Ian Fry v Yasmin Agilah-Hood

From 1 April 2016 to 30 November 2019 the Claimant was employed as a teacher at Malvern St James Girls’ School. The Defendant worked at the same school.

From 1January 2021 to August 2021 the Claimant was employed on a fixed term contract at Northwick Manor Primary School (“Northwick Manor”). The Defendant’s children attended Northwick Manor at the time of the Claimant’s employment there.

On 20March 2021 the Defendant sent an email to Sian Williams, Headteacher of Northwick Manor, and Lauren Thomas, Assistant Headteacher and safeguarding lead, about the Claimant. The full text of the email is at Annex 1 to this judgment.

The statements in the email which are complained of as defamatory at [4] of the Particulars of Claim are as follows:

The Claimant claims that he suffered considerable hurt, distress and embarrassment by these statements and that his reputation has been damaged irrecoverably. He asserts that his contract with Northwick Manor was not renewed after the Defendant sent this email; and that he has been unable to obtain further employment as a teacher.

He seeks (i) damages for libel; (ii) an injunction restraining the Defendant whether by herself or otherwise from publishing or causing to be published the same or similar words, or speaking any words defamatory of the Claimant; (iii) costs; and (iv) any other order the court deems fit.

On 9 August 2023 Master Brown ordered a trial of the following preliminary issues:

The Claimant’s Particulars of Claim dated 4 July 2022 were drafted by counsel.

At the time of filing her Defence dated 15 July 2022, the Defendant was represented by solicitors, but it appears that she drafted the Defence herself.

The claim had been commenced in the Birmingham District Registry. According to a letter from court staff to the Claimant dated 24 November 2022 a District Judge had ordered the Claimant to file Particulars of Claim. It is not clear why, given that he had already filed Particulars of Claim dated 4 July 2022.

However, the Claimant complied with the direction and filed a further document entitled ‘Particulars of Claim’ dated 12 December 2022. He confirmed at the outset of the trial that he had drafted this himself and had done so in response to the Defence. Given how this document had come into existence, for the purposes of the trial I was content to treat it as if it was a Reply under the CPR 15.8, extending time for that purpose.

In Millett v Corbyn [2021] EWCA Civ 567, [2021] EMLR 19 at [8], the Court of Appeal referred to the standard approach for a judge at first instance seeking to determine meaning, namely that the judge should “capture an initial reaction, before reading or hearing argument”. I did this task by reading the words complained of without knowing what either party wanted to say about their meaning; formed some provisional views; read the statements of case and skeleton arguments; heard oral submissions at the trial and reserved judgment.

By the time of the trial the Claimant no longer had solicitors or counsel. He represented himself and appeared in person.

The Defendant also represented herself at the trial, but appeared remotely, having made a very late application to do so on health grounds. Any such application in future will need to be made much earlier than the day before the hearing. She was assisted during the hearing by a McKenzie Friend.

The Claimant had not complied with the directions made by Master Brown with respect to the provision of a bundle for the trial. It was possible to proceed without it, given the limited nature of the issues. Both parties filed Skeleton Arguments, albeit later than the directions given by the Master. I reiterated to the parties the need to comply with such directions in the future.

Prior to the hearing before Master Brown, the Defendant had provided a document which was described as her “statement”, although it did not contain the statement of truth necessary under the CPR. It was not appropriate to take this document into account for the purposes of this preliminary issue trial.

The statement indicated that an application to strike the Claimant’s claim out on ‘Jameel abuse’ grounds would be made, but the Defendant confirmed that she had not yet done so. She was directed to CPR Part 23 regarding the need to complete and file an application if she wished to seek such an order.

In Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB), [2020] 4 WLR 25 at [11], Nicklin J observed that:

At [12], he distilled the principles from the caselaw as follows:

In certain cases it is necessary to consider the “levels” of meaning, which were described by Nicklin J in Koutsogiannis at [13] as follows:

The Claimant’s pleaded case at [5] of his Particulars of Claim is that in their natural and ordinary meaning, the words complained of meant and were understood to mean the following:

At the outset of the trial, the Claimant accepted a point taken at [5] of the Defence, to the effect that the Defendant’s email referred to sexual “misconduct” not “offences” and varied his proposed natural and ordinary meaning to this effect. In due course an amendment to his Particulars of Claim in this regard will be required.

The Claimant submitted that the Defendant’s email was clearly communicating that he had been guilty of sexual misconduct at his previous school. The Defendant had referred in terms to the risk and the danger he was said to pose; and had said that he had avoided any proper investigation. Since then, she had not sought to deny the natural and ordinary meaning for which he contended but he had only “doubled down” on the words he used and sought to justify them.

In her Defence and Skeleton Argument, the Defendant reiterated that she “believed the Claimant was a cause for concern” and “took the appropriate steps to inform those who needed to know” of it, namely Ms Williams and Ms Thomas. She emphasised her belief that “any form of sexual misconduct is a danger to women, on a micro or macro level, and that sharing information to protect others is why safeguarding procedures exist”. She said she was “not in a position to comment” on whether the Claimant was fit to do his job, “only that [she] was concerned for the safety and security of the women working at Northwick Manor”. All these statements, in different ways, reflected the Defendant’s intention in sending the email in question. However the publisher’s intention is irrelevant to the natural and ordinary meaning issue (see Koutsogiannis at [12]ii: [19] above).

Neither the Defence nor the Skeleton Argument otherwise addressed the Claimant’s case on natural and ordinary meaning. The Defendant had not sought to deny it; but nor had she clearly admitted it or offered any alternative proposed meanings.

Once the legal principles relevant to the concept of natural and ordinary meaning were explained to the Defendant during the trial, she admitted that her email bore the five elements of the meaning contended for by the Claimant. She was allowed time to reflect on this issue. Having done so, she again accepted that a reasonable person reading her email would interpret it in all the ways contended for by the Claimant, including that he was guilty of sexual misconduct.

Although the court is not bound by the meanings advanced by the parties (see Koutsogiannis at [12]xiii: [19] above) my own assessment of the ordinary and natural meaning of the words aligns with the parties’ agreement in respect of elements (ii)-(v) of the Claimant’s pleaded case. I consider that a hypothetical reasonable reader would read the Defendant’s email as meaning that the Claimant posed a safeguarding risk to individuals at Northwick Manor; posed a physical danger to female staff at Northwick Manor and to women generally; was not fit for his job as a teacher due to safeguarding issues; and lacked the professional honesty and integrity to be a teacher because he had avoided facing the allegations or an investigation. This meaning is clear from the words used and the context in which it was sent, as is indicated by the ‘safeguarding’ title of the email.

In my judgment element (i) of the Claimant’s case on natural and ordinary meaning is a little more complex. The Defendant’s email did not say in terms that the Claimant was guilty of sexual misconduct. She specifically used the language of “accusation”, “allegations” and “suspicion” about the Claimant. However, in referring to the risk and danger it was said the Claimant posed to others, it is arguably implied that the Claimant had in fact committed the misconduct alleged.

Neither party addressed the Chase distinctions at the preliminary issues trial. However I consider that the email bore a Chase level 2 meaning (see [20] above), namely that there were reasonable grounds to suspect that the Claimant was guilty of the sexual misconduct alleged. This is because the email asserted that allegations had been made against the Claimant, which led to him being placed on garden leave, therefore implying there were reasonable grounds to suspect him of the misconduct. It does not go as far as stating that he was guilty of the misconduct alleged, nor could that meaning properly be inferred.

My determination of the natural and ordinary meaning of the statements therefore aligns with the Claimant’s pleaded case, subject to the modifications with respect to the word “misconduct” and the Chase level 2 meaning (see [22] and [29] above).

Gatley on Libel and Slander (Thirteenth Edition) explains the concept of innuendo meaning at 3-020 as follows:

The Claimant’s pleaded case at [6] of the Particulars of Claim was to this effect:

The Defendant responded as follows in [6] of the Defence:

The Defendant argued that there was no innuendo suggested in her email. She was comparing a situation where many members of the Metropolitan Police Service had not disclosed the behaviour of a colleague. She felt emboldened to share this information because of this, but had in no way insinuated that the Claimant is capable of rape or murder. She submitted that the email was clear in explaining why she had used the comparison. It was then up to the school what they did with this information and she was not responsible for their decision. She emphasised these points in her oral submissions at the trial.

The Claimant submitted that the email was clearly trying to make a link between Ms Everard’s “murder and the outcry for protection for women” and his own conduct. He noted that the email did not refer to any concerns about information sharing within the Metropolitan Police.

I do not accept that the Defendant’s email bore the innuendo meaning that the Claimant is a violent sexual offender. In my judgment a reasonable person reading the email would conclude that the reason the Defendant was sending it was because of the public outcry about the need for protection for women caused by the press coverage of Ms Everard’s murder. That was how the Defendant introduced her email. I do not consider it can reasonably be interpreted as her implying that the Claimant was a violent sexual offender like Mr Couzens; rather that she was concerned to protect the women he worked with, Ms Everard’s murder having reiterated - at a general, societal level – how much this was required.

I consider that the Defendant’s email bore the implied meaning that the Claimant had abused his position as a teacher. That much is clear from the fact that the email referred to the allegations of sexual misconduct said to have been made against him by four female colleagues, and the clear indication that he had avoided any investigation of those allegations. I do not consider that this was an innuendo in the sense pleaded, but rather an example of a defamatory imputation conveyed by implication, and thus within the natural and ordinary meaning.

In Koutsogiannis at [16], Nicklin J held that when determining whether the words complained of contain allegations of fact or opinion, the court will be guided by the following points:

Further, as Warby LJ explained in Blake and others v Fox [2023] EWCA Civ 1000:

The Defendant had made clear in the Defence that she relies on the defences of both truth and honest opinion set out in sections 2 and 3 of the 2013 Act. Her pleaded case is that she understood that “a number of complaints of sexual misconduct had been made about [the Claimant] to Malvern” and that “the complaints were resolved by compromise” which resulted in the Claimant’s departure from the school. Overall, she contended:

At the trial, the Defendant submitted that it was her honest opinion that the Claimant posed a risk to women. However, she also said that she believed that what she said was a fact: she had been given the information by the women at Malvern St James at the time she worked there. She realised as she said in the email that she had ‘zero’ evidence to back up her concerns but she believed they were facts.

The Claimant referred to the fact that twice in her email the Defendant said she had no evidence. The Defendant had not specified where she got the information from. It was no more than gossip. On that basis, what she was passing on could not be properly characterised as facts.

Overall, I consider that an ordinary reasonable reader would understand the following statement made by the Defendant to be an imputation of fact. I conclude this given the Defendant’s description of these matters as being “information” and the way in which she referred to them. She was saying, effectively, that certain things had happened when she worked at one school, and she was passing them on to another school by way of a factual narrative, for their information.

The Defendant also described what she understood “is” the practice in private schools when allegations of this kind are made. In my assessment an ordinary reasonable reader would understand this statement to be an imputation of fact:

However, a reasonable reading of the email is that the Defendant had used the information she had gained about the Claimant’s conduct at Malvern St James to make a “deduction” or reach an “inference” or “conclusion” that he posed a risk to those working at Northwick Manor. For these reasons I find that these statements would be reasonably interpreted as expressions of the Defendant’s opinion:

At common law, an imputation will be treated as defamatory if “the words complained of fall within one, or more, of the several tests that have, at various times, been offered by the courts. That is to say the imputation must be to the claimant’s discredit; or to tend to lower him in the estimation of others; or cause him to be shunned or avoided; or expose him to hatred, contempt or ridicule”: Gatley at 2-001.

In Blake at [26], Warby LJ reiterated that a statement is defamatory if it (a) attributes to the claimant behaviour or views that are “contrary to common shared views of our society” and (b) would tend to have a “substantially adverse effect” on the way that people would treat the Claimant: see also Millett at [9].

The Claimant argued that to suggest a primary school teacher working mostly with women, at an all girls’ school, was a risk and danger to women, who needed protecting from him, could not be anything other than defamatory.

The Defence did not really engage with this issue, but simply invoked the defences in sections 2, 3 and 4 of the 2013 Act.

During the trial, the Defendant was reassured that the availability or otherwise of these defences was a matter for another hearing. After further consideration, she conceded that the words she had used were defamatory in the sense set out at [46]-[47] above.

In my judgment the Defendant’s concession on this issue was sound, and my own view aligns with it. A Chase level 2 statement to the effect that there were reasonable grounds to suspect that the claimant was guilty of sexual misconduct; and statements to the effect that he posed a safeguarding risk or physical danger to people, especially women, and was unfit to be a teacher not least because he lacked the professional honesty and integrity for that post, are all statements that would have a “substantially adverse effect” on the way people treat the Claimant. The same is true of the implied meaning that he had abused his position as a teacher, discussed at [37] above.

For all these reasons I conclude that: