Maccaba v Lichtenstein

This is my ruling on the application by the Defendant that judgment be entered in his favour in relation to the claim against him in slander. The basis of the application is in short that no special damage is alleged to have been suffered by the Claimant and that this is not one of the category of cases in which the need to prove special damage in a slander action is dispensed with by the provisions of section 2 of the Defamation Act 1952. I should at the outset record the fact that, by agreement between the parties and in order to obviate the risk that a retrial might be necessary in the event of a successful appeal, I have decided that the issue should go to the jury irrespective of my decision. This is the procedure recommended by the Court of Appeal in Alexander v Arts Council of Wales [2001] 1 WLR 184.

Section 2 of the 1952 Act is in the following terms:

“In an action for slander in respect of words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of the publication, it shall not be necessary to allege or prove special damage, whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business”.

It is common ground that “calculated” means “likely” and that the test whether words are likely to disparage the plaintiff is an objective one upon which no evidence is admissible. It appears to me that “disparage” is synonymous with “discredit”.

Mr Price for the Defendant had some preliminary observations to make about claims of slander. He referred me to several judicial pronouncements to the effect that the law does not encourage actions for slander. He suggests that this is because slanders are inherently less damaging than publications in permanent form and claims for slander are particularly vulnerable to abuse. Mr Price further suggests that article 10 of the European Convention on Human Rights, now incorporated into English law, requires that section 2 of the 1952 Act be narrowly construed. I bear those points in mind.

Mr Freedman QC for the Claimant objected strenuously to the fact that the contention that the slanders in the present case were not actionable per se was raised for the first time at a very late stage. Whilst I have some sympathy with that concern, the point has been raised and it appears to me that the Defendant is entitled to a ruling, delay notwithstanding.

The Claimant prays in aid section 2 of the 1952 Act in two separate and distinct ways. Firstly, he contends that the words of which he complains were calculated to disparage him in the way of his business. It is common ground that the question which I have to decide on the present application is whether a properly directed jury could reasonably so find. In other words, the test to be applied is what would be called in the context of criminal proceedings the Galbraith test.

The Claimant sues on a number of slanders, the gist of which is broadly similar. For the purposes of the present application I shall assume in the Claimant’s favour that his case as to the words spoken by the Defendant is correct, namely that the Defendant accused him of adultery with young married Jewish women. The question is therefore whether the uttering of words to that effect is capable of being likely to disparage the Claimant in his business. The business of the Claimant is that he is the Chief Executive Officer and acting Chairman of an information technology company which operates worldwide, employs numerous staff and requires the Claimant to meet and deal with clients, suppliers and investors. There is also evidence that the Claimant sometimes deals, or at least considers dealing, in property transactions.

The case for the Claimant can be summarised as follows: he asserts that the imputation allegedly made about him by the Defendant is a very serious one. Mr Freedman suggests that it accused him of posing a danger to young women and being a social pariah because of his perverted use of his position and power to seduce young married women. An accusation of that kind is likely, submits Mr Freedman, to discredit the Claimant in relation to his business in a number of ways. For example, pursuing young women in the workplace can give rise to damaging publicity and cause the business actual damage. Mr Freedman further points out that there is a good deal of evidence that many of the Claimant’s business dealings take place with fellow members of the orthodox Jewish community. There is evidence, firstly, that business within that community is frequently done on the basis of trust and, secondly, that members of that community because of their religious principles take a far stricter view about adultery and marital infidelity. It is submitted on behalf of the Claimant that the circulation of slanders such as those complained of in this action would be likely to discredit him vis a vis his company, investors present and future in the company and customers of the company, for example the major banks with whom the Claimant regularly deals.

Mr Price for the Defendant stresses the need for a “clear linkage” between the business carried on by the Claimant and the slanderous imputation about him. He argues that there must be something inherent in the business that requires a particular standard of personal sexual morality. He relies by analogy on paragraph 4.17 of the current edition of Gatley and in particular on this passage:

“…even if the words do not relate to qualifications peculiar to the Claimant’s calling and would be defamatory if published of others, they are actionable per se if they would be likely adversely to affect his professional reputation (and not merely his private character) in the eyes of reasonable people. Thus it would be actionable per se under this head to say of a judge that he was inattentive and unable to keep awake on the bench but not, it is submitted, in England in 2003 to say that he had committed adultery”.

Why, asks Mr Price, is it likely to disparage a businessman who runs an IT company to say that he has committed adultery? Mr Price further argues that it is illegitimate to take account of the fact that the Claimant happens to belong to a particular community when deciding whether words are likely to disparage him in the way of his business.

I remind myself that the question which I have to decide is not whether the words allegedly used by the Defendant were likely to disparage the Claimant in his business but rather whether they are capable of being likely to do so in the Galbraith sense. It appears to me that the question which I must ask myself is whether the words which I have assumed the Defendant used are capable of having been likely to disparage this Claimant possessing his attributes and running his business. I do not accept that it would be right to ignore the fact that the Claimant is a member of the orthodox Jewish community. The language of section 2 does not support such an approach. I readily accept that many businessmen would be wholly unaffected, in relation to their business, by an accusation of adultery. It may well be right that an allegation of adultery against a bookseller would not be likely to disparage him in his business. But the position may be different if the bookseller specialised in the sale of religious books. I have to consider the particular Claimant, the nature of his business, the activities in which he engages in connection with his business and the kind of people with whom he regularly does business. I acknowledge that, with one possible exception, none of the publishees of the slanders had a business connection with the Claimant. But I also have to bear in mind the likelihood that the slanders would be repeated – the so-called “ripple effect”.

Adopting that approach I have concluded that the question whether the words complained were calculated to disparage the Claimant in his business is one which is fit to be left to the jury. I do not think that the examples given by Mr Freedman of the ways in which the slander might have a discrediting effect on the Claimant are so far-fetched or fanciful that the issue should be taken away from the jury. I do not accept that a negative answer to the question would be perverse.

I turn to the second and distinct question whether the words complained of were calculated to disparage the Claimant in any office held by him at the material time. As will be seen, this question raises a number of points which to many will seem arcane and indeed appeared so to Lord Herschell as long ago as 1892: see Alexander v. Jenkins [1892] 1 QB 797 at 801.

Following the production of documents during the course of the case, it is now common ground that the Claimant held two offices at the time when the alleged slanders were uttered. Firstly, he was a director and trustee of the Talmud Torah Beit Yosef, a school in north London. The objects of the school, which is a company limited by guarantee, include the provision of education for children and young people in accordance with the tenets of the orthodox Jewish religion, in particular as practised by Sephardi Jews. There is further a power to remove trustees by means of a resolution of the holder of the shares of the Talmud Torah. As it happens, the shareholder is the Beit Yosef Foundation, of which the Claimant is also a director and trustee along with a solicitor, namely Mr Citron, and Rabbi Moshe Cohen. The Claimant’s office with the Foundation is the second office which is accepted to have been held by him at the time when the alleged slanders were uttered. The Foundation is a charitable company with charitable objects, including the advancement of the orthodox Jewish religion and further education.

The first question which I have to decide is whether the Claimant’s offices qualify as “offices” within the meaning of section 2 of the 1952 Act. The submission of Mr Freedman for the Claimant on this point is straightforward: he says that, whatever may have been the position before 1952 and whatever may have been the reason for enacting section 2, it is clear from the wording of the section that any office will suffice. It matters not whether the office is one of honour or one of profit or whether the office is a “public” one. The statute is clear. Furthermore Mr Freedman submits, on the authority of Alexander v. Jenkins [1892] 1 QB 797 at 802, that even if the office is one of honour, an action will lie if the conduct charged be such as would enable the Claimant to be removed from or deprived of the office. The current edition of Gatley in the footnote to paragraph 4.20 expresses the view that this would appear to continue to be the law. Mr Freedman relies on the power of removal contained in the articles of association of the Talmud Torah Beit Yosef, which power could have been exercised by a majority of the trustees of the Beit Yosef Foundation. As to the Foundation, Mr Freedman relies on the ultimate sanction available under the Charities Act, whereby the Charity Commissioners are empowered to remove existing trustees of a charitable trust: see Halsbury’s Laws of England vol. 5(2) para 267 to 270.

In answer to these submissions Mr Price draws attention to what he suggests was the purpose underlying the enactment of section 2 of the Defamation Act 1952, namely to cure the perceived injustice of Jones v. Jones [1916] AC 481. The claimant in that case was a schoolmaster and the slander on him was that he had committed adultery with the wife of the school caretaker. It was accepted that the words were not spoken in relation to the claimant’s calling. But it was conceded that the effect of the words would be seriously prejudicial to the claimant in his capacity as a schoolmaster and might lead to his dismissal. However, as the law stood at that time, the House of Lords held that the words were not actionable per se because they were not spoken in relation to the claimant’s calling. Mr Price argues that the intended effect of section 2 of the Defamation Act was limited to removing the need for the words to be specifically directed at the plaintiff’s calling. He submits that it is still necessary for a nexus to exist between the nature of the allegation and the nature of the claimant’s livelihood.

Mr Price submits that the common law distinction between offices of honour and offices of profit has survived the enactment of section 2 of the Defamation Act. He submits, on the authority of such cases as Alexander v. Jenkins, Booth v. Arnold [1895] 1 QB 571, that the fact that a slander claimant holds an office of honour would not enable him to avoid the need to prove actual damage save in certain defined circumstances. At common law the holder of an office of honour would only be able to avoid the need to prove actual damage upon proof that

Mr Price relies on two cases, which I will take in reverse order. In Jeyaretnam v. Goh (Court of Appeal, Singapore 1984) the Claimant, the Secretary General of the Workers’ Party, sued a candidate at a parliamentary bye-election for slander for saying that he (the Claimant) had engineered a walk-out at an inaugural meeting of the Defendant’s party. The trial judge held that the action failed because the office held by the Claimant with the Workers’ Party was an office of honour and the imputation against him was not one of such misconduct as would lead to the Claimant being deprived of his office. In the Court of Appeal Lai Kew Chai J said at paragraph 26:

“Accordingly in our judgment LP Thean J was correct in concluding that this action could have been dismissed on the sole ground that the Plaintiff, not having alleged or proved special damage as regards his office of honour, namely that of Secretary General of WP, had failed to establish that the words complained of were actionable without proof of special damage. LP Thean J was correct in finding in effect that quite apart from not being calculated to disparage the Plaintiff in his office, the words were not actionable because they did not impute to the Plaintiff the kind or quality of misconduct which had rendered the words actionable without proof of special damage. Looked at another way, we agree, as counsel for the Defendant urges, that the words did not impute to the Plaintiff the kind of misconduct which could, or even might, have resulted in the Plaintiff being deprived of his office”.

The Claimant appealed to the Privy Council but the decision of the trial judge was upheld on another ground. It is apparent from the judgment of the Court of Appeal in the Jeyaretnam case that the Singapore Court of Appeal was much influenced by the authority of Robinson v. Ward. Whilst I bear the Singapore decision in mind, it is upon the latter case that I think I should concentrate.

Robinson v. Ward was decided in 1958, that is, after the enactment of the Defamation Act. The Claimant was the preceptor of a Masonic lodge and the defendant was the lodge secretary. The words complained of related directly to the claimant’s office as preceptor.

Unfortunately no transcript is available either of the summing up of Diplock J or of any ruling he may have made. There is no means of knowing what was the Judge’s reasoning. All that there is to go on is a short report in the Law Journal for 1.8.58 and the daily court reports published in The Times for 11, 13, and 16.6.58. It appears from the latter that by the time of the summing up the claimant had dispensed with the services of his counsel. It does not appear from the newspaper report that any elaborate argument was mounted by the defendant as to the effect of the passing of the 1952 Act. According to the report what Diplock J directed the jury was that:

“The first question for the jury was: did the Defendant speak the words complained of in the circumstances alleged? That was a pure question of fact. The second question was: if he did speak the words, were they calculated to disparage the Plaintiff in his office as preceptor? Those last words were most important. They did not mean disparage him generally but in his office as preceptor. The law did not encourage actions for spoken words, and therefore that meant: did it impute some want of integrity or some corrupt or dishonest conduct in the discharge of his office as preceptor? The Plaintiff had said that it disparaged him in his general character as a freemason and therefore must do so in his office as preceptor. The jury might consider that, but must bear in mind that it must be something that reflected on his integrity. What the Defendant said was that, so far from disparaging him in that office, he considered that as preceptor the Plaintiff was excellent”.

It appears to me that Mr Price is right when he says that in that passage Diplock J was accepting that the common law distinction between offices of honour and offices of profit still applied. I accept that, in so directing the jury, Diplock J was accepting that the common law distinction between offices of honour and offices of profit had survived the passage of the Defamation Act.

Mr Price says that Robinson v. Ward has not been challenged for 45 years. That may be so but slander actions are relatively uncommon so the point may have arisen only rarely. I note that the editors of Gatley are cautious when it comes to the effect of section 2 of the Defamation Act on the historic distinction between offices of profit and offices of honour:

“No apparent distinction is drawn by the Defamation Act 1952 between an office of profit or an office of honour. Nevertheless, it has been held that if the office be one of honour, the words complained of, although they may be general, or not spoken in relation to the office, must still impute some want of integrity or some corrupt or dishonest conduct in discharge of the office. Thus the distinction between unfitness and lack of integrity, with regard to offices of honour, may [my emphasis] have survived the passing of section 2 of the Act”.

In the second edition of Duncan & Neill the view is expressed that “on the wording of section 2 of the Defamation Act 1952 there would be room for the view [my emphasis] that the distinction between an office of profit and an office of honour is no longer applicable today”.

Despite these guarded opinions on the current state of the law, the directions to the jury in Robinson v. Ward plainly support Mr Price’s argument. He is moreover right to emphasise that the rationale for the historic distinction between offices of profit and offices of honour was clear: that imputations on holders of offices of the former kind are likely to cause damage whereas imputations upon unpaid holders of honorary offices are unlikely to do so.

I have nevertheless concluded that there is no answer to Mr Freedman’s submission that the wording of section 2 of the 1952 Act is so clear that it does not permit any distinction to be drawn between offices of profit and offices of honour. I cannot construe “any office” to mean “any office other than an office of honour”. The draftsman of the 1952 Act cannot have been unaware of the distinction drawn by the common law between the two types of office holder and yet he conspicuously failed to retain or reflect it in the wording of section 2. It may well be that the view was taken at the time that the distinction, whatever its theoretical justification, had become anomalous and carried with it complications which were unnecessary and undesirable in jury actions.

In arriving at that conclusion I am very conscious that I am not following Robinson v. Ward. I do so with the utmost diffidence, not least because the judge in that case was Diplock J. Being a first instance decision, it is not of course binding on me. Moreover, as I have already said, it appears that the point was not fully argued out before the Judge and the reports are unilluminating as to his reasoning. Given the clear wording of section 2, I cannot accept that the Human Rights Act permits or, still less, requires me to adopt the construction for which Mr Price contends.

I can deal more briefly with Mr Price’s alternative submission, which is that the need to prove special damage is not dispensed with in the present case because the offices held by the Claimant were not “public” ones. I greatly doubt whether it was ever a requirement of the common law that the Claimant’s office be “public” in order that the slander might be actionable per se. The word “public” is used in Booth v. Arnold [1895] 1 QB 571 and in some other cases but I do not accept that the courts should be taken to be saying that it is a requirement that the office be a public office in order for a slander upon the holder of the office to be actionable per se. It so happened in Booth v. Arnold that the Claimant was the councillor and that the office was doubtless a public one. If the contention of Mr Price were correct, the claim of Mr Robinson would on that account have failed: he was a mason which cannot be categorised as a public office.

Such being my conclusion on the question whether slanders upon the holders of offices of honour are required to prove actual damage, the question whether, exceptionally, this action could succeed in the absence of proof of actual damage does not arise. It will be recalled that there is an exception which enables holders of offices of honour to bring a slander action without proof of actual damage where the slander is not of misconduct in his office but is such as would enable the Claimant to be removed from or deprived of his office. The existence of this exception appears clearly from the speech of Lord Herschell in Alexander v. Jenkins [op cit] at page 802:

“…where the imputation is an imputation not of misconduct in an office, but of unfitness for an office, and the office for which the person is said to be unfit is not an office of profit, but one merely of what has been called honour or credit, the action will not lie, unless the conduct charged be such as would enable him to be removed from or deprived of that office”.

The imputation in the present case was not that the Claimant was unfit for either of his offices. However, on the evidence in the present case I am satisfied that there was a general power of removal from both of the offices held by the Claimant at the material time. As to the nursery school, the articles of association of the Talmud Torah Beit Yosef enable the office of trustee to be vacated if he or she is removed from office by ordinary resolution of the company in general meeting. As I have said at paragraph 12 above, the sole shareholder was the Beit Yosef Foundation, of which there were three trustees, namely the Claimant, Mr Citron and Rabbi Moshe Cohen who held equal votes. A majority of those votes would enable the Claimant to be removed from his office at the school. As to the Beit Yosef Foundation, I accept that there is a power of removal vested in the Charity Commissioners: see Halsbury’s Laws on Charities vol. 5(2) at paras 267-270. In the present case there is a dispute as to the words which were spoken by the Defendant in the various conversations sued on. In the circumstances I need say no more than I accept that a jury, properly directed, could without perversity decide that the conduct alleged against the Claimant by the Defendant was such that there existed a power to remove him from his offices on account of such conduct.

Accordingly I decline to enter judgment for the Defendant on the claims in slander.