could not have been raised earlier, nor was the resolution of the request a bar to the Claimant dealing with other matters in evidence if he wished to do so, and in good time for the hearing.[19]Neither of the Claimant’s reasons was therefore convincing in my view and I refused the application to adjourn. As a result, the only evidence served for the purposes of the Defendant’s application came from the Defendant. The Claimant did refer in his submissions to a number of matters (including those contained he told me in a draft of a witness statement that he was in the process of preparing) and sent me some material in two letters after the hearing was concluded. There may be limited circumstances in which the court gives permission for supplemental submissions after a hearing: but a party cannot make good its omission to serve evidence by serving it after the hearing for which it is required.[20]Against that background I turn to the evidence which it is necessary to consider in relation to the Defendant’s application.

Events from April 2011

[21]The Claimant was the Conservative Party candidate for the Salmestone ward in the local elections for Thanet District Council which were due to take place on 5 May 2011. On the 27 April 2011 the Evening Standard article was published, and the Claimant stood down as a candidate the same day. The Evening Standard article said this:
“A Conservative candidate in next week’s council elections resigned from the party today after the Evening Standard discovered his Facebook site refers to women as “sluts”
. Payam Tamiz, who is standing for Thanet Council, was until recently listed as a member of a Facebook group with the name “Girls in THANET …you are all slags, hoes, brasses and bheads”. The University of Westminster graduate, 21, who is studying to be a solicitor, was the official Conservative candidate for Salmestone ward and was photographed on the campaign trail with Baroness Warsi only last week. However, an investigation by this newspaper found that his personal web pages are littered with derogatory references to women. One comment, still published on his website reads:
“Girls who comment under facebook pics boasting to their slutty friends about guys they’ve f***** and had one night stands with are as low as they come!”
A party spokesman said:
“He has resigned. We consider the language he used outrageous and unacceptable”
. Party sources made it clear Mr Tamiz would have been expelled had he not resigned.” Party sources made it clear Mr Tamiz would have been expelled had he not resigned.”[22]The Evening Standard article was ‘picked up’ on the day of its publication; and resulted in the publication of the items in the Guardian newspaper online on the 27 April 2011 which have led to these proceedings: one item appeared in the blog of Andrew Sparrow; the other, as part of a much longer article by Catherine Elliott. Each item contained a hyperlink to the Evening Standard article, as I have said. Both were very short.[23]The nature of the Sparrow blog is apparent from its general heading (PoliticsLive with Andrew Sparrow) and from the particular heading on the 27 April 2011 which was:
“Politics live blog+PMQs – Wednesday 27 April. Rolling coverage of all the day’s developments as they happened, including prime minister’s questions.”
[24]On the day in question, the Sparrow blog was lengthy. The item relating to the Claimant appeared about two-thirds of the way down and said this:
“A Tory local election candidate has resigned from the party after it was revealed that he had been a member of a Facebook site describing women as ‘slags’. As the Evening Standard reports, ‘Payam Tamiz, who is standing for Thanet council, was until recently listed as a member of a Facebook group with the name: “Girls in THANET…you are all slags, hoes, brasses and bheads”.”
[25]The Elliott article was headed:
“Cameron’s ‘Calm down, dear’ is a classic, sexist put-down.”
The full text is set out at the end of this judgment. A paragraph at the end of it said this:
“Still, Cameron didn’t go as far as a prospective Conservative councillor for Thanet, Payam Tamiz, who has been forced to withdraw as a candidate after it was revealed he was a member of a Facebook group called ‘Girls in THANET…you are all slags, hoes, brasses and bheads’.”
[26]I shall refer to those items individually as the Sparrow blog and the Elliott article. The underlined words in the Sparrow blog and in the Elliott article were a hyperlink to the Evening Standard article as it appeared on the 27 April 2011.[27]The publication of the Evening Standard article, and the events that followed generated further publications. On the 27 April 2011 and over the course of the next two days, further publicity was given to the Evening Standard article and to public comments made about these matters by the Chairmanof the Claimant’s local Conservative constituency party, and by the Claimant himself in various online newspapers, which are still accessible online. i) In the Thanet Gazette (also called the “this is kent” website) for 27 April 2011, headlined “Margate Tory candidate quits party over Facebook ‘slags’ comments” Jim Nock, secretary of the Thanet North Conservative Association, said:
“Payam Tamiz understands the Facebook postings were unacceptable and offensive, although I am sure that he did not intend them to be so. As a consequence, as of this morning Payam resigned from the Conservative Party and has apologised unreservedly for the offence he has caused.”
In a later version of this report on the same day, the Conservative Leader of Thanet Council said:
“Obviously, we are very disappointed, shocked and surprised.”
He also said that he had spoken to the Claimant after being told of the comments but had left it for him to decide how to respond. However, he said:
“We believe this to be totally unacceptable and the outcome [of resignation] is the only one possible.” ii) In a report on the BBC website on 27 April 2011 headlined “Conservative candidate quits over Facebook ‘sluts’ slur”, the Claimant said he wanted to move on and put his “poor judgement” behind him. He said, “I understand my Facebook remarks were inappropriate and unacceptable and I unreservedly apologise for the offence I may have caused.” iii) In a further BBC report on its website, on 28 April 2011, headed “Candidate sorry for Facebook ‘sluts’ slur”, the Claimant said: “When I posted that comment it was at a time when I was having some relationship troubles – a long time before I joined the party, and a long time before I was even thinking I would be running for political office. It was a spur of the moment thing. It was a really, really immature comment to make.”
He also said his language was “completely unacceptable” and he wanted to “apologise to anyone I offended…I never knew anyone would look at it again.” iv) In the Thanet Gazette for 28 April 2011 under the heading “Tory resigns in Facebook row over ‘slut’ slurs” the Claimant said:
“The comments were posted during relationship troubles when I was feeling down. Looking back, I shouldn’t have generalised in the way I did. I didn’t mean to offend anyone and, if I did, I apologise…However, I want to state that I am 21 years old now and that some of these comments were made nearly two years ago before I decided to run for public office, and that I have matured greatly since then.”
[28]According to the evidence set out in Phillips1 and Phillips2, amongst the statements made by the Claimant on his personal Facebook page and which were generally accessible until about the 27 April 2011 were these: i) From on or about 14 October 2009:
“Too many sluts in Thanet!!!”
. Similar comments, about teenage girls, were posted by him in exchanges with his Facebook “friends” between about 22.44 on 29 November 2009 and 14.31 on 30 November 2009. ii) From on or about 19 July 2010:
“Payam Tamiz thinks that girls who comment under facebook pics boasting to their slutty friends about guys they’ve f***d and had one-night stands with are as low as they come! was looking through some old pics and just amazed at how shameless some people are!! Just shows that you have no self-respect or morals!”. iii) From on or about 19 July 2010: “yeah I know mate, its [sic] the ones that look respectable and decent but underneath it all are complete sluts that you got to watch out for, just never ceases to amaze me how some girls act round here, completely shameless and immoral, don’t know how any man with a bit of pride could ever settle down with them”. iv) From on or about 19 July 2010: “na vicki I’ve changed, I just want to settle down with someone decent but it seems impossible to find someone with morals and a bit of self-respect, how many girls are there round here that hasn’t [sic] slept with a mate or someone you know, its [sic] a joke, and the few good ones are long taken”. v) From about July 2010: “Feel sorry for raoul moat, he was in love with a heartless slut that pushed him over the edge”
. In early July 2010 Raoul Moat shot and wounded his girlfriend in her house after his release from prison, apparently because she had a new partner. He murdered her partner and also shot a policeman in the face. The case and the subsequent man-hunt for Moat was notorious and received massive media publicity in the first two weeks of July 2010.[29]On 30 April 2011, the Claimant complained to the Defendant about what had appeared in the Sparrow blog and the Elliott article. The Claimant also complained about a third matter published by the Defendant on 30 April 2011, by “Bidisha”. It has not led to any complaint in these proceedings and is therefore unnecessary to say more about it. There were then further email exchanges between the Claimant and Mr Sparrow in early May.[30]In those emails, the Claimant made admissions in fairly similar terms to those he was recorded as having made in the publicity which followed the publication of the Evening Standard article, to which I have referred. He admitted he had resigned because of his own inappropriate comments, but said this was not because he was a member of the Facebook Group, which he denied. He said his comments (and he referred in particular to: ‘Girls who comment under facebook pics boasting to their slutty friends about guys they’ve f***** and had one-night stands with are as low as they come!”) had been made when he was having “relationship troubles” and before he entered politics. He conceded the language he used was offensive, “inappropriate and totally unacceptable” and unreservedly apologised for the offence it caused. He said the “comments were made during relationship troubles, when I was angry and hurt” In an email to the Andrew Sparrow of 3May 2011. and were not remarks made about women generally. His complaint was that the allegation that he was a member of the Facebook Group painted him as “a sexist.” He asked first for a follow up article, and then for a retraction of the allegation that he had been a member of the Facebook Group.[31]Mr Sparrow had initially asked why the Claimant thought the article unfair or incorrect because he was “concerned if we got something wrong. Let me know what the problem was, and I’ll tell you if I think I can do anything more.” In the light of the Claimant’s responses however, on 4 May 2011, Mr Sparrow said this:
“From your point of view, I’m not sure that you have anything to gain from the publication of something saying that it was not one offensive comment that caused your resignation, but another. Sometimes, when you are in a hole, it’s best to stop digging.”
[32]On 9 August 2011, the Claimant then sent the Defendant a letter before claim. In it he asked for damages, and for the removal of the Sparrow blog and the Elliott article. His complaint focused, as it had done in early May, on the suggestion that he was a member of the Facebook Group and what that said about his views on women generally.[33]Ms Phillips replied by letter dated 17 August 2011. She rejected his demand for damages given what he admitted. But she said the Defendant would be willing to add a footnote to each article on the Guardian website saying something like:
“Mr Tamiz informs us that he has never been a member of the Facebook group ‘Girls in Thanet’”, and to Mr Sparrow’s and Ms Elliott’s items also: “Mr Tamiz says he did not resign from the Conservative Party because of the Facebook group but because of unacceptable comments he had posted on his own Facebook pages in 2009 and 2010.”
[34]The Claimant replied on 23 August 2011 rejecting her proposal. He said that only the complete removal of “the statements” (presumably those complained of in his 9 August letter) would be satisfactory. He also said “the comments on my own facebook page were posted during relationship troubles and were not intended to be interpreted as a broad generalisation.” He went on to say:
“However, if taken out of context, at their very worst they can be portrayed as comments referring to some women in Thanet.”
[35]Further correspondence followed as to the terms of a suitable correction or retraction of the Facebook Group allegation, and any footnote. This resulted in the following exchanges: i) On 3 October 2011 the Claimant suggested amendments to the footnote Ms Phillips had by then proposed so it would read as follows (the Claimant’s proposed additions are underlined):
“This article was edited on xx September 2011 to remove an incorrect suggestion that Mr Tamiz was a member of the ‘Girls in Thanet’ Facebook group” and also on the first two items [not required on the last one] add “Mr Tamiz has also apologised for remarks about women posted on his own Facebook page in 2009 and 2010. We are happy to clarify his position.” ii) On 14 October 2011, Ms Phillips then proposed the following by way of settlement of the Claimant’s complaint. She said the Defendant were willing to: “(1) Delete the references you [the Claimant] say were wrong – i.e. the suggestion that you were a member of the [Facebook Group] and that you had resigned from the Conservative Party because of that Facebook group; (2) to add a footnote that says: This article was edited on xx October 2011 to remove an incorrect suggestion that Mr Tamiz was a member of the ‘Girls in Thanet’ Facebook group” and also on the first two items [not required on the last one] add “Mr Tamiz has apologised for remarks about women posted on his own Facebook page in 2009 and 2010.” iii) On 19 October 2011 the Claimant responded. He accepted the measures proposed by Ms Phillips set out in (1) and (2) above. He said: “I am happy that we are finally making progress in resolving this complaint. I accept the measures proposed in your email and the wording of the footnote.”
He continued to press for damages, caused he said by the Defendant’s publication of the allegation that he was a member of the Facebook Group; and he also asked for the footnote to be placed on the homepage of the Guardian’s website with a link to the items. He did not renew his request that the items be removed in their entirety. iv) On 21 October 2011 Ms Phillips replied. She said the Defendant had no proposals to make regarding damages, and that the footnote had been amended as a gesture of goodwill since the words complained of were not defamatory of the Claimant.[36]On 21 October 2011 amendments were then made to the items. The Elliott article as amended from 21 October 2011 now said this: “Still, Cameron didn’t go as far as a prospective Conservative councillor for Thanet, Payam Tamiz, who has been forced to withdraw as a candidate. That’s something to be thankful for at least. [see footnote] “This article was edited on 21 October 2011 and 16 January 2012 to remove an incorrect suggestion that Mr Payam Tamiz was a member of the “Girls in Thanet’ Facebook group. Mr Tamiz has apologised for remarks about women posted on his own Facebook page in 2009 and 2010.”

[see footnote]

[37]The Sparrow blog was also amended on the 21 October 2011. As a result of an editing error though the footnote was added, references to the Facebook Group were not removed until 16 January 2012, when the error was noticed (for present purposes the delay in making the full edit is immaterial). In the result, as from the 16 January 2012, the Sparrow blog now said this: “As the Evening Standard reports, a Tory local election candidate, Payam Tamiz, who is standing for Thanet council has resigned from the party …. [see footnote] “This article was edited on 21 October 2011 and 16 January 2012 to remove an incorrect suggestion that Mr Payam Tamiz was a member of the “Girls in Thanet’ Facebook group. Mr Tamiz has apologised for remarks about women posted on his own Facebook page in 2009 and 2010.”

[see footnote]

[38]On 3 November 2011 the Defendant posted similar wording to the footnoted correction/retraction on its rolling “Corrections and Clarifications” page on the Guardian website. It said:
“Two articles dated 27th April and [one] of 30th have been amended to remove an incorrect suggestion that Mr Payam Tamiz was a member of the ‘Girls in Thanet’ Facebook group. Mr Tamiz has apologised for remarks about women posted on his own Facebook page in 2009 and 2010.”
[39]Amendments were also made to the Evening Standard article: on 14 and 16 August and (possibly) on 13 September 2011. As a result, the hyperlink in the Sparrow blog and the Elliott article in the form set out at paragraphs 36 and 37 above linked to the Evening Standard article which as amended, now said this. “Tory candidate resigns after Facebook outburst A Conservative candidate in the next week’s council elections resigned from the party today after the Evening Standard discovered his Facebook site refers to women as “sluts”. It is alleged by Labour party activists that Payam Tamiz, who is standing for Thanet Council, was until recently listed as a member of the a Facebook group with the name “Girls in THANET …you are all slags, hoes, brasses and bheads”. Mr Tamiz denies being a member of the Facebook group. The University of Westminster graduate, 21, who is studying to be a solicitor, was the official Conservative candidate for Salmestone ward and was photographed on the campaign trail with Baroness Warsi only last week. However, an investigation by this newspaper found that his personal web pages contained derogatory references to women. One comment, still published on his site reads:
“Girls who comment under facebook pics boasting to their slutty friends about guys they’ve f***** and had one night stands with are as low as they come!”
A party spokesman said:
“He has resigned. We consider the language he used outrageous and unacceptable”
. Party sources made it clear Mr Tamiz would have been expelled had he not resigned. Mr Tamiz said:
“I understand that my Facebook remarks were inappropriate and I unreservedly apologise for the offence they have caused. However, I feel it is important to put the remarks into context. They were made long before I was a member of the Conservative party and long before I entered the political arena. They were made at a time of personal trouble and difficulty and I never intended for them to be interpreted as an unfair generalisation for the women of Thanet. I am deeply saddened that they have been taken out of context and misconstrued. I have resigned from the Conservative party in the hope that this affair, which is being exploited and distorted by the opposition, does not damage the Party’s electoral success come 5th May.”
[40]As can be seen, the Evening Standard article now contained the Claimant’s own account in the last paragraph; it prefaced the mention of the Facebook Group with the phrase: “It is alleged by Labour party activists…” and it followed that mention with his denial that he was a member of the Facebook Group.[41]On the 17 November 2011 the Claimant made a complaint about the items to the Press Complaints Commission, but in the event this was ultimately not pursued.[42]On 4 January 2012 the Claimant issued a claim against the publishers of the Evening Standard in respect of the Evening Standard article (in one or more of its amended forms). The defendants to those proceedings then applied to strike the action out on the grounds of Jameel abuse.[43]In September 2012, the Claimant’s case against the Evening Standard was settled before that application was heard, on terms which included the payment to him of damages, removal of the Evening Standard article from its website and the publication of an apology. On 13 September 2012 the apology was published, and the Evening Standard article was removed. The Evening Standard apology remains accessible on the Claimant’s solicitor’s website. It said this:
“Payam Tamiz On 27 April 2011 we published an article about Payam Tamiz, who had been standing as a Conservative candidate for election to Thanet District Council, headed “Tory resigns over ‘Thanet girls are slags’ outburst”
. The article alleged that Mr Tamiz had been listed as a member of a Facebook group with the name ‘Girls in THANET … you are all slags, hoes, brasses and bheads’ and that his personal web pages were “littered with derogatory references to women”. We accept Mr Tamiz’s assurances that he was never a member or administrator of this group. We also accept that certain remarks appearing on his Facebook page were critical of a specific personal acquaintance of his and not directed at women in general. We apologise to Mr Tamiz for any distress or embarrassment caused.”[44]On 10 October 2012 the Claimant now sent the Defendant a new letter of claim. This said that the Sparrow blog and the Elliott article in their amended form (set out in paragraphs 36 and 37 above), were still defamatory of him. He asked (for the first time) for an apology and for an undertaking as well as damages. He said the wording of the footnote was inaccurate and defamatory. He complained (also for the first time) about the hyperlink.[45]On 31 October 2012, the Defendant added what is known as a Loutchansky notice A notice to alert the reader to the fact that the truth of an online publication, whether archived or not, is subject to a legal complaint and is contested, and is known as a Loutchansky notice following the decision of the Court of Appeal in Loutchansky v Times NewspapersLtd and ors[2001] EWCA Civ. 1805, [2002] QB 783. to the beginning of both the Sparrow blog and the Elliott article which said this:
“The footnote at the end of this article is the subject of a legal complaint from Mr Payam Tamiz who says it is inaccurate and defamatory…”
It also arranged for the hyperlink in both items to take the reader to the apology to the Claimant, which by now appeared on the Claimant’s solicitor’s website.

The Claimant’s pleaded case

[46]The Claimant’s Particulars of Claim appear to make a freestanding complaint about the words in the Sparrow blog, and the Elliott article on their own (that is, without reference to the hyperlink) and a further complaint about them with the “incorporation” of the Evening Standard article. It is not entirely clear, but it appears that the Claimant also complains about the footnote to each.[47]In her written submissions, Ms Evans drew attention to a decision of the Supreme Court of Canada in Crookes v Newton [2011] 3 RCS 269. The case concerned the liability of those who incorporate hyperlinks in their online publications for the publication of the material to which the hyperlink connects; and thus, whether hyperlinking, in and of itself constituted publication of the underlying material for the purposes of the law of libel. The majority held it did not; there were different approaches to the issue amongst the minority.[48]Ms Evans also drew attention to two cases: Azad Ali v Associated Newspapers Ltd [2010] EWHC 100 (QB) at [22] and [28]; and Islam Expo Ltd v The Spectator (1828) Ltd and anor [2010] EWHC 2011 (QB) at [6] and [15] where the point considered in Crookes arose in the course of applications for summary disposal. The court did not consider it necessary to determine the issue in either case, and I have reached the same conclusion here. The Crookes point was mentioned only briefly by Ms Evans in the course of argument, and I have not found it necessary to resolve it. For present purposes I propose to proceed on the assumption that the position is as the Claimant contends, that is that the hyperlinked material should be read as part of the words complained of (in this context the precise legal route by which this is done – whether it is to be regarded as context or a freestanding republication for example, makes no difference). I should emphasise, as Tugendhat J did in Islam that this should not be taken as a ruling in one way or the other as to whether that approach is right as a matter of law. The words complained of[49]Making the assumptions as to the footnote and the hyperlink to which I have referred, the Claimant now complains of the words in the Sparrow blog and Elliott article set out in paragraphs 36 and 37 above on their own, and with the addition of those in the Evening Standard article, “incorporated” by the hyperlink, set out in paragraph 39 above. The meanings complained of[50]The Claimant attributes to all the publications complained of in whatever formulation, the following natural and ordinary meanings:
“that the Claimant was a secret misogynist, exposed as such as a result of a journalistic investigation undertaken by the Evening Standard, who (a) held and expressed the view that “all Thanet girls are slags”; (b) had referred to women in general as “sluts” on his Facebook site and held the view that this was so; (c) had signed up for and until recently had been a member of a Facebook group with the name “Girls in THANET …you are all slags, hoes, brasses and bheads”, thereby indicating that he subscribed to that point of view; (d) had included in his personal Facebook web pages a substantial number of derogatory references to women in general albeit that, on his account, he had never intended those references to be interpreted as an unfair generalisation for the women of Thanet and those references had been misconstrued; (e) had resigned from the Conservative Party, and would have been expelled from it if he had not resigned, because, as a result of the Evening Standard’s journalistic investigation, he had been exposed for what he was, namely, a secret misogynist and whose comment, as quoted in the second column of the Evening Standard article, evidenced or was indicative of his general attitude towards women, namely, that he was a misogynist who despised women in general.”

Limitation

[51]Ms Evans submits that since the Claim Form was issued on 20 February 2013, any claim in respect of publications predating 21 February 2012 is statute barred and should therefore be struck out. That submission is unarguably correct in my view: see section 4A of the Limitation Act 1980 which provides that an action for libel must be commenced within one year from the date when the case of action occurred, that is, from the date of publication. The Claimant told me he had sent the claim form to the court some days earlier than its date of issue, but produced no evidence that he had done so (merely pointing to the date typed at the bottom of the Particulars of Claim).[52]The Claimant therefore cannot claim in respect of publications pre-dating the 21 February 2012 and the parts of the Particulars of Claim where the Claimant makes (or appears to make) such claims must be struck out. These are: i) Paragraph 2 of the Particulars of Claim, which relates to the Sparrow blog insofar as the Claimant relies on the period between 21 October 2011 to 20 February 2012 or any earlier period; ii) Paragraph 3 of the Particulars of Claim, which relates to the Elliott article insofar as the Claimant relies on the period from 21 October 2011 to 20 February 2012 or any earlier period; iii) Paragraphs 4 and 5 of the Particulars of Claim, which refers to the hyperlink, insofar as the Claimant relies on the “incorporation” of the Evening Standard article (in the amended 14 September 2011 version) from 14 September 2011 to 20 February 2012 or any earlier period. iv) Paragraph 13 of the Particulars of Claim, which relates to the Sparrow blog insofar as the Claimant relies on the period 16 January 2012 to 20 February 2012 or any earlier period.

Fact/Comment

[53]The fact/comment issue may be considered at an interim stage for case management reasons; amongst other things: see CPR 3.1(2)(m) and CPR PD 53 para 4.1 and Euromoney v Aviation News Ltd [2013] EWHC 1505 (QB) per Tugendhat J at [34].[54]Ms Evans’s point here is short and simple: she submits, even if the words complained of convey the meaning that the Claimant is a misogynist or sexist or his comments about women were derogatory or inappropriate, that characterisation is capable of only being a comment, not a statement of fact.[55]There is no doubt that comment can include inferences of fact. It is also the case that allegations which by their very nature cannot be verified by another person but can only be established by inference are likely to be classified as comment: see Branson v Bower [2000] (a decision affirmed by the Court of Appeal at [2001] EWCA Civ 791); O’Brien v Salisbury (1889) 54 J.P. 215 and Duncan & Neill on Defamation 3rd edition at para 13.16.[56]The central thrust of the meaning which the Claimant contends is conveyed by the words complained of concerns his attitude towards women i.e. that he is a misogynist and a sexist. In my judgment, these are by their nature, allegations which can only be established by inference. Moreover, in the context in which they were made, assuming that the Claimant’s meanings are made out, the allegations can only have been an inference from the comments the Claimant is said to have made, since neither Mr Sparrow nor Ms Elliott purported to have any knowledge about the Claimant apart from those matters (one such comment being: “Girls who comment under Facebook pics boasting to their slutty friends about guys they’ve f**** and had one-night stands with are as low as they come!”). In my judgment, in the circumstances, Ms Evans’ submission is clearly correct: the meaning is clearly only capable of being a question of opinion; and is a value judgment which is not susceptible of proof.

Consent/ No reasonable prospect of success/Abuse of the process

[57]There are six core facts which are admitted or uncontested or plain and obvious from the documents which are material to these grounds in my view.[58]First, the Claimant resigned as a Conservative Party candidate on the 27 April 2011 after comments by him about women were discovered and about to be identified or published by the Evening Standard. The Claimant admitted this within a week of the resignation in an email to Mr Sparrow on 3 May 2011 (sent at 15.49) where he said “I resigned because of a small number of comments [plural] on my personal Facebook page”, something he repeated in his email of the 6 May 2011. His email of 3 May 2011 went on to say “These comments were made before I was a member of the Conservative Party and long before I decided to stand for public office. The comment which has caused the most outrage is: ‘Girls who comment under Facebook pics boasting to their slutty friends about guys they’ve f***** and had one-night stands with are as low as they come!”[59]Secondly, the Claimant admitted that his comments were variously, inappropriate or totally unacceptable, may have caused offence and showed poor judgement; and he unreservedly apologised for the offence caused. In his email of 3 May 2011 for example, he went on to say; “I concede the language used was inappropriate and totally unacceptable, and I have unreservedly apologised for the offence it has caused.” See also the Claimant’s quoted comments on the BBC website on the 27 April 2011 and the further report on the BBC website on the 28 April 2011: paragraph 27 ii) and iii) above.[60]Thirdly, the comments made by the Claimant were publicly available on the Claimant’s Facebook profile as of the 27 April 2011: paragraph 28 above. There is, as Ms Evans submits, a clear common theme to them: with women being referred to as “sluts” or “slutty” and it being difficult to find women with “morals” or “decent” or “good ones”. There is also a clear connection to local women: “Too many sluts in Thanet!!!” and “…just never ceases to amaze me how some girls round here, completely shameless and immoral” and “how many girls round here that hasn’t [sic] slept with a mate…”.[61]The Claimant said at the beginning of the hearing, that he disputed the authenticity of the screen shots of his Facebook Profile, exhibited to Phillips1 and 2; and which set out the statements to which I have referred. This is something he has never said before in this litigation, and as I have indicated, there is no evidence from the Claimant about these matters, as opposed to assertion made for the first time in submissions.[62]But in any event, it is uncontroversial and clear that the Claimant made comments in this vein, and not just the specific comment highlighted by him in his email of 3 May 2011. This is obvious from what he said in that email itself with its references to “comments” and its description of one such, as “the comment which caused the most outrage”. It is further to be noted that a consistent complaint by the Claimant is these “comments” were made nearly 2 years before he decided to run for public office: see for example the Thanet Gazette on the 28 April 2011: paragraph 27(iv) above. Since the elections were in 2011, it would follow that at least some of the “comments” were made at some point in 2009; and were additional to the specific comment made on his Facebook profile from about 19 July 2010 which he referred to in his email of 3 May 2011. Moreover, in his email of the 3 October 2011 the Claimant himself asked the Defendant to publish the following:
“Mr Tamiz has also apologised for remarks about women posted on his own Facebook page in 2009 and 2010.”
[emphasis added].[63]Fourthly, it is further admitted by the Claimant that the relevant comments which led to his resignation were indeed generalised (that is, made about women, rather than about one particular woman) or at least, capable of being understood in that way. The best evidence of this in my view is his own proposal for the wording of the correction to which I have just referred with its reference to remarks “about women posted on his own Facebook page in 2009 and 2010.” [emphasis added]. To similar effect was his comment to the Thanet Gazette published on 28 April 2011 “Looking back, I shouldn’t have generalised in the way that I did.” and his email to the Defendant on the 23 August 2011 where he said his comments on his Facebook page could be portrayed as comments referring to some women in Thanet.[64]What the Claimant said in August 2011 was coupled with his exculpatory suggestions (to the effect that this was a “one-off” made during relationship troubles when he was feeling down and not intended to be a generalisation). But the suggestion of a “one off” cannot be reconciled in my view, with the Claimant’s acceptance that he had published comments (plural) about women (plural) and had done so in 2009 and 2010; and it is plainly obvious in my view, whatever he may have intended, that what he said was at least capable of being understood as a generalisation.[65]Fifthly, at the time of publication in April 2011, the Claimant’s only concern was that it should be made clear either by clarification, or a right to reply, that he was not a member of the Facebook Group. There was no reference to the hyperlink, or to damages. In his email of 6 May 2011 to Mr Sparrow for example, he said he wanted “a simple retraction … stating clearly that I was not a member of this ‘slag’ group.”[66]Sixthly, it is clear that the correspondence between the parties by email from August 2011 referred to at paragraphs 29 to 35 above culminated in agreement between them on the 19 October 2011 as to the form of wording in which the Elliott article and the Sparrow blog could continue to be published on line. In particular, in his email of the 19 October 2011 the Claimant expressly assented to the change to the wording proposed by the Defendant on 14 October 2011, changes which he asked the Defendant to implement “as soon as possible”.[67]Having regard to those matters I can now state my conclusions.[68]First, in my judgment it is clear that the Claimant consented to the publication of the words he is now suing on, i.e. the amended form of words set out in paragraphs 36 and 37 above, whatever their meaning. He cannot therefore complain of them, or claim damages for their publication, or an injunction to restrain their publication, since it is a complete defence to an action for libel that the claimant consented to or acquiesced in the publication complained of: see Monson v Tussauds Ltd [1894] 1 QB 671 at 691; Chapman v Ellesmere [1932] 2 KB 431 and para 21.01 Duncan & Neill 3rd edition. In my judgment this consent included consent to the continued publication of the hyperlink (and thus to the Evening Standard article on the assumption that the publication of a hyperlink gives rise to a liability for publishing the material to which it provides a link) since he knew the hyperlink was there, but did not mention it, let alone purport to exclude it from what he consented to. At the very least, he clearly acquiesced in its publication.[69]Secondly, and in any event, this claim is in my judgment, an abuse of the process of the court of the form recognised by the Court of Appeal in Jameel.[70]It cannot realistically be disputed in my view, that the Claimant has publicly admitted and apologised for making inappropriate comments about women, or that these led him to resign. Instead, the focus of the Claimant’s complaint – even now – is the difference between his conduct in making such statements and his alleged conduct in being a member of the Facebook Group. The Claimant says that what he admits is not as bad or sexist or misogynist, because he did not intend to suggest that all women are sluts, and he says his comments were taken out of context as they were aimed at one woman, an ex-girlfriend. As Ms Evans submits however, both contentions are misconceived and wrong. What the Claimant intended is irrelevant. What matters is how his comments would have been understood; and it is unarguable in my view that what he said was capable of being understood to refer to more than one woman, as even the Claimant was bound to concede at the time, and in correspondence with the Defendant.[71]What lies therefore at the heart of his complaint is his assertion that there is a qualitative difference between what he admits saying (and what this says about him) and what the allegation that he is a member of the Facebook Group says about him. However in my judgment, this is a case where the distinction between what he admits and what he complains of, is a distinction without a difference. Thus, the damage to his reputation caused by what he admits, and what he disputes is minimal, and it is fanciful to suppose in those circumstances the Claimant would receive anything more than minimal damages (at best).[72]I say at best since in my view, an action based upon that ‘distinction without a difference’ stands no realistic prospect of success, whether the words complained of are defended as honest comment or characterised as fact and defended as true. But even if I am wrong about that, partial justification and/or the availability of such matters as the Claimant would be bound to admit, as relevant background would in my judgment operate to reduce the recoverable damages in this case to vanishing point: see for example, Pamplin v Express Newspapers Ltd [1988] 1 WLR 116n; and Burstein v Times Newspapers Ltd [2001] 1 WLR 579. Any assessment of damages would also have to take into account whatever compensation the Claimant had received from the publishers of Evening Standard in settlement of his claim against them: see section 12 Defamation Act 1952. Thus I consider, there is no real prospect of the Claimant recovering anything other than minimal damages even if he were to succeed in his claim.[73]There are some further and important features of this case relevant to the issue of abuse, which emerge from the history: i) On 3 May 2011 the Claimant made his original complaint to Mr Sparrow. At that stage he asked only for a follow up article so readers could see the story from his point of view. There was no complaint about the hyperlink, and no request for damages. On 6 May 2011, he asked for a simple retraction stating he was not a member of the Facebook Group. ii) On 9 August 2011 his letter of claim now asked for damages, and the removal or amendment of the items. There was still no complaint about the hyperlink. On 23 August 2011 the Claimant rejected the Defendant’s offer of clarification and said only complete removal would suffice. iii) On 3 October 2011 the Claimant now agreed to a correction/clarification by a footnote but with amendments. (“Mr Tamiz has also apologised for remarks about women posted on his own Facebook page in 2009 and 2010. We are happy to clarify the position”). On 19 October 2011 the Claimant agreed to the Defendant’s minor amendment to his proposed wording, and said:
“I accept the measures proposed in your email and the wording of the footnote.”
The proposed measures met the Claimant’s complaint about the items in the form in which that complaint was then made: namely the deletion of references the Claimant said were wrong i.e. that he was a member of the Facebook Group and had resigned because of that. There was still no mention of the Evening Standard or the hyperlink. iv) On 21 October 2011 the Elliott article was amended accordingly, as was the Sparrow blog, subject to the final edit in January. On the same day (21 October 2011), the Defendant wrote to say no damages would be paid and the amendments had been agreed as a gesture of goodwill. Though the Claimant then complained to the Press Complaints Commission on the 17 November 2011, he did not ultimately pursue this claim. v) On 10 October 2012 – almost exactly a year later, the Claimant wrote “out of the blue” making a new complaint and making demands which he had not made in the 16 months since the original publications. He said the amended items were “still defamatory of me”. He asked for the first time for a “full and unequivocal apology” and an undertaking not to repeat as well as damages. He complained for the first time about the hyperlink. This complaint was rejected by the Defendant and the Claimant then began these proceedings.[74]Ms Phillips says this in Phillips1 about this second letter of claim, and her correspondence with the Claimant which followed its receipt:
“This new complaint appeared both to renege on the 19 October 2011 agreement for the deletion of the incorrect references to the Facebook group allegation and the wording of the footnoted correction/retraction …and to allege that the very wording in the footnote which the Claimant had not only agreed to but himself suggested …was “inaccurate and defamatory”
. To put it bluntly, and quite apart from what I regarded as the hopeless merits, it felt like we were back at square one and were being mucked about. The Claimant also for the first time appeared to include a complaint in relation to alleged republication of the Evening Standard article via the hyperlinks to it. For good measure, there was also a meritless complaint about data protection. I believe the timing of the renewed complaint is highly significant. It came soon after the Claimant’s settlement with the Evening Standard in about September or early October 2012. It is obvious that the Claimant decided, fortified by his recent victory, to see if he could re-open the whole complaint against the Defendant in order to obtain damages from it as well (having failed to achieve this in 2011-2012). Presumably he considered that, if the publisher of the Evening Standard was prepared to reach a commercial settlement (for I believe that is what it must have been) then the Defendant could be similarly pressurised into settling once it saw his success against the Evening Standard. On 18 October 2012 I responded to the Claimant’s letter, rejecting his demands and pointing out that he had previously consented to the publication of the amended articles in the form agreed on 19 October 2011 and that it would be an abuse of process and wholly disproportionate to bring a claim on that wording. I also pointed out that he had never before complained about the hyperlinks to the Evening Standard article. I invited him to explain in what way the agreed footnoted correction/retraction was inaccurate… The Claimant replied on 28 October 2012…The letter consisted of a blatant attempt to renege on and/or re-open the agreement of 19 October 2011. First, he claimed that he had been forced into agreeing to the 19 October 2011 terms for resolving the question of wording. No convincing evidence in support of this argument was indicated. Second, he claimed that the footnoted correction/retraction was inaccurate because “it states that I apologised for comments ‘about women’ on my own Facebook page, thereby stating that the comments were directed at women in general instead of a specific personal acquaintance of mine, namely an ex-girlfriend.” Not only was this disingenuous, given it was he who had first suggested this as compromise wording … but it was untrue and he had previously admitted his statements were in reference to women plural (whether described as “in general” or “some women” in Thanet is irrelevant) - … I regarded both of his principal arguments as hopeless as well as frankly dishonest. I responded on 31 October 2012 to inform the Claimant that the Defendant had no proposals to make but that it had now arranged for the hyperlink in the amended Andrew Sparrow blog to go through to the statement on his solicitors’ website announcing the settlement with the Evening Standard… I considered this to be a more than fair step to take as the Defendant was keen to avoid the nuisance and cost of proceedings should the Claimant issue them, as he was threatening to do. I also arranged for a “Loutchansky” notice to be added to the start of each article complained of making clear that the footnote was the subject of a defamation complaint… After that, I heard nothing further from the Claimant until February 2013 when he telephoned me out of the blue and followed this up with an email on 10 February. In it he made yet further new requests for amendments to the extant online articles, which amounted in effect to removing the reference to his apology for having made remarks about women on his Facebook profile in 2009 and 2010 – the reference he had agreed to on 19 October 2011. He wished to substitute this with an apology to himself. In other words, this was an attempt to airbrush out the true facts, which on 19 October 2011 he had agreed had to be included, so that his reputation would not be or would not appear to be tarnished by them. He also stated that I had agreed in September 2011 to remove the references to him in the articles complained of. This was entirely untrue and of course is wholly undermined by the agreement reached with him on 19 October 2011 in which he consented to the publication of the amended articles with their references to him. I replied on 11 February 2013 and stated that I had only ever offered on behalf of the Defendant to delete the references to the Claimant which he said were wrong (i.e. the Facebook group allegation and that he had resigned because of it), but not the true facts as to why he had resigned (i.e. his admitted comments about women). I made clear that the Defendant was not willing to make further changes or offer any proposals. …On 12 February 2013 the Claimant made one further attempt by email to persuade me that he was “open to any offer your client may propose”. I took that to be a reference principally to money. Having acted reasonably and proportionately over the course of the 21 months of the Claimant’s complaint, the Defendant chose not to engage any further.”[75]Ms Evans submits that having regard to the chronology, this action is no more nor less than a case of opportunistic positioning resulting from the Claimant’s settlement with the Evening Standard; and ‘blowing hot and cold’, as she submits the Claimant has done here, is not only unattractive but has been (and should be here) deprecated as contrary to public policy: see for example, Tesco v Guardian News & Media Ltd [2009] EMLR 5 where Eady J said at [37] “as a matter of general public policy, it has long been recognised that one should not ‘blow hot and cold’ in litigation by adopting contrary positions”. See also Express Newspapers v News Ltd [1990] 1WLR 1320 at 1329.[76]She further submits that it is of particular importance for a newspaper’s article 10 rights that the nature and scope of a complaint is notified with clarity and as early as possible; and in this context draws attention to what I said in Budu v BBC [2010] EWHC 616 (QB) at [118]: which is that it is “generally a disproportionate interference with a party’s article 10 rights to bring a claim for libel after a significant period of time has elapsed.” See also Citation plc v Ellis Whittam Ltd [2013] EWCA Civ 155 and Lait v Evening Standard Ltd at [62] where the Master of the Rolls took into account in upholding a Jameel submission that the claimant had not notified the defendant in his original letter of claim or draft apology of a defamatory imputation which he later sought to rely on.[77]In my view, the points raised, including those by Ms Phillips are legitimate ones to be made in the context of this abuse application.[78]The Elliott article and the Sparrow blog were published in April 2011, yet proceedings were not brought until February 2013. In the interim, the parties had apparently reached an accommodation about what the words which should be put on line, and it is those words, including words which the Claimant drafted himself, which now form the subject matter of the action. As for the hyperlink, the Claimant says he wished to pursue the originators of the Evening Standard article before complaining about the hyperlink to the Defendant; but it is difficult to reconcile his apparent concern about it now, with the fact that he did not mention it at all to the Defendant until it was too late for the Defendant to do anything about it.[79]In the event, given the Claimant’s delay in bringing these proceedings, this claim is now confined to wording the Claimant agreed to in October 2011; and the Claimant had lost any right to the damages he was asking for in respect of publications pre 21 February 2012. Quite apart from the points on minimal damage referred to above, there would in the circumstances be great difficulty in demonstrating the damage caused by the actionable as opposed to the non actionable publications so long after the event: see Tesla Motors Ltd v BBC [2011] EWHC 2760 (QB).[80]Further, by the time the claim was made, the central thrust of the Claimant’s complaint (viz. the allegation that he was a member of the Facebook Group and resigned as a result) had been addressed by the wording of the footnote amongst other matters; and the hyperlink no longer connected with the Evening Standard article on which he now focuses; but only to the apology for its publication which remains on the Claimant’s solicitor’s website. To that extent, the Claimant has already obtained vindication for whatever damage was done by the Evening Standard article and the allegation that he was a member of the Facebook Group, and an apology and a retraction.[81]Having regard to these amongst other matters, no question of an injunction would arise; and as I have already indicated the Claimant would be entitled to only minimal damages at best. This is, it seems to me, a case in which there is no “realistic prospect of a trial yielding any tangible or legitimate advantage such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources.” Per Eady J in Schellenberg v BBC [2000] EMLR 296, “the game is not worth the candle.”[82]The Claimant submitted it would be right for this matter to go to trial so someone can make a determination on meaning, and so a final determination can be made as to whether he was a member of the Facebook Group or not. That submission in my view simply supports rather than undermines the Defendant’s application. I have concluded in all the circumstances, it would be an abuse of the process of the court for the claim to proceed when so little is at stake and the likely (irrecoverable) costs are so high.[83]There is in my judgment no other reason why this claim should be tried. As it is, the Defendant, for the reasons set out above, succeeds in its application to strike out the claim and/or for summary judgment.

Cited in 1 later judgment