Case No: A2/2008/0839
Neutral Citation Number: [2008] EWCA Civ 968
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
(MR JUSTICE EADY)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 25th June 2008

Before:

LADY JUSTICE SMITH DBE

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Between:

	GENTOO GROUP LTD & ANR	Appellant
	
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HANRATTY	
Respondent	

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(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

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Mr D Price (instructed by David Price Solicitors) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment

Lady Justice Smith:

1.	This is a renewed application for permission to appeal an order made by Eady J in proceedings for defamation and harassment.
  
2.	The background to the application is an action by the claimants in which they allege that the defendant was involved in the publication of material defamatory to the claimants on a website called Dadsplace.  The present action is the second in which the claimants have sought to vindicate their reputation in respect of publications on that website. In the first action the claimants named three people and a company, all of whom were allegedly involved in the publication of six defamatory statements first put out in the website on different days between 2004 and 2006.  The claimants at that time believed that Mr Stephen Hanratty, the present applicant, was also involved in the publications on the website and sought Norwich Pharmacal discovery (Norwich Pharmacal Co v The Commissioners of Customs and Excise [1974] RPC 101) in an attempt to find evidence against him.  Mr Hanratty, however, expressly denied any knowledge of those involved in the operation of the website and, in the absence of any evidential foundation, the claimants decided not to include him as a defendant in the first action.  Liability in that action was eventually admitted, and in April 2008 it was compromised on payment of a substantial sum.  

3.	Although they had not joined the applicant in the first action, the claimants still believed that he was involved in the publications on the website.  They sought further Norwich Pharmacal discovery, this time against AOL, in an attempt to find evidence against him.  From that, the claimants obtained evidence from which they considered that the applicant’s earlier denials could be shown to be false and that an inference of his involvement could therefore be drawn.  So, a second action was begun against him alone.  

4.	By the time that action was begun on 12 July 2007, the period of one year following publication, normally permitted for the commencement of defamation proceedings, had already elapsed, save insofar as the claimants could rely on any publication on 12 July 2006 itself, which was the last day on which the website was used.  No such reliance was pleaded.  The claimants relied only on the same six publications as had been relied on in the first action, which at that time, of course, was still running.  So the claimants needed and sought from the judge an extension of time pursuant to section 32A of the Limitation Act.  The claimants also alleged harassment by Mr Hanratty, as to which there was no limitation problem because the relevant period was six years.  Thus, on any view, unless the action were to be struck out, Mr Hanratty would inevitably face a trial on the issue of his involvement in the publications on the website.  

5.	The application to extend time came before Eady J and he exercised his discretion in favour of the claimants.  Mr Hanratty sought permission to appeal the exercise of that discretion, but in the argument before me it has not been pursued.  The judge also heard two related applications made by Mr Hanratty.  The first and most important was an application to strike out the defamation action on the ground that it had no reasonable prospect of success because there was no credible evidence of Mr Hanratty’s involvement in the publication of defamatory material on the website.  The judge refused to strike out the defamation claim.  Finally, Mr Hanratty alleged that if all that had been left was the harassment claim that action should be struck out as an abuse of process.  Because the judge did not strike out the defamation claim that issue did not have to be dealt with.

6.	The application today is a renewed application to appeal Eady J’s refusal to strike out the defamation claim.  The application for permission was refused on paper by the single Lord Justice.  

7.	Mr Price, who has appeared for the applicant has submitted that the claimants were not able to demonstrate an arguable case that the applicant was involved in the publication of the articles complained of.  There was some evidence that he had written some material which was published on the site, but not the articles complained of.  It was not sufficient, he submitted, that there should be a vague allegation that he was involved generally in the management of the website. That had not been pleaded nor had sufficient facts been alleged from which that could be inferred.  

8.	Mr Price has also submitted that the case is important because it raises the issue of what has to be shown to prove involvement in publication where the means of publication is a website on the Internet.  I can see that that might be an interesting, important and novel question.  I can see that if and when the judge has made findings of fact as to what Mr Hanratty can be shown to have done, the judge’s conclusions as to his involvement might give rise to interesting arguments as to whether that was sufficient to amount to involvement in publication on a website. However, in my judgment that is a question for another day and it is not one which the Court of Appeal would be prepared to decide in the absence of findings of fact made by the trial judge on the basis of the evidence advanced.  

9.	The only question for the present is whether the judge was right to hold that the claimants’ case is arguable and has some prospect of success.  The judge considered that he must avoid holding a mini-trial in seeking to determine that issue and in my judgment he was plainly right about that.  

10.	As I have said, the applicants’ case was that there was nothing to connect Mr Hanratty with any of the six articles.  None had appeared in any of his usernames, in particular the username under which it is agreed that he had written one article, although not an article complained of.  There was evidence that he posted some articles on the website but none of these have appeared after April 2005 and, of the six items complained of, only two predated 2005. In respect of those two, there was nothing to tie them to the applicant.  

11.	The claimants’ case is based upon the drawing of inference. They will rely on    evidence of private communications between him and those now known to be responsible for the website.  They rely on the elaborate steps that were taken to conceal the identities of those involved, including the applicant.  The claimants also claim to have expert handwriting evidence which would help to show the applicant’s involvement.  However, Mr Price asserts, and I have no reason to think that he is wrong, that that handwriting evidence relates only to an article which is not one of the six articles complained of.  Even though I accept what he says is true, it does not seem to me that the handwriting evidence will necessarily be irrelevant to the issue of involvement.  The claimants also submit that there were other tell-tale signs from which an inference of the applicant’s involvement could be drawn.  

12.	I would accept that none of these items of evidence taken singly, assuming they can be proved, could of itself be said to demonstrate involvement in the management or control of this website.  However, the judge held that, taken together it could not be said that the claim did not have reasonable prospects of success.  It seems to me that in that he was plainly right, and despite all that Mr Price has said.

13.	The claimants allege that it can be inferred that the applicant was involved with the other three men and the company, who have now admitted their involvement in the publications and in what the claimants would call a “campaign of defamation” against them.  I accept that Mr Price does not for one moment accept that there was any such campaign.  But that is how the claimants put it. The claimants argue that this campaign was, in effect, a joint enterprise and that that can be inferred from the available material. The judge expressed the view that, although its is unusual to base a defamation claim on joint enterprise, there is no rule of law which says that responsibility for publication could not be proved by demonstrating joint enterprise.  
14.	Mr Price submits today that the judge was wrong in that respect and that the Court of Appeal ought at this stage to lay down the law applicable to joint enterprise in respect of publication on a website.  In my judgment, as I have already indicated, the Court of Appeal would not be prepared to do that in the abstract in the absence of any findings of fact upon which such a ruling could be based.  

15.	For these reasons, I am wholly unpersuaded that the Court of Appeal would interfere with the judge’s decision. Accordingly the renewed application is refused.

Order: Application refused.