Posted: 19/04/2023
This judgment dealt with applications by both the claimant and defendant. First, the judge dismissed the defendant’s application for summary judgment which had been made on the basis that there had been no publication (or alternatively, no substantial publication). The judge helpfully summarised the law regarding ‘publication’, as well as the law on summary judgment under CPR 24.2, before concluding that the claimant has a realistic prospect of successfully establishing a platform of facts on which to infer publication. The judge then went on to allow the claimant’s application to amend his particulars of claim. The disputed amendments were primarily to add a new section setting out the claimant’s contentions that the defendant had republished or repeated the sting of the words complained of. Having regard to the overriding objective, the judge ultimately concluded that no prejudice would be caused to the defendant by granting permission to make each amendment and set out the reasons for reaching this conclusion.
Frati v Bowen-Carter [2023] EWHC 627 (KB)
This judgment provides a helpful summary of the legal principles which will guide the court when considering the issue of ‘publication’ (particularly in the context of internet publications). Referring to Al Amoudi v Brisard [2006] EWHC 1062, the judge confirmed that there is no presumption of substantial publication with internet publications and that as stated in Carrie v Tolkien [2009] EWHC 29 (QB), if a claimant intends to plead an inferential case on publication, the platform of facts must provide a solid basis for the inference.
This in turn highlights the importance of being able to establish sufficient facts to persuade the court to infer publication. It was noted by the judge that the claimant and his then solicitors had failed to capture the diagnostic data from Google at the time of publication, and that a printout created on 11 June 2021 (which was said to be the basis for the pleaded case) was not in evidence. In online publication cases, it is crucial for claimants and their solicitors to take immediate steps to obtain accurate and contemporaneous data before it is removed or edited, and ensure it forms part of the evidence. Had the claimant done so, he may never have faced summary judgment. Fortunately, for the claimant in this case, he was able to persuade the judge that there may be additional evidence available at trial on which an inference might be drawn.
The defendant’s problematic reliance on case law which applied Jameel principles, in respect of whether there was ‘substantial publication’ for the purposes of summary judgment, also demonstrates that careful consideration should be given to the basis upon which summary judgment/ strike out applications are made (or before their scope is narrowed).
Amendments to statements of case are often allowed having regard to the overriding objective and the absence of prejudice to the opposing party. However, it should not be taken for granted. The observations of the court that the application had been made at an early stage and that it was unlikely to disrupt the timetable suggest that parties would be well advised to apply as soon as the need is identified. The prospects of persuading the court to grant permission may well decrease as proceedings progress and the trial nears.
The claimant, a plastic surgeon, issued a claim for libel and harassment on 6 July 2021 against the defendant, a patient of his (with a claim for malicious falsehood also advanced in the particulars of claim). The words complained of were contained within a review posted on the claimant’s Google business review (GBR) on the Google search website. The claimant sued on part of the review which he said alleged that he had perpetrated a fraudulent scam whereby he provided discounted cosmetic surgical procedures to celebrities in exchange for false social media reviews promoting his services.
Application for summary judgment
The scope of this application, issued on 4 July 2022, was narrowed on 22 November 2022 and then again in the defendant’s skeleton argument and submissions at the hearing. Ultimately, the summary judgment and/or strike out application was confined to issues of fact and made on the sole ground that the facts put forward by the claimant do not provide a platform for an inference of publication.
In respect of the facts, the court was provided with the claimant’s evidence about his use of social media and GBRs, as well as information about what the latter are and how they operate. There was limited data available in relation to the review, but the claimant’s pleaded case relied on other evidence such as the number of views of the GBRs per day.
Application to amend the particulars of claim
The claimant applied to add a new section to the particulars of claim, inviting the court to infer the defendant had repeated or republished the sting of the words complained of to a substantial number of people based on the facts and matters set out. The first three sub-paragraphs referred to alleged publications and the fourth sub-paragraph relied upon the ‘grapevine effect’.
The court found in favour of the claimant on both applications.
Application for summary judgment
It was accepted by the court that as a matter of principle a defendant can seek summary judgment on the basis there had been no publication, but it did have difficulty with the defendant’s position on ‘substantial publication’. Having confirmed she was not pursuing her Jameel application, the court considered it problematic for the defendant to seek to rely upon case law in which the Jameel principles were applied, in relation to whether there has been ‘substantial publication’. As this had been confined to a summary judgment application, the court was not required to make findings of fact on the extent of publication, which is a matter for trial.
While it was unlikely the claimant would be able to produce evidence of lost customers, he had put forward evidence which could be tested at trial as to the way he obtains business and the importance of online reviews. He had also produced evidence on the number of views of the relevant GBR. The court held it was not fanciful that a significant number of those who viewed the GBR would have viewed the online reviews, particularly the negative ones, and there is a realistic prospect of the claimant establishing a platform of facts to support an inference of publication.
Application to amend the particulars of claim
The application for permission to amend the particulars of claim needed to be considered by reference to the overriding objective and this will include the factors identified in Pearce v East and North Hertfordshire NHS Trust [2020] EWHC 1504 (QB).
The judge was happy to accept it was permissible for the claimant to rely upon the ‘grapevine effect’, referring to the summary of the legal basis for such a pleading in Turley v Unite the Union and another [2019] EWHC 2547 (QB). It was accepted that this was potentially relevant to establishing serious harm. It was also held that no prejudice would be caused to the defendant, since supporting evidence would need to be produced. However, the judge directed this should be a standalone paragraph.
The court considered the other amendments to be less straightforward. It was accepted that there was no causal linked between the original publication and the repetition to the third parties, and the claimant was now seeking to widen the issues. Had this additional material been relevant only in terms of aggravation of damage, the judge observed that it would arguably be disproportionate. However, it was also being relied upon to the extent it evidences malice on the part of the defendant, as well as being relevant to the harassment claim, and therefore it would need to be put before the court in any event. On that basis, the court allowed the amendments.
This analysis was first published on Lexis®PSL on 31 March 2023 and can be found here (subscription required).
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