Libel. Death of the claimant

In Harvey Smith v Bobby DHA [2013] EWHC 838 (QB) the Claimant had brought a defamation claim against the Defendant. The claim arose out of postings on an Internet site “” where they traded car parts.  Proceedings were issued.  The allegation was that the Claimant had suggested price fixing to the Defendant which was denied.

The Defendant made an application to the court for a ruling on meaning pursuant to CPR 53 PD para 4.1 and  further or alternatively, that the claim be struck out pursuant to CPR 3.4(2) and/or the Defendant be granted summary judgment pursuant to CPR Part 24. because:

That application was heard in October 2012, and judgement was reserved.

Unfortunately on 7 November 2012 the Claimant died. The Claimant’s counsel wrote to the court advising of the death of the Claimant and that because of the death and because the claim was personal to the Claimant there was now no need to give any order in relation to the reserved judgement. The Defendant however disagreed that as the application had been heard it did not now prevent judgement being given.  The court was asked to consider in the light of CPR 40.7(1) that states:

“A judgement or order takes effect from the day when it is given, made, or such related date as the court may specify.”

The court found that the wording of the rule was clear.  It didn’t allow an earlier date to be inserted for the day of any subsequent judgement. The judgement had abated on the death of the Claimant. There was no provision in the civil procedure rules to backdate any subsequent judgement.  No judgement would be given.

Malicious falsehood can be used as an alternative claim on behalf of the deceased (as a property right it survives death) but the requirement of malice and proof of damage make it a difficult option.


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