Recruitment agency defamation case thrown out

A recruitment agency’s attempt to sue a journalist for defamation over a story which he passed on to a national newspaper failed when the action was struck out by a High Court judge.

Mr Justice Tugendhat held that the action brought by Hays plc against journalist and publicist Jonathan Hartley was an abuse of process as it could achieve nothing for the company.

Hays launched its action against Hartley over a story which appeared in the Sunday Mirror in January 29009 reporting that three of the company’s employees had made a number of allegations relating to racism.

The story appeared after the employees approached Hartley, who passed information on to a journalist at the newspaper.

In March last year Hays sued the employees for defamation. In July it launched its libel action against Hartley, claiming that he had re-published the allegations to the Sunday Mirror’s journalist.

In November last year a hearing concerned with a case against Hays launched by the three employees started at an Employment Tribunal.

Twelve days later the case was stayed to enable the parties to put into effect an agreement settling the disputes between them, including the libel case brought by Hays. The settlement included the publication of an agreed statement, in which the employees admitted that the racism allegations were without foundation, which also appeared on the Mirror Group Newspapers’ website as an update to the original Sunday Mirror story.

Mr Justice Tugendhat said Hays could have discontinued the action against Hartley on the grounds that with the public statement it had achieved its objective, or come as close to doing so as was reasonably attainable.

But this would have left the company exposed to the risk of an adverse costs order.

He said: “In my judgment the significant facts are that the claimant is a corporation, that the defendant is a professional intermediary and not the originator of the words complained of, that the action is brought on a publication to a single individual, the journalist, that the republication gave proper coverage to the claimant’s case (so any damages would be likely to be modest) and that the claimant has received vindication both from the originators of the words complained of (in the form of the Public Statement) and from MGN (in the form of the republication on their website of the Public Statement).”

It was accepted that damages awarded in the case against Mr Hartley would be modest, he said, adding: “In so far as the damages may have value as money they are not worth pursuing. If the claimant pursued this action to trial and won, there is little prospect that it would be able to enforce any award that it might have.

“The defendant would be unable to pay any significant part of the damages and costs that might be awarded against him.

“Damages in defamation actions have an additional value: they are symbolic. They mark the seriousness of the defamation and are a part of the vindication. But in the present case, the sum itself could not be so high as to add any value in terms of vindication to the Public Statement.

“For these reasons alone I would hold that the pursuit of this action after the Settlement Agreement was and is an abuse of the process of the court. There is simply nothing of value that it can achieve for the claimant.”

Turning to the issue of Hartley’s right to freedom of expression, Mr Justice Tugendhat said it was established that a libel action could be an interference with the defendant’s freedom of expression.

“I find that to be so in the present case,” he said.

“The costs and the demands on the limited resources of the court that would be involved, and the devastating effect on the defendant, would not be commensurate with a (probably irrecoverable) award in favour of the claimant, having regard to the vindication already achieved by the claimant in the form of the Public Statement.”

“In my judgment journalists may work in many different ways, and it is not just journalists who provide their services exclusively to the media who are entitled to be regarded as serving a function which may be of benefit to the public,” the judge said.

“The court now recognises that the defences available to a defendant in defamation proceedings are not the only means by which the law gives effect to the principle of freedom of expression.

“As the court noted in Jameel v Dow Jones the claimant must be pursuing the legitimate purpose of protecting its reputation. If it is not doing that, or if the means by which it is doing it are disproportionate, the court may have regard to the principle of freedom of expression in deciding whether or not the claim should be allowed to go forward at all.

“As the court said in Jameel v Dow Jones, it will be rare that the pursuit of a legitimate libel action by a claimant is held to be a disproportionate means of pursuing the aim of vindication of the claimant’s reputation. But on the particular facts of this action, I find that to be the case here.”

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