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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Smith v Advfn Plc & Ors [2011] EWCA Civ 1552 (13 July 2011) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2011/1552.html Cite as: [2011] EWCA Civ 1552

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
THE HIGH COURT
MR JUSTICE TUGENDHAT

		Royal Courts of Justice Strand, London, WC2A 2LL
		13th July 2011

Lord Justice Stanley Burnton:

1. On 13 December of last year Tugenhat J heard proceedings involving the present applicant, Mr Nigel Smith, and a relatively large number of defendants. The judge considered the various defamation and damages claims which had been commenced by Mr Smith and decided that they were unmeritorious; he struck them out and made an extended civil restraint order which would preclude Mr Smith from beginning further proceedings without the permission of a judge.
2. The history of the proceedings and the subject matter of the various claims were set out by the judge in paragraph 6 and following, where he quoted the judgment of Ward LJ when the matter had previously been before the Court of Appeal. There has been quite a complicated series of proceedings in the various claims which have been before the Senior Master, Eady J and then up to the Court of Appeal on appeal from an order made by Eady J which stayed various proceedings. The Court of Appeal did not make a substantive order because the order that was before it allowed an application to the High Court for removal of the stay. Proceedings were then remitted back to the High Court and came before Tugendhat J. The essential proceedings are claims for damages for defamation and it is pertinent to note that both Eady J and Tugendhat J are judges of very great experience in that field.
3. The proceedings result from the affairs of a company called Landmark International Limited but relate to statements made in the internet bulletin board of a company called ADVFN.Com, or at the least the website with that name of a company, and on the bulletin board various people can put comments about other people and indeed did so. Mr Smith complained about a large number of pejorative comments made about him and he began a large number of proceedings against everyone, apparently, who had made such pejorative comments. The judge, Tugendhat J, refers to a total of 41 cases, many of which were the subject of discontinuance, leaving 11, and the judge took those 11 proceedings (one having been disposed of) into account when the matter was before him, as I have referred to.
4. The judge considered three claims specifically and others in a generic manner. He decided that the statements made on the websites were generally not defamatory but abuse, not giving rise to a claim for damages; and even if they were defamatory there were manifestly defences of qualified privilege and fair comment without any realistic plea of malice against the defendants, who did believe that the pejorative statements they were making were true or might well have done. Moreover, the damage that might have been caused would be relatively minor; it would be difficult to prove that any individuals saw the pejorative statements in question even though they are on the internet, and in any case would have treated them as abuse; and it is significant that Mr Smith has not alleged in any of the many proceedings he has commenced that he suffered any special damage -- that is to say identifiable quantified damages -- in terms of loss of earnings or the like.
5. There is one claim in which there was an order of a different kind and that is the claim against the ADVFN.com where there was a cost order outstanding which had not been paid, and an order had been made staying those proceedings until and unless Mr Smith paid the costs that were due, but in other cases Tugendhat J had decided that there were no meritorious claims and the proceedings were hanging over the heads of a great number of defendants with threats of claims for damages and very substantial costs. Some had apologised; we have seen in the apologies that it is quite clear that the apology was not an admission that there had been defamation and no doubt was prompted by the threat of proceedings and the costs that would be incurred.
6. When a large number of proceedings are begun in the way that Mr Smith has done, those who are the defendants in those proceedings may have been exercising their rights of free expression, and the institution of large numbers of claims over pejorative statements of the kind that have been shown to us this morning is a real interference with the right of free expression.
7. Mr Smith is very articulate and persistent. Among the proceedings he has begun is a claim against the Ministry of Justice which has, at least in law and indeed in fact, no rational basis. It arises as a result, as I understand it, of the fact that Eady J originally made a civil restraint order which was published but ultimately he withdrew that order because he considered that one of the requirements for the making of such an order had not been satisfied. It may well be that the Daily Telegraph published his original order, but the failure of the Daily Telegraph to publish the fact that Eady J had retracted that order could not conceivably give rise to any claim for damages against the Ministry of Justice. There is similarly a claim against Mr Eardley, who was counsel who at one stage acted for Mr Smith. Again, there is no conceivable basis on which he could be liable in damages by the fact that there was a publication of an order made by Eady J.
8. We have looked today at some of the statements made on the website; they are in my judgment clearly of the category of abuse. In one case it is quite clear that, although it was abuse, within a very short time (that is to say, on the following day) there was an abject apology on the website. It is difficult to see in any of these cases that there could be any significant or substantial damage suffered by Mr Smith to be put against the costs involved, both on the part of the defendants and indeed in terms of court time, of the very many proceedings he has begun.
9. In order to obtain permission to appeal Mr Smith must show that Tugendhat J erred in law in making the orders he did. In my judgment the judge was entitled to look at the various defamation claims in the way he did. He correctly summarised the implications of those claims in his judgment. I see no error of law in what he said about the defamation claims against the individuals and the specific claims to which he referred in paragraphs 47 and following of his judgment are the subject of comments by the judge, with which I entirely agree, as indeed I have made clear in respect of the claim against the Ministry of Justice. In my judgment the judge was fully entitled to make the orders he did, including the civil restraint order. Having heard Mr Smith today I have no doubt that such an order is required both to protect further defendants from his claims and to protect the time of the court from such proceedings, which could not result in substantial liabilities.
10. I would add that Mr Smith relies on the fact that various persons whom he has threatened with proceedings or brought proceedings against have apologised, but having seen the apologies that have been made it is quite clear that they do not amount to an admission of defamation; they do not amount to an admission of having caused damage, but have been brought about by the threats of proceedings or actual proceedings made against those persons.
11. In those circumstances I would refuse permission.

Lord Justice Aikens:

12. I agree. I only wish to add two comments about specific submissions that Mr Smith made to us orally this morning, although they both reflect the submissions he made in his full skeleton argument presented for permission to appeal. The first relates to a statement by Tugendhat J at paragraph 32 of his judgment. Mr Smith submitted to us this morning that Tugendhat J was wrong to say in the last sentence of that paragraph that Mr Smith's barrister, Mr Eardley, had overlooked the fact that Eady J had failed to deal with one aspect on the need for persistence before he could make a civil restraint order. Mr Smith that that was the wrong characterisation because Mr Smith's barrister, Mr Eardley, had deliberately not corrected the judge when he made his first judgment. That is a very strong allegation upon which there seems to be very little evidence to support it. However, whatever the basis of Mr Smith's barrister not intervening, it seems to me quite plain that it would not support any claim for damages for negligence against Mr Eardley, so that the judge's conclusion was entirely correct.
13. The second specific point with which I wish to deal is the submission that Mr Smith made that Tugendhat J overlooked the statements made by Mackay J when he gave his judgment in relation to some of the cases with which Tugendhat J was concerned. Mackay J made these comments in a judgment of 13 March 2008. It is said by Mr Smith that those comments of Mackay J indicated that there was some merit in the defamation cases being brought by Mr Smith.
14. Those remarks were made in 2008. Tugendhat J considered all the cases to which my Lord has referred in his judgment, which was given in December 2010. I am quite satisfied that Tugendhat J would have, indeed must have, considered the merits of all those cases very carefully before making the order that he did. The remarks made by Mackay J were his view at the time; Tugendhat J had to consider the matter very carefully; I am quite satisfied that he did and that there is no merit in that particular point either.
15. Accordingly, I would agree with the order proposed by my Lord.

Order: Application refused