Direct Accident Management Limited & Anor v Newsquest Specialist Media Limited

This is a libel action which arises out of the publication of two articles on the website of the ‘Insurance Times’. The first article was published on 20 December 2019 and has the title ‘Credit hire sharks circle as market reacts to excessive costs’ (“the first article”). The second article was published on 2 January 2020 and has the title ‘Rogue agent aggravates industry with trumped-up credit hire costs’ (“the second article”).

The defendant is the publisher and operator of the ‘Insurance Times’ magazine, e-newsletter and website at http://www.insurancetimes.co.uk/ which is promoted as the “leading information, analysis and insight brand in UK General insurance”. The author of both articles is Katie Scott. The articles are set out in the Annex to this judgment, with paragraph numbers added in square brackets.

On 17 December 2020 the claim form was issued seeking damages, an injunction and related relief in defamation. The claim form and particulars of claim were served on 15 April 2021.

The first claimant, Direct Accident Management Limited (“DAM”), describes itself as specialising “in all aspects of vehicle accidents, post-accident assistance and vehicle hire”. It says that it trades as ‘DAMS’, employs over 150 individuals, and is authorised and regulated by the Financial Conduct Authority (FRN 836071): see paragraph 1 of the particulars of claim.

The second claimant, Bond Turner Limited (“Bond Turner”), describes itself as “a multi-disciplinary law firm specialising in personal injury, professional and clinical negligence, defamation and privacy, historic abuse, will and estate disputes, credit hire, road traffic accidents, and data protection breaches”. It says that it employs 33 Grade A solicitors and over 100 others as solicitors, barristers, legal executives and litigators, interpreters and accountants. It also says that it is authorised and regulated by the Solicitors Regulatory Authority and, like DAM, is part of the Anexo Group and owned by Anexo Group Plc: see paragraph 2 of the particulars of claim.

There is no dispute between the parties that the ‘Insurance Times’ is a publication that is widely read in the insurance sector or industry.

DAM’s case is that all the words in the first article, in their natural and ordinary meaning, meant and were understood to mean that DAM:

DAM’s case is that the words complained of that make up the second article, in their natural and ordinary meaning, meant and were understood to mean that DAM:

Bond Turner’s case is that the words complained of that make up the second article, in their natural and ordinary meaning, meant and were understood to mean that Bond Turner:

On 15 July 2021 Master McCloud made an order by consent for the trial of the following preliminary issues, namely:

“(i)

the natural and ordinary meaning of the statements complained of;

(ii)

whether the statements complained of, in any meaning found, are defamatory of the claimants at common law; and

(iii)

whether the statements complained of were (or included) a statement of fact or opinion.”

On 28 February 2021 the defendant served notice of its case on meaning. It takes issue with DAM and Bond Turner’s meanings and maintains that in its natural and ordinary meaning the first article meant and was understood to mean that DAM:

The defendant maintains that in its natural and ordinary meaning the second article meant and was understood to mean that:

reasonable grounds to investigate whether Bond Turner:

It is the defendant’s case that the underlining indicates where the meanings comprise expressions of opinion (otherwise the meanings comprise statements of fact).

The defendant admits that its meanings are defamatory at common law of DAM in respect of the first article, and of DAM and Bond Turner respectively in respect of the second article.

The trial of the preliminary issues took place on the afternoon of 9 May 2022 and morning of 10 May 2022.

This judgment concerns that trial and only relates to the meaning of the two articles. The defendant has not yet been required to file a defence and so no substantive defences have been raised. The court is not, at this stage, adjudicating on any issue concerning the two articles other than meaning. Specifically, the court is not determining whether allegations made in the articles about the claimants (or anyone else) are true.

I read the two articles in advance of the hearing. I did so knowing the identity of the parties to the claim, but I did not know anything else about the claim. I therefore knew the claimants were complaining, but I did not know what they were complaining about. Further, I read the articles without any reference to the parties’ rival contentions or submissions on meaning. That was to capture my initial reaction as a reader and which is, of course, the accepted general practice in a trial of this nature.

The relevant legal principles were not in dispute between the parties.

The court’s task is to determine the single natural and ordinary meaning of the words complained of, which is the meaning that the hypothetical reasonable reader would understand the words to bear.

The law to be applied by the Court when determining the single meaning of a publication complained of is now “conveniently distilled” in Koutsogiannis v The Random House Group Ltd [2020] 4 WLR 25, Nicklin J (“Koutsogiannis”) at [11]-[12]: see Corbyn v Millett [2021] EMLR 19, CA (“Corbyn”) at [8]. The law is settled and very well known, and does not need to be repeated. The context of the words and the medium of the publication is all important when assessing meaning: Stocker v Stocker [2020] AC 593, SC at [40]. The court is free to choose the correct meaning: it is not bound by the meanings advanced by the parties (save that it cannot find a meaning that is more injurious than the claimant’s pleaded meaning): Koutsogiannis at [12(iii)].

The other principles relevant to the issues in this case are Chase levels of meaning and the “repetition rule”. Both parties directed my attention to Brown v Bower [2017] 4 WLR 197 (“Brown”) at [17], where Nicklin J summarised the origin and function of Chase levels of meaning. Likewise, the repetition rule was explained by Nicklin J in Brown at [28] to [32] (and also in Hewson v Times Newspapers Limited [2019] EWHC 650 (QB) (“Hewson”) at [35]-[36]). Those passages are again well known, and do not need to be repeated here. The inter-relationship between Chase levels of meaning and the repetition rule was explained by Nicklin J in Poroshenko v BBC [2019] EWHC 213 (QB) at [26] and, in particular, he said this:

“Publications that result in a meaning at Chase level 2 or 3, tend to flag clearly to viewers/readers that there are reasons why they should be cautious before accepting allegations made by others, perhaps for motives of their own, for example”.

Mr de Wilde, for the defendant, also directed my attention to Hewson at [42] in relation to mitigation in this particular context. In Hewson Nicklin J explained:

“The classic example of such mitigation is an article that contains two sides of a dispute. A direct application of the repetition rule to part of an article that reported the allegations defamatory of the claimant would produce a level 1 meaning. But that would be to ignore the context and the fact that the Claimant's rebuttal of the charge has also been included. How far that goes to reduce (or even extinguish) the meaning that application of the repetition rule would otherwise produce depends upon the context of the publication as a whole. If an article reports that Y has said that X had stolen money from him/her, but goes on to state that Y has previously made the same allegation which was shown to be false; that Y has a personal grudge against X; and Y has told Z that he has made up allegations against X to get back at him for some earlier dispute, the result will almost certainly be that the article bears no defamatory meaning of X. If anything, the article is more likely to defame Y. Examples like that are rare, but they do exist. A more common example is where an article presents both sides in a way that the reader will see as roughly even-handed; or certainly not containing any steer as to which side should be believed. At that point, the ordinary reasonable reader can only suspend judgment on whether the claimant is guilty. Instead, and depending on context, s/he may well alight on either a Chase level 2 or 3 meaning. I am deliberately using straightforward examples and a level of generality to demonstrate the point, but it cannot be repeated too often: context is everything.”

It was common ground that the common law principles to be applied to determine whether a statement complained of contains allegations of fact or opinion were summarised by Nicklin J in Koutsogiannis at [16] (recently referred to by the Court of Appeal in Corbyn at [12]). These principles are well known and, for completeness, I set them out here:

“… when determining whether the words complained of contain allegations of fact or opinion, the court will be guided by the following points:

(i)

The statement must be recognisable as comment, as distinct from imputation of fact.

(ii)

Opinion is something which is or can be reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation etc.

(iii)

The ultimate question is how the words would strike the ordinary reasonable reader. The subject matter and context of the words may be an important indicator of whether they are fact or opinion.

(iv)

Some statements which are, by their nature and appearance opinion, are nevertheless treated as statements of fact where, for instance, the opinion implies that a claimant has done something but does not indicate what that something is, ie the statement is a bare comment.

(v)

Whether an allegation that someone has acted “dishonestly” or “criminally” is an allegation of fact or expression of opinion will very much depend on context. There is no fixed rule that a statement that someone has been dishonest must be treated as an allegation of fact.”

As to (iv) and “bare comment” in Corbyn Warby LJ explained at [24] that:

“… The authorities show that “bare comment” is a pointer, or guideline, or rule of thumb that reflects the key principle. The question is, would the words used strike the ordinary viewer as a statement of fact or opinion? The answer does not turn on whether any given word is an adjective, noun, or verb, or some other part of speech. This is a matter of substance, not a formal, analytical matter of grammar or linguistics. In practice, when someone uses a descriptive word without giving any detail of what he is describing, that will tend to come across as an allegation of fact. That is what the cases on “bare comment” say. That is how the notion of “bare comment” was treated by Lord Nicholls in Cheng, and by Nicklin J in Koutsogiannis; and that, in my judgment, is how it was approached by Saini J in this case …”.

As identified above there is no dispute that the first article is defamatory of DAM at common law, and the second article is defamatory of DAM and Bond Turner.

Having set out those principles, I now turn to the first article.

The impression I noted down of the article when I first read it was as follows. There has been a recent legal case in Nottingham in which the insurer, Aviva, successfully defended a claim where a credit hire organisation (CHO) sought to charge £400,000 in credit hire costs. These costs were for the use of a replacement vehicle, over a period of more than two years, when liability was in dispute. This was an extraordinary and vast sum and Aviva’s solicitors say that they have a number of other claims for credit hire costs which are also excessive.

The article asks whether excessive credit hire costs are really a problem in the insurance industry. The reader is informed that CHOs are unregulated, which provides opportunities for CHOs to make money and build costs. Examples are provided of this, such as elongating repair periods. However, there is self-regulation which many CHOs voluntarily adhere to which limits charges. The article identifies ways that insurers can mitigate their exposure to such charges.

The article then considers how it was that such extraordinary charges arose in the Nottingham case. The reader is told that DAM, the first claimant, was the CHO involved in the Nottingham case and responsible for the vastly excessive costs. The reader is told that those within the industry are quick to label DAM as an outlier and anomaly of poor practice, in a sector which largely self-regulates. That poor practice is because DAM, unlike many CHOs, does not adhere to the standards of self-regulation within the sector and takes advantage of the opportunities to make money in an unregulated sector or drives up costs by underhand tactics.

I did not form the impression on reading the article when I first read it that DAM had done anything which was dishonest.

The parties provided the court with detailed skeleton arguments and at the hearing Mr Munden, for the claimants, and Mr de Wilde, for the defendant, made brief oral submissions. Counsel were, of course, mindful of the trap of over-elaborate analysis.

The ‘Insurance Times’ is a business publication for the insurance sector or industry. However, the parties did not agree as to who is taken to be representative of those who would read this publication. Mr Munden submitted that the hypothetical reader will have knowledge of the insurance industry and will, for example, know that the acronym ‘ABI’ refers to the Association of British Insurers. I mention this because ‘ABI’ is referred to in the articles, but is not defined.

Mr de Wilde went further and submitted that the representative reader of the ‘Insurance Times’ is: (i) a professional or specialist with a particular focus on or interest in the insurance sector in their working life; and (ii) likely to be familiar with the law and the claims industry relating to the insurance sector. He maintains that the court should take judicial notice of these characteristics on the basis of the “highly specialised nature of the publication, which is on its face not aimed at the general reader”: see Koutsogiannis at [12(ix)].

The first and second articles published by the ‘Insurance Times’ are not law or case reports. I do not consider that they are “highly specialised” publications as submitted by Mr de Wilde. Rather, they are general insurance industry publications in relation to the consequences of a legal case. In these circumstances, I agree with Mr Munden. The hypothetical reader will have knowledge of and an interest in the insurance industry, which includes the claims industry. However, the hypothetical reader will not be a lawyer or indeed a “professional or specialist” with any particular expertise or knowledge of the claims industry relating to the insurance sector.

Mr Munden submitted that the first thing that the reader sees at the top of the article is a large picture of sharks swimming in murky waters, which immediately creates an air of menace, and of unscrupulous predatory behaviour. Mr Munden pointed to the headline ‘Credit hire sharks circle as market reacts to excessive costs’ which informs the reader that the ‘sharks’ are credit hire organisations or CHOs, such as DAM (being the only CHO named in the article), and it is the CHOs who are acting in an unscrupulous predatory manner with a degree of dishonesty. He then pointed to the sub-heading which asks ‘Are CHOs being vilified or are there reasons to doubt sector standards as credit hire costs escalate?’. This, he said, suggests to the reader both (i) that credit hire organisations are being vilified, and (ii) that there are reasons to doubt standards in the credit hire sector. He submits that the thrust of the remainder of the article is that the sector is unregulated such that standards are extremely low, and that therefore any vilification of CHOs is justified.

Mr Munden then referred to the different parts of the article, starting with the Aviva case in paragraphs 1 and 2, the reference to an “emerging trend” of excessive costs, and that there is a general issue in the insurance industry about excessive charges, a point repeated throughout the article. The widespread nature of the problem is set out in paragraphs 3 to 7, under the heading ‘Industry-wide’ which, when taken together, suggest dishonesty on the part of the CHOs. This is because it is suggested to the reader that the CHOs are intentionally, unnecessarily and unreasonably elongating repair periods and layering in terms of credit repair, credit hire, personal injury, rehabilitation, in order to increase costs. The next heading is ‘A self-regulated industry’ in which at paragraphs 8 to 13, readers are being told that the lack of regulation is problematic, has led to a lowering of standards and that CHOs need regulation. Under the heading ‘Whiplash reform revenue’ readers are informed in paragraph 16 that industry experts predict an escalation in credit hire costs when these reforms are implemented, as the CHOs will lose revenue. Mr Munden submitted that unscrupulous conduct and dishonesty is suggested on the part of CHOs, on the basis that they will be increasing credit hire costs not for any legitimate purpose, but to make up for the shortfall elsewhere in their business model. Likewise, dishonest conduct by CHOs is also referred in paragraph 19 when it is said they use “underhand behavioural tactics” which can elongate repair periods in order to drive up costs. Mr Munden submitted that the next section entitled ‘Industry response’ does not contain any denial of the various criticisms of CHOs made in the article. There is no antidote provided at all.

The final section of the article is entitled ‘PASS NOTES’ and refers to the decision of Nottingham Crown Court (sic) in which Aviva was successful in respect of liability, and it was that case which drew attention to credit hire costs because of the vast sums involved. The reaction of the industry is then set out in paragraphs 25 to 28. Finally, Mr Munden submitted that paragraph 29 of the article identifies the culprit as DAM, and he also made the point that that is the first and only time that DAM is identified in the whole article. The reader is then told that, even by the standards of the CHO sector, DAM is unusually awful. Further, the article has told the reader what the poor practices referred to are. They are exploiting loopholes; using underhand methods to elongate repair periods; layering credit hire; sending notification documents to the wrong addresses; and charging excessive costs. The reader is told that CHOs are responsible for poor practices; but if any CHOs are undertaking poor practices DAM is one of them, and DAM is a particularly bad example of poor practice. Further, Mr Munden submits these are all statements of fact about DAM.

The first submission made by Mr de Wilde, for the defendant, is that DAM’s meaning makes no reference to the litigation involving Aviva or the £400,000 charge which Aviva did not have to pay. The claimant has, however, pleaded the whole article, and not picked out any particular passages for complaint. Put shortly, Mr de Wilde submitted that in the first article the claimant is only referred to in the context of the Aviva case, and that article (and indeed the second article) must mean something about the Aviva case. This is because the article is introduced by reference to the litigation and the £400,000 charge, and it is apparent from the face of the article that it was DAM who had charged £400,000 in credit hire fees for a replacement car. The publication must, of course, be read as a whole (see Koutsogiannis at [12(viii)]) and in that context Mr de Wilde submitted there is no reasonably available defamatory sting which does not include reference to the proceedings and the £400,000 charge.

Mr de Wilde then submitted that is there is very limited reference to DAM in the article, and there is no suggestion of any dishonesty on the part of CHOs. He pointed to the first paragraph of the article which explains that “excessive costs pertaining to credit hire fell under the full glare of the insurance sector’s spotlight” as a result of Aviva’s successful defence of a legal action to recover a charge of £400,000 for a replacement vehicle. He said that the article then shifts to “industry wide” issues, and there is no mention of DAM until the ‘PASS NOTES’ section at the end of the article. He submits that the author, and those who have contributed, are careful to avoid any direct reference to DAM in analysing industry phenomena such as cost-building, high credit hire costs, or the lack of FCA regulation. The broader insurance industry and credit hire issues are not said to be anything to do with DAM.

Mr de Wilde submitted that the ‘PASS NOTES’ section is a discrete and self-contained part of the article, and DAM cannot “yoke” earlier parts of the article to what is said here. In the final paragraph of the article DAM is identified as “an outlier and anomaly of poor practice” which is a tautologous phrase characterising DAM’s hire fees as an exceptional case which exists outside the more generalised industry activities identified earlier in the article, and this description of DAM is an evaluation of the £400,000 charges. Mr de Wilde submitted that DAM’s meaning is illogical as it cannot be an outlier and anomaly, whilst at the same time epitomising poor practice in the industry. Rather, there is a comparison between DAM and the rest of the industry and the more general focus on the industry does not refer to DAM. This means that the central defamatory imputation concerns the key feature of the Aviva case, namely the £400,000 hire fees, and the expressions of opinion about that sum.

The defendant does not dispute that the allegation against DAM of allowing the sum of £400,000 to accrue to its own client is at Chase Level 1. This is because the first article says that “a credit hire organisation (CHO) sought to charge a driver £400,000 for a replacement vehicle”.

The parties, of course, agree that the article must be read as a whole taking into account the context in which it appeared. I agree with Mr de Wilde that the meaning of the words in the first article cannot be divorced from the context which is that DAM is responsible for the credit hire charges of £400,000 which Aviva was successful in defending. Those charges are described as excessive and vast, and the article identifies the different ways in which credit hire organisations are able to make money in what is an unregulated sector. Those ways, such as exploiting loopholes or elongating repair periods, are regarded by some in the industry as poor practice by CHOs. Repair periods can also be elongated by underhand tactics used by CHOs.

However, I do not agree with Mr de Wilde that the final section of the article entitled ‘PASS NOTES’ is a discrete and self-contained part of the article such that any of the money making opportunities or underhand tactics referred to in the earlier parts of the article cannot be attributed to DAM. I also do not accept his submission that the description of DAM is limited to an evaluation of the £400,000 charges.

This is because the article arises out of a recent legal action in which there had been excessive credit hire charges of £400,000 for which DAM, a credit hire organisation (CHO), was responsible. The article then uses that as a platform to consider, with reference to quotes provided from those within the industry, whether such excessive charges are a problem for the credit hire industry. The credit hire sector is unregulated, and the article identifies various ways in which CHOs can increase costs including the use of underhand tactics. There is self-regulation, which many CHOs adopt and that limits costs.

The article then returns to the legal action. The precise reasons for the credit hire charge of £400,000 are not identified, but some speculation is provided from industry figures as to how it may have happened. The hypothetical reasonable reader will inevitably wonder how it was that such a large credit hire charge came about. The reader is then told that DAM was responsible for these charges, and that the industry are “quick to label DAM as an outlier and anomaly of poor practice within a sector that, on the whole, successfully self-regulates”. The reader will understand from this that DAM is an outlier as it does not participate in self-regulation adopted by many in the credit hire sector. Further, the reader will understand, that DAM applies poor practice. This is an anomaly because the sector, on the whole successfully self-regulates. The poor practice is plainly a reference to the earlier parts of the article, which sets out the ways in which unregulated CHOs build costs or use underhand tactics to drive up costs. The article does not specify which of these poor practices were the particular reason for the £400,000 charge, so the hypothetical reader understands it could have been any of them.

Further, given the reader is told by Glen Eastwood, managing director at MSL, an industry company, that “the case is extraordinary; I’ve never seen anything like it. It’s the biggest one I’ve heard of”, that signals to the reader that, in an unregulated sector, DAM is an example of a CHO which is particularly bad when it comes to charging excessive credit hire costs.

I identified my initial view of the words complained of and have received oral and brief written submissions from the parties. The court has to be careful not be too analytical in its approach. I have to determine the impression that would have been conveyed to the hypothetical reasonable reader reading the first article once.

Applying the principles I have identified, my conclusions are that the natural and ordinary meaning of the words complained of, read in their proper context as they affect DAM is:

This meaning is defamatory of DAM at common law.

This meaning is a statement of fact. I do not agree with Mr de Wilde that the use of the word “excessive” at paragraphs (1), (2) and (3) above is an expression of opinion. He submitted that any observation on the scale of the charge can only be evaluative of the fact of the charges. The reader understands that the excessive charges are the result of poor practices by DAM, but how the charge accrued in the legal action concerning Aviva is not explained. No further detail is provided. In these circumstances, the description of the charges or costs as excessive is, in my view, a statement of fact.

The clear overall impression I noted down when I first read this article was that DAM is responsible for fraud in the unregulated credit hire sector and Bond Turner, as solicitors acting in this sector, may not act honestly or fairly or professionally.

The article explains the story that lies behind the year’s notorious legal case concerning credit hire charges. That case arose out of Aviva’s successful defence of liability in a road traffic accident. DAM provided the claimant driver with a replacement vehicle, and charged vast credit hire charges of £400,000 over a period of more than 2 years. These are the “trumped-up credit hire costs” and DAM is the “rogue agent” referred to in the headline. The article considers whether unethical conduct by credit hire operators is on the rise. The reader is told that DAM does not adhere to the voluntary standards in the unregulated credit hire sector. DAM is a rogue operator. On top of that, DAM is part of the Anexo Group, which includes Bond Turner, a legal firm who recover hire charges, which gives rise to the potential for a conflict of interest as DAM and Bond Turner operate in the same market place.

The reason there has been a lot publicity about the case is because Aviva were trying to combat fraud. However, this type of behaviour by rogue operators has been going on for a long time. DAM is well known for it and has been giving the credit hire industry a bad name. The judge’s decision in the Aviva case was not to do with the amount of the credit hire charges, and the article asks whether DAM or Bond Turner are to blame. It is said that they may have breached principles of honesty and fairness, but they have not done anything wrong. The article concludes by considering the lasting impacts of the case. Credit hire is identified as the prime culprit for industry fraud, for which DAM is responsible. This will have reputational damage for the whole sector, even if DAM is an outlier compared to other credit hire operators.

Mr Munden for the claimants submitted:

Mr de Wilde for the defendant submitted:

There is no dispute that I must assess the meaning of the second article separately.

The ordinary reasonable reader will have read the article once and will not subject it to any form of textual analysis. The reader does not have anyone sitting beside them pointing out what they should make of the article, or drawing attention to any particular parts of it. Proper regard to the overall context and presentation of the words complained of is probably the most important principle to be applied in the assessment of meaning: see Porshenko at [20](iv).

The conclusion I have reached is that the second article alleges that DAM is guilty of fraud in relation to the credit hire costs it charges. That was my initial impression when I first read the article and that impression has not been shifted by Mr de Wilde’s submissions for the defendant.

I agree with Mr de Wilde that the second article must mean something about the Aviva case. It is the extortionate credit hire costs charged by DAM in the Aviva case which give rise to the story. However, the second article is not a case or law report about the Aviva case. Rather, it provides the platform from which the article considers the various industry issues the vast credit hire costs in the Aviva case give rise to.

Mr de Wilde accepts that the second article contains allegations of fraud, but says these are directed at the claimant driver in the Aviva case. I do not agree. As I have explained above, the hypothetical reader will have knowledge of and an interest in the insurance industry, which includes the claims industry. He is not a lawyer or indeed a “professional or specialist” with any particular expertise or knowledge of the claims industry relating to the insurance sector. It is plain on reading the second article that the ordinary reasonable reader would understand that the allegations of fraud are squarely directed at DAM. The rogue operator is DAM and it is DAM who charged the “trumped-up” credit hire costs, a description which suggests the costs were invented or grossly exaggerated. The reader is told that the case was in the “public arena because Aviva were trying to show their skills at combatting fraud” (paragraph 28) and that “October’s legal case has once again placed credit hire as a prime culprit in terms of industry fraud, and even though DAM is the firm involved …” (paragraph 51). I do not see that there is any basis on which the reasonable reader could understand, on reading the second article as a whole and in context, that the allegations of fraud are directed against the claimant driver, and not against DAM.

Further, I have reached the view that the allegations of fraud against DAM in relation to the credit hire costs are Chase Level 1. The issue here is whether the information provided in the section entitled “Regulatory loophole” reduces the defamatory impact of the allegations made against DAM. In my view it does not. The danger here is not to fall into the trap of over analysis. I agree that the article explains that in the Aviva case the judge did not rule on the credibility or reasonableness of “the credit hire aspects”. The reader is then told that DAM and Bond Turner’s actions may “contradict the FCA’s principles for businesses, which requires regulated firms to act honestly, fairly and professionally in their customers’ best interests, the businesses have not broken any laws, especially as credit hire is not an FCA-regulated claims management activity” and “I don’t think anybody is suggesting that the credit hire company had done anything wrong, anything against the rules in this case…”. However, immediately after that the reader is then informed that DAM “simply left their client in a credit hire vehicle for an extortionate amount of time” (paragraph 36). The reader is not provided with any other information as how the credit hire charges were incurred or any information which could signal that the amount charged by DAM was justified.

This is significant because the article is an investigation into the “backstory to this year’s most notorious credit hire case”. The reader has already been told that:

Then, three sections later, in the final part of the article entitled “Lasting impacts”, the reader is told in no uncertain terms that credit hire is the prime culprit for industry fraud, and DAM is the firm involved. That information provided to the reader is then reinforced by the quotes from Kirsty McKno, chair of the trade association the Credit Hire Association, in the final two paragraphs of the article in which she says that “there are rogue credit hire companies involved in fraudulent practices” and “it’s insurers and credit hire companies against fraud” (paragraphs 52 and 53). The overall effect of the second article is that DAM is presented as being responsible for fraud in relation to credit hire costs. This is a clear message of guilt. Further, as DAM “may be labelled as an industry outlier” the reasonable reader will understand that DAM’s conduct in relation to credit hire costs is particularly bad in the unregulated credit hire sector.

I turn now to the relationship between DAM and Bond Turner. The reader is told that they are part of the same group, with different functions but operating in the same market place. The reasonable reader will understand that there is a potential conflict of interest, and the potential issues which could lead to possible breaches of the Solicitors Regulation Authority’s regulations in relation to direct referrals or introductions of customers by DAM to Bond Turner. Further, the reasonable reader will understand DAM is a rogue operator that incurs credit hire costs fraudulently, and that Bond Turner acted for the unsuccessful claimant driver in the Aviva case. Bond Turner are the legal professionals who Tim Kelly said “should never have pushed it as far as they did” (paragraph 3) and that they “may have contradict[ed] the FCA’s principles for businesses, which requires regulated firms to act honestly, fairly and professionally in their customers’ best interests” (paragraph 35). I agree with Mr de Wilde that, in relation to the conduct between DAM and Bond Turner, their respective conduct is described in cautious terms that result in a Chase Level 2 meaning for DAM. However, given the very serious allegations of fraud against DAM, that DAM and Bond Turner are part of the same group, Bond Turner acted for the claimant in the Aviva case, and “it may not have acted honestly, fairly and professionally in their customers’ best interests” the ordinary reasonable reader will not characterise Bond Turner’s role as being peripheral. Rather the ordinary reasonable reader will understand that its conduct in this regard is on a par with DAM, and that there are reasonable grounds to suspect that Bond Turner fails to act honestly and transparently towards its clients in respect of introductions and referrals from DAM. Beyond that, I do not think that the niceties of the other possible breaches of the Solicitors Regulatory Authority’s regulations will register with the ordinary reasonable reader on one reading of the article.

As with the first article, I took care to identify my initial view of the words complained of. I have to determine the impression that would have been conveyed to the hypothetical reasonable reader reading the second article once. Applying the principles I have identified, my conclusions are that the natural and ordinary meaning of the words complained of, read in their proper context is:

This meaning is defamatory of DAM and Bond Turner at common law.

This meaning is a statement of fact. I do not agree with Mr de Wilde that the use of the words “exaggerated and grossly excessive” at paragraphs (1) and (2) above is an expression of opinion. As with the first article, he submitted that any observation on the scale of the charge can only be evaluative of the fact of the charges. The reader understands that the extortionate charges are the result of fraud by DAM. The reader is told by Christopher Dibb at Plexus Law that in the Aviva case DAM “simply left their client in a credit hire vehicle for an extortionate amount of time” (paragraph 36). How that happened is not explained. Likewise, the reader is not provided with any information to explain how extortionate charges were incurred by DAM in relation to other customers (paragraphs 30 and 31). In these circumstances, the description of the charges or costs as being exaggerated and grossly excessive is, in my view, a statement of fact.