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Defamatory Campaign: Pre-action disclosure allowed after issuing claim

May 3rd, 2016

Anglia Research Ltd & another v Finders Genealogists Ltd & another [2016] EWHC 297 (QB)  

The case featured two commercial rivals who specialised in the highly competitive business of ‘heir hunting’. Such business consists of tracing the heirs to unclaimed estates which would otherwise be assigned to the Crown. Once they have traced the deceased’s descendant the ‘heir hunter’ enters into an agreement with the living descendant to secure the estate for a commission (usually a percentage of the recovered estate).

From July 2014, an anonymous Twitter campaign was pursued against the Claimant Company and its directors, Peter Turvey and his son Philip Turvey. In each incident the Claimants were referred to under the disparaging name ‘Purvey’. Following a Norwich Pharmacal disclosure application the information indicated that the Twitter accounts had been created by an employee of the Defendant Company.

The Claimant Company also provided services in probate and administration to realise the assets of the unclaimed estate. It had in the past become involved in removing squatters from a property in Charlton and the Claimants were made aware that one of the squatters had published defamatory material on the petition website Change.org.

Defamatory Postings / Comments

After further Norwich Pharmacal applications by the Claimant, it came to light that the principal of the Defendant Company was responsible for pseudonymous postings on the ‘Which?’ website (that provided a link to the defamatory petition and a defamatory post on Change.org’s own website). There was also a similar posting on moneysavingexpert.com linking the Claimant to the defamatory petition which may have been made by an alleged agent of the Defendants.

On 31st July 2015, the Claimants served a letter before action on the Defendants and they responded on the 14th August 2015. The Defendants admitted the creation of the above postings, but denied that the posts gave rise to actionable claims. They also stated that they had “little interest in adopting aliases to refer to the Claimants online and do not intend to do so in future”.

On 26th August 2015, an employee of the Defendant Company sent an email to a prospective client of the Claimants attaching a PDF file containing much of the defamatory Change.org petition (which by then had been taken down from the internet).

Evidence was later exhibited to the Claimants’ witness statement of an alleged incident during June/July 2015 when a client moved from the Defendant Company to the Claimant Company. An employee of the Defendant Company said she would send the client a “package” containing evidence of the Claimants’ wrongdoings and shoddy work (though no such package was ever sent).

Commencement of Proceedings & Judgement

The Claimants issued the Claim Form on 27th November 2015 (a day before the expiry of the one-year limitation period applicable to defamation claims) in respect of a publication made on 28th November 2014. The Claimants soon after made an application for pre-action disclosure as they were not aware of the full extent of the defamatory campaign by the Defendants. The Claim Form had not actually been served, but copies were provided for the purpose of the disclosure application. Such application had dual purpose: to determine the extent of damage caused in relation to the ‘known about’ incidents and any other defamatory postings / comments made in order to support proposed causes of action on a second Claim Form.

HHJ Moloney QC stated that:

“In defamation, each separate publication even of the same document may be regarded as a separate cause of action. The defamation claims in the two actions clearly relate to distinct causes of action for which separate proceedings might properly be issued. Though it is likely they would in due course be consolidated or tried together, that does not render separate Claim Forms an abuse of process”

After consideration of the jurisdictional requirements under CPR 31.16(3) HHJ Moloney confirmed that the following 3 requirements were met: the parties to the application are likely to be parties to subsequent proceedings; the documents sought would be disclosable in this action by way of standard disclosure; and pre-action disclosure of the documents is desirable to assist in the dispute being resolved without (enduring) proceedings & to save costs.

He ultimately determined the following:

“The Defendants already know whether they have the material sought through disclosure, and if so what it reveals. The Claimants do not. Once both sides are on an equal footing in this respect then:

  1. The Claimants will know whether and in what terms to bring their case;
  2. Both sides will be in a position to engage in informed and realistic pre-action negotiation;
  3. The interests of fair disposal and costs-saving will be advanced.

The present state of uncertainty puts all those desirable outcomes at risk”.

This case raises interesting arguments in relation to defamatory campaigns. Claimants are more likely to be successful in obtaining pre-action disclosure (even if they have actually commenced proceedings) if they can show a pattern of behaviour by the Defendant(s) and an ‘uneven footing’ in relation to the limited information provided.


Sandy Burrows | Trainee Solicitor