Defamation and foreign harm: plead it, or lose it

Facts of the case

Mr Ogunkami brought a claim against Cynthia Chia (Ms Chia) for injunctive relief and damages for defamation, later adding a claim of harassment. Ms Chia had published numerous messages online alleging significant wrongdoing by Mr Ogunkami, including very serious criminal conduct. She was also alleged to have directed a broader course of harassment at him over a number of years. She did not file an acknowledgment of service or defence, and Mr Ogunkami applied for judgment in default.

At the remedies hearing (at which Ms Chia did not make any representations), the court proceeded on the basis of the default judgment, the pleaded case and the unchallenged evidence. It accepted that the allegations were very serious and that Ms Chia’s conduct amounted to a sustained course of harassment, but found that the evidence did not support a substantial award for reputational harm. In particular, the court treated the extent of publication as limited, amounting to a few hundred people at most, and considered that most readers were unlikely to have believed the allegations. It also noted that Mr Ogunkami was based principally outside England and Wales and that there was limited evidence of damage to his reputation within this jurisdiction. Against that background, it awarded a single global sum of £25,000 for libel and harassment, together with injunctive relief.

Mr Ogunkami brought an appeal, arguing that the court should have awarded damages for global harm. The Court of Appeal was invited to increase the damages.

Court of Appeal decision

The Court of Appeal dismissed the appeal.

The issue was not whether the court had jurisdiction to hear and determine a claim for libel in respect of harm beyond England and Wales. Rather, the first instance court had concluded that Mr Ogunkami had failed to establish a right to recover damages in respect of reputational harm abroad. The question for the Court of Appeal was therefore whether the claimant had made out a sufficient legal and factual basis for the court to award him damages for libel published abroad.

Claims for defamation in respect of foreign publication are subject to the common law requirement of "double actionability". In broad terms:

• Where foreign publication is not pleaded, the claim must be taken to be limited to publication in England and Wales
• Where the words complained of have been published outside the jurisdiction, the claimant should plead the publication in each jurisdiction as a separate cause of action and aver that such publication is actionable under the laws of the country in which publication took place
• A claimant who does so may rely on the “presumption of similarity”, namely that, in the absence of evidence to the contrary, the court will assume that English law and foreign law are the same
• Where the claimant relies on that presumption, the burden of proving that foreign law is different from domestic law passes to the defendant
• The presumption of similarity does not have to be applied by the court, e.g. if it knows the presumption to be false or considers it improbable.

Mr Ogunkami's pleadings did not expressly allege any foreign publication or any reputational harm abroad, and that was fatal to his claim for additional damages for global harm; the Court of Appeal was not prepared to depart from these well-established principles.

The Court of Appeal held that the judgment obtained by Mr Ogunkami had awarded him everything he was entitled to, and he had failed to plead or prove that he was entitled to anything further. It was not sufficient to imply in his pleaded case that he was complaining and seeking damages in respect of publication in jurisdictions outside of England and Wales; furthermore, although the first instance court had taken account of foreign publication, Mr Ogunkami had provided very little specific evidence of reputational harm either within the UK or globally. Whilst the allegations were unquestionably serious, the Court of Appeal found that in the circumstances, an award of £25,000 and a judgment that clearly vindicated Mr Ogunkami was a perfectly adequate outcome.

Permission to amend

Although Mr Ogunkami sought permission to amend his particulars of claim to rely on foreign publications, the Court of Appeal refused permission. The application was made extremely late: two days before the hearing of the appeal, fourteen months after default judgment had been entered and nearly a year after damages had been assessed. The proposed wording was not set out in an application notice or draft amended pleading, but only in the supplemental skeleton argument, and Mr Ogunkami could not identify what additional sum he would seek if the amendment were allowed.

The Court of Appeal treated the proposed amendment as an attempt to introduce new claims in respect of foreign publications, rather than clarification of the existing case. That was significant because Ms Chia had never been served with the application and had not had the opportunity to decide whether to respond to those new claims. In those circumstances, the Court of Appeal held that the amendment was both procedurally defective and unfair, and it was far too late to permit Mr Ogunkami to re-open the basis on which default judgment had been entered and damages assessed.

Commentary

The decision is a useful reminder that in defamation claims, particularly those involving online publication, the global accessibility of the words complained of does not of itself found a claim for damages for worldwide reputational harm. If a claimant wishes to recover in respect of a publication outside England and Wales, that case must be properly pleaded. The foreign publications must be identified, the relevant jurisdictions must be addressed, and the claimant must make good the double actionability requirement, either by pleading actionability under the relevant foreign law or, where appropriate, relying on the presumption of similarity.

This judgment reinforces an important pleading point for media and communications claims and the need to comply with the requirements of CPR PD 53B and to ensure that any case on foreign publication, foreign law and foreign reputational harm is expressly and clearly set out in the statement of case. The Court of Appeal was not willing to infer a global damages claim simply because the publications appeared on social media platforms capable of being accessed internationally.

Finally, the decision is a warning against assuming that defects in a pleaded case can be cured late in the day.