Kim v Park & Ors

HIS HONOUR JUDGE MOLONEY QC: The first ruling that I am going to give today relates to the application of the claimant, Mr Ing Soo Kim, in claim number HQ10XO4479, an action against Mr Jueng Guen Park and Mr Sung Jung Choi. (There is also what is nominally described as a 3^rd defendant, Korean Post and hannantv.com. But it is clear from the Particulars of Claim that really that would better be described as Jueng-guen Park trading as Korean Post and hannantv.com, because those are not corporations, they are businesses owned and run by Mr Park with, according to the Particulars of Claim, the assistance of Mr Choi.)

Application is made to strike out the Defence based essentially on the striking fact that the defendants have not merely failed to file any witness statements in relation to this claim at all, but have disavowed their intention of doing so; so that there is no oral evidence to support the Defence. That, of course, is not per se the end of the matter because a defendant is entitled to put the claimant to proof and indeed can elicit evidence in support of his own case through cross-examination and through the deployment of disclosed documents. Again, there has been no disclosure in this case beyond the claimant's disclosure. The defendants are, therefore, one might surmise, in rather a weak position. The test for striking out, however, is not merely is it weak? but are there no real prospects of success? It is a high test.

The claim relates to one newspaper article, which was certainly published by the 1^st defendant, and maybe by the 2^nd defendant, depending on what is proven about his role in the matter. It clearly was consciously and deliberately published by the 1^st defendant because it is printed in his newspaper and he should be taken as responsible for it on that basis. It also relates to three internet articles placed on a website, apparently by readers or correspondents not by servants or agents of the 1^st and 2^nd defendants. Those are in a rather different class.

So far as the printed article goes, I have heard the submissions of Mr Hodson, but it appears to me that it remains incumbent on the claimant to prove his case in relation to publication, meaning and damage. Even if I gave judgment for him now on all or some of those submissions, he would still have to lead substantially the same case in respect of damage at the trial. It is not plain and obvious that that case is bound to succeed. It is certainly not plain and obvious that it is bound to succeed in toto. It may do; it may not. Mr Hodson will be calling his witnesses anyway and it appears to me that the defendants may have a real prospect of success in relation to that claim, or that the issues will be clearer after the evidence has been called and cross-examination, if any, has taken place. I therefore decline to strike that claim out. (None of the substantive defences such as justification or privilege or any other statutory defence are pleaded in respect of the article.)

So far as the three website items are concerned, the position is different. There are pleaded the substantive defences under section 1 of the Defamation Act 1996 (Defence paragraph 31), and Regulation 19 of the E-commerce Regulations (Defence paragraph 32).

In relation to the first point, the section 1 defence, the issue essentially is one of burden of proof. Section 1 expressly provides that a person has a defence if he shows three things:

That very clearly places on the defendant who wishes to rely on such a defence a formal legal burden of proving, among other things, reasonable care and absence in knowledge and belief. It appears to me that it would be extraordinary if a defendant could put forward such a defence with a real prospect of success when he did not give any evidence in support nor cause anyone else to give anyone else evidence in support of his contentions that such was the case.

In the present case, no such evidence, whether oral or documentary, is going to be adduced. It seems to me clear beyond question that in those circumstances that defence is bound to fail. There is no way in which that burden is to be discharged. No cross-examination of the claimant will elicit from him information relevant to the existence of that defence. (One can imagine a case in which the claimant was in some way himself involved in the publication, but not here.) Further, I consider that it would serve a useful purpose in terms of case management to strike out para. 31 now. It would remove the potentially large and complex issue of (putting it shortly) negligence from this case altogether, since that issue does not arise under the E-commerce Directive.

In those circumstances, I am satisfied that it would be proper and a right use of the court's case management powers, to strike out paragraph 31 of the defence. That is to say the defence under section 1 of the Defamation Act 1996 and in doing so it will narrow the issues.

I am not so persuaded in respect of para 32, relating to the E-commerce Regulations. There are live issues there:

Certainly the latter is an issue which is very much alive and for the claimant to prove. And the former, the question of the paid advertisement, is one which I hesitate to say, at this stage, is bound to fail. It is not obvious how the defendants are going to prove it, but I do not feel able to exclude the possibility at this stage. Regulation 19 does not involve issues of negligence or reasonable care. It raises a much shorter question than the questions that would arise under section 1.

I therefore decline to strike that paragraph out, but without prejudice to the right of the claimant to renew this application at the outset of a trial or at any appropriate point in trial, should it become clear that this defence is in a hopeless condition. I am hesitant to do so at this stage.

I now turn to the question of costs. On Monday of this week this matter was called before me for trial. I acceded to a late application from the 1^st defendant to adjourn it. The sole basis for that was that the evidence suggested that the defendant had not been informed of the trial date. Certainly, when he had asked for a confirmation of the trial date, the court had not provided it to him back in January. Had it not been for that factor, the other points the 1^st defendant makes about the way he prepared his case and so forth would not have availed him. It was only my fear that the court might have committed some administrative error which posed a risk of injustice to the defendants which led me to grant the adjournment.

I have to follow the logic of that finding when considering the costs thrown away by the adjournment. It would be wrong, when adjournment was not the fault of the defendant, to impose a heavy and unconditional costs burden on him. A just balance, bearing in mind the wider context of the case that Mr Hodson prays in aid and, in particular, the defendant, as he puts it, burying himself in the sand and not being ready for the trial in any event, is to say that the costs thrown away by the adjournment shall be the claimant's costs in the case, as against all the defendants in both actions. If he wins the case he should be entitled to those costs as part of his costs of the trial, but if he loses it he should not be entitled to do them. But in no circumstances will the defendants or any of them be entitled to their costs thrown away (such as they are). That is the order that I make in relation to the costs thrown away by the adjournment.

As to the costs of the strike-out applications, essentially, before me today have been two applications by the claimant to strike out the Defences in the two actions. In relation to the first action it has not yet been determined. It has been adjourned on the defendant's late intimation of an intention to apply to adduce further evidence and I have therefore adjourned the hearing of that application over for three weeks in order to give him (fairly generously) the opportunity at least to apply to file witness statements that he ought to have filed almost a year ago.

In relation to the second application, the application to strike out the defence in the second action, the defendants in the second action have taken the frankly extraordinary course of filing no witness statements, which is their choice, and giving no disclosure, which is not their choice, but a breach of the court's order. In the light of that choice and that breach, it appears to me to have been an entirely reasonable course for the claimant to make that application in the second action. It has succeeded in part and it has failed in another part only because it seems to me that the matters that were left outstanding had little extra evidential content, and therefore there was little useful purpose to be served in allowing the application now, because we would have had to cover much the same ground on issues of meaning and damages and so forth.

The defendant did make a counter proposal on Tuesday, but it was a counter proposal that, in effect, the application to strike out the defence should be dropped, which has not been acceded to. Those applications remained. One has partly succeeded and the other one remains very much alive. If it fails, it will only fail because the defendant has been, in effect, granted a generous relief by the court to allow him to put his tackle in order at a late stage, (as to which I entirely reserve my position until I have heard the argument).

My conclusion is this: The claimant should have its costs of and occasioned by the application to strike out the second action, in any event. The costs of today's hearing shall be the claimant's in any event, because the only reason that we did not deal with everything was because of the defendant's late application to put his house in order. The costs of the “first application” shall be reserved until the determination of the “first application” on the next occasion. So the costs of the “second application” and the costs of today's hearing, not otherwise covered by the costs of the “second application”, shall be the claimant's in any event. With the trial pending I shall not, however, order assessment or payment until the action is determined