Case No: A2 / 2008 / 2139
Neutral Citation Number: [2010] EWCA Civ 657
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE EADY)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday 11th May 2010

Before:

LORD JUSTICE WARD
LORD JUSTICE RICHARDS
and
LORD JUSTICE JACKSON
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Between:

	Smith	
Appellant	
	- and -		
	
ADVFN PLC & ORS	

Respondent	

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( DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court )

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Mr Jonathan Crystal and Mr Max Eppel (instructed by Pro Bono Bar Unit ) appeared on behalf of the Appellant.

The Respondent did not appear and was not represented.
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Judgment

Lord Justice Ward:

1.	This was at all times an unusual set of cases to come to this court by way of appeal and its exceptional category has been exemplified by the way the appeal developed in the course of submissions made by Mr Jonathan Crystal, who now appears with Mr Max Eppel for the appellant.  I am grateful to him for his responses to the points to him by the court.  It has resulted in the effective collapse of the appeal under pressure from the court and it is therefore unnecessary for me to give a full judgment.  I need do no more than explain how this extraordinary position has come about.

2.	In summary the situation is this.  Mr Smith, the appellant, was successful some time before late 2005 in setting up an action group to recover compensation for investors in some fraudulently conducted company.  Knowing of that success, and I hasten to add I do not know much about the extent of that success, investors in another company called Langbar International Limited (“Langbar”) approached him for help following the discovery of what is alleged to be serious fraud in the conduct of that company.  Those approaches were made via the bulletin boards on a financial information website of a company whose website is ADVFN.com.  Some days thereafter the appellant set up the Langbar Action Group website, which he says had grown to about 450 members.  His efforts to secure compensation for them did not meet with universal approval, with the result that a group of shareholders and others whom he describes as "the malcontents" openly and vociferously opposed his actions.  Their disaffections were "posted" on the ADVFN Langbar bulletin boards, usually under a pseudonym or an avatar, whatever that means, the appellant's name being “Anonymous”.

3.	It is his case that what he calls a hate campaign which amounts to cyber-bullying has been waged against him as the messages stacked up on this ethereal bulletin board.  As they stacked up, so he suggests a profusion of defamatory statements were published about him.  He says that some 267 defamatory statements had been made by 71 offenders, though some may be the same person using a different pseudonym.  He says that the offenders have continued to publish defamatory material and there is no sign of that abating. 

4.	His response was to issue claims for damages for defamation once he had determined through Norwich Pharmacal proceedings the real identity of the authors.  At first these claims were assigned to different masters of the Queen's Bench but as the trickle became a discernible flood the Senior Master intervened and ordered on 25 April 2008 as follows, first:

" [the particular claim before him, being one against a Mr Murjani] and the claims listed in the Schedule to this order are to be re-assigned to Master Fontaine if not already assigned to her.  [I interpolate that on the schedule were a list of 36 defendants including the eight who are the respondents to this appeal.]

5.	Paragraph 2-6 read:

"2) Until further order, all claims issued in future by the claimant in the central office are to be assigned to Master Fontaine.  
3)  Until further order, all claims listed in the Schedule to this order are stayed 
4) Until further order, all claims issued in the future by the claimant are to be stayed after issue, and services not to be effected and the Central Office shall keep all sealed copies of the Claim Form on file. 
5) The claims listed in the schedule are to be referred to Eady J to consider insofar as he thinks appropriate, whether the Claimant should be the subject of any form of restraint order, whether the claims have a real prospect of success, whether they should be consolidated and what other case management directions should be given at this stage including for future management by the Assigned Master.  
6) This Order was made pursuant to CPR 3.3.  Any party affected may apply to set aside or vary this order within 7 days of service."

6.	The appellant, Mr Smith, duly applied and his application to vary or discharge that order came before Eady J.  At first it was without notice to the respondents and was adjourned, but it was heard on 9 June and on 25 July Eady J refused that application and ordered that:

“1.  The….application to set aside or vary the stay imposed by the order of the Senior Master dated 25 April is dismissed.  

2.  Without prejudice to the generality of paragraph 1 above, the Claimant's Claim against ADVFN Plc (claim number HQ07X03107) is further stayed pending payment of ADVFN Plc's costs pursuant to the orders of McKay J dated 13 March 2008 (subsequently varied by Sir Charles Gray on 21 May 2008), of the Court of Appeal dated 15 April 2008, and of Sir Charles Gray on 23 April 2008, and in addition the costs orders to be paid in accordance with this order."

He assessed those costs at £14,000 and dealt with costs.  The claimant had to pay three named respondents in various sums.

7.	When this appeal opened, Mr Crystal indicated that there were three important points of principle which could possibly be said to arise out of the judgment, namely whether these postings on a bulletin board on the website were technically a libel or a slander.  The second point was as to the extent of vulgar abuse as a defence and the third was as to the management of multiple claims, such as had arisen from  misuse of this internet site, and it is said, not threateningly but forebodingly by Mr Crystal, to be a possible feature of defamation in the future.  

8.	But at the heart of the judgment lay a case management decision by the judge who was concerned for a number of defendants who were brought into these actions by a claimant who had fee exemption in bringing the action and who faced the threat of litigation, which it is notoriously expensive to contest, and in a nutshell for case management reasons he continued the stay.

9.	It seems to me, as I pointed out to Mr Crystal early in the course of his submissions, that the effect of continuing the stay meant that these claims were in limbo.  The claimant faced the difficulty that he could not advance them against any respondent because of the stay, and his prospects of applying afresh to lift the stay would obviously be adversely affected by the existing order.  At the same time there was nothing conclusive about it.  The judge recognised that he did not have formal applications before him either to strike out these claims as an abuse of process or summarily to dispose of them as having no realistic prospect of success.  He did not formally have an application for any civil restraint order and could not deal with that part of the case, and so it seemed to me and to my Lords that even if the order was upheld, as our preliminary view was certainly it should be, that would not bring any sense of finality to this litigation.  So we put to Mr Crystal that, in the event of the court dismissing the appeal, we should nonetheless go on to direct of our own motion that the claimant should show cause why each of the surviving claims should not be struck out for being an abuse of process or otherwise or summarily dismissed and why he should not be made the subject of a civil restraint order.

10.	Mr Crystal, and I compliment him for his sense of realism, sees what he is kind enough to call the common sense of that view and is prepared to submit in those circumstances to the dismissal of the appeal and so I would propose that, save insofar as it is directed the claimant show cause why each of the surviving claims should not be struck out for abuse of process or otherwise summarily dismissed and why he should not be made the subject of the civil restraint order, this appeal should be dismissed.  

11.	But I add this for the judge's consideration.  The matter should go back to Eady J not only because the Senior Master's order so directs but because he is in charge of the list in this branch of the work of the Queen's Bench Division.  Eady J is at full liberty to decide who should hear the matters which we have directed should be heard, whether himself or another judge of the division.  He should give any further directions he thinks appropriate for the proper consideration of those questions.  We have been dealing with only eight respondents, but there are others whose claims have been stayed pursuant to the orders we have upheld but whose position is still in limbo.  So Mr Crystal is to assist the court by providing a schedule of the claims which are truly surviving, that is to say those which the appellant still wishes to pursue, to provide a column for those which he acknowledges are dead and buried, having been completed in every sense of the word, and others which will be dealt with as part of this direction unless and until he serves a formal notice of discontinuance of those claims.

12.	The claim listed in the schedule include the claim already mentioned in the judge's order, namely that against ADVFN where the stay continues until certain costs are paid.  We intend that that part of the order should remain and that that claim will not form one of those which we direct should be decided in this way.  It is for that company, who appeared before Eady J by solicitors and counsel, to decide whether or not they wish to join in these proceedings and so a copy of this order and of this judgment should be served upon their solicitors, Field Fisher Waterhouse Plc, for them to decide what part they wish to play in the matters we are sending back to the judge.

13.	Mr Crystal asks that the matter be heard sooner rather than later.  Whilst of course we have sympathy with that submission, because these matters are now hanging over everybody's head for over two years, that is a matter for the judge's control as the judge in charge of the list and whilst I, for my part, would encourage an early hearing I am certainly not imposing that on a court which may be heavily burdened to an extent I simply cannot judge.  Eady J must give the directions for the hearing as he thinks fit.

14.	So with that proviso I would dismiss this appeal.  I think it can be marked as dismissed by consent.

Lord Justice Richards :  
15.	I agree.

Lord Justice Jackson:  
16.	I agree.

Order: Appeal dismissed