In the recent case of Euromoney Institutional Investor PLC v (1) Aviation News Ltd (2) Philip Tozer-Pennington [2013] EWHC 1505 (QB) the High Court refused to allow the claimant permission to amend the particulars of claim, and struck out the action on the grounds that any likely damages were not worth the expenditure that would be involved if the action were to proceed.

The facts

The claimant and the defendant were both organisers of business conferences for the benefit of people within the aviation industry. The claimant issued libel proceedings in relation to wording contained within two separate texts. The first was in respect of an email sent by the defendant to a publisher, referring to a conference being a “carbon copy” of one of theirs. Following this, the defendant circulated an advertisement to a number of publishers stating that one of the differences between them and their competitor was it had no “blemished record of fleecing the industry”.

The defendant issued an application to strike out the claim. The claimant did not seek to defend the application, but applied instead to amend the original particulars of claim and invited the court to consider only the amended particulars in dealing with the striking-out application.

The decision

The High Court refused to allow the claimant to amend its particulars and struck out the entire claim. In reaching this decision, Tugendhat J made the following observations:

  1. The law does not provide remedy for inconsequential statements. A company cannot therefore claim injury to feelings, but must show a risk of damage to its business;
  2. The court should refuse permission to amend a defamation claim if the words complained of (as stated in the original claim) were incapable of bearing the meaning attributed to them, or incapable of being defamatory;
  3. A statement that a company has copied the product or services of another was, in itself, incapable of being defamatory; and
  4. Although the word “fleecing” was capable of bearing defamatory meaning, in this instance the words complained of were only capable of being an expression of opinion.

Tugendhat J concluded that the expenditure of costs and other resources that would be involved if the action were to proceed was disproportionate to the likely damages for defamation. As a result, there was no real or substantial tort, and the claim was accordingly struck out.

Comment

This case highlights the need for potential claimants in defamation claims to get their ‘house in order’ at the outset, even before sending a protocol letter. This avoids the potential pitfalls of not putting forward a clear case about precisely which words are capable of being defamatory and how those particular words will cause damage to reputation.

Furthermore, potential claimants need to be sensible about the likely benefit of pursuing defamation claims where damages (as opposed to, say, an injunction or a published apology) is the main remedy being sought.