Kim v Park & Ors

Factual and Procedural Background

The Claimant, a Korean national residing in England, brought a libel claim concerning three defamatory articles published in Korean on a website and in a newspaper serving the UK Korean community. The articles, published in 2007, alleged fraud and criminal conduct by the Claimant in relation to Korean parents and students. The Defendants include the publisher of the website and newspaper, as well as editors associated with the publications.

The Claimant’s business activities involved education and hospitality in the UK, and he had been declared bankrupt in 2007. The Defendants denied publication and asserted defences including qualified privilege and justification, claiming the articles were true and referencing a Korean broadcasting corporation's prior report accusing the Claimant of fraud.

The Claimant had previously obtained a judgment in Seoul finding that a Korean broadcaster's report was libellous and ordering damages and a revised broadcast.

The Claimant issued the claim in November 2009, alleging publication occurred during a limited period from late November 2008 to early January 2009, after which the defamatory material was removed from the website. The Defendants challenged the claim on the basis that the Claimant failed to identify any individuals who had accessed the defamatory articles, arguing this failure was a fundamental defect.

Master Kay struck out the claim on 20 January 2011, concluding that the Claimant had not provided sufficient particulars of publication to any individual and that evidence submitted after the draft judgment was too late to be considered. The Claimant appealed this decision.

Legal Issues Presented

1. Whether the Claimant's failure to identify any individuals who accessed the defamatory articles on the website constituted a fatal defect warranting strike out of the claim.
2. Whether the Claimant should have been permitted to rectify the defect by submitting witness statements after the hearing but before the judgment was finalized.
3. The proper approach to evidence of publication in libel claims involving internet publications.
4. The appropriateness of striking out a libel claim at an interim stage where questions of credibility and fact remain unresolved.

Arguments of the Parties

Appellant's Arguments

• The Claimant asserted that he had informed the Master at the hearing that he possessed witness statements from individuals who had read the defamatory articles but were afraid to give evidence due to fear of the Defendant.
• He submitted thirteen witness statements after the draft judgment was circulated, demonstrating the existence of these witnesses.
• The Claimant contended that the failure to identify publishees in the Particulars of Claim should have been rectified and that he should have been allowed to put right this defect.
• He emphasized the importance of vindicating his reputation given the seriousness of the allegations and criticized the Defendants for continuing to defend the claim despite his prior successes in related proceedings.

Respondent's Arguments

• The Respondent supported the Master’s decision, emphasizing the Claimant’s failure to identify any individuals to whom the defamatory words were published as a fundamental flaw.
• They argued that the Claimant should not be allowed to introduce fresh evidence on appeal.
• Concerns were raised about the reliability of some witness statements, noting that some witnesses were family members of the Claimant.
• The Respondent also referred to the limited period of alleged publication and questioned the significance of any damage caused during that period.

Table of Precedents Cited

Court's Reasoning and Analysis

The court recognized that the Master correctly identified the necessity for the Claimant to prove publication to a third party, a fundamental element of libel. The Master concluded that the Claimant’s pleadings and witness statement before the hearing did not sufficiently establish publication.

However, the court found that the Master took an unduly restrictive view by refusing to consider the thirteen witness statements submitted after the draft judgment was circulated but before the final judgment. The court emphasized that where a pleading defect exists, the usual practice is to allow the claimant an opportunity to rectify it if there is reason to believe the defect can be corrected.

The court noted that it could not resolve factual disputes or assess witness credibility at this interlocutory stage, including whether witnesses were genuinely afraid to give evidence or whether their evidence was reliable. It concluded that striking out the claim without permitting the Claimant to remedy the defect was wrong in principle.

The court also addressed the Master’s observations on the limited damages likely recoverable due to the short limitation period and the Claimant’s insolvency, explaining that such factual assessments are inappropriate on a strike out application and that libel claims are primarily about vindicating reputation rather than solely recovering damages for past losses.

Holding and Implications

The appeal was ALLOWED.

The court overturned the strike out order, holding that the Claimant should have been given an opportunity to rectify the defect in his pleadings concerning publication. The case was permitted to proceed to trial where factual issues, including publication and credibility of witnesses, can be properly resolved.

No new precedent was established; the decision reaffirms the principle that strike out orders should not be made lightly where defects can be remedied, especially in libel cases where the claimant’s right to vindicate reputation is paramount.