Joseph & Ors v Spiller & Anor

The Claimants are members of the musical act "The Gillettes". At the time of the events that form the subject of this action they performed as a trio in venues across the country, at wedding receptions and other events, under several different names, doing about 100 to 130 performances on average each year. They were working full time in partnership as professional freelance singers. Sometimes they made bookings through agents, and sometimes direct with clients. The First and Second claimants are brothers. Mr Joseph is the de facto manager of the trio. I shall refer to the First Claimant as “Mr Joseph”, and to the Second Claimant as “Mr Jason Joseph”.

The First Defendant (“Mr Spiller”) was one of the two directors of the Second Defendant (“1311 Events”) (the other being Mrs Spiller). Working from home, they provided entertainment booking services and advertised acts and performers on their website for weddings, drinks receptions, corporate entertainment and other events. They charge a commission which is a percentage added to the performance fee quoted by the artist.

Each of the Claimants and the Defendants are very experienced in their respective fields of activity. In 2004 Mr Spiller saw the Claimants and formed a good impression of them. On 13 October 2004 Mr Joseph agreed that the Claimants could be promoted by the Defendants. Until the events in 2007 that gave rise to this dispute, each party respected the quality of the other’s work. There had been a problem with only one booking (“the Landmarc booking”) made through 1311 Events. That had arisen in 2005, and it will be necessary to return to it.

The dispute between the parties arose out of the booking which the Defendants made with Bibis restaurant in Leeds (“the Bibis booking”) for a performance on 31 December 2006. Shortly before the performance Mr Spiller had a disagreement with a new manager at Bibis, following which it seems as if everything that could go wrong has gone wrong, both in the relationship between the parties, and in the course of this litigation.

The Defendants maintain a website. It includes information about the artists whom 1311 Events represents. Shortly after 27 March 2007 the Defendants posted on the website the words which the Claimants complain of in this libel action (“the posting”). The words of the posting included the following:

"The Gillettes

1311 Events is no longer able to accept bookings for this artist as the Gillettes c/o Mr Joseph are not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract. …

The artist is known as:

The Gillettes, Saturday Night At The Movies, 4 Play plus, Craig Joseph.

Profile

The Gillettes sing soul and motown…

What we say:

The show is an enjoyable soul and motown experience which is popular for many events throughout the UK. However, following a breach of contract, Mr Joseph who runs The Gillettes and Saturday Night at the Movies has advised 1311 Events that the terms and conditions of '…contracts hold no water in legal terms' (27.03.07). For this reason, it may follow that the artists' obligations for your booking may also not be met. In essence, Mr Joseph who performs with/arranges bookings for the Gillettes and Saturday Night at the Movies may sign a contract for your booking but will not necessarily adhere to it. We would recommend that you take legal advice before booking this artist to avoid any possible difficulties.

Instead we recommend any of the following professional bands and artists… (emphasis original)".

The posting was accessible for six weeks in April and May 2007. It was removed sometime shortly after 1 June 2007, following a letter of complaint from Equity on behalf of the Claimants.

On 4 August 2007 the Claimants performed at the wedding of Mr C ("the C Booking"). That is the one booking made by 1311 Events for the Claimants which had not yet been performed on 27 March (and it is referred to in the e-mail of that date from which there is a quotation in the words complained of).

In February 2008 the posting was inadvertently uploaded to a part of the 1311 Events' site where it could be accessed on a limited basis. It remained there until after 16 April 2008. The posting was removed following a solicitor's letter on behalf of the Claimants. On 7 May 2008 the Claimants issued their Claim Form.

The first, and often the most important, question in a libel action is whether the words complained of are defamatory, and if so, what they mean. In deciding this question, the court is not concerned with any meaning which is not defamatory. If a meaning is not defamatory, there can be no claim in libel in respect of it.

The Practice Direction to Part 53 of the CPR requires that the Claimants in a libel action specify in the particulars of claim the defamatory meaning or meanings which they allege that the words complained of conveyed. Where (as here) defendants allege that the words complained of are true, or are honest comment, the defendants are required to specify the defamatory meaning which they seek to justify, or defend as honest comment. It is for the court at trial to decide whether the words complained of are defamatory of a claimant, and, if so, what defamatory meaning they bear. A defendant must also give details of the matters on which he relies in support of any defence of justification or honest comment.

The trial court is not bound by the meanings pleaded by either party. But the court will not attribute to the words complained of a meaning more serious than the meaning attributed to them by the claimant. And it is in any event helpful to the court to have regard to the meanings which each party attributes to the words complained of.

The words complained of may contain a number of different allegations, and so a number of different meanings. The court is not concerned with what the writer or publisher intended, nor with what any actual reader may have understood, still less with what the claimants understood. The meaning (or each of the meanings where there are multiple allegations) must be a single meaning, that is, a meaning which the court finds would be understood by the hypothetical reasonable reader (Slim v Daily Telegraph [1968] 2 QB 157).

Where the judge is sitting without a jury, as I am in this case, the judge must decide what the words mean. In deciding what meaning the hypothetical reasonable reader would attribute to the words complained of, the court must adapt the well known test which is applied where the issue before the court is what meanings the words complained of are capable of bearing. That test was most recently set out by Sir Anthony Clarke MR in Jeynes v News Magazines Limited [2008] EWCA Civ 130 at paras 14 and 15. It is as follows:

"The legal principles relevant to meaning … may be summarised in this way: (1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any "bane and antidote" taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) … the court should rule out any meaning which, "can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation…" (8) It follows that "it is not enough to say that by some person or another the words might be understood in a defamatory sense".

There is no dispute that the hypothetical reasonable reader of the words complained of in this action is a prospective client, that is, a person who is contemplating engaging artists to sing at an event, and is looking for such artists on the web. The context and mode of publication of words is important in deciding what those words mean.

In the Particulars of Claim, in their original and in their amended form, the Claimants specified the defamatory meaning or meanings which they alleged that the words complained of conveyed as follows:

"…the Claimants are grossly unprofessional and untrustworthy and will not, and/or are unlikely to, honour any bookings made for them to perform either as The Gillettes or as Saturday Night at the Movies."

The Particulars of Claim were re-amended on 27 January 2012. From that date that meaning is deleted, and the meaning which the Claimants now attribute to the Defendants’ posting is:

“… [Mr Joseph] has stated in writing, on behalf of the Claimants, that as far as they are concerned the terms of and conditions of contracts do not hold water in legal terms. Thus it is highly likely that, even after entering into a contract to perform, they will not bother turning up to honour such a commitment”.

In the Re-Amended Defence the Defendants plead the defences of justification and honest comment. They have specified the following meanings as those which they seek to defend as true, or as honest comment:

"6.1

The [Mr Joseph] on behalf of the claimants has :-

6.1.1.

Conducted himself in such a manner so as to entitle the defendants to conclude that 'The Gillettes' were not sufficiently professional to feature in the second defendant's portfolio.

6.1.2.

Breached the terms of agreements with the second defendant.

6.1.3.

Demonstrated a contemptuous, cavalier and unprofessional attitude to the contractual obligations as evidenced by his email of 27 March 2007.

6.1.4

Behaved in an unprofessional and untrustworthy manner

6.2

In the circumstances, the claimants may not necessarily adhere to the terms of booking agreements signed by [Mr Joseph]."

Although the words must be read as a whole, it is necessary to consider the words complained of in this case in two separate stages. This is because Mr Bennett submits that parts of the words complained of are not defamatory. The submission is made by Mr Bennett because of the change in the pleading of the meaning in the Re-Amended Particulars of Claim. By the change made in February 2012 in the Re-Amended Particulars of Claim the Claimants seek to narrow their complaint.

The first stage relates to the words:

“1311 Events is no longer able to accept bookings for this artist as the Gillettes c/o [Mr Joseph] are not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract. … Instead we recommend any of the following professional bands and artists…”

Mr Bennett states that the claimants no longer complain of these words because they are not defamatory. He argues that it is not defamatory to say of claimants that they have not reached a certain professional standard, or that they have not been able to abide by the terms of their contract. There may be all sorts of reasons why a person may not have reached a certain professional standard, or have failed to abide by the terms of a contract. He cites Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985, [2010] EWHC 1414 (QB), [2010] EMLR 25. At para 96 of that case I adopted the following definition of what is defamatory of a claimant:

“the publication of which he complains may be defamatory of him because it [substantially] affects in an adverse manner the attitude of other people towards him, or has a tendency so to do”.

Mr Price submits that in the context of this case, the words set out in para 19 are defamatory.

In my judgment Mr Price is clearly correct. The Claimants are referred to in the words complained of as a professional band, willing to accept bookings to perform at wedding receptions and other events, and as having formerly been available through 1311 Events, which is a professional agency. For persons in the position of the Claimants it is plainly defamatory to say of them that they are “not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract”.

However, since (by the Re-Amendment to the Particulars of Claim) the Claimants no longer complain of those words, the question then arises whether the Defendants are permitted to rely on a defence of justification or honest comment in respect of that defamatory allegation.

Where a publication contains two or more distinct defamatory allegations, a claimant is entitled to select for complaint only one (or more) of these. If he does, then the defendant is not entitled to seek to justify the allegations of which the claimant does not complain: Cruise v Express Newspapers Ltd [1999] QB 931, as discussed in Duncan & Neill on Defamation 3^rd ed para 12.38 to 12.39. But the claimant has that choice only where the defamatory allegations are distinct.

In my judgment it cannot be said that the allegation in the words set out in para 19 is distinct from the allegation in the rest of the words set out in the Particulars of Claim. The words under the heading “What we say” include an allegation of breach of contract. And the words “we recommend any of the following professional bands” refer back to the words under the heading “What we say”, as well as to the earlier words.

So the Defendants are entitled (if they can) to prove in their defence that the words set out in para 19 are true, or honest comment.

There is a further question on meaning. The meaning pleaded by the Claimants is in one respect a more serious meaning than the meaning pleaded by the Defendants. The Claimants submit that the words complained of mean that

“as far as they are concerned the terms of and conditions of contracts do not hold water in legal terms. Thus it is highly likely that even after entering into a contract to perform, they will not bother turning up”.

The Claimants say that the posting refers to them breaking contracts (in the plural) and not just one contract they made with 1311 Events. So the question arises whether the words complained of bear that more serious meaning.

In my judgment the words complained of clearly do refer to contracts (in the plural) and not just to one contract. But I do not accept that the words complained of would be read by the reasonable reader as meaning that it was highly likely that even after entering into a contract to perform, the Claimants will not bother turning up.

The risk is explained in the words complained of as being that “they may sign a contract … but will not necessarily adhere to it”. The reader will have read, in the previous sentence, the reference to “artists’ obligations” in a contract between a client and an artist. So the reasonable reader will understand that not adhering to the contract may occur without the artist failing to turn up altogether.

In my judgment the meaning of the words as to the level of risk is not “highly likely”, but “a real possibility”. And the nature of the risk is not that the claimants will not turn up at all, but that they may not abide by all the terms of the contract as to the artists’ obligations.

In my judgment the words complained of bear all the meanings pleaded by the Defendants in paras 6.1 and 6.2 of the Re-Amended Defence. They also bear the further meaning that there is a risk (amounting to a real possibility) that the Claimants may not abide by all the terms of any contract with a client setting out the artists’ obligations (“the ‘risk to clients’ meaning”).

The reader may notice in para 74 below that the meaning I have found as to the level of risk conveyed by the words complained of is similar to that accepted by Mr Spiller in para 29 of his first witness statement (“may well”), but I did not have that in mind when I reached my own conclusions on meaning.

A further question that may arise on meaning is whether a meaning is a statement of fact or a statement of opinion (comment). I shall return to this question later in this judgment, after setting out the defences that the Defendants raise.

The Defendants rely on each of the two defences, justification (truth) and honest opinion. This defence has long been known as fair comment, and more recently referred to as honest comment. But I shall from hereon adopt the more recent practice of referring to it as honest opinion, because that more accurately conveys what the defence is.

The facts relied on in support of the plea of truth are:

The Defence then pleads honest opinion in relation to the parts of the posting, and the Defendants rely on the facts summarised in paras 36(a) and (b) above in relation to the plea of justification as facts upon which that opinion was based. The parts relied on as opinion are:

"'The Gillettes' c/o [Mr Joseph] are not professional enough to feature in our portfolio…it may follow that the artists' obligations for your booking may also not be met. In essence, [Mr Joseph] who performs with/arranges bookings for 'The Gillettes' and 'Saturday Night at the Movies' may sign a contract for your booking but will not necessarily adhere to it."

In their Amended Reply the Claimants raise a number of issues on the matters pleaded by the Defendants in support of the defences of truth and honest opinion to which it will be necessary to return.

As to the plea of honest opinion, they also allege malice on a number of grounds. (1) They plead that Mr Spiller did not believe that Mr Joseph had referred to “contracts” (in the plural) in his e-mail of 27 March, and he deliberately made his posting misleading. (2) Mr Spiller did not believe that any breach of the contract between the Claimants and their agent 1311 Events gave rise to any risk that the Claimants would act in breach of a contract made with a client, and Mr Spiller did not believe that there was any such risk, or certainly not a risk such that a client ought to consult a lawyer before making an agreement with the Claimants. (3) Mr Spiller was motivated to take revenge against the Claimants for a breach of contract between the Claimants and 1311 Events which had arisen because of his own rude behaviour towards Ms Dawes at Bibis meant (as he well knew) that she would not make any bookings through 1311 Events again. In colloquial terms the Claimants allege that, even if they were in breach of their contract with 1311 Events when they accepted the booking for May 2007 direct from Bibis, what Mr Spiller did when he found out about it was to act as a dog in the manger because he did not want the Claimants to get away with breaking their contract with 1311 Events.

This case has already been considered in the Supreme Court because of issues that were raised in the pre-trial hearings as to the law on honest opinion. It had been due to be tried with a jury on 8 June 2009. On 12 May 2009 the Claimants applied to strike out parts of the Defence. Eady J struck out the defence of honest opinion, defences of qualified privilege, and part of the defence of truth. On an appeal to the Court of Appeal, that court upheld the order to strike out the defence of honest opinion, but on a ground different from that relied on by Eady J. The Defendants then appealed to the Supreme Court, who re-instated the defence, and to whose judgment I shall refer to below.

It is generally a complete defence to a libel action that the words complained of are substantially true. In applying this rule the court must not be too literal in its approach, and must allow for some degree of exaggeration. But if the defendant cannot prove that the words complained of are substantially true, then, subject to the Defamation Act 1952 s5, the defence will fail. See Gatley on Libel and Slander 11^th edn para 11.9ff.

The Defamation Act 1952 s5. provides:

“In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truth of the remaining charges.”

Matters may become more complicated if a single publication contains more than one allegation, only one of which is proved to be true. It is not always easy in practice to decide whether words complained of contain two charges which are distinct, or two charges which have a common sting.

Facts or events which occur subsequently to the publication of the words complained of may be relied on if they are apt to prove the truth of the words complained of. This most often occurs where the words complained of convey a general imputation. See Gatley on Libel and Slander 11^th edn para 11.8.

Matters may also be complicated by the fact that, as here, a publication is made over an extended period. I shall return to consider the law in more detail when I have set out my findings of fact on what is true and not true.

The elements of the defence of honest opinion were authoritatively set out in the judgment of the Supreme Court in Spiller v Joseph [2010] UKSC 53; [2010] 3 WLR 1791 at paras [3], [4] and [105] as follows:

"[i] … First, the comment must be on a matter of public interest. ….

[ii] Second, the comment must be recognisable as comment, as distinct from an imputation of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere, for example, justification or privilege. Much learning has grown up around the distinction between fact and comment. For present purposes it is sufficient to note that a statement may be one or the other, depending on the context. Ferguson J gave a simple example in the New South Wales case of Myerson v. Smith's Weekly (1923) 24 SR (NSW) 20, 26:

'To say that a man's conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things and that his conduct was dishonourable is a statement of fact coupled with a comment.'

[iii] Third, the comment must be based on facts which are true or protected by privilege: see, for instance, London Artists Ltd v Littler [1969] 2 QB 375, 395. If the facts on which the comment purports to be founded are not proved to be true or published on a privilege occasion, the defence of fair comment is not available.

[iv] Next the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based.

[v] Finally, the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views: see Lord Porter in Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, 461, commenting on an observation of Lord Esher MR in Merivale v Carson (1888) 20 QBD 275, 281. It must be germane to the subject-matter criticised. Dislike of an artist's style would not justify an attack upon his morals or manners. But a critic need not be mealy-mouthed in denouncing what he disagrees with. He is entitled to dip his pen in gall for the purposes of legitimate criticism: see Jordan CJ in Gardiner v Fairfax (1942) 42 SR (NSW) 171, 174.

These are the outer limits of the defence. The burden of establishing that a comment falls within these limits, and hence within the scope of the defence, lies upon the Defendant who wishes to rely upon the defence.

[vi] A Defendant is not entitled to rely on the defence of fair comment if the comment was made maliciously".

Mr Bennett accepts that the subject matter of the posting was a matter of public interest. Mr Bennett also accepts that the words relied on as comment are recognisable as such, rather than as statements of fact. As Lord Phillips said of the words set out in para 37 above:

“Pill LJ held that the words in their posting identified by the defendants as comment were, indeed, comment rather than allegations of fact …. Pill LJ did not refer to authorities which indicate that, if there is an issue of whether words are fact or comment, this is a matter for the jury. His finding can be upheld on the basis that the words in question are unarguably comment, and it has not been challenged in this court”.

The Claimants deny that the facts relied on by the Defendants to support this defence were true.

Further there is the Defamation Act 1952 s.6, which provides:

“In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.”

As to malice, the Supreme Court concluded at paras [68], [69] and [108] (adopting the view of Lord Nicholls expressed in Tse Wai Chun Paul v Albert Cheng [2001] EMLR 777; [2000] HKCFA 35 para [75]) that:

“The fact that the Defendant may have been motivated by spite or ill-will is no longer material. The only issue is whether he believed that his comment was justified.”

It follows that the allegation that Mr Spiller was motivated by vengeance is not by itself sufficient to establish malice. But before deciding whether a person believes what he has said, the court may naturally have regard to any motive that that person might have had for saying something which he does not believe.

In order to decide whether or not the Defendants have proved their defences, it is necessary to consider the facts leading up to the dispute. Some of these are not in issue. On others I have to make findings of fact. The outstanding issues on this defence are: (1) whether the words identified as being the basis of the opinion were true and (2) whether Mr Spiller actually believed the opinion that he expressed.

The Supreme Court held at para [125]-[126]:

“Pill LJ held, at para 42, that the Defendants could not rely on the Bibis breach. He said that there was no reference to it in the words complained of. That is not correct. The statement that the claimants had "not been able to abide by the terms of their contract" and the reference to "following a breach of contract" were references to the Bibis breach. As I understand it, however, the reason why Pill LJ held that this could not be relied on was that the posting did not identify the contract that had been broken, still less the term allegedly breached, so that the reader was not in a position to evaluate whether the breach justified the comment.

For the reasons that I have given I do not consider that this was necessary. The posting sufficiently identified the breach as part of the subject matter of the comment, albeit that the breach was not particularised. It follows that the defendants are entitled to rely upon the Bibis breach to support their defence of fair comment.”

Mr Spiller explains, as is not in dispute, that a booking may initially be made by phone or electronically. But the client and the artist are each required to sign an agreement with 1311 Events in its standard form. He refers to the form signed by the client as a “booking form”, and the form signed by the artist as a “booking contract”. Each of these two forms incorporates terms and conditions. These include what the parties refer to as “the Re-engagement Clause”. So this is binding on both the client and the artist. It reads as follows:

“The client and artist agree that subsequent bookings within a 12 month period, from any artist provided by 1311 Events will be booked directly 1311 Events and not with the artist directly”.

On 19 April 2006 Mr Joseph signed the booking contract in relation to the performance to be given on 31 December 2006 at Bibis. In February 2007 the Claimants agreed directly with the venue a further performance at Bibis on 9 May 2007. 1311 Events were not informed of this, and Mr Spiller came to learn of it when he received a copy of a newsletter from Bibis which Bibis sent to everyone on their e-mail distribution list. That mentioned the event to take place on 9 May. The commission for the New Year’s Eve performance had been £300, but bands can charge more for that night. The commission that 1311 Events would have earned if the May 2007 booking had been made through it would have been less. It is that modest sum that has led to all this.

Mr Spiller did not enquire from Bibis or from Mr Joseph why they had each breached the Re-engagement Clause in that way. He did not need to, because the reason was obvious to him. The Bibis booking had been made between Mr Spiller and a Ms Harvey. She was the Public Relations and Marketing Manager at Bibis restaurant from October 2003 to August 2006. She had regularly made bookings through 1311 Events and was happy with the service that Mr Spiller provided. When she left the new manager was a Ms Dawes (she has since married and changed her name, but I will refer to her by the name she used at the time).

Ms Dawes gave evidence. She gave me the impression of being a person used to holding responsible positions in management, and well able to conduct a business negotiation or conversation. Although there are some differences in recollection between Ms Dawes and Mr Spiller, certain matters are not in dispute. It is not in dispute that shortly after she took up her position there was a telephone conversation between Ms Dawes and Mr Spiller which went very badly.

Exactly why Ms Dawes and Mr Spiller fell out matters only because of what she later told the Claimants about what had happened. And what she told the Claimants is not in dispute.

According to her witness statement made in July 2010, Mr Spiller was rude, unfriendly and talked to her as if it was too much trouble for him to send to her promotional CDs which, he complained, he had already sent to her predecessor. He said she should look in her office, which she had already done. He did reluctantly agree to send her what she asked for, and he did send it. When the Claimants arrived at Bibis on 31 December 2006 to perform their act, Ms Dawes told them her version of the falling out with Mr Spiller. She told them that she had been very unhappy with Mr Spiller’s attitude and made clear that she would not work with him again. But she was pleased with the Claimants’ performance.

Mr Spiller made a detailed witness statement on 18 March 2009. All he said about Ms Dawes in this statement was:

“In 2006 [Ms] Harvey was in charge of booking entertainments for the restaurant’s dinner dances before [Ms] Dawes took over her role later in the year… My relationship with Ms Harvey was good”.

He made a second witness statement, dated 29 June 2012, in response to a number of witness statements served by the Claimants, including that of Ms Dawes made on 12 July 2010. He raised an issue as to which of the two of them initiated the call. Mr Spiller then stated the following:

“I accept that she asked me to provide some promotional CDs for artists that we represented (not for The Gillettes). I did mention that I had recently sent them, which I had. I deny that I was rude or unfriendly or that there was anything wrong in me saying so. Ms Dawes said that she wanted the CDs quickly and it made sense to say that I had already sent them, particularly since she had recently taken up her role. I accept that Ms Dawes did not react well to me pointing that out. … I was not encouraged by Ms Dawes’ manner towards me during the conversation…”

After the telephone conversation in which he had fallen out with Ms Dawes, Mr Spiller realised that there was little chance of him receiving more work from Bibis. Mr Spiller also accepted that Bibis were an important client for 1311 Events. They booked one quarter of their performances through that agency.

If it is material for me to decide which account of the telephone call was the more accurate one, I preferred the account of Ms Dawes. And having observed them both give evidence, I can understand how a conversation might have gone from bad to worse.

I note that Mr Spiller did not volunteer an account of this very important incident in his first witness statement, and he appeared hesitant and defensive in his answer about it in cross-examination.

Ms Dawes states, as is not in dispute, that in about February 2007 she telephoned Mr Joseph and said that she wanted to book The Gillettes direct for a performance on 9 May 2007. She explained to him that she was not prepared to use 1311 Events again. Mr Joseph said that she could do that, but that the agreement should be made with Mr Jason Joseph, because Mr Joseph was going to be away. The agreement between Bibis and the Claimants was for a fee of £900, plus VAT. It was made on the Claimants’ form and signed by the parties on 16 and 21 February 2007 respectively.

For much of the long period during which this litigation has been proceeding the Claimants have contended that they were not in breach of their contract with 1311 Events by accepting the booking direct with Bibis. They have raised a number of different legal arguments for submitting that the Re-engagement Clause was not legally enforceable. I do not have to consider any these arguments. By the time the case came on for trial they had abandoned all of them, and accepted that they had acted in breach of the Re-engagement Clause.

However, Mr Joseph said that on 27 March and afterwards he believed that he was entitled to make the booking direct. And Mr Bennett argued that there are degrees of culpability in any wrongdoing. A breach of contract does not itself involve any dishonesty. And in the circumstances that had arisen (the refusal of Ms Dawes to deal with 1311 Events), the action of the Claimants in booking direct with Bibis was a breach of contract low on the scales of both culpability and harmfulness.

So there is now no dispute that the Claimants did act in breach of their contract with 1311 Events by accepting the booking direct with Bibis.

Para 6.1.2 of the Re-Amended Defence is true in respect of one contract: the Claimants did breach the terms of their agreement with 1311 Events made in the booking contract they signed for the Bibis booking. And paras 6.1.1 and 6.1.4 are proved in so far as they allege that in relation to the Bibis booking the Claimants behaved in an unprofessional manner.

As to the “risk to clients” meaning, nothing in relation to this matter gave rise to a risk (amounting to a real possibility) that the Claimants might not abide by all the terms of any contract with a client setting out the artists’ obligations. What the Claimants had done was in response to the invitation of an important client following the unusual event that the client had fallen out with the Defendants, blaming the Defendants for Mr Spiller being rude.

There was some discussion in the Supreme Court of how the trial court should interpret Mr Joseph’s e-mail. In argument Lord Phillips suggested to Mr Bennett that it arguably evidenced a contemptuous and cavalier approach to the Claimants’ contractual obligations in general, and that the misquotation might not be misleading. In the judgment guidance was given at a time when it was expected that the trial would be heard with a jury. In the event the guidance applies to the judge who, when sitting without a jury, has to direct himself in the same way that he would direct a jury. Lord Phillips judgment [124] said:

“Pill LJ held, at para 38, that the defendants could not rely on the first claimant's email because this had been misquoted by the defendants in their posting. I do not agree. That email had, arguably, evidenced a contemptuous and cavalier approach to the claimants' contractual obligations to the defendants. The email as quoted, arguably, evidenced a contemptuous and cavalier approach to contracts in general. So far as concerns the basis of the defendants' comments about the claimants' attitude to their contractual obligations, a jury might take the view that there was no significant difference between the email as sent and the email as quoted. The jury should be directed that if they thought that the email as quoted differed significantly from the email as sent they should disregard it but that otherwise they can have regard to it when considering the defence of fair comment.”

Shortly after Mr Spiller received the Bibis newsletter referring to the performance due to take place on 9 May 2007, he sent an email on 27 March 2007 to Mr Joseph. It is clear that he was angry when he sent it. It reads:

"Craig

It appears you have taken a booking directly with Bibis. We will be instructing our legal team to deal with this. I will also be discussing this with the Musicians Union as it does appear that, aside from having no commitment to those that give you work, you are also not able to abide by the terms of your contract.

'The client and artist agree that subsequent bookings within a 12 month period, from any artist provided by 1311 Events can only be booked directly with 1311 Events'.

Forthwith, we will not be representing you any longer as we can only work with professional artists who can accept our terms and conditions.

Kind Regards

Jason"

The e-mail does not explain what he might be “instructing our legal team” to do “to deal with this”. There were, theoretically, possible legal responses that Mr Spiller could have made to the fact that the Claimants and Bibis had breached the Re-engagement Clause. Mr Spiller could have required the Claimants not to perform, and threatened an injunction to enforce the restrictive covenant. He could have asked for a financial remedy for the loss of the commission that 1311 Events would have earned if the booking had been made through them. The e-mail does not mention either of these possible claims. It only mentions a third alternative, for which no lawyers were required, namely termination forthwith of the relationship between 1311 Events and the Claimants.

In his first witness statement Mr Spiller states:

“11.

…The booking had not been made through us. This was a clear breach of the re-engagement term … and was extremely dishonourable … it seemed clear that Mr Joseph had deliberately decided to go behind our backs. I was very disappointed that he had chosen to act in this manner. It was not so much the loss of commission; it was more the principle that he should deliberately negotiate a booking with our client to the exclusion of 1311 Events. It was not the first time he had let us down…

16.

As a result of [Mr Joseph]’s conduct in going behind our backs to breach the Re-Engagement term (following on from his cancellation of the Landmarc booking) I concluded that … [the Claimants] were not sufficiently professional to feature in our company portfolio… I also referred [in my e-mail] to taking legal action. I decided that this would not be worthwhile bearing in mind the amount at stake. As I said, I was more concerned with the principle…

29 … I did not deliberately alter the words of the email. … I accept that there is an inaccuracy in the extract that has been quoted, but deny that it has distorted the overall message of the posting. It is clear that what I am saying is that Mr Joseph has not abided with his contract with us and that makes me believe that he may well do the same with others”.

Mr Spiller gave oral evidence that he knew a lawyer in Liverpool. I accept that evidence. But it was always obvious to him that taking legal action would not be worthwhile, bearing in mind the amount of commission at stake. I find that he never had any intention of seeking legal redress, and that it was not true to state, as he did in the e-mail that “We will be instructing our legal team to deal with this”. He had no intention of doing that. I shall consider the Landmarc booking below.

Mr Joseph responded later that day. Unfortunately, he had been provoked into anger by Mr Spiller’s e-mail. His e-mail shows signs of being written in haste. It read as follows:

"Hi Jason

It appears you do not know the meaning of freelance, that is what all my shows are. You are part of a cog which supplies all agents and artitses [sic] alike with work, one does not work without the other.

You came to me Jason after viewing the quality of our show, your contract is mearly [sic] a formality and holds no water in legal terms. You should consider looking after your clients/venueus [sic] better then maybe you would not lose them. Do not be fooled into thinking you can lose venues and reep [sic] the benefits from others hard work, that does not hold any legal value any more. You [sic] offer of work to my shows over the years was minimal and neither helped nor hindered our diary.

I am not performing in the show, and since your agreement and terms was with me there are no grounds for your terms and conditions.

Thers [sic] is one outstanding show with you guys Aug 4^th o7 we will honour the show as we have all the other shows through your agency, providing you make sure the balance fee £900.00 + vat. TOTAL = £1057.50 is in our account 2 weeks prior to the show date, thus avoiding any cancelation [sic] of the show. Please confirm this can be organised within 7 days or I will cancel the date.

I look forward to any legal trysts.

Kind regards

Craig (On behalf of the Gillettes)"

The words “You should consider looking after your clients/venueus [sic] better” were a plain reference to the falling out between Mr Spiller and Ms Dawes. But that is not how Mr Spiller dealt with it in his first witness statement. There he wrote:

“The second paragraph of the email advised me to look after bands and venues better. There had been no previous suggestion that we had failed to look after him or any of the venues that we had booked. No explanation was given for what he said. The only problem that had been encountered with the band was the cancellation of the Landmarc booking which was obviously not our fault. Our relationship with Bibis had always been good … Once again this looked like an obviously bogus attempt to justify what he had done.”

In the light of the statement of Ms Dawes, and the admissions that Mr Spiller had to make in his second witness statement, the words cited in para 77 are highly unsatisfactory. Up to the point where he said “Our relationship with Bibis had always been good”, the words cited are literally true. But they are misleading, because he knew perfectly well what the explanation was for what had happened, namely his falling out with Ms Dawes. And in his second witness statement he admitted that since the appointment of Ms Dawes, his relationship with Bibis had not been good. In fact he knew it had broken down completely. So the statement that as at March 2007 it had always been good was not true.

The paragraph in Mr Joseph’s e-mail starting “I am not performing …” is a reference to the fact that the agreement for the May 2007 performance had been made between Bibis and Mr Jason Joseph. The Claimants now accept that that does not provide any good answer in law to the Defendants’ contention that the Claimants were in breach of contract.

The paragraph in Mr Joseph’s e-mail starting “Thers [sic] is one outstanding show…” was a reference to the C Booking. The Claimants accept that they were not entitled to cancel that booking if 1311 Events refused the demand to pay in advance. 1311 Events did not pay in advance, and the Claimants did not cancel the booking. They carried out the performance in accordance with the booking made through 1311 Events.

There is an issue as to whether the Claimants’ e-mail refers to only one contract or to contracts in the plural. This issue arises because in the words complained of there is a misquotation from Mr Joseph’s e-mail. The e-mail reads “your contract is mearly [sic] a formality and holds no water in legal terms”. The purported quotation in the words complained of reads “The Gillettes … advised 1311 Events that the terms and conditions of …contracts hold no water in legal terms' (27.03.07).” In the words complained of the noun “contracts” and the verb “hold” have both been altered, so as to be in the plural instead of the singular.

Whether or not this alteration was deliberate may not be of any relevance. But in case it is relevant, I find that the alteration was deliberate. I reach that conclusion in part because both those two words have been altered, but mainly because of my finding (set out below) as to what Mr Spiller believed.

Mr Bennett submits that, as altered, the words complained of are untrue. He submits that Mr Joseph had only claimed that one contract did not hold water, namely the Bibis booking, and that the only term of that contract that Mr Joseph was challenging was the Re-engagement Clause. Moreover, in the e-mail Mr Joseph advanced grounds for challenging the validity of that clause (even if those grounds have later been abandoned). He submits that it is necessary to look at the grounds in order to assess whether the challenge to the validity of the contract applied to only one contract, or to more than one contract.

Mr Price submits that the change from the singular to the plural (in the words “contract”) does not result in any inaccuracy. He submits that Mr Joseph’s reasons for disputing the validity of the Re-engagement Clause are reasons which would apply to all contracts made by 1311 Events, since the Re-engagement Clause is a printed term in all their contract forms. He places emphasis on the word “formality” in the words “your contract is mearly [sic] a formality”.

However, Mr Bennett notes that in the e-mail of 27 March Mr Joseph wrote in the next sentence:

“You should consider looking after your clients/venueus [sic] better then maybe you would not lose them. Do not be fooled into thinking you can lose venues and reep [sic] the benefits from others hard work, that does not hold any legal value any more.”

If this is to be understood as a reason being advanced for saying that the contract “holds no water in legal terms”, then it is a reason that applies only to a contract where the relationship between 1311 Events and the venue has broken down because 1311 Events has not looked after the venue as it should have done. On that understanding, Mr Joseph’s argument would not apply to contracts in the plural. It was an argument specific to this particular engagement.

I have in mind the judgment of the Supreme Court. Nevertheless, in my judgment, the submission of Mr Bennett is to be preferred. Neither of the parties to this e-mail exchange are lawyers. But they are both intelligent men, with great experience of bookings of the kind made with the use of the forms printed for 1311 Events.

Mr Josephs’ e-mail must be read in the context of the preceding relationship between the parties. The Claimants had signed a number of such agreements with 1311 Events in the past. With the exception of the Landmarc booking, there had been no problems, and nothing to suggest that the Claimants thought that such contracts generally “hold no water in legal terms”. As will appear below, although they were in breach of the Landmarc booking, the Claimants had been punctilious in abiding by those terms of the Landmarc booking which specified what an artist had to do if the artist cancelled the booking after it had been agreed. They had admitted that they were in breach and had not challenged the legal validity of the contract.

The only reasonable reading of Mr Joseph’s e-mail is that he was were referring back to Mr Spiller’s contention that The Gillettes had acted in breach of the Re-engagement Clause. Mr Joseph was defending themselves by arguing that in this particular booking that clause was not binding for reasons which depended upon the specific fact (as he alleged it to be) that 1311 Events had not looked after the client/venue. There was a factual basis for this allegation, namely the admitted falling out between Mr Spiller and Ms Dawes, whether or not that factual basis amounted to a legal ground for not complying with the requirement of the Re-engagement Clause.

Mr Spiller in his first witness statement sought to prove that the Claimants had demonstrated a contemptuous, cavalier and unprofessional attitude to contractual obligations by falsely asserting that (as at 27 March 2007) “our relationship with Bibis had always been good”, when he knew that his relationship was at an end so long as Ms Dawes represented Bibis. There seems to me to be a difference between “contemptuous” and “cavalier” on the one hand, and “unprofessional” on the other.

In my judgment para 6.1.3 of the Defence is not proved by Mr Joseph’s 27 March e-mail. The Claimants did not demonstrate a contemptuous, cavalier attitude to contractual obligations as evidenced by this e-mail. Mr Joseph had challenged the validity of the Re-engagement Clause on grounds that could not be supported in law, but it was not a contemptuous or cavalier challenge.

However, I do accept that it was unprofessional for the Claimants to have acted as they did. The problem that faced the Claimants when Ms Dawes called to book direct in February 2007 could have been handled differently. The professional way to handle the problem would have been to seek to find an accommodation, by which the Claimants could accept the booking without Ms Dawes having to deal with Mr Spiller.

I accept that paras 6.1.1, 6.1.3 and 6.1.4 to the Re-Amended Defence are proved to this extent in relation to Mr Joseph’s 27 March e-mail. Mr Joseph had conducted himself in an unprofessional manner, so as to entitle the Defendants to conclude that The Gillettes were not sufficiently professional to feature in the portfolio of 1311 Events.

As to the “risk to clients” meaning, and save for the threat to cancel the C Booking (which is dealt with below), nothing in relation to this matter gave rise to a risk (amounting to a real possibility) that the Claimants may not abide by all the terms of any contract with a client setting out the artists’ obligations. What the Claimants had done was in response to specific and unusual facts which, in any event, had nothing to do with any problem that might be likely to arise as between the Claimants and a client.

The Supreme Court held at para [123] that:

“… the Defendants cannot rely upon the Landmarc breach to support their defence of fair comment. This leaves them with the Bibis breach and the first claimant's email as potential support for their comment.”

Nevertheless, this allegation remains relevant to the defence of truth, and to the state of mind of Mr Spiller.

Mr Spiller recited part of the story of this booking in his first witness statement. The Landmarc hotel is in Bournemouth. In December 2005 it wanted to make a booking for 4 March 2006. At that time Mr Spiller had informed the Landmarc that the Claimants were available, and the Landmarc wanted to go ahead. Mr Joseph confirmed to Mr Spiller that the Claimants were available, both by phone and by signing the booking contract on 17 December, and returning it to Mr Spiller. But about a week later Mr Joseph telephoned Mr Spiller to say that the Claimants would not be able to honour the booking. He said he had made a mistake, and that they had a previous commitment for that night.

Mr Spiller states that this was a clear breach of the booking agreement, and was unprofessional.

As noted in para 74 above, Mr Spiller explained that he reached his conclusion about Mr Joseph’s behaviour in March 2007 on the basis of his “conduct in going behind our backs to breach the Re-Engagement term [in the Bibis booking] (following on from his cancellation of the Landmarc booking)”.

It is for this reason that the Defence pleads that it is to be inferred that the Claimants did not have a pre-existing booking, but that something better came up. Mr Spiller did not believe that the Claimants had booked the venue in North Wales before they accepted the Landmarc booking. If Mr Spiller had accepted that it was a genuine mistake, then the cancellation of the Landmarc booking could not have led him to believe that that incident provided a good reason for publishing the words complained of.

In his first witness statement Mr Joseph stated that the Claimants were double booked with a hotel in North Wales. He had signed a booking in July 2005, but had omitted to enter the booking into his diary, as he should have done. When he realised his mistake, he called Mr Spiller. Mr Spiller was angry. He thought Mr Joseph wanted to cancel the Landmarc booking because he had found something better. In the event, and as required by the terms and conditions of his agreement with 1311 Events, the Claimants paid compensation to the Landmarc. This was £350 plus VAT. He paid this at the end of February through 1311 Events, together with an administration fee of £25, which was payable to 1311 Events itself.

The original documents relating to the Landmarc booking were destroyed in the normal course. For this trial there has been produced a print out dated 2 March 2009 of the contract between the Claimants and the hotel in North Wales. So there is no documentary evidence as to when that contract was made. But the contract is for a fee of “£860.00 + £129.00 VAT = £989.00 Payment via Agency”. Since the contract with the Landmarc was for a fee of £1833.00 inclusive of VAT at £273, the contract with the North Wales hotel cannot be described as “something better”. I infer that it had indeed been made earlier.

Mr Spiller gave evidence about the Landmarc booking in each of his first and second witness statements. He stated that he regarded the Claimants’ cancellation of the booking as unprofessional. I accept that evidence. And in my judgment, although from time to time many professional people make mistakes involving double booking, what the Claimants did was unprofessional. As made clear in his Skeleton Argument for Trial, Mr Spiller no longer alleged by then that the Landmarc cancellation was deliberate.

Paras 6.1.2 and 6.1.4 of the Re-Amended Defence are only partly true in respect of the Landmarc booking. The Claimants did breach the terms of their agreement with 1311 Events made in the booking contract they signed in 2005 for the Landmarc, and that was unprofessional. But that did not evidence a contemptuous or a cavalier attitude to contractual obligations, and it was untrustworthy behaviour.

Further, as to the allegation of malice, in March 2007 Mr Spiller did not believe that the Claimants’ behaviour over the Landmarc booking demonstrated a contemptuous or a cavalier attitude to contractual obligations, or that it was untrustworthy behaviour.

However, para 6.1.1 is proved: Mr Joseph had conducted himself in such a manner in relation to the Landmarc booking so as to entitle the Defendants to conclude that The Gillettes were not sufficiently professional to feature in the portfolio of 1311 Events.

As to the “risk to clients” meaning, nothing in relation to this matter gave rise to a real risk that the Claimants might not adhere to the terms of any booking agreements they might sign with clients. On the contrary, as Mr Bennett submitted, it showed them acting precisely in accordance with the contract after the mistake came to light.

In his email of 27 March Mr Joseph threatened to cancel the C Booking, as set out above. The allegation made in the Re-Amended Defence is that:

“By email of 16 April 2007 to [Mr C] [Mr Joseph] agreed to play an additional 30 minute set provided that he was paid £275 in cash. [Mr Joseph] stated:

‘We can play an additional 30 minute set but we would have to charge an additional £275 (cash) for that pro-rata to the fee we would not charge VAT on that fee and that would be direct to us guys and nothing to do with 1311 Events!’

[Mr Joseph] was thereby seeking to evade paying the First Defendant’s commission on the additional sum as well as VAT and (it is to be inferred) income tax. In [Mr Joseph]’s booking form signed by him on 25 April 2007 he requested that “cash be paid on the night to avoid confusion with paper work and VAT”. It is to be inferred from the manner in which [Mr Joseph] conducted himself in relation to this booking, that he was generally amenable to seeking and accepting cash payments in order to evade the payment of tax.”

The only evidence on this topic is that from Mr Joseph himself and a small number of contemporaneous emails. He made a third witness statement to deal with the point.

Mr Joseph called Mr C to confirm that the engagement was still on. He said that The Gillettes were no longer represented by 1311 Events. In an email of 15 April 2007 from Mr C to Mr Joseph thanking him for this call, he asked for an email confirming the booking for 4 August and asked about the possibility of playing an additional set to the two forty minute sets originally arranged.

In a reply sent on 16 April Mr Joseph gave the confirmation that The Gillettes would be performing at the wedding. It is from that e-mail that there is quoted the words “we can play an additional 30 minute set…” set out in the Amended Defence. Mr Joseph and Mr C each signed an agreement on the Claimants’ standard form on 25 April and 2 May respectively. It includes the following:

“It is agreed that The Gillettes will perform as per contract with 1311 Events already signed and agreed. It is further agreed that The Gillettes will perform a further thirty minute set on top of the already agreed 2 x 40 minute spots contract for a fee of £275.00 no VAT has been added on to the fee, as agreed by email.

Performance Times…

Fee due on night ref 1311 Events £1057.50 inclusive of vat

And a further £275 cash as agreed no vat

Total due on night £1332.50

Please can cash be paid on the night to avoid confusion with my paperwork and vat?...”

On 4 June 2007 at 11.31 Mr C wrote to Mr Spiller by email. He said that he had recently been contacted by the band telling him that 1311 Events were no longer handling their bookings and that the company would not be providing any service for 4 August. He asked for the return of the deposit paid, in lieu of the service that 1311 Events was no longer intending to provide. He complained that the Defendants did not:

“have the decency or professionalism to contact me to tell me of the change of situation. I am sure you realise that this could have had an extremely negative effect on a very important day for us and as such I find the lack of contact not only unprofessional but also uncourteous. If the band had not been professional enough to contact the venue and obtain our contact details it is possible we wouldn’t have known anything of this before our wedding day….”.

At 11.43 Mr Spiller replied by e-mail as follows:

“Thank you for your e-mail we are as surprised as you to discover this as the band leader Mr Joseph has signed a contract with us for your wedding and also confirmed in writing that he will be performing for you. We will look into this Michael and please be assured that your event is extremely important to us and will come back to you shortly with further information”.

At 11.47 Mr C replied repeating his complaints made in his e-mail at 11.31. At 12.10 Mr Spiller replied:

“Thank you for your e-mail. This must be a very difficult situation for you and we do not wish to detract from your special day. Following a dispute earlier this year with [Mr Joseph] 1311 Events has decided not to take any further bookings for The Gillettes. [Mr Joseph] agreed to honour your booking with us so we decided that there was no need to bother you with the situation between 1311 Events and [Mr Joseph]. This was a professional decision as we did not feel it necessary for any of our clients to become embroiled in and agent/artist disagreement. It is a little disappointing that [Mr Joseph] has decided to inform you about this as your event need not have been affected in any way. Our policy for all events is to contact clients three weeks prior to performance to confirm any final arrangements and also for the band leader to introduce themselves and discuss the music. There was no reason whatsoever why your event should have been affected…”

It is to be noted that 4 June, when this exchange of e-mails took place, was a few days after the posting had been removed. Before that it had been publicly available since the end of March.

Mr C’s wedding is said to be relevant to this case for the following reasons: (1) The Defendants say that Mr Joseph’s threat (made in his e-mail of 27 March) to cancel the C Booking supports their defence; (2) The Defendants state that the form of the agreement made directly between Mr Joseph and Mr C shows that the Claimants were ready to avoid paying VAT when that was due, and that fact further supports their defence; (3) the Claimants say that Mr Spiller’s email to Mr C at 12.10 on 4 June 2007 shows that he did not believe that the dispute between the Claimants and the Defendants need have affected the C Booking at all, or that it was necessary for clients to be informed of that dispute. Therefore, it is said, he did not believe his own words in the posting, (which was addressed to the public at large and not to existing clients in particular) in which he said that the Claimants “may sign a contract for your booking but will not necessarily adhere to it”. Further, in that e-mail when Mr Spiller said “[Mr Joseph] agreed to honour your booking with us so we decided that there was no need to bother you…” the Claimants say that that also demonstrates that Mr Spiller did not believe that the Claimants had cancelled, or would cancel, their booking to perform at Mr C’s wedding.

When Mr Spiller wrote in the e-mail at 12.10 on 4 June that Mr Joseph had “agreed to honour your booking with us” he was referring to the last paragraph of Mr Joseph’s e-mail of 27 March. He explained in evidence that that was why he had no reason to contact Mr C.

I find that when Mr Spiller wrote what he did at 12.10 on 4 June he believed that it was not necessary for any of the clients of 1311 Events to become embroiled in the disagreement between the Defendants and the Claimants, and that there was no reason whatsoever why the booking for Mr C’s wedding should have been affected by that disagreement. He believed that the Claimants would honour the booking.

The question then arises as to whether that was also Mr Spiller’s state of mind at any time while the posting was accessible on the website. In his witness statement made in March 2009 Mr Spiller said that the reason that he had decided to remove the posting from the website was not because he believed it to be untrue, but because he did not want to become embroiled in the cost and hassle of a libel claim which would be funded by Equity. He does not suggest that the removal of the posting reflected any change in his own mind.

If Mr Spiller had thought that there was a real risk that the Claimants would not perform at Mr C’s wedding, I have no doubt that, as a professional, Mr Spiller would have obtained assurances from the Claimants that they would honour the booking, and that if there was any doubt about those assurances, they would have made alternative arrangements to ensure that the clients were not affected. The reason why Mr Spiller did not contact Mr C before 4 June was that he did not consider that there was any real risk that the Claimants would not perform.

Accordingly throughout the period when the posting was accessible on the website, I find that Mr Spiller did not believe that there was any real risk that, if the Claimants signed the contract with a client, they would not adhere to it.

I accept the Defendants’ case that the Claimants had no right to make the threat (which Mr Joseph did make in the e-mail of 27 March) to cancel the C Booking if 1311 Events did not make payment in advance.

However, I find that the Claimants had no real intention of carrying out that threat, and that Mr Spiller did not believe that they intended to carry it out.

Paras 6.1.2 and 6.1.4 of the Re-Amended Defence are true only in part as to the threat to cancel the C Booking. The Claimants did breach the terms of their agreement with 1311 Events made in the booking contract they signed for the C wedding, and that was unprofessional. But that did not evidence a contemptuous or a cavalier attitude to contractual obligations, and it was not untrustworthy behaviour.

Further, as to the allegation of malice, in March 2007 Mr Spiller did not believe that the Claimants’ behaviour in threatening to cancel the C Booking demonstrated a contemptuous or a cavalier attitude to contractual obligations, or that it was untrustworthy behaviour.

However, para 6.1.1 is proved: Mr Joseph had conducted himself in such a manner in threatening to cancel the C Booking so as to entitle the Defendants to conclude that The Gillettes were not sufficiently professional to feature in the portfolio of 1311 Events.

As to the “risk to clients” meaning, nothing in relation to this matter gave rise to a risk (amounting to a real possibility) that the Claimants might not abide by all the terms of any contract with a client setting out the artists’ obligations.

In his third witness statement Mr Joseph said that it turned out that Mr C did not want the Claimants to do the additional 30 minutes set, so he was not charged for that.

The explanation Mr Joseph gave for the requirement that he be paid an additional £275 in cash was for two reasons. First, it was his intention to treat that as a fee inclusive of VAT. Second, he wanted to make sure that there were separate payments for that figure and for the sum originally agreed with the Defendants. As to the second point, as Mr Price submits, there was no need to ask for cash in order to ensure that there were separate payments.

As to the suggestion that the Claimants would account for the VAT, Mr Price cross-examined Mr Joseph at length on the accounting documents which the Claimants disclosed. They disclosed these as representing their earnings from all their performances over the period relevant to this claim, whether booked through agents or directly. As Mr Price observed, every entry in those records recorded the fee as a round figure. If the agreement made by Mr Joseph with Mr C for the fee of £275 was indeed a fee inclusive of VAT, then it was unique. That fee does not appear in the Claimants’ accounting records. The explanation Mr Joseph gives for that is that the Claimants did not in fact perform the additional set. For reasons given below, the evidence of Mr Joseph is impossible to believe where it is unsupported by documents or corroborative evidence from another witness. I find that the Defendants have proved that Mr Joseph agreed to a charge of £275 in cash because he intended to evade the payment of VAT.

This is certainly unprofessional and untrustworthy behaviour. But it occurred after the words complained of had been first posted. The implications of that point on timing are discussed below.

As to the “risk to clients” meaning, nothing in relation to this matter gave rise to a risk (amounting to a real possibility) that the Claimants may not abide by all the terms of any contract with a client setting out the artists’ obligations.

It was on 24 February 2012 that the Defendants served a Re-Amended Defence which included for the first time the following as a particular of justification:

“6.20

Mr Spiller [sic] will also rely on the Claimants’ conduct in relation to the present claim. In particular the Claimants have:

6.20.1

Put forward a bogus special damages claim in relation to the cancellation pleaded in paragraph 11(2) of the Re-Amended Particulars of Claim.

6.20.2

Dishonestly claimed that the absence of any reference to the additional payment in relation to the C Booking in their tax papers was because the additional set was not played.

6.20.3

Fabricated a conversation between [Mr Joseph] and [Mr Spiller] in which it is claimed that [Mr Spiller] instructed Mr Joseph not to send any promotional material to [Ms] Dawes of Bibis and that it was not company policy to sent it out again”.

As to para 6.20.2, for the reasons set out above, I accept that Mr Joseph has dishonestly denied in court that the £275 referred to in the agreement between the Claimants and Mr C was agreed to be paid to them in cash in order to evade tax. I make no finding as to whether or not it was actually paid.

Para 6.20.3 refers to a paragraph in Mr Joseph’s first witness statement in which he stated that he had a telephone conversation with Mr Spiller in October 2006. According to this account Mr Spiller told Mr Joseph that if he were to receive a call from someone called Ms Dawes at Bibis asking for publicity material, that he should not send it, but should refer the enquiry to Mr Spiller. Mr Spiller is said to have explained that he had told Ms Dawes that it was not company policy to send out material a second time.

In fact Ms Dawes accepted that she did not ask Mr Spiller for promotional material about the Claimants, and that he did send out the material she asked for a second time. The account of the alleged telephone call is in any event implausible. And having made the findings that I have made in relation to the alleged cancellation of the performance booked for November 2008, I prefer the evidence of Mr Spiller. Further, I also find that Mr Joseph’s evidence on this point is a fabrication.

I therefore turn to the claim for special damages referred to in para 6.20.1, and to the evidence adduced in support of it. The Claimants claim as special damages the loss to them resulting from the cancellation of two bookings. The first is a booking in the sum of £850 to perform on 2 November 2007 for Team Management International Ltd. The second is the cancellation of a booking made by CL in the sum of £1000 to perform on 14 November 2008. The Defendants allege that the second alleged cancellation is a fabrication. Much of the trial was devoted to that issue.

The second booking is pleaded in the re-numbered para 11 from the Particulars of Claim as:

“(2)

Cancellation of a booking made by Mr [CL] in the sum of £1000 to perform on 14 November 2008”.

There has been no challenge to the Claimants’ case that Team Management International Limited cancelled their booking as alleged. Kerry McLeod and Erica Compton own and run the agency Big Foot Events Ltd and have many years experience in that business. They have represented the Claimants for many years. They were surprised at what Team Management International Ltd told them, and tried to save the booking. Their experience was that the Claimants were very professional and reliable, and the Claimants had never let them down. They had obtained about 12 bookings a year for the Claimants.

The history of the claim and defence to the cancellation of the booking to perform on 14 November 2008 is extraordinary. Given the seriousness of the allegations, and since neither CL nor MH have been represented at the trial, fairness requires that they be not named. I have made no findings against them personally.

In his first witness statement made in March 2009 Mr Joseph stated that:

“Unfortunately on 10 April 2008 I got an email from a client [CL] cancelling a verbal agreement, for The Gillettes to perform on 14 November 2008 for a fee of £1000. I returned their deposit as requested. This cancellation was requested because the entry about us on 1311 Events website had reappeared and had been seen by this client.”

The only document produced to support this alleged cancellation is an e-mail purporting to be from CL. It is addressed to the Claimants and is dated 10 April 2008, with the subject being “booking for 14 November 2008”. The e-mail reads:

“Dear Mr Joseph

I am writing to inform you that my partner was on a website yesterday called 1311 events and while looking at their acts he came across your group. The review that they have for you is certainly[sic] not complementary and therefore it is with deep regret that we are going to cancel your engagement to perform for us.

I trust I will receive my deposit in due course. …”

The witness statements exchanged by the Claimants included one by MH. In the event he was not called to give evidence. But Mr Joseph was extensively cross examined on the contents of that witness statement. The statement includes the following:

“3.In March 2008 I started planning my 50^th birthday party for March 2009 for which I intended to book a Temptations/Mowtown tribute act… I intended to book the shows and try them out and if I liked them, use them for my birthday the following March. I was very concerned to make sure the entertainment was really good, especially as I had relatives coming for my birthday party from all over the country and from as far afield as Florida, Los Angeles and Spain.

4.

The Temptations-like act I booked was The Gillettes, for a show on the 14 November 2008. In early April 2008 I made contact with them through their website. I …. spoke to [Mr Joseph] and booked a band. … As it was my intention to book The Gillettes for my birthday, if I liked them, I provisionally booked the band for my birthday in March 2009. Mr Joseph was happy with this arrangement. I cannot recall the agreed fee but I do remember that I agreed to pay a £500 deposit and sent a cheque to Mr Joseph very soon after our telephone discussion for that sum. He sent me some publicity material.

5.

I was still looking for more acts for my birthday. Although I had booked The Gillettes I “googled” that name and came to a posting about them on 1311 Events’ website. Having used that agency before, I was interested to see what 1311 Events had to say. I have been shown a website posting by the solicitors acting for the Claimants and confirm that is what I saw. I was obviously very concerned by this and therefore rang up 1311 Events to ask them what was wrong with The Gillettes. The person I spoke to, who I believe was a man, said The Gillettes were bad time-keepers, unprofessional and did not turn up for shows. I do not know who I spoke to at the agents.

6.

Needless to say I took this very seriously. I have many dealings with agents and have never seen anything negative said by an agency about an act that it represents or has represented. I was really surprised by the posting on the website. In my experience, which is extensive, if you contact an agent who no longer represents an act you are interested in, they will just refer you to the act’s entry in Spotlight or to their new agent. Having read what was on the website and then having spoken to 1311 Events, I was not going to risk the show on 14 November 2008 by booking The Gillettes, let alone my birthday celebrations the following March.

7.

I therefore e-mailed [Mr Joseph] at the e-mail address on 10 April 2008 cancelling The Gillettes. I used my wife’s e-mail address for this. We use each other’s e-mail addresses as we run businesses together. This is why the e-mail reads as if it came from her not me. … I asked for the return of the deposit I paid which was sent back to me by Craig Joseph. The booking and cancellation took place within the space of about three days. …

9.

I have since been told that the dispute between 1311 Events and the Claimants concerned a re-booking provision in 1311 Events’ terms and conditions. I had no idea about this when I cancelled The Gillettes. I was therefore misled by 1311 Events in a dispute that had nothing to do with The Gillettes reliability. Had I known what the dispute was about, I would have used them. They appeared to fit the bill and their dispute with 1311 Events would have been of no use to me. I trusted 1311 Events because of my experience with them in 2003. In my business you have got to trust the agents you deal with.

10.

I have never met Mr Joseph nor had any dealings with him apart from what is described in this statement” (emphasis added).

On 7 April 2009 DPSA, the Defendants’ solicitors, wrote to the Claimants’ solicitors noting that all that had been disclosed was the cancellation e-mail of 10 April 2008. They asked a number of questions including “did your clients know [CL] before she made the booking?” On 16 April 2009 solicitors for the Claimants replied as follows:

“Our clients did not know this client never having had any prior dealings” (emphasis added).

In November 2010 DPSA asked a number of further questions about the email dated 10 April 2008. On 19 November 2010 solicitors for the Claimants wrote:

“[CL] is a dance and drama school. Our client recalls dealing with someone known to him as “Mike”; and this is confirmed by [MH] who recalls the booking and cancellation of it. …”

On 26 November 2010 DPSA wrote saying amongst other things:

“Finally our suspicions in this matter are increased by the fact the letter purported to be from [CL] and actually referred to Mr [MH] in the third person, when we are now told that it was written and sent by him”.

So they then asked whether the Claimants know MH or have had any dealings with him before or after the alleged booking. On 29 November 2010 solicitors for the Claimants replied “… our client did not have dealings with Mr [MH] before this booking nor afterwards”.

On 9 October 2012, the Tuesday before the Monday on which the trial was due to start, solicitors for the Claimants wrote that MH was unwilling to attend court. They repeated that “he makes the point that he had no axe to grind in assisting them, never having met them, nor never having dealings with them beyond the 2008 booking and its cancellation”.

On Thursday 11 October DPSA informed the solicitors for the Claimants that they had evidence that the Claimants performed at MH’s fiftieth birthday party and that they intended serving a witness statement that afternoon. They duly served the first witness statement of Mr Y. He said that until 18 February 2010 he was a vocal coach who had worked for the Academy run by CL and MH. He helped organise MH’s fiftieth birthday party that took place at the Academy and helped set up the party and acted as compere throughout the evening. He said he had seen the Claimants’ website and was certain that they were the individuals that performed at MH’s fiftieth birthday party which, so he was told, had taken place on 28 March 2009. He said he was at the Academy when they arrived to set up in the afternoon, he spoke to them while they were there, did their sound check, and ate with them before the party started.

DPSA then served a further witness statement from another witness who said she had attended the party for MH’s fiftieth birthday party and she too identified the Claimants as a band that had performed.

On 12 October 2012 solicitors for the Claimants did not at first admit or deny that the Claimants had performed at MH’s fiftieth birthday party which took place on 28 March 2009. At 14.02 that day they sent an e-mail stating that the Claimants confirmed that they did not perform at MH’s fiftieth birthday party. They referred to the accounting documents in the trial bundles and said that it could be seen from them that the Claimants performed at Pontins that day. There is an entry for Pontins against that date.

Later that day DPSA wrote that they had now had photographs of the Claimants playing at MH’s party. These were attached. They also said that the dates on the accounting documents were not the dates of the performances, but the dates of receipt of the money in respect of the performances. They served a second statement from Mr Y exhibiting the photographs together with a second statement from the other witness also exhibiting photographs of the Claimants.

On Saturday 13 October DPSA wrote to solicitors for the Claimants directing that they should go to the “Properties” section of the photograph files. There it could be seen from the metadata that the photographs are recorded as having been taken on 28 March 2009.

On the morning of the trial, on 15 October. I was handed a fourth witness statement of Mr Joseph. In it he said that he was making the statement to address the point raised by the Defendants’ solicitors in a note to the court dated 15 October concerning the Claimants performing for or at MH’s birthday party on 28 March 2009. He stated:

3.

The background to this is that in about February 2009 I was contacted by a man who described himself as an associate to a [MH]. He did not give his name. He said that [MH] had numerous venues. He asked if The Gillettes would be interested in playing a short set on what I believe to have been Saturday 28 March 2009 at one of [MH]’s “many venues”. This was to be for charity. He did not know the name of the charity. I was told that there would be no fee, and the set would be good for our band as [MH] had many venues and put many shows on. I was told other bands would also be performing. It is common practice for bands to perform for nothing at venues or for promoters in the hope that they will get recognition and paid work in the future. No birthday party was mentioned. I was told that [MH] had heard negative things about our band, but that he had also heard good things about us and was willing to give the band an opportunity.

4.

I realised that this was the same [MH] who had previously cancelled our gig on 14 November 2008 referred to in my first statement. I saw no reason not to perform as it could be good for the group and we did not have anything booked for 28 March 2009. I was given an address for what I believed was in Bolton and the details of the venue and the time.

5.

Upon arrival we noticed 50^th birthday material around the room. It was clear that the event was a party and not for charity. We performed for approximately 30 to 35 minutes and then left the venue between 9.30 pm to 10.30 pm. Other performers were there and other performers were arriving as we were leaving. I saw what I assumed to be [MH] with his guests, as it was obvious that it was his party. However, we were not introduced and we did not speak to him. I have not spoken to him since the booking for 14 November 2008 was arranged in early 2008. We were not offered any work by him after his party.

6.

The spreadsheets accounts I have provided… refer, under ‘Sales March 09’ to Pontins Hol Camps. We performed at Pontins, Southport in a two day show for that weekend. When I made the entry for this, I must have thought that we had worked on 28 March 2009, but in view of the [MH] party on that day we must have performed at Pontins on 29 March 2009. I have not been able to make contact with the promoters of the event at Pontins to obtain documentary evidence of that booking. I no longer have the contract for this.

7.

In Autumn 2010 my solicitor told me that it was being alleged that I was in cahoots with [MH] in fabricating the cancellation e-mail I received from [CL]… It was also alleged that I had made up the November 2008 booking with [MH] to get my Union’s support to bring the claim after the website posting went up again in early 2008. I admit misleading my solicitor about this. We had performed at [MH] fiftieth birthday party. I was afraid that the fact that we had performed at [MH] birthday party would indicate that we were in cahoots with him with regard to the November 2008 booking. I panicked about this and very stupidly told my solicitor that I had [no] further contact with [MH] after 2008. I am really sorry about this”.

Mr Price submits, and I accept, that Mr Joseph has carried on a sophisticated deception of the court. This involved the putting forward by the Claimants of a witness statement of MH which they knew to be false, and the reliance by them on a false document to mislead the court.

Mr Price invites me to disbelieve, and I do disbelieve, the entirety of the explanation put forward in Mr Joseph’s fourth witness statement made on 15 October. There are many reasons for this. The suggestion that the Claimants had been booked for a charity event, would if it were true, explain why there is no entry in their financial records of their having received any payment. But if they had indeed been booked by an unnamed man for a charity event and then, on arriving at the venue, found that it was not a charity event at all but a birthday party, I do not believe that they would have done nothing about the fact that they had been so deceived. Moreover, the financial records record that they bore the accommodation costs for a singer who they brought to accompany them.

I do not believe that Mr Joseph never met MH at the party. I do not believe that MH left it so late to make a booking for a birthday party to which he claimed to have attached so much importance. There is no good explanation for the inconsistency between the two accounts supposedly given by MH, one in the e-mail of 10 April, and one in his witness statement, as to how he found the entry relating to the Claimants on the website.

Further, I accept the evidence of Mr Spiller that when the posting was mistakenly put up again, it would not have been accessible to a person doing a Google search, though it would have been accessible to someone who already had the URL.

There is a complete absence of any verifiable contemporaneous documents. If there ever was a deposit cheque it was never banked. But it is implausible that there ever was a deposit cheque. In the accounting documents disclosed for the Claimants, there is no record of a deposit being paid.

There are other reasons for disbelieving Mr Joseph’s evidence on this matter, but it is not necessary for me to go into each of them. They are set out fully in the document headed Defendants’ Submissions on Evidence.

The Defendants have proved that Mr Joseph’s behaviour was unprofessional, and that that entitled the Defendants to conclude that The Gillettes were not sufficiently professional to feature in the portfolio of 1311 Events (para 32 above and the meanings pleaded in the Re-Amended Defence paras 6.1.1, 6.1.3 and 6.1.4).

The Defendants have also proved that the Claimants acted in breach of the terms of the agreement made with 1311 Events for the performance at Bibis on 31 December 2006 (para 32 above and the meaning pleaded in the Re-Amended Defence para 6.1.2).

The Defendants have failed to prove that Mr Joseph has ever demonstrated a contemptuous or cavalier attitude to the contractual relations between the Claimants and 1311 Events, whether in his e-mail of 27 March or at all.

The Claimants have proved that Mr Spiller did not believe the opinion he expressed, namely that there was a risk (amounting to a real possibility) that the Claimants might not abide by all the terms of any contract with a client setting out the artists’ obligations (“the ‘risk to clients’ meaning”). In so far as that opinion was based on the February 2007 re-engagement direct with Bibis (para 36(a)) above), that fact is proved. But in so far as that comment was based on the content of the e-mail sent by Mr Joseph on 27 March (para 36(b)) above), the material facts have not been proved: see paras 87 to 91 above).

The Defendants have proved that Mr Joseph acted in an untrustworthy manner when, on 16 April 2007, he first asked Mr C to agree to the Claimants being paid £275 in cash for an additional set for the purpose of evading their liability to pay VAT. But the Defendants have failed to prove that Mr Joseph acted in an untrustworthy manner at any earlier time.

The Defendants have proved that from the time when Mr Joseph first advanced the claim for damages in respect of the cancellation of the November 2008 booking, he was acting in a dishonest and untrustworthy manner, and he throughout intended to, and at the trial he did, lie to the court and produced a fabricated document in support of that part of his claim for damages.

The law on truth and honest opinion is summarised above. This is a case in which the publication complained of contained more than one allegation.

There is a general allegation which the Defendants have proved true, namely that the Claimants were not sufficiently professional to feature in the portfolio of 1311 Events. There is also a specific allegation which they have proved true, namely that the Claimants acted in breach of the terms of the agreement made with 1311 Events for the performance at Bibis on 31 December 2006.

But there are two allegations which the Defendants have not proved to be true, and, in the case of the second, which is an opinion, which the Claimants have proved Mr Spiller did not believe. These are specific, and, in my judgment, more serious allegations than those which they have proved. These two allegations are (1) that Mr Joseph demonstrated a contemptuous or cavalier attitude to contractual relations, and (2) that there was a risk (amounting to a real possibility) that the Claimants might not abide by all the terms of any contract with a client setting out the artists’ obligations.

In my judgment, applying these principles to my findings, and leaving aside Mr Joseph’s conduct of this litigation, the claim would succeed.

Mr Bennett submits that these subsequent matters are irrelevant to the issue of truth. The conduct of this litigation is a matter of fact which occurred subsequently to the publication of the words complained of. The last day on which the words complained of were published was 16 April 2008, and the special damages claim was first advanced on that day, and not before.

Mr Price submits that the court should have regard to all evidence properly before the court in considering whether the defence of justification should succeed or not.

In my judgment the submission of Mr Bennett is correct. It follows in my judgment that there must be judgment for the First Claimant.

The submission of Mr Price that the court should have regard to all the evidence properly before the court on any issue is well founded in relation to the assessment of damages. See Gatley paras 35.29(3) and 35.47.

The evidence of the alleged cancellation of the November 2008 booking was before the court in support of the Claimants’ claim for special damages. Therefore the evidence that it was a fabrication, and the admissions of Mr Joseph in his fourth witness statement, and the evidence he gave in cross-examination, are all matters properly before the court.

Mr Price submits that the conduct of Mr Joseph in deceiving the court throughout these proceedings, including at this trial, is so serious that he cannot be awarded any damages. Mr Bennett was not able to advance submissions to the contrary. Very properly he drew my attention to Gatley para 37.14, which states that the court may award derisory or nominal damages.

In my judgment Mr Price is clearly correct on this point. Mr Joseph cannot be awarded any substantial damages for libel. This includes the undisputed £850 loss referred to in para 137 above. Mr Joseph has abused the process of the court by deliberately pursuing a false claim for special damages. See Fairclough Homes Ltd v Summers [2012] UKSC 26 para [41].

It is true that, massive as it was, this attempt to deceive the court does not affect the whole claim. But in my judgment there would no injustice to Mr Joseph if he is awarded only nominal damages. The vindication of his reputation to which he is entitled has been given in the reasons for this judgment set out above. He requires no further vindication of his rights.

Mr Bennett submits that if I take the course that I have taken in relation to Mr Joseph, it does not follow that Mr Jason Joseph and Mr Raymond should recover no damages.

The evidence of these two claimants was that they left the management of the group to Mr Joseph. The only exception to this, so far as the evidence before me has gone, is that Mr Jason Joseph signed the contract with Bibis for the May 2007 booking which gave rise to this dispute in the first place.

There has been no suggestion that Mr Jason Joseph or Mr Raymond have been dishonest. Their case is that they left the conduct of this claim to Mr Joseph, and that they trusted him.

Mr Price submits that, in so far as they and Mr Joseph are jointly known as The Gillettes, the reputations of these two claimants must suffer by reason of the findings that I have made against Mr Joseph. And no award of damages is necessary to vindicate their reputations from the libel that I have held the Defendants published.

Since Mr Joseph was acting as their agent, as well as for himself, when he abused the process of the court, and since the findings in this judgment vindicate their reputation from the libels that I have found the Defendants published, they too will be awarded only nominal damages.

The Gillettes have succeeded in this action on the merits. They did act unprofessionally by taking a booking direct from the client in breach of their contract with 1311 Events. But, wrong as it was, this action was not cavalier or contemptuous. It was an ill advised response to the fact that 1311 Events had fallen out with the client, who was no longer willing to deal them. There was no risk that The Gillettes might not abide by the terms of any contract between themselves and any client, and Mr Spiller did not believe that there was any such risk. However, because Mr Craig Joseph attempted to deceive the court by fabricating a part of their claim for special damages, The Gillettes will receive only nominal damages.