Procedural Control and the Proper Balance between Public and Private Interests in Defamation Claims

Claims in defamation involve courts in balancing of a number of interests. The Claimant’s interest in their reputation must be balanced with the Defendant’s interest in free expression. The Court’s interest in fair, efficient and proportionate adjudication must be balanced against the Claimant’s interest in vindicating their reputation. Much of the literature examining this balance has focused on the substantive law. This article seeks to consider how these interests have been balanced through procedural control mechanisms, such as summary judgment and strike out. In particular, the development of the court’s ability to strike out a claim as an abuse of process is been considered. It is argued that the ability to strike out in such cases performs an important role, but should not be used to prevent reputational vindication where this is worthwhile. Further, it is argued that whilst substantive and procedural changes may reduce the need for strike out, the courts should not remove this important tool from their toolbox.

In Part 1 this article briefly argues that an appreciation of the procedural steps taken by courts in defamation cases is essential to understand the balance between public and private interests which they reach. It is argued that it is through procedural case management, to an equal or greater extent than substantive law, that the courts achieve this balance, and that a greater focus on procedural innovation by courts is important in understanding their attitude to defamation actions.
Part 2 turns from the general to the specific and examines at length the procedural methods that the courts use to manage and terminate defamation claims (predominantly libel), critically considering the contribution of each of these to the public interest-private interest or the expression-reputation balances. The expression-reputation balance is familiar, but the balance between public interest and private interests allows the courts to weigh the public interest in efficient court process against an individual's private interest in resolving a dispute. Whilst a case may be serious to an individual, when balanced against other cases within the system, it may not be important enough to society to engage the court system. In particular, the possibilities of summary judgment, under both Part 24 of the Civil Procedure Rules (CPR) and sections 8-10 of the Defamation Act 1996, and of striking out a statement of case as an abuse of process, developed in Jameel v Dow Jones, 6 are considered. The development of these procedural controls is analysed, and the role they play in balancing both public and private interest and expression and reputation considered.
Part 3 turns to examine the position of these procedural innovations following the passage of the Defamation Act 2013, particularly the Jameel strike-out, which some have argued has been subsumed into section 1 of the Act. Finally, in Part 4, the article concludes by arguing that more procedural innovation is necessary to ensure that claimants and defendants in defamation actions are dealt with justly, and to ensure that the proper balance between the public and private interests in defamation claims is reached.

THE IMPORTANCE OF PROCEDURAL INNOvATIONS IN DEFAMATION CASES
Academic commentary on defamation law has tended to focus on substantive questions. Open an undergraduate textbook on the law of torts, and it is the substantive doctrines that receive coverage. Procedure is barely mentioned, beyond the possibility of trial by jury and consideration of available remedies. 7 Procedural issues have been left to practitioners to deal with, and matters of procedure receive detailed coverage in practitioner texts. 8 However, these practitioner texts do not consider the underlying rationales for the procedural actions taken by the courts. The division between substantive and procedural is regrettable, because it is in the procedural field that the courts have taken innovative steps to address difficult questions in defamation law, and particularly to address defamation claims that have the potential to chill freedom of speech. This article attempts to close this gap, taking procedural steps seriously in a bid to properly understand how the courts balance public and private interests in defamation cases. It also contributes to the broader debate about the role of procedure in the understanding of the substantive law, arguing that the division of substance and procedure is regrettable, and has the potential to lead to an incomplete understanding of the approach taken by courts. 9 By treating substance and procedure separately, it may be assumed that they deal with separate interests, and do not deal with fundamentally the same questions from different angles and at different stages. Such an assumption would be incorrect. 10 Procedural law is crafted to achieve the same ends as the rules of substantive law. Both substantive and procedural law should aim to achieve appropriate outcomes in a particular case, seeking to satisfy similar meta-interests such as justice, truth, fairness and proportionality, 11 although some US scholars have argued that they in fact do not achieve this. 12 Whereas in a simple negligence claim it may plausibly (albeit, it is submitted, incorrectly) be argued that procedural steps do not impact on the same interests as the substantive law, 13 in a defamation claim procedure and substance both play an important role in balancing the rights of the parties. The rights most clearly implicated are the rights to freedom of expression and reputation. Whilst clearly European Convention on Human Rights (ECHR) Article 6 considerations, which involve consideration of the claimant's and defendant's rights to have their cases dealt with fairly by the court and the court's interest in the efficient, proportionate and cost-sensitive disposal of claims, 14 are important in procedural control in actions of all types, and are considered in detail by academics, 15 this article does not attempt to consider whether the procedural steps utilised by courts in defamation cases are compliant with Article 6, but instead attempts to examine how the interests of the parties and the court shape the important procedural steps that structure a defamation action.
In a defamation action, it is often the procedural manoeuvrings that play a central role in shaping the case, limiting the issues between the parties and shaping a settlement or the result at trial or earlier in proceedings. Therefore, it is necessary to consider the evolutionary development of the procedural steps in defamation cases, particularly in the fields of strike-out and summary judgment, to illustrate the steps to achieve a balance between public and private interests.

THE DEvELOPMENT OF PROCEDURAL CONTROL IN DEFAMATION ACTIONS
The majority of defamation claims do not proceed to trial. Some are settled, some cannot be served out of the jurisdiction and some are disposed of through pre-trial applications, such as determinations of meaning, applications for summary judgment or applications to strike out. Both claimants and defendants may benefit from the determination of pretrial applications, with claimants striking out defences or obtaining summary judgment of their claim, or defendants striking out claim forms and/or particulars of claim on the basis that they fail to comply with procedural requirements or that they amount to an abuse of process. These disposals are relatively quick and relatively cheap, with no need for the court to engage in detailed examination of evidence. Trials, on the other hand, are generally lengthy and expensive. These procedural steps allow the courts to control their docket, and to ensure that the limited resources of the Queen's Bench Division, 16 where defamation cases are usually assigned, 17 are devoted to a manageable number of cases. Without procedural control it would be impossible to hear all the defamation cases issued within a reasonable period, at reasonable cost. The public interest in proportionate and cost-sensitive adjudication therefore requires that pre-trial procedural methods are put in place to enable courts to manage their workload.
The landscape of procedural control has been altered by the introduction of the Human Rights Act 1998. Defamation is an important arena where rights to expression and to private and family life (including reputation) are balanced against each other. 18 The court must comply with the requirements of the ECHR by virtue of section 6 of the Human Rights Act 1998. Human rights considerations must be taken into account when 16 Most defamation cases are dealt with by specialist judges, as will be seen in this article, as most of the first instance judgments emanate from Eady J or Tugendhat J, the previous and current judges in charge of the Queen's Bench jury and non-jury list. 17  making procedural judgments, as well as the interest in efficient adjudication. Article 10 of the ECHR provides that 'everyone has the right to freedom of expression' . This 'constitutes one of the essential foundations of a democratic society' . 19 Expression can be restricted on the basis of damage to reputation, but such restrictions must be necessary and proportionate. 20 Defamation claims, even if unsuccessful, can amount to a disproportionate infringement of expression. 21 Article 8 provides protection for private and family life, but does not explicitly reference a right to reputation. 22 However, in Pfeifer v Austria the European Court of Human Rights acknowledged that reputation fell with Article 8, stating that 'a person's right to protection of his or her reputation is encompassed by Article 8 as being part of the right to respect for private life' . 23 Whilst later cases have sought to limit the scope of the protection of reputation as an independent right, 24 it is clear that one must engage in consideration of the balance between expression and reputation when assessing whether defamation action imposes an undue burden on the right to free expression. 25 Further, the importance of reputation has also been acknowledged at common law 26 and by academics. 27 Some commentators have suggested that the balance between expression and reputation has been incorrectly reached in the law of defamation, arguing in particular that reputational rights have been given insufficient weight. 28 Until recently courts were reluctant to strike out a case which disclosed a good cause of action. Claims were managed through the summary judgment process, with claimants and defendants applying for judgment in cases where the claim was not made out or a defence could not be answered. As noted below, summary judgment was often refused in defamation cases because of the special function of juries as primary finders of fact in these cases. After examining the summary judgment process, we turn to 'strike-out' procedure, and consider how the courts have utilised this procedure to balance competing interests, public and private and reputational and expressive, in a growing number of cases.

Procedural Control of Content: Summary Judgment
A key way in which defamation cases can be managed is through the use of summary procedures found either in Part 24 of the CPR or the Defamation Act 1996, section 8. These procedures provide twin methods for early adjudication in defamation claims.

Control through Part 24
Part 24 provides a mechanism by which a court can 'decide a claim or a particular issue without a trial' . 29 Summary judgment requires detailed engagement with the facts of a case (set out in the statements of case and accompanying witness statements), assessing whether these show a reasonable prospect of succeeding in the action. However, an application for summary judgment is often accompanied by an application by a defendant to strike out a statement of case under rule 3.4(a). 30 This examines whether any cause of action is disclosed by the statement of case. The courts tend to determine such two-pronged applications on the basis of Part 24. 31 A claimant can obtain summary judgment where the defendant has 'no real prospect of successfully defending the claim or issue' and there is no other compelling reason for the case to continue to trial. 32 A defendant can obtain summary judgment where a claimant 'has no real prospect of succeeding on the claim or issue' and there is no other compelling reason for the case to continue to trial. 33 A successful summary judgment application by a defendant in a defamation case will focus on a defence, and argue that it is bound to succeed, such as where there is an undoubted occasion of qualified privilege with no sustainable argument of malice, 34 or fail, where a pleaded Reynolds defence is bound to fail because the journalism was not responsible. 35  to challenge matters such as publication 36 or defamatory meaning (although this may require a separate application to determine meaning). 37 Summary judgment will not be granted where the issue upon which summary judgment is sought is evidentially complex. 38 In particular, courts will not seek at this stage to resolve conflicts of evidence and will not engage in cross-examination. In defamation actions, prior to the changes wrought by the Defamation Act 2013, 39 the default factfinder in a defamation action was a jury, and in Alexander v Arts Council of Wales the Court of Appeal held that where there was an issue fit to be left to the jury, the court should not pre-empt their factual determination on a summary judgment application. 40 Therefore, a claimant is unlikely to be successful in obtaining summary judgment if there is a dispute surrounding the truth of the statement and a defendant is unlikely to be successful if there is a dispute surrounding meaning. 41 Whilst trials will now be conducted without a jury, 42 this is unlikely to substantially increase the circumstances in which summary judgment is given, as factually complex matters will not generally be considered appropriate situations for summary judgment.
Summary judgment functions to support existing legal doctrines which balance expression and reputation, where countervailing policy factors have previously been balanced by Parliament or the judiciary. For example, where speech is protected by absolute privilege summary judgment will be granted. 43 This reflects the pre-existing policy decision that the value of speech is such that it should not be restricted by countervailing concerns. 44 Summary judgment procedures themselves do not focus on the balance between rights, but enable doctrines that operationalise this balance to be applied at an early stage.
Of course, one area where rights may be considered is in the examination of whether there is another compelling reason to proceed to trial in cases where a reasonable prospect of success cannot be demonstrated. Although there is little case law in the area, procedural rights, such as the right to trial by jury, may be advanced as a compelling reason to refuse summary judgment and continue a claim to trial. However, the claimant's Article 6 rights alone do not mean that there is always a compelling reason for the case to continue to trial. One cannot argue that a case must go to trial because that would vin- 36  dicate rights under Article 6. There must be something more compelling that provides a reason for a case to go to trial.

Defamation Act 1996
The Defamation Act 1996 contains a specific summary disposal mechanism. 45 Section 8 provides that a court may summarily dispose of a claim if, on application by the defendant, 'it appears to the court that it has no realistic prospect of success and there is no reason why it should be tried' 46 or if, on application by the claimant, 'it appears to the court that there is no defence to the claim which has a realistic prospect of success, and that there is no other reason why the claim should be tried' . 47 The test of realistic prospect of success is the same as that under the CPR, 48 and in determining whether 'other reason [s]' are present the court should consider the factors listed in section 8(4), which broadly reflect those under Part 24. However, the summary procedure under the Defamation Act is more limited than that under the CPR. Applications must be made in respect of the whole of a claim, 49 whereas summary judgment under Part 24 can be made in respect of part of a claim. 50 Further, the procedure under the Act is only open to claimants who seek less than £10,000. 51

Summary
By focusing on the prospects of success, summary judgment enables courts to swiftly remove cases which are likely to fail. This supports the pre-existing statutory and common law mechanisms which seek to balance expression and reputation, removing cases where the potential returns do not justify the resources expended. Well advised claimants or defendants may choose to discontinue, settle or not issue proceedings in situations where there is a risk of summary judgment, reducing the burden on expression.
However, summary judgment does not attempt to reach independent judgments about the balance that should be struck in a particular case, focusing instead on the satisfaction, or otherwise, of external requirements for a successful claim or defence. If the court wishes to procedurally control a claim on the basis of impingement on expressive rights in circumstances where the claimant has a reasonable prospect of a successful claim, then the court must act to strike out the claim. 45 This statutory intervention was necessary because the old Rules of the Supreme Court Order 14 expressly excluded defamation cases from its scope. 46 Defamation Act 1996, s 8(2). 47 Ibid, s 8(3). 48 Downtex v Flatley [2003] EWCA Civ 1282. 49 As is required by the Defamation Act 1996, s 8. 50 See CPR Part 24.1. Under Part 24 a defendant may apply in respect of some, but not all, statements. 51 Summary judgment under s 8 is only available where summary relief (defined in s 9) is sufficient to 'adequately compensate' the claimant (s 8(3)).

Procedural Control of Conduct: Strike Out
The Power to Strike Out The court's power to strike out is contained in rule 3 of the CPR. Rule 3.4(2)(a) allows a court to strike out where a statement of case 'discloses no reasonable grounds for bringing or defending the claim' . This power requires the court to assess the statement of case that is the subject of the application. The power in rule 3.4(2)(a) is similar to the power to grant summary judgment in Part 24. 52 More importantly, rule 3.4(2)(b) allows courts to manage claims where the existence of a cause of action on the pleadings is undisputed. The court can strike out 'if it appears to the court … (b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings' . The content of a statement of case will be assessed to determine whether it is an abuse of the court process, 53 and it will be an abuse if a claimant or defendant is using the 'process for a purpose or in a way significantly different from its ordinary and proper use' . 54 The courts have identified a number of situations where they are willing to strike out a statement of case as an abuse, including vexatious litigation, litigation which seeks to re-litigate decided issues or which stages collateral attacks on previous judgments, 55 litigation for an improper collateral purpose, 56 litigation which is improperly delayed, 57 litigation which is conducted fraudulently, 58 and litigation which is pointless and wasteful. The last of these has assumed great importance in the control of defamation claims, and in achieving the balance between rights to reputation and expression.
Rule 3.4(2)(b) must be contrasted with the further power in rule 3.4(2)(c) to strike out where 'there has been a failure to comply with a rule, practice direction or court order' . 59 This power to strike out is based on the conduct of a claim, rather than the content of the claim itself. 60  of the discretion to strike out the court must take into account all the circumstances of the claim, which may require an assessment of the balance between public and private interests. 61 If the conduct of a claim amounts to an abuse of process the strike-out should be grounded in paragraph (c) rather than paragraph (b). 62 An application to strike out may be made by the parties, or by the court of its own volition. 63 The power exists even where the exercise of the power would 'defeat a substantive claim' . 64 Even if the claimant can demonstrate a published statement from which it is possible to identify defamatory allegations, and there are no applicable defences, a claim may still be struck out as an abuse. This would deprive an individual of their right to the determination of the underlying claim, and therefore the 'draconian step of striking a claim out is always a last resort' . 65 The court possesses this power in order to do justice between the parties or to prevent the bringing of the 'administration of justice into disrepute among right-thinking people' . 66 Where other case management steps can be taken to manage the progress of the case, and ensure that it is not an abuse, these will be preferred to strike-out, 67 although strike-out will remain available if they fail. Recent changes to the CPR that may assist the court in managing a case and avoiding strike-out by, in particular, enhancing the court's ability to manage costs, are outlined in part 4 of this article.

Strike-Out in Defamation Cases
The principal decision striking out a claim as an abuse of process in defamation is that of the Court of Appeal in Jameel v Dow Jones. 68 The court struck out particulars of claim where the pleaded publication was so minuscule that the harm done by the publication was disproportionately small compared to the costs that would be expended on proceedings, notwithstanding the defamatory meaning of the statement. 69 The 'game was not worth the candle' , and was in fact barely 'worth the wick' . 70 The court must 'approach the matter … on the assumption that [the claimant] will succeed at the end of the day and ask … whether [the claimant] should be prevented from pursuing his claim because the costs will be out of all proportion to the benefit he is likely to obtain' . 71 Prior to Jameel, cases with limited publication would go to trial, and the limited harm would be relevant to the remedy, rather than as a consideration in case management decisions. There had been previous decisions which had struck out wasteful cases, 72 but these were isolated instances. In general, only in cases where an application was made to serve out of the jurisdiction under CPR rule 6.36(6) (or its antecedents CPR rule 6.20(8) and RSC order 11) did the courts consider whether the pleadings disclosed a substantial tort within the jurisdiction. 73 According to Tugendhat J, post-Jameel '[i]t is the duty of the court to bring to an end proceedings that are not serving the legitimate purpose of defamation proceedings' . 74 Jameel was said to rest on twin developments which suggest a greater willingness to strike out. First, there is the post-Woolf Report role of the courts in proactively managing cases before them. 75 Prior to the reforms embodied in the CPR, the situation in civil justice was that 'expense is often excessive, disproportionate and unpredictable; and delay is frequently unreasonable' because of the lack of 'effective judicial control' . 76 In his final report, Lord Woolf spoke of the creation of a 'new landscape' in which courts were able to deal proportionately with cases brought before them, and where courts, rather than parties, were responsible for managing the litigation process. 77 One of the tools which the courts have to enable cases to be dealt with proportionately is the power to strike out a case as an abuse of process. 78 The second alteration to the adjudicative landscape which underpins the decision in Jameel is the implementation of the Human Rights Act. The rights to expression and reputation discussed above 79 must therefore be balanced against one another. When considering how to balance these competing right in defamation cases, Lord Phillips held in Jameel that '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 claimant's reputation' . Further, Laws LJ has conceptualised the balancing aspect of the decision in Jameel as constitutionally required; 'the balance to be struck between public interest and private right is increasingly to be seen as a function of our constitution … It is no more than an ordinary incident of the common law's incremental method that familiar notions such as abuse of process should be fashioned for its service.' 80 Cases which have limited value are therefore removed from the court system as soon as possible, in order that scarce court resources are devoted to cases of greater import. Adrian Zuckerman has argued, as long ago as 1975, for the importance of 'procedural proportionality' which requires that a case is 'sufficiently substantial to justify use of normal processes' in order to remain within the normal adjudicative process. 81 Indeed, procedural proportionality has been expressly acknowledged as a goal of Jameel. 82 This has been criticised as placing more weight on the pragmatic aims of cost reduction compared to adjudicative accuracy. 83 Indeed, as noted above, decisions to strike out for an abuse of process will result in a claimant who has suffered a legal wrong being left uncompensated. However, assessment of procedural proportionality in defamation cases may be viewed as principled, because of the importance accorded to defendants' right to free expression. These may be burdened by the progress of litigation (even if eventually it is successfully defended). This leads to a closer engagement with an assessment of procedural proportionality in the defamation cases post-Jameel, with a balancing of possible beneficial outcomes for the claimant against the costs (both monetary and to speech) in continuing with the case. Only where the reputation interests are 'sufficiently substantial' will the use of court resources be seen as worthwhile.
A further reason for the development of strike out as a method of control in defamation actions, discussed by Lord Phillips in Jameel, 84  to assign a case to one of three procedural tracks: 85 the small claims track, the fast track and the multi-track. The most complex cases are assigned to the multi-track, and such cases involve the most detailed and expensive procedural steps. A court must invariably assign a defamation claim to the multi-track, 86 and even where the value of the claim is low cannot assign a defamation claim to the small claims track, whereas other nonpersonal injury cases with a value of less than £10,000 will be assigned to that track. 87 All defamation claims must be dealt with in the specialist list at the Royal Courts of Justice, a process which is lengthy, expensive and adversarial. Therefore a strike out provides the only possible route to manage cases that are of limited value, and which have the potential to consume extensive resources.
As noted above, the use of the strike out power deprives claimants of the opportunity to have their claims determined by a court, and in defamation in particular this deprives the claimant of the opportunity for a jury trial. This feature of the strike-out power initially caused courts to be somewhat reticent in its use. In Jameel itself an argument was advanced that an order to strike out the claim was incompatible with Article 6 ECHR. Lord Phillips rejected this argument, holding that Article 6 does not require a full trial where a claim is neither real nor substantial. 88 In such a case, the hearing of the strike-out application provides a fair and public hearing necessary to determine the rights of the claimant, as he or she does not have a right to damages in such a case. Similarly, Lord Neuberger MR has held that cases where there is no substantial tort provide an appropriate exception to the general rule that 'so long as [a claimant] has an arguable claim she should be allowed to proceed with it' . 89 Indeed, where there is no substantial tort, it is unlikely that Article 8 is engaged, as the decision of the European Court of Human Rights in Polanco Torres requires that the damage to reputation be grave and direct. 90 However, given the importance of the interests at stake, the court must engage in a detailed balancing exercise before deciding to strike out. It is this balancing that renders the procedure compatible with Articles 6 and 8. It is to this examination that we now turn. 85

Determining Whether a Claim Should be Struck Out as an Abuse of Process
The primary test advanced to determine whether the claim should be struck out is whether the pleadings show a 'real and substantial' tort. 91 This should be judged at the date of the hearing of the application to strike out. 92 However, given the competing interests in play, it is essential that the court conducts a case-specific balancing exercise on the basis of the claimant's pleaded case. It is clear that 'it is not appropriate for the court to undertake any kind of mini-trial, based upon incomplete evidence, either as to liability or quantum' when considering an application to strike out. 93 As noted by Zuckerman, 'if the court were to strike out a claim for minor infractions it would go beyond what was necessary to protect its process and may itself become a source of injustice' . 94 Indeed, 'the court must exercise particular care before shutting out an arguable case' . 95 As noted by Dingemans J in Subotic v Knezevic, 'applications to dismiss proceedings as an abuse of process must not become a routine, expensive, procedural hurdle over which claimants are forced to jump in an attempt to secure justice' . 96 Concern about the potential for Jameel applications to impede the ability of claimants to vindicate their reputation is tacitly expressed in this passage from the judgment of Dingemans J in Subotic. To prevent this injustice the burden is on the person seeking to strike out (in Jameel type cases the defendant) to establish that the pleadings do not disclose a real and substantial tort. 97 It is, however, clear that the approach of the court should not be that 'these claims look very thin to me, but it is safer not to strike them out until there has been some (expensive) evidence' . 98 The court should be proactive in ensuring that claims which amount to an abuse of process 'are weeded out at the earliest possible stage' . 99 When applying Jameel to the facts of cases in front of them, the courts have vacillated on the factors to be taken into account when considering whether a tort is 'real and substantial' . They have focused either on the possibility of vindication through the claim or on the pleaded remedies. It is submitted that the former is the better approach. in Jameel must 'not … be categorised merely as a variety of the de minimis rule tailored for defamation actions' 100 and therefore one must not simply examine the claimed damages when determining whether the tort is real and substantial. Determining whether the tort is real and substantial is more complex.
Mere limited publication cannot, on its own, lead to a case being struck out as an abuse of process. 101 However, the extent of publication is an important consideration. In Jameel itself the publication had been read by five subscribers to the Wall Street Journal website, three of whom were members of the 'claimant's camp' . 102 The small number of publishees was taken into account in determining that there was no real and substantial tort. 103 In contrast, in Mama Group v Sinclair the 'very extensive publication' was a reason to refuse an application to strike out. 104 As well as the number of publishees, it is clear from Mama that their identity as 'licensors, commercial partners and customers' is also a relevant consideration. 105 Conversely, where the opinion of the publishees is unlikely to be influenced by the publication this may be a relevant factor in concluding that the case is an abuse. 106 Limited publication should be weighed against the substance of the allegations. The more serious the defamatory allegation, the more likely it is that the claim will not be struck out on the grounds of the limited publication.
The balance will favour strike-out where the claim cannot function to vindicate the claimant's reputation. 107 In Krause v Newsquest Media Group Ltd the claimant issued proceedings in respect of an article reporting a successful appeal against sentence following a conviction for harassment. The claim was struck out because 'having regard to the damage to her reputation that she suffered by reason of the convictions … there is nothing of any possible benefit to her which she can achieve' in the defamation action. 108 Here the vindication was not worth the resources to be expended by the court, taking into account the public interest in reporting about the claimant, whose sentence had been reduced following a conviction for harassment. , where obiter a Jameel application was said to be likely to succeed unless the claim gave the claimant 'a remedy which gave him something of value notwithstanding the damage to that reputation already caused by the extensive publicity that had been generated' . court held that a claim that sought the vindication of the reputation of a convicted murderer was not 'worth the wick' . 109 However, it is possible to read this case as an example of strike-out under rule 3.4(2)(a), as, given the claimant's pre-existing reputation, the alleged defamatory statement could not lower the claimant in the eyes of the reasonable member of the public. It would also be proper to give summary judgment on the claim because the claimant had 'no real prospect' of demonstrating that he satisfied the threshold of harm required by Thornton v Telegraph Media Group. 110 On the other hand, where there is a reputation capable of vindication the courts will be slower to strike out the claim. 111 In Ansari v Knowles, the Court of Appeal refused to strike out a claim that could 'provide vindication in respect of serious allegations' despite limited publication. 112 If the claim shows a 'real need for vindication' the court will be slow to strike it out. 113 Even where the claimant's reputation has been vindicated through an apology or retraction, a claim may continue to disclose a real and substantial tort if there is a prospect of obtaining damages. 114 However, where the claimant can vindicate his reputation, but this would not amount to 'worthwhile vindication' , the claim will be struck out. 115 A publication pre-dating the issue of the claim which operates to vindicate the claimant's reputation may, when combined with other factors, suggest that the claim should be struck out. 116 In some cases the pleaded remedies may suggest that the case is an abuse. Where the claimant has suffered no damage it is difficult to say that 'the game is worth the candle' . 117 In Scotland, it has been suggested that the likely level of damages should be a consideration and it would be proper to strike out a claim where an 'action would be disproportionate to its value' . 118 However, '[t]he mere fact that a claim is small should not automatically result in the court refusing to hear it at all' , 119 and where 'it is by no means improbable that the damages would be more than nominal' then the court may refuse to strike out a claim as an abuse of process. 120 A blanket approach where cases are struck out as an abuse merely because of the value of the claim would be likely to face serious challenge under Articles 6 and 8 of the ECHR. Where an injunction is sought to prevent future publication, this may tend to suggest that a claim is not an abuse, provided that the injunction can serve the purpose of preventing further damage to reputation. 121 The content of a pleaded defence may also influence the application of Jameel. In Lait v Evening Standard, where a defence of honest comment or Reynolds privilege was advanced, the importance of freedom of expression could be taken into account when making a determination as to whether the case disclosed a real and substantial tort, with a pleaded defence founded on expressive rights more likely to render a case an abuse of process. 122 However, this case considered a claim relating to a statement with two possible meanings, and is perhaps better read as determining which meaning should be considered for the purpose of the Jameel balancing exercise. Lait holds that the narrower reading should be considered. On the other hand, in Ansari v Knowles it was made clear that the fact that the defendants advanced justification as a defence cannot give a claimant an extra interest in pursuing a claim beyond the interest when the claim was issued. 123 The pleaded defence cannot make a claim worth the candle where it was not worthwhile independent of the defence.
The overall costs of a trial can be considered. Where these are likely to be large, the claimant must demonstrate that the result of the trial will justify these costs. 124 However, the court cannot strike out a claim on the basis that a defendant would be unable to recover costs from the claimant if successful. Whilst costs may amount to a burden on freedom expression, 125 and this burden may be amplified in the event that costs are not recoverable, to take into account financial circumstances would illegitimately disturb the balance of the CPR, 126 which provide for security for costs only in limited circumstances. 127 Drawing these insights together, it is submitted that there are two steps the court must take before for striking out on a Jameel basis. First, the court must decide whether the statement of case demonstrates that the claimant has suffered harm to reputation. Second, the court must consider whether the expenditure of court resources is worthwhile given the damage to reputation alleged (and the vindication that can be achieved), taking into account the right to freedom of expression guaranteed by the ECHR. Where the reputational interest is significant (and the claim may lead to vindication), the court should be willing to let the claim proceed, as this will justify the resource expenditure and will not conflict with the right to freedom of expression.
At the first stage, where the reputation of the individual cannot be vindicated by the defamation action, the claim must be struck out as an abuse of process. At the second stage the considerations set out above must be taken into account. The court must first consider how serious the reputational damage complained of was, examining the breadth of publication and the identity of the persons to whom the allegations had been published. Then consideration must be given to whether success in the case as pleaded is capable of vindicating the reputation damage suffered by the claimant. This will be weighed against the resources that the court will have to bring to bear in determining the claim. Further, the importance of Article 10 rights should be considered, bearing in mind that the mere issue of a claim can amount to a burden on the exercise of these rights.

Summary
The courts have developed procedural tools to allow the management of defamation cases where the continuation of a case would impinge on expressive rights. Where a pre-determined balance has been reached through provision of a defence in certain circumstances, the summary judgment procedure provided by CPR Part 24 will allow the claim to be swiftly determined. Where a good claim on the merits may be advanced by a claimant, a court may strike out the claim as an abuse of process if the impingement on free speech is too great, taking into account the public and private interests in the continuation of the case. However, this will involve a detailed balancing exercise, which should take into account, in particular, the possibility that a successful claim as pleaded will lead to vindication of the claimant's reputation.

CHANGES TO PROCEDURAL CONTROL POST-DEFAMATION ACT 2013
This section considers the effect of the 2013 changes to the substantive law of defamation on the procedural management of claims. Section 1 of the Defamation Act 2013 imposes a requirement that a claimant demonstrate an additional element in order to be successful. As well as showing that a published defamatory statement, from which the claimant can be identified, has 'lowered the claimant in the eyes of right thinking members of society' or caused right-thinking members of society to 'shun or avoid' him, the claimant must also show that the publication of the defamatory statement has caused, or is likely to cause, 'serious harm' . The burden rests on the claimant to both plead and prove with evidence that serious harm has been suffered or is likely. Where the claimant is a corporate body acting for profit, the harm must be 'serious financial loss' . 128 It is submitted that the harm demonstrated must be harm within the UK, the EU or states signatory to the Lugano Convention. 129 It is clear that section 1 raises the threshold of damage that must be suffered by the claimant before a claim can be brought. The explanatory notes to the Act make clear that the requirements under section 1 go beyond the threshold imposed by Thornton v Telegraph Media Group. 130 However, the meaning of 'serious' harm is unclear. It is submitted that some guidance on the meaning of harm can be found in slander cases, 131 in circumstances where a claim was not actionable per se. 132 In the slander cases, the claimant was required to demonstrate 'actual temporal loss' 133 which includes pecuniary losses, 134 but can also include social losses, such as deprivation of the hospitality of friends. 135 Using these cases it is clear that publication must result in tangible effects to amount to 'harm' as required by the Act. However, the tangible effects need not be restricted to financial consequences. On the other hand, mere annoyance is unlikely to amount to harm for the purposes of the Act, as the focus should be on the effect on a third party, rather than the effect on the individual. 136 It may be that the introduction of a 'harm' requirement by section 1 of the Defamation Act 2013 will lead to less reliance on Jameel strike-outs. 137 This is because the question whether a tort is substantial would become an ingredient of the tort. Just as a negligence pleading must identify damage, so must a post-2013 defamation pleading, but unlike the negligence pleading the damage must reach a threshold of 'serious harm' to reputation, or, in the case of a company, 'serious financial loss' . Rather than issuing an application to strike out particulars on the basis that the pleading is a Jameel abuse of process, an application may be made for strike-out under rule 3.4(2)(a) arguing that the pleading fails to disclose a tort or for summary judgment under Part 24 on the basis that the claimant has no real prospect of success in demonstrating that 'serious harm' or 'serious financial loss' .
This would shift the issue from the balancing exercise by the court in determining whether the 'game was worth the candle' to asking whether the claimant had a reasonable prospect of satisfying one of the required elements of the claim. This shift in focus could engage the evidential basis of the claimant's contentions at an early stage, requiring an examination of the likelihood of demonstrating (on a balance of probabilities) whether there was a real prospect of demonstrating 'serious harm' . It is likely that such an application would be made under CPR Part 24 (or rule 3.4(2)(a)) because it may be necessary to adduce witness evidence to assess this. However, given the reluctance of judges to undertake a mini-trial on a summary judgment application in order to determine whether the evidence can satisfy the requirements of the cause of action, 138 it is unlikely that summary judgment will be granted on applications claiming that the claimant cannot demonstrate serious harm in all but the most obvious situations. The courts' approach, to take the claimant's pleaded facts and consider whether they disclose a cause of action, is unlikely to lead to summary judgment or strike-out except in those cases where 'even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks' . 139 Such an approach would be likely to reduce the number of claims removed from the court using procedural control mechanisms.
However, this should not be the judicial approach. Judges should be willing to continue to use the flexibility offered by Jameel to manage cases that appear disproportionate to the reputational rights they seek to defend. If the court decides that it is possible (or, at least, not impossible) that the claimant will demonstrate 'serious harm' , it can still consider whether the possibility of obtaining vindication through the continuance of a defamation action is limited, bearing in mind the resource limitations and the right to expression engaged by the case. In such a case the court should be willing and able to strike out a claim. Whilst it may be the case that the increase in the level of harm necessary to avoid a strike-out under rule 3.4(2)(a) has the effect of reducing the need to engage with Jameel in some cases, it remains an important safeguard for the courts, insofar as they wish to control cases that come before them. It may, however, be that practitioners should take a belt and braces approach, and apply to strike out in the alternative under both rule 3.4(2)(a) and 3.4(2)(b).

COSTS MANAGEMENT AND GREATER PROPORTIONALITy
A second set of changes that may alter the courts' approach to abuse of process applications are procedural, rather than substantive. Their case management powers have been altered following the Jackson review. 140 These alterations may mean that it is possible to manage defamation cases to ensure that resources expended ware proportionate to the reputational vindication sought, and therefore it may be that fewer cases are seen as abuses and struck out on a Jameel basis. It is therefore necessary to briefly consider the new regime.
The new regime will provide clearer information to take into account when deciding whether to strike out. Parties to a multi-track case, 141 such as a claim in defamation, are required to file and exchange cost budgets once the defendant has filed a defence. 142 Where a cost budget has not been filed, all costs, other than court fees, claimed by a successful party will be irrecoverable. 143 The court may manage the parties' proposed conduct of litigation as set out in the budgets in order to reduce the future costs. 144 Once these budgets are set, CPR rule 3.17(1) provides that 'when making any case management decision, the court will have regard to any available budgets of the parties' . A decision whether to strike out as an abuse is clearly a 'case management decision' . Therefore it may be easier to balance cost and reputational vindication. Where a budget is exceeded, the court will only allow recovery of these costs where there is a 'good reason' for the overrun. 145 Therefore, parties will have a strong incentive to work within the filed budgets.
Cost management is not, however, a silver bullet that reduces the need for procedural control by the court. It may function to provide more information when the balancing exercise is carried out, but it cannot function to remove the need for a case management remedy for abuse of process. Whilst in some circumstance costs management under rule 3.15 may be used to reduce the costs of a claim, in order to render these costs proportionate to the reputational vindication sought, it is more likely, however, that a costs budget may allow the courts to focus more fully on the balance between interests which form the basis of a Jameel application. The budget may function to alert the court to a disproportionate burden on freedom of expression compared to the potential reputational vindication.
Two further procedural developments could reduce the need for a Jameel strike-out by ensuring that the resources devoted to the claim are proportionate to the reputational vindication sought, and to ensure that the claim does not unduly burden expressive rights. First, alternative dispute resolution could be encouraged. This would allow more creative solutions to the dispute to be reached, which have the potential to protect both reputation and expression, whilst dealing proportionately with the issues. The courts have sought to encourage parties to engage in mediation. 146 This may amount to the 'firm exercise of the court's case management powers' that ensures a proper balance between competing interests contemplated in Ansari v Knowles. 147 However, mediation is voluntary, and it may fail. The mere existence of mediation, and sanctions for failure to mediate, does not relieve the court of the need to manage claims to ensure that a balance between public and private interests is reached.
Second, a power to allocate low value defamation claims to a (specialised) small claims track could be inserted into the CPR. The lack of such a power has been identified as a reason why defamation claims are struck out as 'not worth the candle' . This would allow courts to dispose of the case at less cost to the public. Costs recovery for litigants using the small claims track is limited, 148 with the defendant not liable for the claimant's costs in the event of a finding of liability, but also unable to recover his own costs if successful. The costs position does not, however, remove the burden on freedom of expression which will still be present, and Jameel applications will be needed to ensure that cases which do not have the potential to vindicate a valid reputational interest are quickly removed from the courts.

CONCLUSION
This article has sought to argue for the importance of understanding procedure, and particularly Jameel strike-out, when considering the balance between public and private interests, and reputation and expression, in defamation cases. It is argued that Jameel performs an important function, and will continue to perform an important function following the implementation of the Defamation Act 2013 and the new costs management rules. Courts should remain both able and willing to intervene. Summary judgment will retain an important, but subsidiary, role due to the limitations on evidential assessment.
In some cases the continued use of Jameel may leave a claimant subject to harmful untruths without a remedy, but this has always been the case with the defences applicable in defamation cases. The difficulty in obtaining vindication in certain cases where untruths have been published has been judged to be the price to be paid for the importance of freedom of expression. However, courts adjudicating on a Jameel strike-out should particularly focus on the pleaded harm to reputation. Where reputation is capable of vindication, the courts should be slow to strike a claim out, but where it is not, the case will be an abuse, and should be struck out to support the right to freedom of expression guaranteed by the European Convention on Human Rights.