Delayed libel claim struck out as abuse of process

Adelson v Anderson and Unite Here! [2011] EWHC 2497 (QB)      
 
The High Court has struck out a libel action because of significant delays by the Claimants in pursuing it.  The claim related to comments made in 2004 at the UK Labour Party Conference.  The decision gives further insight into the circumstances in which the court may be willing to use its case management powers to strike out a claim as an abuse of process.

Facts

The Claimants were Sheldon Adelson and his Las Vegas Sands Corporation, a Las Vegas corporate group which runs and develops resorts incorporating entertainment facilities such as casinos.  The Defendants were Unite Here!, a US labour union operating in Las Vegas (amongst other places), and its International Affairs Co-ordinator, Debbie Anderson.  The claim related to allegations made about the Claimants in September 2004 at a meeting at the UK Labour Party Conference.

The Claimants issued a Claim Form a year later on 26 September 2005, and served it six months later in March 2006.  They sought damages and an injunction.  The Defendants defended the claim on the basis of qualified privilege, fair comment and justification.  A trial was scheduled for October 2007.  In the meantime, Mr Adelson commenced a separate legal action against Associated Newspapers over an article published in the Daily Mail which made similar allegations.  In view of this, the trial was adjourned to allow the Associated Newspapers action to go first, and it was contemplated that this action would be tried in January 2009.  The action against Associated Newspapers was settled in March 2008, with the settlement terms including a Statement in Open Court.

In July 2008, the solicitors who were then acting for the Claimants telephoned the Defendants' solicitors to say that their clients wanted to get on with the case, but nothing further was said or done at that time.  Between October 2008 and March 2011, various without prejudice letters were exchanged and there was an attempt at mediation in March 2011.  After this, also in March 2011 (i.e. three years after the Associated Newspapers action was settled), Mr Adelson sought to revive the claim by proposing a revised pre-trial timetable to the Defendants.  In June 2011 the Defendants applied for the claim to be struck out as an abuse of process.  They submitted that the two periods of delay (the 15 or so months between the publication complained of in September 2004 and the letter before action in January 2006, and the three years between March 2008 and March 2011) were inexcusable and gave rise to the inference that Mr Adelson was no longer seeking to vindicate his reputation and had lost interest in pursuing the proceedings to trial.  They argued that the action would serve no useful purpose and that there was no longer anything at stake which justified the resources required to pursue the matter to trial.

Decision

Mr Justice Tugendhat, in finding for the Defendants, struck out Mr Adelson's claim as an abuse of process.  In reaching his decision, he considered whether there were any good explanations for the delays, the gravity of the alleged libel, and the inferences that could accordingly be drawn.

In terms of the reasons for the delays, the judge noted that Mr Adelson had not provided any good explanations for them.  Mr Adelson had, for example, been unable to recall why it took over 15 months to send the letter before action.

Turning to the gravity of the alleged libel, the judge noted that the allegations complained of related to Mr Adelson's way of doing business.  While the allegations might be important to him as a business man, the judge considered that they did not "rank amongst the most serious libels".  Further, a reasonable reader of the words complained of reading them in 2011, or in the future, would consider Mr Adelson's activities since September 2004.  It was significant that there was no suggestion that any of the words complained of had been repeated since 2005.  As such, the reasonable reader would understand that less weight should be given to them than if the allegations had been made recently.  Further, the Statement in Open Court from Associated Newspapers would be available to anyone who searched for archived information about Mr Adelson.

From the initial delay in bringing proceedings, the judge inferred that Mr Adelson did not regard the allegations as particularly grave in 2004 and 2005.  This may have been because he had made his own attempts to vindicate his reputation by publishing his side of the story.  While Mr Adelson may at some point have intended to pursue the action to trial, Mr Justice Tugendhat was willing to infer that he had ceased to have that intention after the settlement of the Associated Newspapers action in March 2008.

As such, it was held that the reputational interests at stake were not proportionate to the time and cost of resolving the matter at trial, and the claim was struck out as an abuse of process.

Comment

This case shows that, as in Jameel v Dow Jones (2005) and Williams v MGN (2009 – see note here), the court is willing to use its case management powers to strike out a claim where the time and costs in pursuing the claim to trial would not be proportionate to the vindication sought.

The case is a salutary reminder to libel claimants that, once they have started an action, they need to ensure that they keep it moving forward or else run the risk of the claim being struck out.  In this case, the judge was particularly influenced by the fact that Mr Adelson was unable to provide a convincing explanation for the delays.  If he had been able to give a good explanation, this may have led to a different result.

It is notable that undue delay was not the only reason for the decision.  The judge was also influenced, for example, by the fact that the allegations were not of the most serious type, that they had not been repeated in the years since original publication, and that Mr Adelson had made his own attempts to vindicate his reputation.  A defendant seeking to strike out a claim for significant delays should consider whether such factors apply in their case, as they may help with convincing the court that there is no real and substantial tort worth pursuing to trial.

Lawyers Mark Dennis, Niri Shanmuganathan