Libel action dies with claimant

A libel action dies with the claimant and the court cannot deliver a judgment even after hearing the case, the High Court has ruled.

Mrs Justice Nicola Davies was asked if she would give judgment on a libel claim relating to comments posted on an online forum alleging price-fixing. The case was heard in October last year, but the claimant died the following month.

Delivering judgment in Smith v Dha [2013] EWHC 838, Nicola Davies J said Harvey Smith, the claimant, was a "noted figure in the online community with an interest in Subaru cars", providing mechanical work and trading Subaru parts.

"Ninety per cent of his business was created through his activities within a website called Scoobynet, which is dedicated to Subaru cars.

"His commercial profile was said to have been achieved through advertising on the site and posting advice in the many discussion forums on the site."

The court heard that in November 2009 the defendant, Bobby Dha, posted a comment on a Scoobynet thread claiming that Smith had "proposed price-fixing over the phone".

Smith rejected the allegation and sued for libel. Dha applied for a ruling on meaning and/or for the claim to be struck out. The application was heard in October 2012 and judgment was reserved. Counsel for Smith informed the court in writing that he had died on 7 November.

"In a written note, the defendant expressed his condolences at the death of the claimant," Mrs Justice Davies said.

"On his behalf it is agreed that the death of a party to a defamation claim causes the claim to abate. However, it was submitted, abatement following the hearing of an application does not prevent judgment being given."

Nicola Davies J said the claimant argued that the principle of 'actio personalis moritur cum persona' ( 'a person's right of action dies with the person' ) meant that there was no jurisdiction to hand down judgment.

"No one other than a claimant can give reliable evidence about his or her feelings or distress. No one other than a defendant - should a defendant die - can give reliable evidence to rebut a plea of malice.

"It cannot be right that some libel actions abate and others do not, depending on the arguments raised in them or the stage of proceedings."

The judge concluded that the cause of action abated on 7 November with the death of the claimant and there was no provision within the CPR to backdate any subsequent judgment.

"Accordingly, no judgment will be given."