Draconian power to be used only in clear cases

The Times, April 14, 1994

Court of Appeal. McDonald's Corporation v Steel and Another
Before Lord Justice Neill, Lord Justice Steyn and Lord Justice Peter Gibson
(Judgment March 25)

In considering whether or not to allow an interlocutory application by the plaintiff in a defamation action to strike out parts of the defence, particulars of justification and fair comment, it was necessary to determine whether the defendant's case in relation to a given passage was incurably bad since the power to strike out was a draconian one to be used only in clear and obvious cases.

The Court of Appeal so held in a reserved judgment in allowing an appeal brought by the defendants, Helen Marie Steel and David Morris, against the order of Mr Justice Bell who on November 15, 1993 struck out parts of their defence in an action for defamation brought by the plaintiffs, McDonald's Corporation and McDonald's Restaurants Ltd.

Mr Patrick Milmo, QC, and Mr David Sherborne for the defendants; Mr Richard Rampton, QC and Mr Timothy Atkinson for McDonald's.

LORD JUSTICE NEILL said that on various dates between October 1989 and April 1990 the defendants with others published and distributed a leaflet entitled "What's wrong with McDonald's? ".

The writ was issued on September 20, 1990 and on November 16 the defendants served their defence setting out pleas of justification and fair comment. Many interlocutory applications followed.

On September 30, McDonald's applied to strike out parts of the defence and parts of the particulars of justification and fair comment. On November 2, Mr Justice Bell accepted the plaintiffs' submission that the striking out application should be decided before the application for further discovery.

On November 15, the judge struck out substantial parts of the defendants' pleadings and made an order striking out other parts unless witness statements containing admissible evidence to support those passages were served within specified times.

The appeal raised questions of difficulty and importance. On the one hand reliance could be placed on the principle that it was in the public interest that litigation should be conducted as expeditiously and economically as possible and that at the trial the evidence should be directed to what was truly at issue.

On the other hand it could be argued that the procedure adopted in the present case introduced a fresh interlocutory step into legal proceedings and one which might lead to additional delay and expense. In seeking to find the solution to the problems raised, his Lordship proposed considering the matter at the following stages:

Service of the defence

Before a plea of justification was included in a defence the following criteria should normally be satisfied: (a) the defendant should believe the words complained of to be true; (b) the defendant should intend to support the defence of justification at the trial; (c) the defendant should have reasonable evidence to support the plea or reasonable grounds for supposing that sufficient evidence to prove the allegations would be available at the trial. A similar approach was to be adopted towards facts which were relied upon in support of a plea of fair comment.

Interlocutory application to strike out

In addition to the power of the court to strike out pleadings under Order 18, rule 19 of the Rules of the Supreme Court, the court had an inherent and general jurisdiction to stay all proceedings before it which were an abuse of its process. There was thus no objection in principle to an application being made to the court on the basis that a statement of claim or a defence should be struck out as an abuse of process because the claim or defence was incapable of proof.

Furthermore, following the introduction of the practice whereby witnesses' statements were exchanged in accordance with Order 38, rule 2A of the Rules of the Supreme Court there might well be cases where after the witnesses' case was hopeless.

The outset of the trial

It had become the practice in defamation actions to consider at the outset of the trial whether some parts of the defence should be struck out on the basis that it had become apparent that some of the matters pleaded were not going to be supported by evidence.

In an appropriate case that was a sensible course which was likely to shorten the trial. On the other hand, there might be cases where a defendant pleaded some matter which he believed to be true but which he might still be unable to prove by admissible evidence otherwise than by eliciting an answer in cross-examination. Each case would have to be considerd on its own facts.

The close of the evidence

At the close of the evidence, all the evidence would be before the court. Where the trial was with a jury there was considerable merit in removing from the pleadings those allegations of which there was no evidence for the jury to consider.

The present case

In the present case, the approach adopted by the judge was incorrect. It might well be that there were some passages in the pleadings which were wholly unsupported by any evidence in the witnesses' statements and where it was clear from the discovery already given and from other circumstances that no admissible evidence was ever going to be forthcoming.

It was clear, however, that there were many other passages where the defendants' case, although very weak in November 1993, might have been greatly improved or even transformed by the date of the trial. The correct approach was to consider whether or not the defendants' case in relation to a particular passage was incurably bad.

The power to strike out was a draconian remedy which was only to be employed in clear and obvious cases. It would only be in a few cases where it would be possible to say at an interlocutory stage and before full discovery that a particular allegation was incapable of being proved.

The appeal would be allowed and the case remitted to the judge.

Lord Justice Steyn and Lord Justice Peter Gibson agreed.

Solicitors: Richards Butler; Barlow Lyde & Gilbert.

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