Against strike-outs for disproportionality

Abstract

ABSTRACT This article argues against the court striking out defamation claims on the basis that they are ‘disproportionate’, that is, they cost more to litigate than they raise in damages. We begin by setting out the so-called problem of disproportionality. Next, we show that the court’s current solution of striking out the claimant’s claim should be rejected in defamation cases. The value of the claim is partly subjective and not purely monetary, such that its true costs and benefits are better reflected in the parties’ willingness to fight the case on its merits rather than the court’s comparison of the money sums involved. In any event, if the court must refuse to hear the case, it should be willing to strike out the defendant’s defence rather than the claimant’s claim in appropriate cases – because it is often hearing the defence, rather than the claim, that causes disproportionate expenditure in defamation cases.