High Court refuses to strike out libel claim arising from mailshot

In the case of (1) Mama Group Ltd (2) Lovebox Festivals Ltd v (1) Daniel sinclair (2) Alexandra Joseph [2013] EWHC 2374, the applicants request for a libel claim to be stuck out as an 'abuse of process' was refused.

The applicants had been attending the Lovebox music festival held in Victoria Park, London organised by the claimants/respondents. Throughout the course of the day, one of the applicants became concerned as to the whereabouts of her mobile phone and subsequently engaged in a heated discussion with festival staff.  This led to both applicants being restrained and removed from the festival by contracted security guards.  During the course of the incident one of the applicants fell over.

Allegations of force were made on both sides.  The applicants took their complaint to the police. The police took no action in relation to the incident.  The applicants then published their complaints in an email containing an attachment showing images of cuts and scars on a woman who had attended the same event. The images were coupled with a description suggesting that the festival organisers had allowed for the use of excessive force by the contracted security personnel at the festival. The email was circulated via Twitter and sent to high-profile parties including the local authority; television, radio and music outlets; members of parliament; journalists; and various organisations such as those for human rights and womens groups.

After limited pre-action correspondence the festival organisers sued for libel.  Mr Justice Dingemans had to decide whether the prospect of a trial yielded any significant advantages over the disadvantages - principally the cost to the parties and the use of court resources.  This type of application is known as a Jameel 'abuse of process' application.

It was decided that the case in hand was not an abuse of process as the email and attachments in question obviously intended too and most probably did cause damage. The respondents were well within their rights to defend their reputation thus, there was a legitimate purpose for bringing the action.  In conclusion Dingemans J said:-

"In my judgment this action is not an abuse of process for a number of reasons.  First the email and the attached flyer were obviously intended to cause damage to Mama Group and Lovebox.  This is because the email asked persons not to go to relevant festivals and venues and indeed the Twitter hashtag and email account both included the words "don't go to lovebox".  Although it does not necessarily follow that a person's intent to cause damage by a publication will always be successful, it is, to say the least, not particularly attractive to seek to strike out an action brought in respect of such a publication as an abuse of process on the basis that the proposed campaign was so unsuccessful that it did not achieve its purpose.

secondly the evidence suggests that damage was caused.  The email did cause persons to react and raise issues with the Claimants, according to the witness evidence now before me.  Mr Price is entitled to say that the evidence shows that queries raised with Mama Group and Lovebox were handled successfully by Mama Group and Lovebox, and that the email did ask persons concerned to contact Mama Group and Lovebox.  However it is plain that not every person will raise queries with Mama Group and Lovebox, and this was a very extensive publication.  If the Claimants succeed in their claims they will be entitled to real, and not nominal, damages.  

Thirdly I accept that Mama Group and Lovebox do have a genuine intention to vindicate their reputation.   It was apparent in pre-action correspondence that one thing that divided the parties (in addition to issues of costs) was whether Mr sinclair and Ms Joseph should apologise and circulate that apology to the recipients of the email.  It is common ground that I am not in a position to give any vindication by this judgment (compare Cammish) because these issues, if the action is not an abuse of process, are for the jury and not for me.  In these circumstances Mama Group and Lovebox are entitled to seek vindication from the jury. 

Fourthly I am not able to say, on the material before me, that it is not in the Claimants' interests to bring this action.  The Claimants consider that they will not be blamed for the guard's faked bite mark on the basis that he was not their employee and they have investigated matters fairly and properly.  The Defendants consider that it will very considerably damage the Claimants' reputation.  Both outcomes are possible and will be for the jury.

Fifthly, although I do not consider that the lateness of this application would be a reason for refusing to strike out the action if I considered it to be an abuse of process, I do consider that the timing of this application part demonstrates that this is a real action.  As noted above, the question about what loss had been suffered by the Claimants has been raised in correspondence by the Defendants throughout the action.  The Claimants have said that they have been making investigations but have not, in the end, pleaded special damage.  The Defendants did not make the application in October or January because they were concerned that the Claimants might adduce some evidence of loss, and they wanted to be sure that there was none.  This seems to me to have been a proper stance to take by the Defendants.  However it does demonstrate that the Defendants considered (in my judgment rightly) that this action was not being pursued for an illegitimate purpose.  Real loss, even provable special damage, was exactly what was likely to follow from the publications.  The fact that no provable financial loss has been alleged or pleaded does not change the action from a real one into an illegitimate one."

The application was dismissed and the matter is to be listed for a Pre-Trial Review.

A full copy of the judgement can be found below: -

http://www.bailii.org/ew/cases/EWHC/QB/2013/2374.html