Carrie v Tolkien

The Claimant, Mr Christopher Carrie, sues for libel in connection with a posting he alleges to have been made by the Defendant, Mr Royd Tolkien, on the Claimant’s own “blog” site. The Defendant denies having done so at any stage. At all events, the posting took place on 24 February 2007. On this application, I am invited to address a number of issues which arise on the pleadings. If the Defendant’s submissions are correct, they would be dispositive of the whole case.

It is not, however, suggested that there should be summary judgment on the issue of whether or not the Defendant was responsible for publication, as sometimes happens: see e.g. Bataille v Newland [2002] EWHC 1682 (QB). I should thus proceed on the assumption that the Claimant may succeed in establishing publication if the matter proceeds to trial. Mr Dean, appearing for the Defendant, does not suggest otherwise.

The issues to which the applications give rise can be summarised as follows. First, the Defendant submits that the Claimant’s amendment to the claim form, on 12 June 2008, which was prior to service upon the Defendant but already outside the limitation period, should be disallowed. Secondly, it is submitted that judgment should be entered for the Defendant in relation to the bulk of the libel claim on the basis of the defence of consent. Thirdly, if that submission is correct, the question arises as to whether what remains of the claim (i.e. as to publication during the period prior to the Claimant’s discovering the posting) should be struck out on the basis that there is no realistic prospect of establishing the commission of a real and substantial tort: see e.g. the approach taken by the Court of Appeal in Jameel (Yousef) v Dow Jones Inc [2005] QB 946.

I turn to the Defendant’s application dated 2 October. The relief sought is identified as follows. The court is asked to grant summary judgment pursuant to CPR Part 24 and/or to strike out the pleading pursuant to CPR Part 3.4(2) on the following grounds:

All publications of the words complained of, if any, taking place by reason of the words being available for viewing on www.tolkienexaminer.blog.co.uk after 3.31 pm on 24 February 2007, took place with the consent of the Claimant, and the Claimant’s claim over any such publication therefore has no realistic prospect of success; and/or

The particulars of claim disclose no reasonable grounds for bringing a claim which is not an abuse of process, and/or the claimant has no realistic prospect of establishing that the Defendant has committed a substantial tort which is suitable for trial in relation to all publications of the words complained of, if any, taking place between 11.22 am and 3.31 pm on 24 February 2007, by reason of the words complained of being available on the website identified above.

I should make clear that there is no dispute that the Claimant had it within his power to remove the posting from his website, once he discovered it, or that it remains available for viewing to this day.

The blog is operated and controlled by the Claimant under the pseudonym “gggollum”. It appears to be used largely for the promotion of his self-published book “Tolkien is Klone’it”. In that work he alleges that he suffered abuse at the hands of a deceased member of the Tolkien family when he was a child, some 50 years ago. Obviously, whether that allegation is true or not is irrelevant to the present applications.

It was only on 12 June 2008 that the claim form was amended to include reference to this particular website, despite the fact that the original publication was alleged to have taken place on 24 February 2007. When it was first issued, the claim form referred to a different website. It is alleged that publication on the Claimant’s website after he discovered the posting (which appears, at the latest, to have been at about 3.30 pm on the day of publication) would have been consensual.

It is surprising that the Claimant’s control over the website was only revealed when his reply was served, dated 15 September 2008, in which he had to plead to an express allegation in the defence.

The evidence shows that the Claimant made a posting under his name gggollum on 6 February 2007 and that the blog had only been set up the day before. He purported to be a Tolkien fan who had stumbled across his own book and enjoyed it. In the course of his submissions to the court on 15 December 2008 the Claimant was at pains to point out that people on blogs very often assume a persona different from their own and this does not necessarily imply any intention to deceive.

Following his own posting of 6 February, a number of comments appear to have been provoked. The words complained of take the form of one such comment, posted at 11.22 am on 24 February 2007. They are as follows:

The Claimant states in his evidence that “the defamatory words were first discovered by me at 11:22 am on 24 February 2007”. That is what he says at paragraph 4 of his witness statement, but at paragraph 9 a somewhat different version is given, suggesting that he only discovered it some hours later, at or about 3.30 pm. It is at least clear that at 15.41 on the same day the Claimant posted a response, using his own name, and asserting that the Defendant had gone too far and that he would be “hearing from the authorities”. It is, therefore, suggested on the Defendant’s behalf that at least from that point the Claimant could have removed the posting to which he took objection and that, since he did not, he can be taken to have acquiesced in the continued publication. That appears to be effectively admitted in the Claimant’s witness statement of 18 November 2008 at paragraph 4. What he says is that he only allowed the original posting to remain (having deleted his home address) so as to try and put the original posting “in context” and to allow anyone who reads it elsewhere on the Internet to see how that posting came about and what he has to say about it.

Mr Dean submits that those circumstances come within the defence of consent: see e.g. Gatley on Libel and Slander (11^th edn) at 19.10 et seq. In particular, he says, the Claimant knew that the words complained of would be published to anyone who happened to visit his blog.

No explanation was offered for his having taken no steps to delete it until his witness statement of 18 November 2008 was served. The explanation given, however, of putting the words “in context” does not in any way detract from the validity of a defence of authorisation or acquiescence. The fact remains that he could have removed it at any time over the last 22 months. These circumstances must surely be unique.

The Claimant’s conduct is hardly compatible with the suggestion in his pleading that he has suffered “substantial upset and distress” or with the assertion that he has “concerns about the welfare and safety of [his] family”.

In his reply, the Claimant has responded to some extent to the pleading of the defence of consent, but not to any substantive effect. For example, he relies upon the fact that he reported the posting to the local police on or about 25 February 2007. That may be so, but it does not meet the defence. Nothing in the reply can serve to undermine the basic fact that he has acquiesced in the continuing publications since the original date of publication.

Thus it is said that there is no realistic prospect of any jury, being properly directed, coming to a conclusion other than that the Claimant consented to and acquiesced in all such subsequent publications. That is in my judgment plainly correct. That leaves the Defendant to address the relatively brief period on 24 February 2007 before the Claimant discovered the posting. There is some doubt, on the Claimant’s own evidence, as to when this was. There would appear to be a maximum period of 4 hours and 19 minutes. It is the Defendant’s submission that there is no realistic prospect of establishing that any publication at all took place during that window of opportunity.

It would appear to be established that there is no presumption in law to the effect that placing material on the Internet leads automatically to a substantial publication: see e.g. Al Amoudi v Brisard [2001] 1 WLR 113. It is necessary to plead and establish any publication relied upon. There must be some evidence on which an inference can be drawn in relation to that very short period of time.

It will not suffice merely to plead that the posting has been accessed “by a large but unquantifiable number of readers”. There must be some solid basis for the inference. That form of pleading is no more than bare assertion.

It may very well be that the Claimant could gain access to the records of visitors to his website. Be that as it may, he has not done so. Without evidence of substantial publication it is submitted that there is no basis for concluding that there was, over the short period in question, the commission of a real and substantial tort such as to justify the deployment of the court’s resources. I have already referred to the case of Jameel, although it is fair to point out that this jurisdiction will only be exercised in relatively rare cases: see e.g. Steinberg v Pritchard Englefield [2005] EWCA Civ 288. Nevertheless, this would appear to be a suitable case to classify the claim as an abuse of process, in accordance with the Jameel doctrine, because of the minimal (if any) level of publication.

Sometimes it may be necessary to pursue a claim, notwithstanding the evidence of substantial publication, in order to obtain an injunction and silence the defendant from continuing to defame the claimant. There is no reason in this case to suppose that the Defendant is likely to publish any allegations of a similar nature in the future. It may be that others have made such allegations on the Internet, but that would not justify proceeding against this Defendant. It goes without saying that an injunction against him would have no effect upon others.

I agree with Mr Dean’s submissions in this respect also. This is one of those cases which falls within the mischief discussed in the Court of Appeal in Jameel. I turn now to another issue which has arisen.

When the claim form was issued on 22 February 2008, it complained of publication on a different website; namely, www.roydtolkien.com . As I have said, it was only amended on 12 June 2008. This was not by way of supplementing the existing claim but to substitute complaint about the publication on the Claimant’s own website. The amendment was made without permission or consent, since it had not at that stage been served.

It is in accordance with CPR Part 17.2(1) that the Defendant applies for this amendment to be disallowed. Ordinarily, a party must apply for an order disallowing amendment within 14 days of service of a copy of the amended statement of case. The amended document was in this instance served on 22 June 2008, but the application was not issued until 11 September. I am asked to extend the time for making the application, in accordance with CPR 3.1(2)(a).

The circumstances are rather unusual. The Defendant’s solicitor Mr Martin Soames explains the period of delay in his first witness statement. When the Defendant and his advisers received the claim form, they were not aware of the original contents. They were simply not included on the claim form as served. They therefore had no reason to know that a distinct publication had been substituted after the expiry of the limitation period. This only emerged later, when they obtained the original claim form from the court office on 28 August. The application was, as I have said, issued on 11 September and thus was within 14 days of the information being discovered. I will grant permission for time to be extended.

The next point to consider is whether the amendment should be disallowed. It seems entirely appropriate to apply the test that would be relevant if the court were considering whether or not to grant permission to amend a pleading after the expiry of the limitation period.

It thus becomes necessary to consider the terms of CPR 17.4(2) which provides:

I have no doubt that the claim in respect of the publication on the Claimant’s own website does represent a “new claim”, since it is well recognised that every publication represents a separate cause of action. It is not based on the same or similar facts for largely similar reasons. The fact giving rise to a cause of action in a defamation context is the fact of publication. That is plainly different in the case of the tolkienexaminer website from any publication on the roydtolkien website. (As a matter of fact, there is no evidence to suggest it was ever published on the latter.)

In the light of my conclusions on these first two matters, the question of exercising a discretion does not arise. Had it done so, I would have declined in any event to exercise my discretion in the Claimant’s favour because the claim has no realistic prospect of success for the reasons I have already given.

There is one final matter to consider. Mr Dean invites me to treat the Claimant as having applied before me (in the absence of any formal application) to bring a new claim over a different publication on a website called “monstersandcritics”. No explanation has been given as to why the application was not made earlier. In any event, the evidence appears to show that the posting complained of was removed from the relevant website in about February 2007. It is well out of time. I see no reason to exercise the discretion in the Claimant’s favour, since no explanation for the delay has been offered, and it is unnecessary to consider the matter any further.