CA-2024-000578 - [2025] EWCA Civ 1117

The Jameel jurisdiction is well-established. A detailed exposition is contained in paragraphs [111]-[115] of the judgment below. The central proposition on which the respondent relies is captured in this passage from Municipio de Mariana v BHP Group (UK) Ltd [2022] EWCA Civ 951,[2022] 1 WLR 4691 [175], cited by the judge:.

“[P]roceedings may ... be abusive if, even though they raise an arguable cause of action, they are (objectively) pointless and wasteful, in the sense that the benefits to the claimants from success [are] likely to be extremely modest and the costs to the defendants in defending the claims wholly disproportionate to that benefit”

A touchstone that has commonly been used is whether “the game is worth the candle”. This is derived from a passage in the judgment of Lord Phillips MR in Jameel.

Since the judgment below, the Jameel jurisdiction has been reviewed by the Supreme Court. In Mueen-Uddin v Home Secretary [2024] UKSC 21, [2024] 3 WLR 244 [81] Lord Reed (with whom the other Justices agreed) highlighted two important points about Jameel. The first was that it was a libel case in which the defendant’s Convention right to freedom of expression was engaged. The problem which gave rise to the need to strike out the claim was that “for the court to allow the proceedings to continue in the absence of more than minimal damage would have been incompatible with” that right. The second point was that it is not a question of simply weighing the value of the claim against the cost of the proceedings. In Jameel “The game was not worth the candle ... because the action could not achieve, to any significant extent, the legitimate objective of protecting the claimant’s reputation”. I do not think the Supreme Court was saying here that only defamation cases are amenable to Jameel strike-out. But it was drawing attention to some key features of the underlying rationale.

By the time the Judge addressed this aspect of the respondent’s application he had struck out all but 14 of the claims. He considered the Jameel issue on the basis that the court was “no longer dealing with an unwieldy number of claimants litigating a pseudo-class action in a way that is alleged to be wholly disproportionate to the likely sums that would be achieved in compensation were the claims to succeed.” Instead, he had to consider whether it was possible to fashion a procedure for adjudicating the few remaining claims in a proportionate way.

Mr Sharland submitted that it is wrong to look at the claims, however many there may be, in bulk. The right approach is to concentrate on the individual claims and to ask, in each case, whether the claim is an abuse of process. Mr Sharland submitted that each of them is.

Mr Sharland is right on the point of principle. An individual claim is either abusive or it is not; it cannot amount to an abuse of process merely because it is linked with or brought in conjunction with one or more other claims, even if those other claims have features of abuse: see Municipio de Mariana [176]. But I do not think this point helps the respondent.

First, it brings into sharp focus the true nature of the respondent’s submission. At its heart is the proposition that any stand-alone claim of the kind brought by these appellants should be dismissed without a trial even if the claimant was able to prove infringement and had sufficiently alleged a legally sustainable and factually credible case for compensation. That would be an extreme conclusion. The damages claim and the likely recovery may in many of the cases be modest. The Irish Supreme Court has said that victims of data breaches who seek compensation “solely for mental distress, upset and anxiety ... cannot expect anything other than very, very modest awards”: Dillon v Irish Life Assurance (above) at [56]. But some of the claims in this case encompass psychiatric injury. And the modest scale of the likely recovery cannot of itself be sufficient to justify dismissal of the claim. As Lewison LJ observed in Sullivan v Bristol Film Studios [2012] EWCA Civ 570, [2012] EMLR 27, [29]:

“The mere fact that a claim is small should not automatically result in the court refusing to hear it at all. If I am entitled to recover a debt of £50 .... it would be an affront to justice if my claim were simply struck out.”

Secondly, in deciding whether any individual claim represents an abuse of its process the court must consider all the circumstances of the case. These include the issues in the case, the procedural context in which the claim is brought, and the case management powers available to the court. As Lewison LJ went on to observe in paragraph [29] of Sullivan, the right approach to a modest claim is to see whether there is a proportionate procedure by which its merits can be investigated. Only if that is not possible should the court adopt the last resort of striking out. The judge held that but for the issues as to liability these claims would have been apt for resolution on the County Court small claims track. I agree. It is the issues of principle the case involves that have so far provided the justification for starting and retaining these claims in the High Court. That brings with it a higher level of cost recovery. But in all the circumstances I do not think the respondent can rely on the appellants’ choice of venue as a ground for striking out the claims. Nor do I consider that any of the appellants can fairly be criticised for participating in a collective action of the present kind. That approach will normally achieve savings compared to the separate pursuit of hundreds of individual claims.

It seems to me that the real driver of the respondent’s position on this point, and the real nub of their argument, is the scale of the costs which that the appellants’ legal team have run up and seek to recover in the event of success, coupled with the way the litigation has been conducted. Much was made before the judge of the figures for incurred pre-action costs and estimated costs. These are certainly very large. It was also argued that the litigation had been pursued in a disproportionate way. It was said that no sensible litigant would conduct litigation on that basis given the very modest levels of compensation at stake. Similar arguments were deployed before us. These are serious points, worthy of consideration. But I do not find either of them persuasive.

Notoriously, litigation of limited merit can be used as a weapon of oppression and in particular (though not only) where there is an imbalance of resources. A disproportionate approach can be a feature of such cases. Litigation with such characteristics can amount to an abuse of process especially (though not only) where the defendant’s free speech rights are at stake. But it is not Jameel abuse. Nor was this aspect of the respondent’s case developed in any sufficient detail on this appeal. For my part, I am not convinced that the appellants’ conduct of the claims has involved procedural impropriety. Nor do we have evidence or reason to think there is an inequality of arms. The respondent is, to all appearances, a substantial and well-resourced corporation.

When it comes to the Jameel jurisdiction, the appellants’ stated objectives are legitimate. I do not think we can say that a successful outcome would not achieve those objectives to any significant extent. On the other side of the equation it is relevant to note that this is not a case that engages (at least in any meaningful way) Article 10. Mistakenly sending the ABS to the wrong address was not in substance an exercise of the respondent’s right to freedom of expression. It was essentially a commercial exercise. The respondent’s key interests are purely financial. The scale of the costs incurred is partly explained by the fact that the respondent has chosen to contest issues of principle. That is the respondent’s right, but the resulting expense cannot fairly be weighed in the balance against the appellants, at least at this stage. If costs have been incurred that are excessive and unreasonable in all the circumstances of the case the right response is to make appropriate costs orders. As for future expense, the issue is whether this can be kept within the bounds of reasonableness and proportionality by costs and case management. For the reasons I have given, a generic or bulk answer cannot be provided. The question of whether any individual case is abusive can be added to the question I have already identified as fit for consideration by the High Court. The answer may be influenced by how many and which claims survive the applications to strike out or for summary judgment.

For these reasons I would dismiss the cross-appeal on the Jameel issue and make orders to the effect I have already indicated.