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Natasha Forman (née Koshnitsky)
The High Court in the case of Harvey Smith v Bobby Dha  EWHC 838 (QB) has refused to give judgment on an application made in defamation proceedings where the claimant had died between the application being heard and judgment being given.
Both parties had been members of an internet site called Scoobynet; a site dedicated to Subaru cars which they both used to trade parts. The claimant brought a claim for defamation after the defendant posted a comment on Scoobynet alleging that the claimant had proposed that he and the defendant fix the price of a part that both parties sold on the site. This was denied by the claimant, who argued that it was actually the defendant who had made the proposition.
The defendant made an application that the claim be struck out on the grounds that the words complained of were not capable of bearing the meaning that the claimant had pleaded, or were otherwise not capable of being defamatory.
In October 2012 the defendant’s application was heard and judgment was reserved. On 7 November 2012 the claimant died.
Under English Law, a cause of action will usually survive the death of a party to the action. Section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 (‘LRMPA’) provides that any cause of action existing at the date of an individual’s death survives either for the benefit of, or against, his estate. The personal representative of the estate steps into the shoes of the deceased and has the authority to take part in any legal proceedings on behalf of the estate.
Exceptionally however, Section 1(1) of the LRMPA makes it clear that the death of a party to a defamation claim will cause the action to abate.
The defendant accepted that the claim had died with the claimant. However, he submitted that abatement following the hearing of an application did not prevent judgment being given.
The court was asked to consider the circumstances of this case in light of CPR 40.7(1) which states that a judgment or order takes effect from the day when it is given or made, or such later date as the court may specify. The defendant argued that the rule cannot have been intended to lead to a party being prejudiced by a court reserving judgment.
The High Court rejected the arguments of the defendant. In her judgment, Mrs Justice Nicola Davies DBE stated that the wording of the CPR was clear and did not permit an earlier date to be inserted for the day of any subsequent judgment. Further, the practical difficulties arising in a defamation action should either party die served as a good illustration as to why an action should abate on the death of a party. 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. The instant action had abated on the date of the claimant’s death and there was no provision within the CPR to backdate any subsequent judgment. Accordingly, no judgment would be given.
The decision reached in this case is a sensible one. As emphasised by Mrs Justice Nicola Davies DBE, no one other than a claimant can give reliable evidence about his or her feelings or distress; evidence which is fundamental to any libel claim. Equally, no one other than a defendant (should a defendant die) can give reliable evidence to rebut a plea of malice.
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