About this case:

• Citation:
  [2022] NIQB 43
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice Michael Humphreys

The court found that although there had been severe delay, this did not justify striking out the proceedings, which may still have a cause of action due to the misuse of private information.

Background

In October 2015, the plaintiff, who was aged 15 at the time, was arrested by the PSNI in relation to a cybercrime incident involving TalkTalk plc. A number of newspapers, including the Daily Mail, published material which revealed his identity.

Further material, including a partially blocked image of the plaintiff, was later published. A summons was issued, seeking injunctive relief restraining the defendants from publishing any information that may serve to identify the plaintiff.

This led to the defendant offering an undertaking that no further material would be published.

The summons also claimed damages in respect of negligence, misuse of private information, defamation, breach of confidence, breach of the Data Protection Act 1998 and the Human Rights Act 1998, arising out of prior publications by the defendants.

In September 2017, the plaintiff pleaded guilty at Ballymena Youth Court to a charge under section 1 of the Computer Misuse Act 1990. He received a non-custodial sentence.

This new application was brought by the publisher of the Daily Mail and MailOnline seeking to dismiss the plaintiff’s proceedings against it. They claimed that dismissal should be granted based on want of prosecution and abuse of process grounds.

Want of prosecution

A statement of claim was delivered in 2017, which asserted that the defendant was guilty of negligence. It also claimed they made injurious and vilifying comments about him, and it alleged that the plaintiff had a reasonable expectation of privacy in relation to his name, image, physical appearance and the general vicinity where he lived.

The defendant argued they owed no duty of care to the plaintiff, meaning that the negligence claim was meritless. They also argued there was no reasonable expectation of privacy in relation to the material and, in the alternative, it was published in the public interest and in exercise of the defendant’s rights under Article 10 of the ECHR.

The defendant noted that the original cause of action occurred well over five years before this application was brought, and the statement of claim was served almost 18 months late.

In response, the plaintiff’s solicitor claimed that this delay was caused by his client’s autism spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD). These factors impacted the ability to consult with him and take instructions.

Further, it was argued that the delay had also been caused by ongoing appeals relating to the original criminal offence. The complex parallel proceedings made the management of the litigation “time-consuming”.

The defendant argued that this delay was never explained in correspondence, and sought relief pursuant to Order 3, rule 6(2) of the Rules of the Court of Judicature (NI) 1980: “Where two years or more have elapsed since the last proceeding in a cause or matter the defendant may apply to the Court by summons to dismiss the same for want of prosecution.”

In assessing this cause of action, the court accepted that the delay here was “inordinate” and “inexcusable”. Further, the reasons given for the delay did not amount to an excuse.

The question, therefore, was whether the inordinate and inexcusable delay gave rise to serious prejudice to the defendant or made it impossible to have a fair trial.

The court noted that the defendant did not adduce any evidence whatsoever of actual prejudice. The court found that despite the delay, there was no reason to believe that this would impact on witnesses’ recollections of events, or locating documentation relating to the events.

The court was not persuaded that this was an appropriate case to exercise the power to dismiss for want of prosecution. Despite the delay, it was not established that this caused any serious prejudice or interfered with the fairness of a future trial.

Abuse of process

The defendant argued that this case was an abuse of process on two grounds. The first was delay, while the second was that no substantial tort could be said to have been committed.

On the ground of delay, the court noted that this would only be a ground to strike out at the court’s discretion. Here, the delay was “characterised by inattention and inactivity”, and although this “should attract criticism”, this was not found to amount to an abuse of the process of the court.

The application to strike out the claim by reason of delay therefore failed.

Next, the court considered the plaintiff’s claim in negligence. The court found it was “misconceived” to believe that a newspaper publisher owes a duty not to carelessly cause harm to anyone about whom it publishes material, even where the material published was true.

The court therefore found that this claim had no basis in fact or law, and struck out the claim in negligence against the defendant.

However, given the plaintiff’s age at the time of publication, and the medical conditions from which he was said to suffer, the court was not satisfied that this case fell into the exceptional category justifying striking out as an abuse of process.

There was no evidence as to the likely cost of the proceedings and the court found that, “in any event, this will not be a lengthy trial”, and there was, “no basis to suppose that the costs will be disproportionate to any prospective damages claim”.

However, the court also noted that the plaintiff may enjoy a cause of action grounded in the misuse of private information. The UK Supreme Court held, in ZXC v Bloomberg [2022] UKSC 5 that, generally, a person who is under criminal investigation, but is not yet charged, has a reasonable expectation of privacy in relation to that information.

For these reasons, the court refused the application to strike out the claim of misuse of private information.

Conclusion

Ultimately, the court limited the relief sought to the striking out of the plaintiff’s negligence claim, and the remaining disputes as to privacy are set to proceed to trial.