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Defamation actions do not survive the death of a party

The High Court was asked to consider the meaning of CPR 40.7(1) in determining whether a reserved judgment in an application during defamation proceedings could be given after the death of the claimant.

In Harvey smith v Bobby DHA [2013] EWHC 838 (QB) the claimant, Mr smith, brought a claim in defamation against the defendant.  The parties had both been users of an internet site called scoobynet where they traded in car parts.  The claimant brought proceedings after the defendant posted alleged defamatory comment on a discussion thread posted on the site alleging that the claimant had suggested price fixing to him.  This was denied by the claimant who argued that it was the defendant who had wanted to arrange the price fix in relation to a part that both parties sold.  The defendant subsequently made an application for a ruling on the meaning of the words complained of and that the claim be struck out.   The application was heard in October 2012 and judgment was reserved.

On 7 November 2012, the claimant died and subsequently his counsel wrote to the court to inform it of Mr smiths death.  Counsel further stated that as defamation claims were by nature personal claims then the action had abated with the claimants death and no order needed to be made in respect of the reserved judgment.

The defendant, however, submitted that abatement following the hearing of an application did not prevent judgment being given.  The court was asked to consider the circumstances of this case in light of CPR 40.7(1) which states:

˜A judgment or order takes effect from the day when it is given or made, or such later date as the court may specify.

The defendant argued that the rule cannot have been intended to lead to a party being prejudiced by a court reserving judgment.

In contrast, counsel for the deceased claimant submitted that the principle of personalis moritur cum persona meant there was no jurisdiction for the court to hand down judgment after the death.   The effect of section 1 of the Law Reform (Miscellaneous Provisions) Act 1934 was that the action died with the claimant.

Giving judgment, Mrs Justice Nicola Davies DBE highlighted the practical difficulties that arose within defamation claims if one or another party should die and agreed that the effect of CPR 40.7(1) was that the cause of action abated on the death of the claimant so that no judgment could be given.

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