In a world where every individual is now used in part to living out their lives online, there have recently been a number of cases brought in respect of defamatory comments made online, for example, see our previous blog.
The case of Jacqueline Samuels (t/a Samuels & Co Solicitors) v Christopher John Laycock [2023] has recently come before Mr Justice Kerr on appeal against a decision of Master Thornett striking out the claim.
Case background
The background to the claim is that the Claimant, who is a solicitor, acted for the Defendant in respect of the extension of a lease of a property in London with a view to the Defendant being able to sell the same. The Claimant completed the transaction and the Defendant instructed another firm to complete the sale of the property, the same completing on 9 October 2019. On 19 October 2019, the Defendant posted a review online of the Claimant’s services in uncomplimentary terms and included the phrase ‘as I found them quite deceitful’.
On 7 February 2020, the Claimant brought a claim alleging defamation and seeking damages of not more than £10,000. Notwithstanding the Defendant having sold the property in London, the Claimant served the proceedings on the Defendant at that property. Understandably, therefore, the Defendant did not receive the proceedings and could not reply. The Claimant then applied for summary judgment in the absence of a response from the Defendant and obtained an order confirming that the words complained of were defamatory in their ordinary meaning. The Master stayed the proceedings and ordered that the claim would be struck out if an application to restore the proceedings had not been made by 5 April 2021.
On 8 January 2021, the Claimant wrote to the Defendant by email at the same email address she had used during her time of acting for him. This being the first time that the Defendant became aware of the proceedings, he applied to set aside the order of the Master. In response, on 26 March 2021, the Claimant applied to restore the proceedings as ‘the claim has not resolved’.
What then ensued was voluminous correspondence from the Claimant directly to the Court, failing to comply with the Court rules in terms of copying in the Defendant. Further, the Master highlighted to the Claimant that she had failed to set out what directions she wished to progress matters. The Claimant simply replied stating that she wished to have the matter set down for trial.
Notwithstanding the Master’s attempts in correspondence to encourage the Claimant (and to a certain extent the Defendant) to progress matters in accordance with the Court rules, no progress was made save for more irrelevant/misguided correspondence. Bizarrely, the Claimant then applied 7 months later for summary judgment.
Upon considering the application for summary judgment, Master Thornett sent correspondence to the parties stating that he had tried to piece the present position on the file together and described it as an impossible task as the parties had essentially ignored the previous correspondence from the Court setting out what was required. Master Thornett set out a number of steps that must take place and referred to the formal procedure to be followed.
On 7 December 2022, the Claimant filed a witness statement exhibiting some proposed directions. Those directions however made no provision for a defence to be filed, disclosure to take place or witness statement to be exchanged. Unfortunately, it does not appear that the witness statement made its way to the Master, as an order was made striking out the claim in which it stated:
“No submissions having been received from the Claimant as at 19 December 2022, the date this Order was made …”
The Claimant appealed on the basis of a serious procedural irregularity because the witness statement had not made its way to the Master, the failure to include the right of a party to apply to have the order set aside as it was made of the Court’s own initiative (as required by CPR Part 3.3(5)(b)) and that as a result, the order was unjust.
In rejecting the appeal, Mr Justice Kerr set out 10 reasons why the appeal should be dismissed as follows:
“35. First, the claimant has done precious little to bring her claim to trial. She mentions that she has had medical issues and has had to go to hospital several times. I sympathise with that predicament but I must bear in mind that there was no medical evidence before me.
- Second, the claimant is a solicitor and must be taken to be aware of the legal obligations under the CPR including importantly rule 39.8.
- Third, the claimant was urged more than once by the court in communications from it to consider getting representation from someone experienced in Media and Communications List cases.
- Fourth, the breaches of rule 39.8 were longstanding and reprehensible. The apology is welcome but comes very late.
- Fifth, the claim is a modest one for damages not exceeding £10,000. The online post has been removed and the claim is now to quite a large extent historic.
- Sixth, the claimant did not, I am informed (and she does not dispute), respond to overtures from the defendant to consider a compromise.
- Seventh, the defendant has been put to much unnecessary correspondence and is not legally qualified, while the claimant is.
- Eighth, he says he has a defence which would have to be aired at trial. That defence in truth or justification. A trial would therefore have to include airing of the unedifying issue as to whether the claimant’s firm acted in a deceitful manner back in 2019. That would have to occur probably four years or so after the event, a delay which is quite unnecessary and was easily avoidable.
- Ninth, the action has made no progress in over three years and that is much more the fault of the claimant than the defendant, though neither is blameless.
- Tenth and finally, the witness statement in December 2022 did not even attempt to make substantial progress towards the trial. The directions sought were unrealistic.”
Comment
This case highlights in dramatic fashion that defamation proceedings are so specialised that even a solicitor acting as Claimant on her own behalf is capable of failing in following procedure to such an extent that her claim is struck out. It is therefore essential to obtain independent and expert advice on this area of practice before proceeding with a claim.
How can Nelsons help
Kevin Modiri is a Partner in our expert Dispute Resolution team.
If you have any questions concerning the subjects discussed in this article, please do not hesitate to contact Kevin or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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