Reynolds v Bovey

C and D were cannabis reform campaigners who had once been part of the same political organisation but had subsequently fallen out. A libel claim was brought by C in respect of 7 different online publications on Facebook, YouTube and other websites. C was a litigant in person and D was represented by solicitors. D made clear in the Defence, Part 18 Request for Further Information and via correspondence, that he considered C’s pleadings to be defective. Defences of justification, honest opinion and qualified privilege were also advanced.

C was invited to amend the pleadings in correspondence but did not do so, stating that he was a litigant in person and at a disadvantage without the assistance of specialised lawyers. He offered to amend only if the Court so ordered it.

D therefore applied to strike out the claim primarily on the grounds that the issue of publication was not properly pleaded in the PoC. C had pleaded only that the publications had been published to “all 32m users of Facebook“, or “all 26.35 million users of YouTube” etc. C argued that because the publications were openly available on these websites, it was obvious there would have been publication. D argued several other deficiencies in the POC.

Were the Particulars of Claim defective?

If so, should the claim be struck out?

The Particulars of Claim were defective. The claim would be struck out with costs awarded to D.

(1) The pleading of publication was deficient. The burden for establishing publication is on C and in internet defamation claims, C cannot rely on a presumption of substantial publication (see Al-Amoudi v Brisard). C must therefore specifically plead the identities of the persons to whom the words were published and if this was not possible, plead a platform of facts from which an inference of publication can be drawn. The platform of facts must be specific to the particular publication and it was not enough to simply plead that the words were published openly on the websites.

C further stated in argument that he had several witnesses he could call who had read the words complained of, but this had not been pleaded. The proper pleading of publication is fundamental because it dictates the whole basis on which C is entitled to and the extent of any damages and other remedies at trial, and the scope of the case D has to answer.

(2) There were other defects to the PoC – for example (a) in respect of publications which were images, there was no proper pleading of reference, (b) meaning had not been pleaded properly in respect of one of the publications; and (c) where C had referred to hyperlinks, it was not clear whether C was suing over the content on the other websites and if so, the elements to that cause of action.

(3) No further opportunity to amend would be given. C had been given ample notice already but nothing had been done. It was now too late. The pleading of defamation claims is a precise and technical art and C, as a litigant in person, had not managed it.

An interesting and important judgment in two respects. Firstly, in confirming the level of particularity that is required in pleading publication in an internet defamation claim, following the ruling in Al-Amoudi v Brisard.

More notably perhaps, it tackles head on the tricky issue of how much lenience litigants-in-person should be given by the Courts in the technical pleading of libel claims. Master Eastman expressly followed the approach of Tugendhat J in O’Dwyer v ITV and took into account the firmer line that was being taken towards civil case management through the Jackson reforms and the Court of Appeal in Mitchell v News Group Newspapers. He then made a number of interesting and robust observations:

“The claimant is a litigant in person. The defendant has solicitors and counsel acting for him. I have to approach this situation with a measure of care… Against that, if a person who is a claimant does not have legal representation, then the person defending the claim is potentially put to greater difficulty and expense in answering the claim, because they may be required to spend more time and effort dealing with an improperly constituted or an inadequately constituted claim and pleadings.Defamation is a particularly difficult area in that regard, because it attracts litigants in person, on the one hand, but, on the other hand, the pleading of defamation cases is a more precise and technical art than many other areas of the law.”

“[Tugendhat J] said that if there are issues and difficulties and technical issues… and the job has been made more difficult by the inadequacy of the work of the unlegally assisted party, it is important for the court to grasp the nettle, if there is a nettle to be grasped, and resolve things as soon as possible.”

“Pleading in defamation cases is not like firing a shotgun and spreading pellets all over the place. It is much more like target shooting – precisely aimed and focused… Pleading in defamation cases is a minefield for the amateur. I am afraid that [C] has not got through the minefield.”