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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Smith v ADVFN Plc & Ors (Rev 1) [2010] EWHC 3255 (QB) (13 December 2010) URL: http://www.bailii.org/ew/cases/EWHC/QB/2010/3255.html Cite as: [2010] EWHC 3255 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
NIGEL SMITH |
Claimant |
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- and - |
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ADVFN Plc and others |
Defendant |
____________________
Hearing dates: 3 December 2010
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Crown Copyright ©
Mr Justice Tugendhat :
"It seems to me, as I pointed out to Mr Crystal early in the course of his submissions, that the effect of continuing the stay meant that these claims were in limbo. Mr Smith faced the difficulty that he could not advance them against any respondent because of the stay, and his prospects of applying afresh to lift the stay would obviously be adversely affected by the existing order. At the same time there was nothing conclusive about it. The judge recognised that he did not have formal applications before him either to strike out these claims as an abuse of process or summarily to dispose of them as having no realistic prospect of success. He did not formally have an application for any civil restraint order and could not deal with that part of the case, and so it seemed to me and to my Lords that even if the order was upheld, as our preliminary view was certainly it should be, that would not bring any sense of finality to this litigation. So we put to Mr Crystal that, in the event of the court dismissing the appeal, we should nonetheless go on to direct of our own motion that Mr Smith should show cause why each of the surviving claims should".
"a. for [Mr Smith] to show cause why each of the claims [other than claim No HQ07X03107] should not be struck out or be the subject of summary judgments against him;
b. for the determination of whether [Mr Smith] should made the subject of a civil restraint order".
A) under the heading "Claims that [Mr Smith] wishes to pursue if the stay is lifted": 13 cases (including claim No HQ07X03107);
B) under the heading "Claims that have been disposed of": 10 cases
C) under the heading "Claims that will be dealt with unless and until formal notice of discontinuance is served by [Mr Smith]": 18 cases.
"2. Mr Smith, the appellant, was successful some time before late 2005 in setting up an action group to recover compensation for investors in some fraudulently conducted company. Knowing of that success, and I hasten to add I do not know much about the extent of that success, investors in another company called Langbar International Limited ("Langbar") approached him for help following the discovery of what is alleged to be serious fraud in the conduct of that company. Those approaches were made via the bulletin boards on a financial information website of a company whose website is ADVFN.com. Some days thereafter the appellant set up the Langbar Action Group website, which he says had grown to about 450 members. His efforts to secure compensation for them did not meet with universal approval, with the result that a group of shareholders and others whom he describes as "the malcontents" openly and vociferously opposed his actions. Their disaffections were "posted" on the ADVFN Langbar bulletin boards, usually under a pseudonym or an avatar, whatever that means, the appellant's name being "Anonymous".
3. It is his case that what he calls a hate campaign which amounts to cyber-bullying has been waged against him as the messages stacked up on this ethereal bulletin board. As they stacked up, so he suggests a profusion of defamatory statements were published about him. He says that some 267 defamatory statements had been made by 71 offenders, though some may be the same person using a different pseudonym. He says that the offenders have continued to publish defamatory material and there is no sign of that abating.
4. His response was to issue claims for damages for defamation once he had determined through Norwich Pharmacal proceedings the real identity of the authors. At first these claims were assigned to different masters of the Queen's Bench but as the trickle became a discernible flood the Senior Master intervened and ordered on 25 April 2008 as follows, first:
" [the particular claim before him, being one against a Mr Murjani] and the claims listed in the Schedule to this order are to be re-assigned to Master Fontaine if not already assigned to her. [I interpolate that on the schedule were a list of 36 defendants including the eight who are the respondents to this appeal.]"
"4. Until further order, all claims issued in the future by [Mr Smith] are to be stayed after issue, and service is not to be effected and the Central Office shall keep all sealed copies of the Claim Form on file".
The internet publications complained of
"There is no doubt that a significant number of Defendants are troubled by the prospect of long drawn out and expensive litigation which they cannot afford and in respect of which they may have no realistic prospect of recovering costs even in the event of ultimate success. As I mentioned in my earlier ruling, Mr Smith is exempt from paying court fees and may reasonably be presumed to have no significant funds with which to meet any costs order. That fear is naturally confirmed by his apparent inability, so far, to pay the costs already outstanding in favour of ADVFN."
"It is obviously a relevant question to ask whether someone who had to pay court fees would have thought it proportionate to any legitimate gain to issue 37 sets of proceedings (with apparently more to come). If there is a genuine desire for vindication over any significant defamatory allegation, it is reasonable to suppose that this objective could generally be achieved by a more targeted strategy. Inevitably, one is left with the impression that Mr Smith and his solicitors are determined, as I described it on 12 May, to pick off the potential defendants one by one and to make it clear to them that it would be cheaper to apologise and pay up at an early stage. It may be, therefore, that his fees exempt status is being used as a tactical weapon."
"From the context of casual conversations, one can often tell that a remark is not to be taken literally or seriously and is rather to be construed merely as abuse. That is less common in the case of more permanent written communication, although it is by no means unknown. But in the case of a bulletin board thread it is often obvious to casual observers that people are just saying the first thing that comes into their heads and reacting in the heat of the moment. The remarks are often not intended, or to be taken, as serious. A number of examples will emerge in the course of my judgment."
"In a number of these cases, it is obvious to me that there would be strong defences of qualified privilege or fair comment and, in some cases, arguments running along the lines of "mere vulgar abuse". No such issues, as I have said, are formally before me at the moment, since no-one has issued an application for summary judgment or to strike out any part of a pleading on any of those grounds; nevertheless, such factors weigh heavily in the exercise of the court's discretion and case management powers and, specifically, since I am now asked to continue the stay imposed by the Master. The court has a wide discretion to impose or maintain a stay, which is now embodied in CPR 3.1(2)(f). The only reason for lifting a stay, of course, is to allow a genuine claim to progress towards trial in order to achieve some legitimate advantage: that is to say, vindication or compensation."
"Mr Michael Tuppen told me that when he wrote the words to which Mr Smith took offence in his case, he was at first unaware of Mr Smith's identity. He only knew him at that stage by one of his dozens of "avatars" – in this case "Anomalous". On 23 April 2007, he wrote "Assuming I am not being taken in by a complete load of bollocks! then: Anomalous behaviour is unacceptable good luck to all victims!!!"."
Claim No HQ09D05276
Conclusions on claims other than Claim No HQ09X03388
Claim No HQ09X03388
The order of the Master