Amid growing clamour for greater freedom of expression, High Court judges have been busy tempering the clumsy injustices of English libel law with nuanced case law.

Over the last five years they have developed the ‘abuse of process’ principle as a tool for striking out arguable but weak claims in order to protect media freedoms – the lifeblood of democracy.

Mr Justice Tugendhat has been leading the way, with a series of media-savvy rulings in both libel and privacy cases.

The latest in a string of libel cases struck out as being an ‘abuse of the process of the court’ (for other examples, see HTFP 18.11.09 and 12.01.10) involved a claim by recruitment company Hays Plc against Jonathan Hartley, who runs an independent news and press agency, KNS News.

Mr Hartley had told a Sunday Mirror journalist about defamatory claims concerning alleged racism that three former Hays employees were pursuing in an employment tribunal.

The paper then made its own enquiries and republished the defamatory allegations in the form of a report of the tribunal proceedings, together with the company’s denials and side of the case.

Hays did not sue the paper – apparently because it feared it had a good ‘responsible journalism’ qualified privilege defence – but it did sue the former employees over defamatory statements they had allegedly made to the Sunday Mirror journalist who had run with the story.

Hays also sued Mr Hartley over defamatory statements he had passed on to the paper’s journalist.

During the employment tribunal hearing, Hays reached a settlement with its ex-employees by which an “Agreed Public Statement” was issued. The statement vindicated the company’s reputation by confirming the ex-employees had withdrawn their employment claims and that there was no evidence of any racial discrimination or racism as alleged. It also confirmed Hays had withdrawn and discontinued its defamation claim against the former staff.

The Sunday Mirror updated its web article by publishing the public statement.

Having achieved these aims in the legal proceedings, however, the company did not want to discontinue its libel claim against Mr Hartley because, if it did so, it would have to pay his costs, which were by then well into six figures under a Conditional Fee Agreement.

Hays pressed on, seeking costs and modest damages of £5,000 against Mr Hartley on a claim that was technically arguable but actually unnecessary since its reputation had already been publicly vindicated.

Mr Justice Tugendhat said: “If an award of £5,000 is a legitimate aim for the claimant to pursue in this action at this stage, then this action is in my view not a proportionate means of pursuing it…a libel action can constitute an interference with the freedom of expression of the defendant. I find that to be so in the present case.”

He added: “The significant facts are that the claimant is a corporation, that the defendant is a professional intermediary and not the originator of the words complained of, that the action is brought on a publication to a single individual, the journalist, and the republication gave proper coverage to the claimant’s case (so any damages would be likely to be modest) and that the claimant has received vindication both from the originators of the words (in the form of the Public Statement) and from [the newspaper] in the form of the republication on their website of the Public Statement.”

The judge relied on the landmark ruling on ‘abuse of process’ in Jameel v Dow Jones & Co Inc (2005), in which the Court of Appeal said the court would always be concerned to ensure judicial and court resources were “appropriately and proportionately used in accordance with the requirements of justice”.

Mr Justice Tugendhat was clearly sympathetic to the role played by the news agency. Hays’ lawyers had portrayed Mr Hartley as “hawking stories around the press for commercial gain”, but the judge said: “In my judgment, journalists may work in many different ways, and it is not just journalists who provide their services exclusively to the media who are entitled to be regarded as serving a function which may be of benefit to the public.”

In the hands of a media-savvy judge, the ‘abuse of process’ principle is a versatile tool for justice.

The Con-Dem coalition, which has promised a review of libel law, would do well to consider Mr Justice Tugendhat’s recent judgments to get a handle on the problems that existing law poses for freedom of expression, and the way in which judges are trying to tackle them.