Kaschke v Gray and Another: QBD 23 Jul 2010

The claimant sought damages in defamation saying that the defendants had published a web page which falsely associated her with a terrorist gang in the 1970s. The defendants now sought a strike out of her claim as an abuse saying that a similar action by her had already been struck out applying Jameel. The defendant had published her reply and withdrawn his own article and offered further amends as required.
Held: The action was an abuse and should be struck out. The value to the claimant was not proportionate to the costs to the parties and in court time. ‘Abuse of process . . is a more elusive and elastic principle than res judicata and issue estoppel, the burden in the former being on the claimant to establish the abuse and there being a requirement in the ordinary case of some additional element beyond that of potentially inconsistent findings.’ Though there was no res judicata from the result of the associated action, the court considered whether the case should also be considered an abuse because of the result of that action, but found no need to decide the point.


Stadlen J


[2010] EWHC 1907 (QB)




Defamation Act 1996 1, Electronic Commerce (EC Directive) Regulations 2002 19


England and Wales


See AlsoKaschke v Osler QBD 13-May-2010
The claimant sued in defamation as regards the defendant’s comments in his internet blog on her historical left wing political connections. She complained that they made a connection with terrorist activities. The defendant said that the article was . .
CitedDow Jones and Co Inc v Jameel CA 3-Feb-2005
Presumption of Damage in Defamation is rebuttable
The defendant complained that the presumption in English law that the victim of a libel had suffered damage was incompatible with his right to a fair trial. They said the statements complained of were repetitions of statements made by US . .
CitedSchellenberg v British Broadcasting Corporation QBD 2000
The claimant had settled defamation actions against the Guardian and the Sunday Times on disadvantageous terms, when it seemed likely that he was about to lose. He then pressed on with this almost identical action against the BBC.
Held: A . .
CitedLonzim Plc and Others v Sprague QBD 11-Nov-2009
The court asked whether any damages recovered by the claimant might be so small as to be totally disproportionate to the very high costs that any libel action involves.
Held: Tugendhat J said: ‘It is not enough for a claimant to say that a . .
CitedWilliams v MGN Ltd QBD 2-Dec-2009
The claimant, who had been convicted of murder, complained that an article defamed him by calling him a ‘grass’ or police informer. The defendant asked that the claimant’s defamation action be struck out as an abuse.
Held: While the suggestion . .
CitedByrne v Deane CA 1937
A notice had been displayed on a golf club notice board. The court considered whether this constituted publication for defamation purposes.
Held: Greene LJ said: ‘Now on the substantial question of publication, publication, of course, is a . .
CitedCharleston and Another v News Group Newspapers Ltd and Another HL 31-Mar-1995
The plaintiffs were actors playing Harold and Madge Bishop in the Australian soap series ‘Neighbours’. They sued on a tabloid newspaper article which showed their faces superimposed on the near-naked bodies of models apparently engaged in sexual . .
CitedBurstein v Times Newspapers Ltd CA 20-Dec-2000
Where a defendant in a defamation action sought to reduce the damages payable by arguing that the claimant had a reduced or damaged reputation, he could include evidence about particular facts only where these were directly connected to the . .
CitedTurner v News Group Newspapers Ltd and Another CA 16-May-2006
Dispute as to quantification of damages for libel. An offer of amends had been made, but the parties could not agree the sum payable. . .
CitedCampbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
CitedBragg v Oceanus Mutual Underwriting Association (Bermuda) Ltd CA 1982
The court considered the ability to prevent relitigation of issues already decided. The Court identified some of the limits of the abuse jurisdiction. Kerr LJ said: ‘To take the authorities first, it is clear that an attempt to relitigate in another . .
CitedPedder v News Group Newspapers Ltd QBD 2002
The court expressed concern at the costs being incurred in defamation cases after the introduction of conditional fee agreements. Additional elements in an abuse of process case may include the ability of the claimant to pursue a claim at no risk in . .

Cited by:

CitedTwentieth Century Fox Film Corp and Others v British Telecommunications Plc ChD 28-Jul-2011
The claimant rights holders sought an order to require the defendant broadband internet provider to deny access to its users to websites which were said to facilitate the distribution of infringing copies of their films. An earlier judgment had . .
Lists of cited by and citing cases may be incomplete.

Defamation, Litigation Practice

Updated: 06 February 2022; Ref: scu.421068