Unity Plus Healthcare Limited v Peter Gareth Clay & Ors

This judgment is handed down following the trial of preliminary issues in respect of a defamation claim brought by the claimant against the first and fourth defendants.

The claimant describes itself as a company that provides trained care workers and nurses for the nursing and care home sector.

The first defendant is a former business development manager for the claimant. He was a director of the fourth defendant, which he says offers similar but not identical services to that of the claimant. He remains an employee of the fourth defendant.

These proceedings were issued on 28 June 2022. The claim form says that the claim is for (i) conspiracy to injure by unlawful means; (ii) wrongful interference with the claimant’s economic interests; (iii) breach of confidence and/or misuse of confidential information; and (iv) defamation.

The defamation claim arises out of an email (“the Email”) sent by the first defendant to HMRC’s Chief Investigation Officer and Director, Fraud Investigation Service (“the HMRC Director”) on 2 July 2021.

The text of the Email is set out in the schedule to this judgment.

The claim form identifies two specific instances of publication by the first and/or fourth defendants. The first is the sending of the Email to the HMRC Director on 2 July 2021. The second is the forwarding of the Email on 4 July 2021 to one of the claimant’s customers.

I note that in its particulars of claim, the claimant has also pleaded that it has reasonable grounds for suspecting that the Email was forwarded by the first defendant to others he knew did business with the claimant.

On 7 March and 7 August 2023 there were case management hearings before Master Dagnall. The first and fourth defendants confirmed that they will be relying on a defence of common law qualified privilege. The Master considered carefully whether there should be a trial of a preliminary issue to determine meaning, having regard to the Court of Appeal decision in Curistan v Times Newspapers Limited [2009] QB 231. The parties have confirmed to me that their position before the Master was that Curistan should be distinguished on the basis that if privilege is established in the present case it would attach to the entirety of the publication, rather than just part of it.

On 12 December 2023, Master Dagnall approved a consent order directing that there should be a trial of preliminary issues dealing with:

The claimant’s pleaded case is that the natural and ordinary meaning of the words complained of was as follows:

The claimant says these are statements of fact, and they are defamatory at common law.

The defendant’s pleaded case is that the natural and ordinary meaning of the words complained of was as follows:

The first and fourth defendants say this is an expression of opinion. It is not disputed that it is defamatory at common law.

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 bear.

In Jones v Skelton [1963] 1 WLR 1362 the Privy Council explained what is meant by a natural and ordinary meaning:

I must first read the publication complained of to form a provisional view on meaning, before turning to the parties' pleaded cases and submissions, see Tinkler v Ferguson [2020] EWCA Civ 819 at [9].

The long-established principles to be applied when reaching a determination of meaning were re-stated by Nicklin J in Koutsogiannis v Random House Group Ltd [2019] EWHC 48 (QB) at [12].

There is a dispute between the parties about the scope of the material that this court should consider as “context” when assessing meaning.

The first and fourth defendants say that the court needs to take account of the twenty-seven attachments to the Email.

This issue was only raised days before this hearing. It had not been mentioned at the hearings before the Master, nor in the defendants’ written case as to meaning, nor when the parties first agreed the contents of the hearing bundle.

I have been provided with copies of the attachments. They include things like company accounts, contracts of employment, emails and staff profiles. When printed, they comprise 133 pages of A4. They were not attached to the Email in any discernible order, nor were they numbered, nor cross-referenced to the Email. Some of the attachments are themselves emails, which contain embedded attachments.

The relevant legal principles were summarised by Nicklin J in Riley v Murray [2020] EWHC 977 (QB) at [16]:

We are concerned here with the second category identified by Nicklin J, namely matters that are to be treated as part of the publication.

These issues often arise in respect of hyperlinks. In that context, I note the observations of Nicklin J in Falter v Altzmon [2018] EWHC 1728 at [12]:

The first and fourth defendants’ skeleton says little on this issue, except that it is to be assumed that the attachments would have been read in conjunction with the Email by the reasonable reader.

In oral submissions, Ms Strong for the first and fourth defendants says these were attachments on the face of the Email. She says that it is fundamentally wrong in law to say that simply because the attachments are lengthy, they would not have been considered by the ordinary, reasonable reader. Ms Strong points out that when assessing meaning, that reader is taken to have read (or viewed) the whole of the publication complained of, even where the publication is a lengthy book. She relies upon the observations of Tugendhat J in Cruddas v Calvert [2013] EWHC 1427 (QB) at [93] when it was noted that the assumption that the reasonable reader had read the article as a whole was “as unrealistic an assumption as any that is required to be made… albeit that that assumption is necessary to do justice to a defendant”. In this case, Ms Strong says that the attachments form part of the Email, and so I should treat them in the same way as I would treat parts of any publication complained of.

The claimant says that this material is not relevant to the court’s determination. Ms Grossman for the claimant says that one must start by looking at the Email. It is of reasonable length and contains a reasonably significant amount of detail. Only five of the attachments are referred to at all. The Email does not state that the reader would need to read those attachments to understand what is being alleged. The allegations are self-contained, and on the few occasions where attachments are referred to, they are presented as supporting evidence. The reader can understand the entirety of what is being alleged from what is being set out in the Email, and so does not need to look beyond it. Ms Grossman says it is wholly implausible that the ordinary reasonable reader would go to the accompanying material to understand the allegation, or that all twenty-seven of the attachments would have been read.

In this case, whilst I consider that any reader would have been aware of the existence of numerous attachments, I do not consider those attachments to form part of the Email for the purposes of determining meaning. The Email was written in a way that the ordinary, reasonable reader did not need to open the attachments to understand what was being said. The attachments were not labelled, nor for the most part explained. If the five attachments referred to in the Email had been labelled in a way that would have made it straightforward to locate them, without having to work through all the others, then it would at least be arguable that those five attachments would form part of the publication complained of. That is not, however, the position. To borrow the language of Nicklin J, it seems to me that only the most tenacious or diligent reader could be expected to open and read all 27 attachments, and such person would not be a reasonable reader.

The courts commonly refer to various levels of possible defamatory meaning, to distinguish between different types of defamatory allegation. This was explained by Nicklin J in Brown v Bower and another [2017] EWHC 2637 (QB) at [17]:

The claimant says that usually the Chase level meanings would pertain to factual allegations only. Chase does not set rigid categories. Typically, a Chase level 3 meaning would be expressed with tentativeness, including reasons for being cautious, with the reader being told explicitly that the writer has questions about the material.

Ms Grossman says the Email does not suggest that it contains partial information, and whilst it notes that HMRC will undertake its own checks, it does not invite them to undertake further investigation or suggest that there might be another possible explanation. Ms Grossman says the Email comes across as being from someone who purports to understand the detail. It contains clear statements of fact. The author presents the reader with information from sources, giving no reason to doubt it. There is no sense of tentativeness or holding back, with the Email setting out matters with clarity and confidence. The first defendant says he has more “evidence” and refers to “proof” being attached. The reference in the Email to the first defendant having a “concern” is a concern as to what to do with the allegations, which Ms Grossman says are presented as well founded and beyond the writer’s doubt.

The first and fourth defendants say the overarching theme of the Email was the first defendant alerting HMRC about concerns about the claimant. It would be apparent that the first claimant expected HMRC to investigate the matter itself and reach its own conclusions. Even if the words used were imprecise and muddled at times, the reader would not understand any meaning more serious than grounds to investigate.

Ms Strong said that when considering the publication to HMRC, the reasonable and ordinary reader would have the characteristics of someone who works at HMRC. When considering the re-publication to a customer, the reasonable and ordinary reader would have the characteristics of someone connected with the claimant. She says such persons are likely to have an understanding of the claimant’s business and awareness of why an author might write to HMRC, and what HMRC might do. She says that the claimant’s meaning ignores context.

In Koutsogiannis at [16] Nicklin J provided a summary of the common law principles to be applied in relation to the “first condition”, which were approved by Warby LJ in Corbyn v Millett [2021] EWCA Civ 567 at [12]:

In Triplark v Northwood Hall [2019] EWHC 3494 (QB) at [17] Warby J (as he then was) said:

The claimant says HMRC is being asked to investigate factual allegations. It would be extraordinary, indeed fanciful, for someone to invite HMRC to take action on the basis of a personal opinion, and no reasonable reader would interpret the Email as such.

The claimant also points out that what is said has obvious characteristics of making allegations of fact – including of specific criminal offences, or evidence of criminal activity. The obvious reading of the Email is that these are statements of fact. In contrast, Ms Grossman points out that there is usually a subjective quality to an opinion, and some element of value judgment. Whilst comment might allow for deductive inferences, this is not how the allegations are presented.

The first and fourth defendants say this was a relatively informal email, rather than a formal publication disseminating information that might be presumed to be factual in character. It was written in the first defendant’s own words. The context – namely where it was being sent and the words used - would be recognised by the hypothetical reader to be one of opinion. By way of example, Ms Strong draws my attention to the wording of the eleventh paragraph where the first defendant says “I do believe this is their way of cleaning the money… and I believe that the bank accounts all lead back to Mr Shafiq Rehman” (emphasis added). It is also pointed out that in respect of each concern raised, the first defendant stated the basis as to why he had such concerns and/or attached relevant evidence, which would be more likely to strike the reader as an expression of opinion.

The natural and ordinary meaning of the words complained of was:

The words complained of comprised statements of fact, save for the matter underlined which is an expression of opinion.

The natural and ordinary meaning is plainly defamatory of the claimant at common law.

It is important to consider the Email in context.

It is a matter of common knowledge, and would have been understood by the ordinary and reasonable reader, that HMRC is responsible for collecting taxes and investigating tax fraud.

It would be apparent to the ordinary reasonable reader that the purpose of the Email was to bring to HMRC’s attention certain information about the claimant and its tax affairs.

The first defendant would have been understood by the ordinary reasonable reader to be reporting what he considers to be wrong-doing on the part of the claimant. The matters raised are serious and include matters that would have been understood by the ordinary, reasonable reader as being unlawful or otherwise wrong, for example fraud and money laundering.

The Email would not have been understood by the ordinary reasonable reader to be simply stating that the matters alleged are true. It would be recognised that the Email referred to some of the matters raised as “areas of concern” and that it recognised that HMRC would need to undertake its own checks. It also envisaged that further information might be required as part of any investigation.

That said, it would have been clear to the reader that the first claimant was not saying simply that these were matters that needed investigation. The language used by the first defendant went much further than this, referring to sources, evidence and “proof”. Looked at in context, the reasonable reader would conclude that the first and fourth defendants were saying that there are strong grounds to suspect the claimant of the wrong-doing alleged.

The claimant’s pleaded meaning includes reference to “a disqualified director guilty of VAT evasion”. The first and fourth defendants do not include this in their pleaded meaning. Ms Strong says this is because the Email referred to the disqualified director’s role in a different company called Sugra Limited, and so it could not be said to be defamatory of the claimant.

The Email explains why the first defendant believes that this disqualified director runs a company called Sugra Limited, using his sons as a front. The Email also clearly says in the subject heading that Sugra Limited is the parent company of the claimant. The ordinary reader can read between the lines. They would understand that in the context of what appears to be a family business, that if the parent company was being run by a disqualified director, then there were strong grounds to suspect that the claimant company was also being run in the same way.

For the most part, the wording used in the Email would have struck the ordinary reasonable reader as making factual allegations about the claimant. The context of the Email is key here, namely the report of potential crime and other wrong-doing to the authorities. Whilst the reader would be aware that the first defendant was basing what he said on extraneous material – including “evidence” and information from sources – it would be understood that he was making statements of fact. Whilst the first defendant qualified what he said at times, for example including words “I believe”, his belief was simply in respect of the truth of the factual matters that he was alleging. The reasonable ordinary reader would not consider this to be an expression of opinion on the facts stated.

I do, however, consider what was said about taking advantage of staff to be a value judgment about the way in which the staff had been treated, which would be recognisable as an expression of an opinion.