Kasima Whittingham v Sam Jones

This is the Defendant’s application for a terminating ruling (strike out or summary judgment) in the Claimant’s claim for libel.

The Claimant is the parent of two children who attended Kelmscott School in East London (the School). The Defendant is the headteacher of the School. The Claimant’s children ceased attending the School in September 2024. I do not need to go into the reasons for present purposes, but relations between the Claimant and the School then became strained (if they had not already been strained previously). She made formal complaints which were dealt with under the School’s complaints policy, including escalating them to the Chair of Governors.

On 24 November 2025, the Claimant sent a letter of claim to the Defendant and his solicitor in purported compliance with the Pre-Action Protocol for Media and Communications Claims (the PAP).

By a Claim Form dated the same day (received by the Court on 26 November 2025 and issued on 11 December 2025) the Claimant brought proceedings for libel. The brief details of claim on the Claim Form state: “on 27/11/2024 and 02/12/2024 the Defendant…published emails to the Chair of Governors and others alleging the Claimant “threatens and intimidates” colleagues, that staff are “very wary” of interactions with her, and expressing “fingers crossed” not to hear further from her…”.

The Claimant subsequently filed Particulars of Claim dated 14 January 2026. In section B, headed “Publications complained of” the Claimant states:

The address for service on the Defendant is stated on the Claim Form to be the address of the School and that is where the Claim Form and Particulars of Claim were sent by post. An acknowledgment of service filed on 27 January 2026 (not included in the application bundle but which I have seen on the CE File) ticks the box stating “I intend to contest jurisdiction”.

By an Application Notice filed on 13 February 2026 and supported by a witness statement of Katherine Langley (of the Defendant’s solicitors) the Defendant applies for the claim to be struck out pursuant to CPR 3.4(2), or for summary judgment to be entered for the Defendant. The Claimant filed a Witness Statement in response (albeit more than a month after the date set by the Court). Her Witness Statement exhibits screenshots of two emails from the Defendant to the chair of the governors dated, respectively, 27 November 2024 and 2 December 2024. The headers are not visible. I suspect that the emails have been exhibited in this form because the Claimant obtained them under one of the Freedom of Information Act requests I am told she has made, and was not given full copies.

The 27 November email reads:

The 2 December email reads:

Clearly each email was a response to a communication from the Chair of Governors. Those communications were not before the court.

The Claimant is a litigant in person and describes herself as vulnerable. I took this into account and made adjustments. I permitted the Claimant to participate remotely, over a video link, and offered breaks. The Claimant exercised her right to assistance from a McKenzie friend. The fact that a claimant is a litigant in person does not ordinarily relax the requirement that they should comply with rules, orders and practice directions and it did not do so here.

The Defendant did not pursue all the points raised in his application at the hearing. His counsel submitted: (1) that he had not been validly served with the proceedings; (2) that the Claimant had not complied with the PAP; (3) that the Claimant has no realistic prospect of proving “serious harm” as required by s1 of the Defamation Act 2013; and (4) that the claim is an abuse of process because the proceedings would tend to undermine adherence to the Teachers’ Standards 2012, the statutory guidance Keeping Children Safe in Education (2024) and the statutory guidance Working Together to Safeguard Children (2023), all of which, it is said, encourage the swift and fearless sharing of information for the purposes of safeguarding children.

In clear and succinct oral and written submissions, the Claimant responded as follows: (1) she did not know and had no lawful means of ascertaining the Claimant’s home address, the papers in fact reached the Defendant, and therefore any defects in service should be regularised by the Court; (2) she did send a PAP letter but was facing a limitation deadline, any non-compliance with the PAP should be reflected in costs, not striking out; (3) there is a properly arguable case on serious harm in respect of the two emails; and (4) the safeguarding guidelines were relevant context but cannot create an immunity for communications such as the emails.

CPR 3.4 provides:

CPR PD 3A gives some guidance on these provisions:

Further, the White Book (at 3.4.2), citing Harris v Bolt Burdon [2000] CP Rep 70, states that “Statements of case which are suitable for striking out on ground (a) include those which raise an unwinnable case where continuance of the proceedings is without any possible benefit to the respondent and would waste resources on both sides”.

Summary judgment can be granted against a claimant under CPR 24 where it is shown that the claim has no real prospect of success and there is no other compelling reason for a trial. I do not need to say much about summary judgment because I think that the present application can be dealt with under CPR 3.4(2). Although a court considering a strike out application will usually confine itself to considering the terms of the statement of case under attack whereas, on a summary judgment application, there may also be consideration of evidence, it is recognised that the two types of application are not mutually exclusive. As noted in the White Book at 3.4.2, in Libyan Investment Authority v King [2021] 1 WLR 2659, at [57](4) Nugee LJ suggested that there is nothing wrong in the practice of bringing an application under both Part 3 and Part 24 on the basis that the claim is factually hopeless.

A finding that a statement of case is defective for one of the reasons set out in CPR 3.4(2)(a)-(c) does not automatically result in it being struck out. Such a response may be disproportionate to the breach, particularly if the defect is capable of being cured. In Kim v Park at [40], Tugendhat J put the matter as follows:

“Putting the defect right”, in my view, entails setting out a case that is not only compliant with the rules but one which has a real prospect of success. The overriding objective would not be served by giving a claimant a further chance where, although they might be able to cure some technical infelicities, their underlying case remains hopeless.

Service on the Defendant was defective. CPR 6.9(2) required him to be served at his usual or last known residence, not the School. However, I do not propose to strike out the claim on that ground. Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203, [2008] 1 WLR 806 would appear to be authority for the proposition that a defendant who files an acknowledgment of service but contends that they have not been validly served must make an application under CPR Part 11 within 14 days to challenge the court’s exercise of its jurisdiction over the claim and, if he does not do so within that time limit, is deemed to accept jurisdiction (see CPR 11(5)). Applications for terminating rulings on the grounds of non-service other than made in accordance with CPR Part 11 would appear to be excluded. I say that this would “appear” to be the meaning and effect of Hoddinott because later authorities continue to question its true scope (see e.g. Hand Held Products, Inc v Zebra Technologies Europe LTS [2022] EWHC 640 (Ch) at [70]-[84]) and I did not hear full argument on the point.

The Defendant did file an acknowledgment of service contesting jurisdiction but did not follow it up with a timely Part 11 application. Given that this may well mean that he is deemed to have waived any challenge to jurisdiction on the basis of defective service, I prefer to determine his application on other grounds.

The criticisms made by the Defendant are well founded. PAP paragraph 1.3 states that the courts “will expect parties to have complied with this Protocol in good time before proceedings are issued”. A litigant in person “should still, in so far as reasonably possible, fully comply with the Protocol” (para 1.4).

The Claimant did not comply with the PAP in good time. For unexplained reasons she sent her letter right at the end of the 1 year limitation period that applies in libel and on the same day that she sent her claim to the Court. The letter describes the statements complained of and their publication in vague and unparticularised terms similar to those used in the Claim Form and Particulars of Claim that I have quoted from above, which falls short of the requirements in paragraph 3.2 of the PAP. The Claimant did not offer to delay serving proceedings or propose a standstill agreement to allow the parties to work through the steps required by the PAP.

Paragraph 6 of the Practice Direction on Pre-Action Conduct and Protocols requires a party to comply with any relevant pre-action protocol before commencing proceedings. There has thus been a failure to comply with a rule or practice direction within the meaning of CPR 3.4(2)(c), which is a ground for striking out. However, striking out a claim for want of compliance with the PAP is a draconian step that will rarely be proportionate. It will usually be more proportionate to reflect non-compliance when dealing with costs. Had the Claimant formulated a viable claim (or been in a position to do so by amendment), I would therefore not have struck it out on this ground.

Before I deal with this issue, I need to say something about the pleading requirements for a defamation claim.

The requirements are set out in Practice Direction 53B and they are strict. Paragraph 4.1 concerns the claim form. It provides:

Paragraph 4.2 concerns the particulars of claim. It relevantly provides:

A claimant who is unaware of the precise words of a statement or the identity of publishees is not entirely helpless (and this is reflected in part in para 4.2(2)). In an appropriate case they may obtain an order for pre-action disclosure, or they may plead the best particulars they can and then await disclosure or seek further information from the defendant. But situations in which this approach will be permitted are strictly limited. The court will not permit a claimant to “fish” for a case. If they do not know the identity of the publishee, they must at least establish with uncontradicted evidence the fact that publication by the defendant has taken place (see Gatley on Libel and Slander (13th edn) at 28-007) and if they wish to allege publication to others as well as a named publishee, they must establish a strong foundation for alleging that some wider publication has taken place: ibid at 33-026. If they do not know the precise words used, they must at least set out, with reasonable precision, their closest approximation of the actual words: ibid at 28-016 & 28-017.

A statement of case that does not comply with these pleading rules will also be one that fails to disclose reasonable grounds for bringing the claim, given the fundamental importance, in a defamation claim, of the precise words used and the occasion and extent of publication.

It is plain and obvious that the parts of the Claim Form and Particulars of Claim that I have set out above fall foul of the pleading rules in multiple ways. They stand to be struck out. Nevertheless, I should not strike out the claim if I consider that it could be cured by amendment. The Claimant has now produced the two emails of 27 November and 2 December 2024 and is in a position to set out the words used and specify that they were published to the Chair of Governors. To that limited extent, she could now comply with paragraphs 4.1 and 4.2(1) & (2) of the Practice Direction. She has not satisfied me that she could be in a position to plead any wider publication of those emails (each of which is addressed just to “Scarlet” and does not read as if it was intended to be read by anyone else) or interrogate the Defendant as to whether wider publication occurred. Neither has the Claimant persuaded me that she could set out a case in respect of any of the various other oral and written communications to which her statements of case vaguely allude (or that she could meet the high threshold required to permit such a claim to proceed without full particulars).

So, the Claimant is in a position to plead publication of the two emails to the Chair. That is not the end of the matter however because, before it would be right to allow the Claimant a chance to amend, I would also have to be satisfied that she is in a position to put on record a properly particularised case on “serious harm” that has a realistic prospect of success.

In Bukhari v Bukhari [2025] EWHC 2391 (KB), [2025] EMLR 13, at [91], I summarised the law on serious harm as follows:

Bukhari was a case involving publication to hundreds of readers and in such circumstances an inferential case on serious harm is easier to establish. There is no minimum number of publishees that is required before a libel claim can be established (“one well-directed arrow [may] hit the bull’s eye of reputation and cause more damage than indiscriminate firing”: Amersi v Leslie [2023] EWHC 1368 (KB) (Nicklin J) citing Sharp J in King v Grundon [2012] EWHC 2719 (QB)). However, Nicklin J continued:

“To similar effect, see Tattersall v Tattersall [2025] EWHC 2558 (KB), [2006] EMLR 2 where Collins Rice J struck out a pleading of serious harm in the case of a Facebook post published to 57 individuals: see [10], [34], [37] & [49]. Notably perhaps, the post in that case was published in the context of a divisive family dispute and the allegations complained of were “incidental or secondary allegations about the nature and consequences of the dispute and the Claimant’s conduct of it” [35], such that “Their possible contribution to an inference of serious harm lies in their potential to establish an impact on the Claimant’s reputation beyond the impact of what is said about the simple fact of the underlying dispute…” [36] .

Where multiple statements (or multiple imputations within the same statement) are complained of, the question of the harm done by the publication of each of them must be considered in isolation. It is not possible to make out a claim of serious harm by aggregating the (less than seriously harmful) consequences of the publication of each separate statement/imputation: Sube v News Group Newspapers Ltd (Warby J) [2018] EWHC 1961 (QB), [2018] 1 WLR 5767 at [34].

I focus on the claim that the Claimant would now like to bring on the two emails as outlined in her Witness Statement, which is somewhat different from what is presently pleaded. I shall set out the relevant passages in full:

As can be seen, the Claimant’s intended case is entirely inferential. She does not allege that either email had an impact on the outcome of her complaint, or that the Chair of Governors has treated her less favourably as a result of reading them, or has said or written anything suggesting that her view of the Claimant has been adversely affected. She evinces no intention to call evidence from the Chair to that effect. As the authorities show, this puts a claimant in a very difficult position in a one publishee/small circulation case.

In my judgement, the matters the Claimant has identified are incapable of amounting to a case on serious harm that has a realistic prospect of success. I say that for the following reasons:

For these reasons, the Claimant is not in a position to formulate a case on serious harm that has a realistic prospect of success and the claim should be struck out forthwith.

I was unimpressed by this submission.

First, on the admittedly partial information I have been given, it is not clear to me that the Defendant’s emails were actually sent for the purposes of safeguarding children. They expressed concerns about the Claimant’s behaviour towards other staff members, not children.

Second, and more fundamentally, the law already provides mechanisms to avoid the chilling effect of libel proceedings on the free and timely sharing of information concerning the safeguarding of children. Communications between complainants, whistleblowers and relevant professionals about such matters are highly likely to protected by the defence of qualified privilege, which can only be defeated by proof of malice (a notoriously difficult undertaking). In some situations (e.g. complaints to the police) the privilege is absolute. Privilege defences will also often apply to communications made in the course of other disciplinary proceedings, complaints processes and investigations.

A privilege defence, once pleaded (or even if clearly articulated before service of a defence), will often result in summary dismissal of the claim. It may well be that the Defendant would have had a strong privilege defence in this case.

It therefore seems wrong to me to stigmatise a libel claim as abusive just because it is brought in respect of communications concerning safeguarding or similar. It may be hopeless, because of the availability of strong defences, but that is a different point.

The Defendant invites me to certify the claim as totally without merit. I am not going to do that. My decision that the claim should be struck out without giving the Claimant permission to amend indicates that the claim is bound to fail. However, it was not incoherent or wholly irrational. Case law indicates that “totally without merit” certification should usually be reserved to cases that exhibit these additional features: see e.g. R (Wasif) v Secretary of State for the Home Department [2016] EWCA Civ 82 at [15]-[17].

The claim is struck out because the Claim Form and Particulars of Claim presently disclose no reasonable grounds for bringing the claim and they are incapable of being amended so as to set out a case with a realistic prospect of success. I have invited the parties to agree an order, including provisions as to costs.