” Neutral Citation Number:  EWHC 1075 (QB)
Case No: HQ08X01628
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 13 May 2010
THE HONOURABLE MR JUSTICE EADY
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The Claimant in person
Robert Dougans (Solicitor Advocate instructed by Bryan Cave LLP) for the Defendant
Hearing date: 23 April 2010
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Mr Justice Eady :
- These proceedings were begun by the issue of a claim form on 28 April 2008. Ms Kaschke sues Mr Osler in respect of an article on his blog at http://www.davidosler.com published on 7 April 2007, and to some extent thereafter, under the heading “Respect members Baader-Meinhof link” alongside a photograph of Ms Kaschke. The blog was in these terms:
“Johanna Kaschke recent defector from New Labour to Respect was in the 1970s held in custody in her native Germany, charged with support for the ultraleftist Baader-Meinhof terrorist group.
Ms Kaschke pictured left denies any wrongdoing, although she admits to having organised some sort of benefit gig:
All I ever did was organise a music concert in the University of Würzburg Mensa. This got me sacked from my job in the University bookshop Schöningh and I also then lost my home.
She has recently launched a complaint against leading German news magazine Der Spiegel for an article it wrote three decades ago, naming her in this connection. Rather than trying to hide any of this, Ms Kaschke has commendably chosen instead to post a copy of the story on her own website. She goes on to write:
I can safely say I never met any of the other persons mentioned in the article and got released after three months of prison on remand and was paid compensation for wrongful arrest and imprisonment two years later.
If we take this account at face value and I have no reason not to the worst she stands accused of is youthful folly. After all, many young attracted to far left politics in the 1970s were passively sympathetic to groups such as the Baader-Meinhof gang. Most have subsequently been rehabilitated.
Former Angry Brigade suspect Angela Mason these days boasts an Order of the British Empire gong and sits on quangos. Even I used to wear a Brigate Rosse T-shirt, as modelled by Joe Strummer. Ms Kaschke appears to have come to political terms with all this:
Frankly I cannot understand how such educated university graduates like the Baader Meinhof people fell for this illusion that the state is only a paper tiger and they can win an urban guerrilla war against them.
Now with al Qaeda again we have people believing they go to paradise after they blew themselves up and that they are good Muslims if they cause a lot of destruction.
Terrorism is the enemy of all Socialism as it creates exactly the opposite reaction, it makes the state more right wing and is likely to destroy all Socialist advances made by peaceful negotiation.
If I knew of someone planning a terrorist atrocity I would definitely report them to the authorities because its not right. I believe that people being put up to those guerrilla activities are being used by some people for exactly the purpose to create a right-wing movement.
The thing is, she may find that not all of her new colleagues in Respect share her stance. Respect MP George Galloway, for instance, believes it would be morally justified for a suicide bomber to kill Tony Blair.
Posted at 23:58, 7 April 2007.”
- The article in question attracted a certain number of comments which were posted shortly after the original publication. The Claimant also sues Mr Osler in respect of some of these comments as having been displayed on his blog. They include the following:
“Surely something can be morally justified while being tactically disastrous?
The assassination of Tony Blair is a clear example of this …
Posted by Daz 00:29, 8 April 2007
Id be very dubious about someone, like Kaschke, who suddenly discovers Labour are a bunch of bastards. I wonder if it could be connected with any realisation that her background would never allow her to be a Labour candidate in the way that any trivial conviction or even hint (or smear) of any illegality would bar anyone from being a main party candidate.
Maybe Respect will provide the next path for her career (although she has to be a Brit, Irish or a Commonwealth citizen to be an MP).
I guess now Kaschke is a member of Respect sh[e] will realise that the best way to have fought US imperialism in Germany was for the Baader Meinhof to have killed lots of Catholics, at random. In the hope of a backlash making the country ungovernable.
Posted by tim 11:34, 8 April 2007
She gets mentioned on page 6 [of Der Spiegel]. Under suspicion of supporting criminal grouping, was also bookseller Johanna Kaschke, arrested on July 10th (1975), because she was involved in the anarcho organisations Rote Hilfeand Schwarze Hilfe. She was observed with two other left-wingers near to a weapons depot, she was also supposed to have been involved in organising bank robberies.
Of course, as she says, she got compensation for wrongful imprisonment, but the article reflects the news at the time (when she was in custody). …
Posted by Daggi 12:20, 8 April 2007
Whatever her company does, I hope (for her clientssake) that its not involved in the field of webdesign and the rest of her site suggests she might be one cherry short of a piece of Schwarzwälderkirschtorte.
Posted by Daggi 12:20, 8 April 2007
She was observed with two other left-wingers near to a weapons depot, she was also supposed to have been involved in organising bank robberies.
Whats the next bit is somebody saying were starting to hear names nobodys ever heard of?
Widen the net enough and thats just what will happen.
SPP is horribly confused with regard to this one, but I think its worth making the point that head-banging pseudo-leftist nutters are entitled to legal representation and decent conditions …
Posted by Phil 10:28, 9 April 2007
… By which I meant, if thats what Johanna K was doing in Red Aidand/or Black Aid, she hasnt got much to be ashamed of. Embarrassed about, maybe.
Posted by Phil 10:37, 9 April 2007
… (Kaschke seems to be using web-design as a form of terrorism now.)
Posted by andy newman 13:15, 10 April 2007.”
- Ms Kaschke stated in her particulars of claim that she noticed the above comments on 25 May 2007 and asserts that they connected her to terrorism. She adds:
“The whole flavour of this article was positively assertive of terrorist activities and connected the Claimant to it”.
- Only recently, Mr Osler has been advised by Mr Dougans, who represented him before me at the hearing on 23 April 2010. Mr Dougans has taken the view that the original defence served by Mr Osler was unsatisfactory and, accordingly, an application was made to substitute a completely new “Amended Defence”. This unfortunately came very late in the day, since the trial was due to take place before a jury the following week. For various reasons, it became necessary for me to adjourn the trial. The “Amended Defence” raised defences of justification (on a very limited basis), fair comment, qualified privilege and limitation. I would be inclined to give permission for the defence to be served, in order that the real issues between the parties can be properly identified and resolved. This is clearly unsatisfactory, but the explanation proffered by Mr Dougans for the delay was simply that his client had not, until very recently, had the advantage of legal advice.
- Mr Dougans also applied for the claim as a whole to be struck out as an abuse of process and, in the alternative, at least in part, on the basis of limitation. He submits that the claim should be confined to any publication which can be proved as being attributable to Mr Osler after 27 April 2007 (i.e. within the 12 month period leading up to the issue of the proceedings).
- Further or in the alternative, Mr Dougans submits that certain passages complained of in the particulars of claim should be struck out, since they do not refer to Ms Kaschke and/or are incapable of bearing any meaning defamatory of her. He also relies on part of the words complained of as having been published with Ms Kaschkes consent (since the words in question are said to derive from her own website) and should be struck out for that reason in any event.
- It is probably unnecessary to introduce the parties in any great detail, beyond saying that Ms Kaschke is a naturalised British citizen and is politically active in Tower Hamlets. She has from time to time changed her allegiance, politically, and has, as I understand it, contemplated standing for office. Mr Osler is a journalist and active member of the Labour Party. He too is resident in East London.
- It is Mr Oslers case that he only posted the material about Ms Kaschke because he had seen an article published by her on her own website, at some stage prior to 7 April 2007. Indeed he provided a link to this, but unfortunately the article does not appear any longer to be available on the Internet and Ms Kaschke herself has not disclosed it. It appears that she attached a copy of an article published in Der Spiegel in September 1975 by way of background. This is of some significance, having regard to the proposed defence of consent, since it makes reference to Ms Kaschke in these terms (as translated):
“Suspected of having assisted a criminal gangis also the bookseller Johanna Kaschke, arrested on 10 July, while she worked in anarchistic organisations like Red Helpand Black Help. Near a weapons depot she has been seen with two left accomplices, and she is under suspicion of having planned bank robberies. Names appear, says a police officer, that we have never heard before.”
- I should make it clear that it is no part of Mr Oslers case to suggest that Ms Kaschke was in any way herself involved in bank robberies, violence or terrorism, and he accepts that although she came under suspicion and was imprisoned for a time, she was not guilty of any criminal offence. In due course, she was paid compensation in Germany for the wrongful arrest. Ms Kaschke produced in the course of the hearing the original German prosecutors document, which makes no reference to the Baader-Meinhof terrorist group. Contrary to what is said in Mr Oslers blog, she was never “charged” with supporting that body or “linked” to it.
- It is now pleaded in the “Amended Defence” that there is a defence of accord and satisfaction. This is based on the proposition that an agreement was entered into between the parties by way of an exchange of emails on 26 May 2007. Ms Kaschke was undoubtedly at that time given a right of reply, but Mr Dougans goes so far as to suggest that there had been a concluded agreement that she would not pursue a claim against Mr Osler by way of consideration for the “right of reply”. At all events, the publication of the “right of reply” is a relevant factor to take into account when assessing the application based on abuse of process.
- What appeared on 26 May 2007 was the following:
“Johanna Kaschke: right of reply
Johanna Kaschke (pictured) the woman who defected from Labour to Respect after not making the Labour parliamentary candidate shortlist in Bethnal Green & Bow has emailed me, following an earlier post on Daves Part highlighting her arrest in West Germany in the 1970s as a terrorism suspect.
In line with best practice for leftwing publications, members of the labour movement subject to criticism on this blog have the right of reply:
Please accept my humble apology for bombarding you with press releases lately but this is mirroring my emotional state of shock and dismay over the untrue, recent allegations in the press that I had once been accused of being a member of the Baader-Meinhof gang and that has been blown right out of proportion by the British and German press including some online blogs.
The reason for my emotional response is that I am a simple and poor person, living partly on disability related benefits and also because of some smear campaigns I obviously lost customers, and so do not have the money to either seek legal advise [sic] before I make statements nor to employ a lawyer to defend a libel case, as unfortunately the legal system does not provide legal aid for defamation cases, meaning the poor are not protected against press smear attacks.
Therefore I spend £50 out of my own benefits trying to get a High Court judge to stop a particularly nasty blog appearing on Google, visually connecting me with Baader-Meinhof and also displaying their RAF symbol. Those who think it is funny to report in this manner are seriously misguided.
I particularly object to this gutter press reporting and cyber bullying because it is simply that, sensationalist reporting, playing on the fears of the ordinary people and reporting about things, which are completely unimportant, who would possibly want to know that I had been wrongly arrested in 1975 and gotten compensation for it, here in the UK whilst it would have been very important if Der Spiegel had reported that fact besides their unrealistic reporting about me in 1975 being sold on the Internet for 30 years.
In fact I would not even object if just this simple little fact was reported without all the guerrilla paraphernalia around it, which in fact promotes it. I object to the promotion of guerrilla warfare as it is not in the interest of the people right now.
We are suffering a right-wing renaissance and any talk of guerrilla, Baader-Meinhof, Al-Qaeda only serves to fill the people with fear and to urge the governments to put in more repressive measurements to prevent, freedom of movement and freedom of speech.
I do not deny there is a class-struggle going on and there was one going on in Germany in the 60s and 70s but I would strongly suggest you read the explanation in Wickipedia [sic] about Baader-Meinhof, which I think is a fair one, if you want to know about it.
I consider myself a victim of cyber bullying in this matter to create a smear campaign to discredit my life and reduce it to this. I strongly object to being visually, verbally or connected in written form to Baader-Meinhof as I personally never met a single one of them and neither did the arrest warrant mention the word Baader-Meinhof, it mentioned criminal association.
Was accused of being near a storage area, which contained one toy pistol and other legal items. The German justice system found it reasonable at the time to lock up ordinary citizens on flimsy suspicions such as this for 3 months in total isolation. My arrest warrant never mentioned anything about participation in a bank robbery like Der Spiegel mentions.
I want to especially express that the worst of the smear campaigns originate from a New Unison Labour blog and I am especially disappointed that a Labour and Union supporter can make such smears and misguide people by wrongly informing them as I have been a strong supporter of the recent Unison campaign for council housing.
The most prolific of smear campaigns is from Private Eye who also mentions my name; want to create a connection between Baader-Meinhof and Respect. I strongly object to this gutter press sensationalism playing on peoples fears, trying to create the impression that Respect is sympathetic of guerrilla warfare by using the terminology.
The ordinary citizen has enough to cope with being in fear of Al-Qaeda attacks, which I strongly oppose, they indiscriminately kill ordinary citizens anywhere anytime and so the people are rightly in fear about them but now to put them under even more fear by creating a Baader-Meinhof smear campaign about me is totally unreasonable.
I have contacted each and every publication I know of who exploits this gutter press reporting and asked them to remove all mention of Baader-Meinhof with my name, I also have written a warning that I consider prosecution of each publication mentioning me in connection with Baader-Meinhof and I am hoping to bring legal action against those who think they can earn easy money out of misguiding ordinary citizens with their Baader-Meinhof smears.
Please note, I have never ever in my life been convicted of any crime ever. I can be a member of any left-wing political organisation as it is my democratic right to do so as a citizen.
I am a member of the GMB Union, the Respect Party, the Communist Party, I support Defend Council Housing, I support any legal peoples movement, which is in the interest of the people but I totally object to the attempts to criminalise peoples movements and left-wing political parties, which is really what is behind the smear campaigns of the gutter press.
Yes I am aiming to pursue those people writing rubbish about me and mislead the public for compensation and I could use that money for my political work and to compensate me for the damage that has been done to my reputation by the libellous press reporting.
I can only apologise that I was unable to far [sic] to take legal action but this is due to the very bad rule that there is no legal aid for defamation, which in fact opens the floodgates for rubbish press reporting, defamation and sensationalism because the press know that if they write about poor people they are very unlikely to press for action as lawyers are very expensive and some charge as much as £500 per hour.
I tried what I could to create a counter effect to the misleading reports about me and hope to put an end to it once and for all once legal action has commenced if I find a lawyer who believes in justice and can pursue the case for me.
Thank you for reading this, which has been written as personal information and is not meant to represent any political party.
Johanna Kaschke [Telephone number]
Although I believe the story to be both factually accurate and within the realms of fair comment, I have decided to unpublish it as a gesture of goodwill to Ms Kaschke.
Posted at 19:32, 26 May 2007”
- What is more, Mr Osler made it clear in the course of the hearing that he would be prepared to join in any reasonable and proportionate statement reaffirming his acceptance of Ms Kaschkes innocence.
- In another email dated 26 May 2007 Ms Kaschke wrote to Mr Osler, inter alia:
“You can write Johanna had been arrested within the national hysteria whereby the state arrested everyone meeting their suspicious criteria and threw them into jail. Johanna was one of them. In her case she was accused to be a member in a criminal gang with the aim to commit terrorist offences. However her release and subsequently compensation paid to her for wrongful arrest cleared all suspicion.”
It seems clear that she was troubled by the identification of the “criminal gang” as being the Baader-Meinhof group. It is thus necessary to focus on the distinction between the general and the specific, since this would appear to be the nub of her complaint.
- It is suggested by Mr Dougans that there is nothing of substance to be gained from these proceedings by way of giving Ms Kaschke any greater vindication of her reputation, if such was needed, than that already obtained three years ago by the publication of her response on 26 May 2007. He submits that, in all the circumstances, the case falls within the doctrine explained by the Court of Appeal in Jameel (Yousef) v Dow Jones & Co Inc  QB 946. It is said that there is no realistic prospect of a trial of these issues yielding any tangible or legitimate advantage, such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources, and that “the game is not worth the candle”.
- Following the right of reply, it appears that Ms Kaschke did not resurrect her complaint about Mr Oslers posting until 28 March 2008 (i.e. after a lapse of ten months). Although Ms Kaschke is not prepared to admit that she posted the Spiegel article, or exactly what she herself posted in relation to it on her website, the evidence of Mr Osler seems clear enough. His article derived from her posting rather than from his own independent research or some other posting.
- Mr Dougans has summarised the overall effect of Ms Kaschkes posting, in the light of Mr Oslers recollection. I do not think that Ms Kaschke herself quarrels with the accuracy of the summary, which is to the following effect:
- Ms Kaschke suffered prejudice because she had played a minor role in organising a benefit concert in aid of “Red Help”, which provided legal assistance to left-wing radicals in Germany at that time.
- She was arrested in Germany in July 1975 and suspected of links to left-wing extremists.
- This was mentioned in the Spiegel article.
- She was released without any finding of guilt and compensated for wrongful arrest and imprisonment.
- Ms Kaschke was never involved in violence and did not meet any of the supposed extremists mentioned in the article.
- She is firmly opposed to terrorism.
- Mr Osler accepts that the Spiegel article does not actually mention any “link” between Ms Kaschke and the Baader-Meinhof group and also that her criminal proceedings made no mention of that group. On the other hand, from the context of German political life in the 1970s, it would be clear to most readers that the Baader-Meinhof group was one of the main sources of left-wing extremism at that time. Most people would assume, therefore, that funds collected for the “Red Help” organisation would be likely to be directed, at least in part, to the assistance of members of that group. In other words, according to Mr Osler, it would have been implicit to any reader of the Spiegel article that her arrest would have been based on some suspicions linking her with that group. He suggests that there is little substance in the distinction drawn between being suspected of involvement with a “criminal gang” in the 1970s in Germany and being suspected of links to Baader-Meinhof in particular.
- It is clear from Mr Oslers wording in the offending post that he was quite prepared to accept Ms Kaschkes denial of any wrongdoing and the fact that she had been compensated for wrongful imprisonment. I am quite satisfied that the posting does not link her to terrorism, in the sense of suggesting in any way that she was directly linked with it or that she approved of the extremist activities. He was merely choosing to highlight an unusual event in the history of someone who was at the material time active in politics in London. He was, in effect, taking her own assessment of the situation at face value. He went on, as a matter of comment, to point up the irony that she was now linking herself with another political grouping, the Respect Party, which contained members who thought (at least according to Mr Osler) that terrorism or assassination could in certain circumstances be morally justifiable.
- The headline, taken by itself, would appear to suggest a “link” with Baader-Meinhof. But it is necessary to have in mind two matters. First, it is clear from Charleston v News Group Newspapers Ltd  2 AC 65 that the reasonable reader should be taken to have read beyond the headline. Secondly, Ms Kaschke is not named in the headline and no reader would understand it to refer to her unless he or she read into the article. (Moreover, the headline puts inverted commas around the word “link” and any such reader would assume it was an allegation that had originally been made by someone else. Thus it could be seen as akin to “reportage”. That would not necessarily afford a defence in itself, but it is certainly a relevant factor to take into account when assessing the meaning of the offending post and the degree of gravity to be attached to it.)
- The question arises, therefore, whether in the light of what actually appeared on Mr Oslers posting, in April 2007, and in the light of the right of reply published on 26 May 2007, there is anything to be gained from the continuation of these proceedings by way of the legitimate objectives of any defamation action, namely the vindication or restoration of the claimants reputation. Is there anything requiring vindication? Needless to say, that question has to be judged by reference to any marginal damage that may have been done to Ms Kaschkes reputation by Mr Oslers posting over and above the impact on it of her own posting coupled with the republication of the 1975 Spiegel article.
- In Jameel, the Court of Appeal addressed abuse of process in the context of defamation in the following passages:
“40. We accept that in the rare case where a claimant brings an action for defamation in circumstances where his reputation has suffered no or minimal actual damage, this may constitute an interference with freedom of expression that is not necessary for the protection of the claimants reputation. In such circumstances the appropriate remedy for the defendant may well be to … seek to strike out the action as an abuse of process.
. … An abuse of process is of concern not merely to the parties but to the court. It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice. If Dow Jones have caused potential prejudice to the claimant by failing to raise the points now pursued at the proper time, it does not follow that the court must permit this action to continue. The court has other means of dealing with such prejudice. For instance, appropriate costs orders can compensate for legal costs unnecessarily incurred and relief can be made conditional on Dow Jones undertaking not to raise a limitation defence if proceedings are now commenced in another jurisdiction.
. There have been two recent developments which have rendered the court more ready to entertain a submission that pursuit of a libel action is an abuse of process. The first is the introduction of the new Civil Procedure Rules. Pursuit of the overriding objective requires an approach by the court to litigation that is both more flexible and more proactive. The second is the coming into effect of the Human Rights Act 1998. Section 6 requires the court, as a public authority, to administer the law in a manner which is compatible with Convention rights, in so far as it is possible to do so. Keeping a proper balance between the Article 10 right of freedom of expression and the protection of individual reputation must, so it seems to us, require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimants reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged.
. If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and the vindication will be minimal. The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick.
. … It would be an abuse of process to continue to commit the resources of the English court, including substantial judge and possibly jury time, to an action where so little is now seen to be at stake. Normally where a small claim is brought, it will be dealt with by a proportionate small claims procedure. Such a course is not available in an action for defamation where, although the claim is small, the issues are complex and subject to special procedure under the CPR.
. [Leading counsel for the claimant] submitted that to dismiss this claim as an abuse of process would infringe Article 6 of the Human Rights Convention. We do not consider that this article requires the provision of a fair and public hearing in relation to an alleged infringement of rights when the alleged infringement is shown not to be real or substantial. …”
- This jurisdiction to strike out as an abuse of process, on the basis that the claimant cannot establish that a real and substantial tort has been committed, has been exercised in relatively few cases since the decision of the Court of Appeal in February 2005. Examples are, however, to be found in Williams v MGN Ltd  EWHC 3150 (QB) and Lonzim Plc v Sprague  EWHC 2838 (QB). In each of those cases, very different on their facts, the court applied the test of whether or not a “real and substantial tort” had been committed and also considered the question of whether any damages recovered might be so small as to be totally disproportionate to the very high costs that any libel action involves. It is an important consideration for the court to have in mind on any abuse application that the fact of being sued at all is a serious interference with freedom of expression. That may be appropriate in the majority of libel actions, where it is necessary to countenance such interference in order to vindicate the rights of another person in respect of whom a real and substantial tort has occurred. But the court must be vigilant to recognise the small minority of cases where the legitimate objective of vindication is not required or, at least, cannot be achieved without a wholly disproportionate interference with the rights of the defendant(s).
- Mr Dougans submits that this case falls within that small minority of cases. He says it is a case of “no or minimal actual damage” (see Jameel at ). That is primarily for the reason to which I referred earlier; namely, that the marginal impact of Mr Oslers posting, as compared with the revelations to be found on Ms Kaschkes own blog prior to 7 April 2007, would be insignificant and, therefore, likely to attract a very small award of damages (assuming all the defences fail). He prays in aid a number of considerations:
- Mr Osler made it clear that he saw no reason to reject Ms Kaschkes protestations as to her innocence of any implication in violence or terrorist activity.
- Accordingly, the only possible defamatory imputation of any substance is that, at one point in the distant past, she came under suspicion by the German police in the troubled climate of the mid 1970s (albeit subsequently vindicated by the recognition of wrongful imprisonment). To that extent, and to that extent only, the defamatory imputation would, on her own admission, be true.
- The only new material introduced by Mr Osler would appear to be the reference to Baader-Meinhof. Most reasonable readers would know, however, of the active involvement of that group, rather loosely defined, in political extremism at the time. It is a name which would, accordingly, spring to mind purely from the context as it seems to have done in Mr Oslers case. It has to be remembered that it is not suggested that Ms Kaschke had any direct involvement with Baader-Meinhof. The specific reference to that group, therefore, can in practical terms add virtually nothing to the suggestion that for a period she came under suspicion of involvement with extremist activities. It merely identifies one particular group within that broad category.
- It is true that Mr Osler added the comment that “the worst she stands accused of is youthful folly”. That is not a particularly serious allegation in any event, but in context it plainly relates to the activities (whatever they were) which led her to be arrested and (albeit wrongfully) imprisoned. He refers to “many young people attracted to far left politics”, which he assumes is an apt description of Ms Kaschkes standpoint at that time, but he is not even suggesting that she was “passively sympathetic to groups such as the Baader-Meinhof gang”. It is a general comment about young people of the period who have become subsequently “rehabilitated”.
- If there had been any sting in the original 7 April posting, it would surely have been drawn for practical purposes by the “right of reply” published three weeks later.
- The reference to the possible assassination of Tony Blair is one to which Ms Kaschke seemed to attach particular importance in her submissions, but it relates to other members of the Respect Party, with which for a time Ms Kaschke became associated. It cannot be taken to suggest that she herself would have anything to do with political assassination.
- It is necessary, therefore, to try and assess what a jury would make of the alleged injury to Ms Kaschkes reputation against the background I have described. If the jury came to the conclusion that none of the defences raised could succeed, I cannot imagine that the damages would be other than very modest. I would take the view that any such award would be out of all proportion to the time and money spent on this litigation and, in particular, to the cost of a two-week jury trial.
- In the circumstances, I have come to the conclusion that this is indeed one of those unusual cases in which the doctrine of abuse of process, as discussed by the Court of Appeal in Jameel, should be applied.
- In case I am wrong about this, I should next address Mr Dougans alternative arguments. First, as to limitation, it is clearly right in principle that Ms Kaschke should be confined to any publication(s) within the 12 month period preceding the date of issue. That being so, it becomes yet more apparent how disproportionate the claim is.
- No solid reason has been advanced to justify disapplying the tight limitation period Parliament imposed for this form of litigation in the Defamation Act 1996. There was, for example, no question of concealment and it is clear from the exchange of emails in May 2007 that Ms Kaschke was well aware of the post by then.
- An argument that Ms Kaschke touched upon in this context was that of a possible disability on her part. It would seem that the only disabilities contemplated by the statute are minority (infancy) and mental incapacity, neither of which seems relevant: see s.38(2) of the Limitation Act 1980.
- It would be for Ms Kaschke to demonstrate that Mr Osler was responsible for some repeated or continued publication during the relevant 12 month period. She cannot rely on any presumption to that effect. His evidence (which I see no reason to reject) is that the posting was by 28 April 2007 off the front page and only accessible to an active searcher looking for it in the archive. Furthermore, as he put it, the article was “unpublished” by the time of the reply on 26 May 2007. In those circumstances, it seems to be clear that the law would require Ms Kaschke to identify any specific examples of publication: see e.g. Al Amoudi v Brisard  1 WLR 113. Mr Dougans submits that there was only one comment on the post subsequent to 28 April 2007 (by someone using the name Alex), and this in itself does not demonstrate that the person concerned actually dug out the original posting after that date. It is at least possible, for example, that he relied on memory or, alternatively, was making a comment on earlier comments.
- Ms Kaschke has put forward a Bundle C to seek to show that the post of 7 April 2007 was read after 28 April. Assuming she is right about that, for the purposes of the present application, the number of publications after that date would be very small and would still fall within the Jameel doctrine. To pursue the claim in the hope of achieving additional vindication in the eyes of that small group would not be “worth the candle”.
- Reference was also made to a Mr Ted Jeory, who sent an email on 25 May 2007, saying:
“You seem to be getting it from all sides. There was something similar on Dave Oslers blog as well. Whats all this Red Aid and Black Aid stuff he says you are/were a member of anyway? (Sorry, I know next to nothing about that period in germany.)”
This does not amount to very much. It does not, in particular, demonstrate that Mr Jeory saw the offending post prior to 28 April 2007.
- I turn briefly to the defence of accord and satisfaction. Although the decision to offer Ms Kaschke a right of reply was commendable, so far as it went, I see nothing in the email exchanges to support the proposition that a binding agreement had been entered into that it was to be in full and final satisfaction of any claim she might have.
- Because Ms Kaschke chose to set out her complaint in the particulars of claim by reference to individual selections from the material on the website, Mr Dougans addressed these individually also. He argues that some of them should be struck out as being in themselves incapable of bearing a defamatory meaning. I shall address these in turn.
- Mr Dougans referred to the George Galloway comment as the “third extract”. I agree that this is not capable of referring to Ms Kaschke in a defamatory sense. It is merely making the ironic observation that she should at that time (albeit innocently) find herself joining a political grouping some of whose members are alleged (rightly or wrongly) to have sanctioned political assassination. It does not accuse her of espousing similar views.
- By the “fourth extract” Mr Dougans is referring to the comment about Tony Blair immediately after Mr Oslers posting. It makes no allegation against Ms Kaschke simply a rather poor joke about the view attributed to George Galloway.
- The “seventh extract” refers to another comment on the blog (not by Mr Osler) which consists simply of a translation of the Spiegel reference to Ms Kaschke. She chose to post this herself on the Internet. Thus it does not appear to go beyond allegations to the publication of which she had by then already consented (i.e. to the world at large).
- I would therefore accept Mr Dougans submission that these passages are incapable of being actionable in themselves and should only remain (if at all) as part of the context.
- Because of my decision on the central issue, relating to abuse of process, there is no need for the amended defence to be served. Otherwise, I would give permission.
- Likewise, it becomes unnecessary to make an order for further disclosure of documents. I would otherwise order that Ms Kaschke should give disclosure of her own posting, as to which Mr Osler has given evidence and on which he based the words complained of. If she no longer has it, she would have to provide a witness statement indicating her best recollection of what happened to it.
- I was also invited to order consolidation of this action with a claim brought by Ms Kaschke against a Mr Hilton. Strictly speaking, that claim is not before me, although Mr Hilton himself attended the hearing and indicated his agreement. The plan would be for him to be represented by the same legal team. There would be much to be said in general terms for resolving the similar issues at the same time with a view to saving time and costs. But in view of my ruling it would not now be appropriate.
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