Deborah Mulloy v Katarzyna Swider

With the permission of Mr Justice Jay, given in his order dated 1 April 2025, the appellant, Ms Deborah Mulloy, appeals against paragraph 1 of the order of Deputy Master Marzec made on 5 November 2024 in which she granted summary judgment in favour of the respondent, Dr Katarzyna Swider, in relation to the appellant’s claim in defamation in respect of a publication called the “First Post” in the appellant’s Amended Particulars of Claim (“APoC”) and, accordingly, struck out paragraphs 2.1 to 2.1.7 of the APoC.

Each of the appellant and the respondent is a litigant in person. The appellant prepared an appeal bundle and a skeleton argument for this appeal.

The respondent did not prepare a skeleton argument, nor was she required to (PD 52B, para 8.3). Her position is that the deputy master was right to give summary judgment in her favour in respect of the First Post for the reasons that the deputy master gave. The bundle for the appeal hearing included her detailed written submissions in support of her application dated 30 September 2024 to strike out the whole of the claim or, in the alternative, to give summary judgment in her favour (“the Strike-out Application”) as well as the appellant’s reply to the Strike-out Application dated 24 October 2024 (“the Reply”).

Bearing in mind that neither party is a practising advocate, I wish to acknowledge that I provided considerable assistance by the parties’ relatively clear and well-reasoned oral submissions at the hearing, as well as by their written submissions, including their respective written submissions in the Strike-out Application and the Reply. However, as the deputy master noted at the outset of the hearing before her (transcript at p 2D-E), the parties’ statements of case could have been a quarter of the length that they were due to the inclusion of narrative content that could have been included at a later stage, for example, in witness statements. The parties’ failure to be sufficiently concise in their pleadings made it more difficult for the deputy master to “get to grips with the real key issues”. I agree with the deputy master’s observation in that regard. Similarly, although reasonably clear, the parties’ written submissions for the hearing before me (that is, principally, the appellant’s skeleton argument for the hearing and her Reply to the Strike-out Application and the respondent’s written submissions supporting the Strike-out Application) could have been more concise and focused.

The factual background to the claim is to some extent disputed, in particular as to the nature of the relationship between the appellant and the respondent prior to the statements and alleged conduct of the respondent that are the subject of the appellant’s claims of defamation and harassment against the respondent. It is neither necessary nor appropriate for me, for purposes of this appeal, to resolve those factual disputes, which will be matters for trial if, and to the extent that, those factual disputes require resolution at the trial. The brief summary that follows, therefore, is intended to be neutral and simply to provide context for anyone reading this public judgment as to the nature of the claim and the limited issues that I need to resolve in order to decide this appeal.

At the relevant times for purposes of this claim, each party was a registered and active member of a social media platform known as FetLife, which is for those interested in what is described in the APoC as the “fetish community” or “the Scene”. The appellant, who is known online on FetLife and in person on the Scene by her FetLife name, @LoisPain, also runs two events in London for members of the fetish community, one event known as Debauchery and the other event known as THIRST.

The claim in defamation concerns six posts (“the Posts”) made by the respondent on FetLife, the first Post having been made on 26 December 2022 (“the First Post”), with further posts on 28 December 2022, 9 January 2023, 13 February 2023 (two Posts), and 27 April 2023. Each was posted by the respondent under her FetLife username @katja_. Two of the Posts were status updates on FetLife, three were comments on posts by others on FetLife and one was a longer written piece published on the respondent’s FetLife profile.

The appellant’s claim is that the Posts were not only defamatory but also constitute a course of harassment, in relation to which the appellant also relies on other posts made by the respondent between 10 January 2023 and 7 June 2023, which are set out in Annex B to the APoC.

It is the appellant’s case, set out in the APoC, that the appellant and the respondent were in a personal relationship from mid-2021 onwards, which the appellant says she ended in October 2022.

In her Amended Defence, the respondent accepts that she met the appellant in 2020 after attending an online event organised by the appellant during the pandemic. She says that they were friends but that they were never “partners” or in a “relationship”. The respondent says that in or about September/October 2022 she began to make efforts to “disengage” from the appellant, including making it clear to the appellant that she viewed their relationship as “purely platonic” but hoping that they would remain on friendly terms. The respondent claims that the appellant became unfriendly towards her from about mid-November 2022.

After pre-action correspondence failed to resolve matters, the appellant filed her claim on 21 December 2023, with the respondent filing her original defence on 1 March 2024.

On 11 April 2024, the appellant applied for an order striking out the respondent’s defence and for a trial of preliminary issues.

On 13 June 2024, following a case management conference (“CMC”), the deputy master made an order:

On 3 July 2024, the appellant filed the APoC, principally to add particulars regarding serious harm for each Post, to remove two posts (out of eight posts in the original Particulars of Claim) from the defamation claim (but retaining them in the harassment claim), and to provide additional comments on meaning and reference in relation to each of the six Posts.

On 15 July 2024, the respondent filed her Amended Defence.

On 15 August 2024 the appellant filed her Reply to the Amended Defence.

On 30 September 2024, the respondent filed the Strike-out Application.

On 24 October 2024, the appellant filed her reply to the Strike-out Application.

The further CMC that was ordered by the deputy master on 13 June 2024 was listed before the deputy master on 5 November 2024, with a time estimate of 90 minutes. A transcript of the full hearing was included in the appeal bundle. The transcript includes the deputy master’s ruling at pp 21F – 25E giving her reasons for making the order that is the subject of this appeal.

At the beginning of the hearing, the deputy master noted that in the time available it would only be possible to deal with the Strike-out Application and therefore other matters that would have been dealt with at the CMC would have to be adjourned. She wished, however, to reserve 10 minutes at the end of the hearing to discuss whether there was scope for any form of early resolution short of a trial.

The deputy master summarised the issues raised by the Strike-out Application as being:

The deputy master then discussed and disposed of the first three issues. In relation to the more substantive issues (iv), (v), and (vi), she proposed to review each Post, taking the Reference Issue and the Serious Harm Issue together.

Having heard the submissions of each party, the deputy master gave her ruling on the First Post. On the Reference Issue, she decided that, although the claimant’s case on reference in relation to the First Post was not fully pleaded (noting that the appellant’s submissions at the hearing went further on this issue than her APoC), she could not strike out the claim or grant summary judgment in favour of the respondent on the Reference Issue having regard to other matters that are pleaded in the particulars. She intimated that she would be ordering a trial of preliminary issues as to the question of meaning. It would be for the judge determining that matter to determine whether the First Post did refer to the appellant. As it happens, following the hearing the deputy master decided, as she was entitled to do, that, despite her intimation to the contrary, she would not order a trial of preliminary issues.

Turning to the Serious Harm Issue, the deputy master noted that she needed to consider the inherent gravity of the allegation in the First Post, the extent of publication pleaded and also what was pleaded in terms of real world impact. Having regard to the appellant’s pleaded case, the deputy master concluded that:

For these reasons and for case management reasons, the deputy master decided that she should give summary judgment on the First Post in favour of the respondent, so that the parties and the court could focus on the real issues in the case.

The deputy master then went to consider the other five Posts, ultimately concluding, in relation to each of them, that she should dismiss the Strike-out Application as it related to the defamation claim. Having reached that stage, the deputy master noted there was insufficient time to consider the Strike-out Application as it related to the harassment claim. There followed a discussion of case management directions that it is not necessary to summarise here. The deputy master also made it clear that she considered that this case “cries out for alternative dispute resolution”, following which the parties each indicated a degree of openness to mediation.

The appellant asked for the deputy master’s permission to appeal her ruling on the First Post. The deputy master refused permission for the following reasons:

Finally, after a discussion of costs, the deputy master indicating that she would be reserving the costs of the hearing. The hearing then concluded.

The deputy master then produced her order, which was dated 5 November 2024 but sealed by the court on 20 November 2024. Paragraph 1 of the order granted summary judgment in favour of the respondent on the appellant’s claim in defamation in respect of the First Post “and accordingly paragraphs 2.1 to 2.1.7.o of the Amended Particulars of Claim be struck out”. This is the part of the order against which the appellant is appealing.

Paragraph 2 of the deputy master’s order of 5 November 2024 dismissed the remainder of the Strike-out Application as it related to rest of the defamation claim. Paragraphs 3-4 of the order adjourned the harassment claim, to be listed for determination at the next CMC, and made further case management directions. Paragraphs 5-6 stayed the claim until 16 December 2024 so that the parties could try to settle the matter via some form of alternative dispute resolution, with a mechanism for potentially extending that deadline. Paragraph 7 provided for costs in the case.

The deputy master appended reasons to her order of 5 November 2024. At paragraph A of her reasons, the deputy master set out why she was ordering a short stay so that alternative dispute resolution could be considered. She also invited the parties to consider applying to the court for early neutral evaluation of the claim to assist settlement efforts. At paragraph B of her reasons, the deputy master noted that she had intimated during the hearing that she would order a trial of preliminary issues as to the question of meaning, but that:

“Upon further consideration after the hearing, and reviewing my order in June 2024, I have decided a trial of meaning is not appropriate in this claim, even following the dismissal of the claim upon the First Post.”

In paragraphs C to E of her reasons, the deputy master explained why she had concluded that a trial of preliminary issues was not appropriate in this case and that there should be a single trial of all the issues. Her conclusion in this regard is not appealed, and I need say no more about it.

The efforts of the parties to resolve their differences via alternative dispute resolution were ultimately unsuccessful, and no application was made to extend the deadline in the deputy master’s order of 5 November 2024 to allow those efforts to continue.

The appellant filed her Appellant’s Notice and Grounds of Appeal on 13 December 2024. Strictly speaking it was filed out of time and therefore required an extension of time by the court. The appellant applied for an extension of time on several grounds, including that she did not receive a copy of the order until 20 November 2024 (which, as I have already noted, was the date it was sealed by the court).

By her order made on 21 February 2025 (sealed on 25 February 2025), Steyn J granted the appellant’s application to bring the appeal out of time and gave directions in relation to appeal bundle.

On 1 April 2025, as I have already noted, Jay J granted the appellant permission on her appeal in relation to the First Post. The grant of permission means, of course, that, in the view of the judge granting permission, the question of whether the deputy master was wrong in granting summary judgment on the defamation claim in the respondent’s favour is arguable. Jay J simply noted in his reasons for granting permission that the deputy master’s “assessment of serious harm may be questioned”.

As this is an appeal, the appellant needs to establish having regard to CPR r 52.21(3), that the deputy master’s decision in granting summary judgment in favour of the respondent in relation to the First Post as part of the defamation claim was (i) wrong or (ii) was unjust because of a serious procedural or other irregularity in the proceedings before the deputy master.

As noted in the discussion of CPR r 52.21(3) at paragraph 52.21.5 of volume 1 of Civil Procedure (2025), popularly known as the “White Book”, a lower court’s decision can be said to be wrong if the lower court “(i) erred in law or (ii) erred in fact or (iii) erred (to the appropriate extent) in the exercise of its discretion.” What this means is then developed in some detail in that passage of the White Book.

The appellant advances six grounds of appeal:

Conscious that each of the parties is a litigant in person, I note at this point that it is well-established that while a judge is required to give adequate reasons for their judgment so that the basis on which they have reached their decision is clear, this does not mean that they are not required to deal expressly with each issue or argument raised by a party. See, for example, English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 (CA) (Lord Phillips MR) at [17]-[19]; South Bucks District Council v Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953 (HL) (Lord Brown) at [36]; and Battista v Bassano [2007] EWCA Civ 370 (Collins LJ) at [27]-[30] and [52] and (Arden LJ) at [56]-[63].

I confirm that I have carefully considered all of the written and oral submissions made by each party, as well as the relevant documents contained in the appeal bundle, including the transcript of the full hearing before the deputy master, and the authorities cited by the parties. In summarising the submissions of the appellant, I have not attempted to deal expressly with every point she has raised but rather to give what I consider to be a fair summary of the essential elements of her submissions.

As the respondent’s position in relation to this appeal is, essentially, to rely on the deputy master’s reasons for making her decision to strike out the defamation claim in relation to the First Post, and I have already summarised those reasons, I do not consider that it is necessary to summarise the respondent’s submissions in this judgment.

In relation to Ground 1, the appellant submitted that by striking out paragraphs 2.1 to 2.1.7 of the APoC, the deputy master has prejudiced her harassment claim, as the appellant also relies on the First Post in relation to that claim.

In relation to Grounds 2 and 4, alleging errors of law, the appellant submitted that the deputy master failed to have regard to the well-known principles governing applications for summary judgment as set out in CPR Part 24 and the leading cases, in particular, Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch). The judge “did not appear to consider the [appellant’s] Skeleton Argument”, in which Easyair was cited. The appellant submitted that the deputy master failed to engage with the appellant’s evidence and submissions or to consider all the evidence that could reasonably be expected to be available at trial.

The appellant submitted that the deputy master had conducted a “mini-trial” on the extent of publication and matters relating to serious harm with respect to the First Post where there were material facts in dispute. She further submitted that the deputy master failed properly to apply the principles set out by the Supreme Court in Lachaux v Independent Print Ltd [2019] UKSC 27, [202] AC 612 (SC). An allegation that something is not “safe” must be considered in its full context to determine its gravity. The relevant context in this case is the organisation of an event within the fetish community, where an allegation of this nature will carry significant weight. The allegation that such an event is not “safe” is likely to cause serious harm to the reputation of any person responsible for organising the event. The reference by the respondent in the First Post to her no longer feeling “safe” at the Debauchery event will have been seen by many people who know the appellant and know that she is an organiser of the event. The appellant made reference in her submissions on Ground 4 to a number of cases in which the court declined to grant summary judgment in favour of a defendant.

In relation to Grounds 3, 5 and 6, the procedural irregularity grounds, the appellant submits that the decision was unjust for the following reasons:

In relation to Ground 1, it is clear that paragraph 1 of the deputy master’s order only gives summary judgment in favour of the respondent on the appellant’s claim in defamation in respect of the First Post. To the extent that the appellant continues to rely on the First Post in relation to the harassment claim, that can be addressed at the next CMC or other hearing when the Strike-out Application is considered in relation to the harassment claim. If the part of the harassment claim that relates to the First Post survives the consideration of the Strike-out Application on the next occasion, then the deputy master (or other judge deciding that question) can give appropriate directions for the APoC to be amended to restore the particulars of the First Post in relation to the harassment claim. Ground 1 therefore fails.

In relation to Grounds 2 and 4, there is nothing in the transcript that leads me to conclude that the deputy master demonstrated any lack of familiarity with the well-known principles that govern summary judgment applications under CPR Part 24 and the leading authorities, in particular, the Easyair case, or, for that matter, the principles that apply to the striking out of all or part of a statement of case under CPR r 3.4. More specifically, I find that there is no error of law in the deputy master’s analysis. These grounds simply represent the appellant’s disagreement, set out at length, with the deputy master’s judgment, which was reached having correctly applied the relevant principles governing determination of an application for summary judgment and/or to strike out all or part of a statement of case.

There is no basis for saying that the deputy master did not sufficiently consider the appellant’s written or oral submissions or that the deputy master did not have proper regard to the relevant documents. She did not conduct a “mini-trial” on the extent of publication and matters relating to serious harm with respect to the First Post. It does not follow from the Supreme Court judgment in Lachaux that the ordinary principles applicable to summary judgment and/or exercising the power to strike out do not apply to a question of serious harm to reputation. The deputy master’s judgment was, of course, case-specific. The various cases referred to by the appellant in her skeleton argument in which the court has declined to grant summary judgment in favour of a defendant are each fact-specific and therefore do not provide material assistance on this appeal. Accordingly, Grounds 2 and 4 fail.

In relation to Grounds 3, 5 and 6, the procedural irregularity grounds, there is, in my view, nothing in them.

Dealing first with Grounds 3 and 5, I note that a case management hearing, such as the hearing before the deputy master relevant to this appeal, is necessarily time-constrained. It is clear from a careful reading of the transcript that the deputy master treated each of the parties fairly during the hearing. She adjourned the Strike-out Application in relation to the harassment claim because there was insufficient time to consider it.

There was no unfairness to the appellant in the deputy master raising an obvious point regarding the lack of inherent gravity of the First Post that was not raised by the respondent in her Strike-out Application, in circumstances where the point arose naturally out of the facts of this case and the wording of the First Post, where it therefore should have been anticipated by the appellant, and where, during the hearing, the deputy master gave the appellant an adequate opportunity to deal with it. It is not evident what more the appellant could have said on the point had the CMC been adjourned for a further two weeks (at least) so that she could consider it. The 14-day period in CPR Part 24 to which the appellant refers in her grounds applies only in relation to a summary judgment hearing that is fixed of the court’s own initiative. The hearing before the deputy master was not fixed of the court’s own initiative but in order to consider the respondent’s Strike-out Application.

In my view, the deputy master gave adequate reasons for her ruling, which I have summarised above. The allegation that the deputy master failed to give due weight to all the evidence presented by the appellant and “all possible evidence which may be available at trial” is simply another way of expressing disagreement with the deputy master’s ultimate conclusion, without, however, identifying any error of law or fact. I am satisfied that the deputy master did give adequate consideration to the evidence and bore in mind the principles that apply on an application for summary judgment and/or to strike out all or part of a statement of case, including a consideration of what evidence might be available following disclosure if the matter proceeded to trial.

The same principles that I have referred to at [40] above apply to the deputy master’s ruling on the First Post. The basis for her ex tempore ruling at the hearing is clear and sufficiently explained in the transcript. She was not obliged to address every point raised, or that could have been raised, by the appellant. Accordingly, Grounds 3 and 5 also fail.

Ground 6 is simply misconceived. Under CPR r 1.4, it is the duty of a judge case managing a claim to further the overriding objective by ensuring that the claim is properly focused on the real issues. Taking appropriate steps to reduce the time and expense of proceedings is a legitimate aim consistent with that duty, provided, of course, that those steps are consistent with dealing with the case justly and at proportionate cost. As CPR r 1.1 makes clear, dealing with a case justly and at proportionate cost includes (so far as is practicable), among other things, saving expense and allotting to it an appropriate share of the court’s resources (including court time), while taking into account the need to allot resources to other cases. Ground 6, therefore, also fails.

For the reasons given above, all six Grounds of Appeal fail. The appeal is, therefore, dismissed.

Given that the appellant has lost this appeal, the general rule applies that the unsuccessful party should pay the costs of the successful party. Given that the respondent is a litigant in person, CPR r 46.5 applies to her recovery of her costs.