Court cannot rule on a libel case it has heard if claimant dies before judgment

In her ruling, Mrs Justice Davies said that the libel case "abated", or lapsed, when the claimant, Harvey Smith, died in November 2012. The case was heard the previous month. Smith, a mechanic who was active on an online forum for enthusiasts of Subaru cars, had been accused of "proposing price-fixing over the phone" in a comment on the website.

Mrs Justice Davies said that the legal principle of 'actio personalis moritur cum persona', which means that a person's right of action dies with that person, meant that she had no jurisdiction to hand down judgment even though the application had already been heard.

"No one other than a claimant can give reliable evidence about his or her feelings or distress," she said. "No one other than a defendant – should a defendant die - can give reliable evidence to rebut a plea of malice. It cannot be right that some libel actions abate and others do not, depending on the arguments raised in them or the stage of proceedings," she said.

"It is suggested that this was the thinking of Parliament when passing [the law] with the effect that a libel action died with the relevant litigant. The defendant would not be able to appeal an adverse judgment nor would the claimant. Any question of prejudice is evenly weighed," she said.

Bobby Dha, who had posted the comment about Smith on the forum, had asked the court to backdate its judgment to before Smith's death. However, the judge said that the "clear" wording of the Civil Procedure Rules (CPR) did not allow her to do this.

Litigation expert Jim Richards of Pinsent Masons, the law firm behind Out-Law.com, said that the case highlighted the general rule in England that the dead "have no cause of action".

"Unlike some foreign jurisdictions there is no liability for defamation of the dead, and relatives of the deceased will also have no right of redress unless the words published independently reflect upon and defame their character," he said. "This rule has been criticised, and the matter has recently been considered during debates in Parliament on the current draft Defamation Bill. However, it is not envisaged that there will be any amendment of the rule in the proposed legislation."

"This may be seen as hard on relatives of the deceased, but the rule underlines the principle that in civil proceedings, a claim for damages can only be brought by the person who has suffered the loss," he said.

Richards said that those who relied on the premature reporting of somebody's death could still find themselves "at the end of a defamation claim". However, the general restriction on defamation claims relating to the dead was important for the purposes of "historical analysis and journalistic comment", he said.

"There is often a feeling that the truth only comes out after death," he said. "In the case of Robert Maxwell, for example, publication of the full scale of his wrongdoing may have been delayed by a year had the existing restriction not been in place."