Citation Plc v Ellis Whittam Ltd

In this action for slander and malicious falsehood the Claimant and Defendant companies are competitors in business. The Claimant pleads that the Defendant is more recently established. The action arises out of words allegedly spoken on 7 April 2011. A claim form was issued on 13 October 2011 and served with Particulars of Claim. The Defence was served on 16 November 2011. On 4 January 2012 the Defendant issued the Application Notice now before the court in which it seeks an order that the claim be struck out and dismissed in its entirety. It is said that it is an abuse of the process of the court pursuant to CPR Part 3.4(2), that the Particulars of Claim disclose no reasonable grounds for bringing the claim and that there is no real or substantial tort.

The business of the Claimant, and as I understand it of the Defendant, is the provision of professional advice and compliance packages to business clients in the fields of employment law, and health and safety regulations. These services include an advice guarantee scheme pursuant to which the Claimant indemnifies the client for losses incurred as a result of following advice given to the client by the Claimant.

The alleged slander was by words spoken to Ms Harris, a representative of a firm of solicitors which was at the time a prospective client of the Claimant. That firm subsequently became a client after some negotiations. So it is not alleged that any actual damage has been suffered by the Claimant.

The person alleged to have spoken these words is a Mr Bostock, an employee of the Defendant who was formerly employed by the Claimant.

The words allegedly spoken are:

“3.1

Citation’s guarantee is not what they say it is… because Citation is self insured and not insured through a broker

3.1.1

It is unable to pay out on claims”;

3.1.2

Further or alternatively to 3.1.1 above “.. it does not pay out on any claims”;

3.2

“Citation does not have any qualified lawyers working for the company”; and

3.3

“With Citation you would not be dealing with employment law lawyers”.

Insofar as the claim is in slander the meaning attributed to the words in the Particulars of Claim is :

“5.1

The Claimant was unwilling or unable to pay out on claims made under its contracts with clients, and was accordingly guilty of mis-selling its products to clients or failing to provide them with what they were bargaining for;

5.2

The Claimant did not have any qualified lawyers working for it and accordingly provided advice to clients from inadequately qualified and/or incompetent employees or agents;

5.3

The Claimant thereby provided an inadequate and second-rate service to its clients, in particular as compared with the Defendant’s, such that prospective clients should steer well clear of it”.

A central issue in the application to strike out is, as pleaded in paragraph 6 of the Particulars of Claim, the admission by the Claimant that it is unable to give particulars of publications to other third parties of the words complained of, or of substantially similar words. In para 6 of the Particulars of Claim it is pleaded:

“Pending disclosure and/or the provision of Further Information herein the Claimant is unable to give particulars of other publications of the said words or words substantially similar thereto to third parties within this jurisdiction, but in the meantime it invites the obvious inference that this was not an isolated incident. It will rely on such publications at trial in support of its claim for damages”.

There is also a claim for malicious falsehood, based on the same words. The particulars of falsity are as follows:

“8.1

The Claimant is able to pay out on claims made by clients under its advice guarantee scheme;

8.2

The Claimant does and would pay out such claims;

8.3

The Claimant does have qualified lawyers working for it;

8.4

The Claimant’s clients do deal with suitably qualified advisors that include employment law lawyers”.

Insofar as the claim in malicious falsehood is concerned, it is based not on actual damage, but on likely damage, pursuant to Defamation Act 1952 Section 3 which reads as follows:

“3 (1) In an action for slander of title, slander of goods or other malicious falsehood, it shall not be necessary to allege or prove special damage—(b) if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication”.

In the Particulars of Claim it is pleaded:

“10.

In support of this averment the Claimant will say that the words were self evidently seriously damaging to the Claimant’s good will, its ability to retain current clients and its ability to attract and win new clients. Whilst the Claimant does not believe it has suffered any loss or likely loss in respect of its relationship with R G Solicitors, it is likely to have suffered loss of business as a result of other similar publications (which as pleaded above it is to be inferred have also taken place) and is likely to suffer such loss in the future unless the defendant is restrained by injunction or offers adequate undertakings as to the future.

11.

Unless restrained by injunction the defendant will continue to publish the said or similar falsehood defamatory statement of and concerning the Claimant and its business in support of this averment the Claimant will refer to and rely on the correspondence between the parties in which the defendant failed and refused to offer an unqualified undertaking not to publish the said statements in the future”.

In the Defence the Defendant denies publication of the words complained of and denies the words bear the defamatory meaning attributed to them in the Particulars of Claim. As to the allegation that it is to be inferred that there were publications to other publishees, the Defendant declines to plead to that on the basis that it is a speculative averment based upon an unsupported inference.

As to the particulars of falsity, again the Defendant pleads that it is unable to respond to the claim in the absence of full and proper particulars which, it is said, the Claimant has refused to provide in correspondence. Accordingly it is pleaded that the Claimant is put to strict proof of the following:

“8.1.1

The amount the Claimant’s coverage under its ‘advice guarantee scheme’;

8.1.2

The amount of the Claimant’s reserves to support its advice guarantee scheme;

8.1.3

The number of clients who have joined the advice guarantee scheme;

8.1.4

The number of the Claimant’s clients who have made claims against the Claimant under its advice guarantee scheme and for how much”.

For the purposes of this strike out application it seems to me the central issues before me are as follows:

CPR Part 53 Practice Direction paras 2.2(2) and 2.4 require that in a claim for slander the claim form, or the particulars of claim, must so far as possible contain the precise words complained of, and the names of the persons to whom they were spoken and when.

The reason for this rule is explained in a number of cases, as are the limited exceptions to it. In Best v Charter Medical Ltd [2001] EWCA Civ 1588; [2002] EMLR 18 p335, Keene LJ repeated the words of Hirst LJ in British Data Management plc v Boxer Commercial Removals plc [1996] 3 All ER 707, 717b-g.

“… we do not find it possible to accept [the] submission that it is invariably necessary for the plaintiff to plead or allege verbatim the exact words of which he complains, provided, as stated by Denning LJ in Collins v. Jones, he sets them out with 'reasonable certainty' which is, in our judgment, the correct test.

It is important to bear in mind the purpose of a statement of claim. It is to enable the defendant to know the case that he has to meet so that he can properly plead his case, with the result that the issues are sufficiently defined to enable the appropriate questions for decision to be resolved. In a libel case the first question is whether the words are defamatory of the plaintiff, which depends on their meaning; unless the plaintiff succeeds on this fundamental issue, his action will fail. Next, a number of questions may arise on defences which the defendant may wish to raise, for example, a plea of justification, which depends on whether the words are true or false, and similarly mutatis mutandis in the case of a plea of fair comment.

This purpose will not be achieved unless the words are pleaded with sufficient particularity to enable the defendant not only to understand what it is that the plaintiff alleges that they meant, but also to enable him to decide whether they had that meaning and, if not, what other meaning they had or could have....

This is why there must in all cases be reasonable certainty as to the words complained of, or in the case of a quia timet injunction what words are threatened, and normally this will require the pleading of the actual words or words to the same effect. Only on this basis can the case proceed properly through the interlocutory and pleading stages to trial and then to the formulation of the questions to be put to the jury and a proper answer to them.”

Ms Phillips submits that para 6 of the Particulars of Claim is not in accordance with the requirement of the Practice Direction. She does not ask the court to strike out the claim on the basis that there is no arguable case that there were any defamatory words spoken about the Claimant to the only identified publishee Ms Harris. But she does submit that the case on publication to Ms Harris is not a strong one: no contemporaneous record of the words has been disclosed, and there are issues as to what the words allegedly spoken meant. She submits that this provides a weak basis for an inference that there were any defamatory words spoken to any publishee other than Ms Harris. And even if it can be inferred that Mr Bostock spoke about the Claimant to any other publishee, Ms Phillips submits that there is no basis for inferring that his words were the same as those he allegedly spoke to Ms Harris. She notes that there has been no evidence forthcoming from any other prospective customer of the Claimant, and nearly a year has now passed since 7 April 2011 when Mr Bostock spoke to Ms Harris.

Ms Phillips cites a number of cases in which the court has declined to infer that a libel published to an identified publishee was also published to other unidentified publishees: Wallis v Meredith [2011] EWHC 75. In Wallis Christopher Clarke J cited Freer v Zeb [2008] EWHC 212 (QB), in which Sharp J had said:

“31.

… If a claimant does not know the name of the persons to whom publication was made, the court may, exceptionally, allow the claim to stand if it is unreasonable to require a claimant to identify the publishees, or the claim may be to allowed stand pending disclosure or the provision of further information by the defendant(s) which it is reasonable to suppose will identify the publishee concerned. However, it is clear that the court will only follow this course in either case where the claimant can show by uncontradicted evidence that publication by the defendant has taken place and that he has a good cause of action in defamation (see Best v Charter Medical of England Ltd [2001] EWCA Civ 1588at [11] to [13]; Bareham v Huntingfield (Lord) 2 K.B. 193 C.A. and Russell v Stubbs [1913] 2 K.B. 200n). In the absence of such evidence, the claim is merely speculative. As Lord Justice Keene said in Best at [13]:

"I conclude that the exception to the normal rule [that a claimant must set out in the particulars of claim the name of the persons to whom the words were spoken, and the exact words used] only operates where the claimant can satisfy the court that he has a good cause of action, because there is credible evidence that the defendant on a particular occasion and to a particular person made a defamatory statement about him of a specified nature. Unless there is evidence that there is a good cause of action in defamation, an order for further information under Civil Procedure Rules Part 18 would indeed be a fishing expedition…". ”

Mr Price submits that the circumstances of the present case are unlike those cited by Ms Phillips. The parties are competitors in business, and the person who allegedly spoke the words complained of is a former employee of the Claimant. The fact that Mr Bostock had a conversation with Ms Harris about prospective business is not in issue. The Defendant has not disclosed what Mr Bostock says he said to Ms Harris. The court can infer either or both of the following: that Mr Bostock probably spoke the same or similar words defamatory of the Claimant to another prospective customer of each of the two parties, or that there is “good ground to fear that unless a satisfactory undertaking [is] given, the statements would be made again”.

Mr Price submits that upon disclosure and exchange of witness statements, and in particular cross-examination of Mr Bostock (assuming that he gives evidence), what at present is simply an inference may turn into proof that the Claimant is right to be convinced that the occasion on which he spoke to Ms Harris is not the only occasion on which the statements complained of have been made. So this is not a speculative claim, or what is called a fishing expedition.

Whether or not the court may draw an inference that allegedly defamatory words were probably spoken to a publishee other than the only one identified by the Claimant is a question of fact. It depends on the circumstances of each case. In my judgment, the cases that come nearest to the present are CHC Software Care Ltd v Hopkins & Wood [1993] FSR 241 and Russell v Stubbs Ltd [1913] 2 KB 200 note. Each of these two cases was a libel action. But the court in each case did find that there was a sufficient basis for the trial court to infer that statements similar to the words complained were probably made to others.

I accept the submission of Mr Price that, on the facts with which I am concerned, there is an arguable case that the court may infer that Mr Bostock spoke to another prospective customer (or customers) words similar to those which he allegedly spoke to Ms Harris. I recognise that such an inference has not previously been drawn in a report of a slander action. But while that makes the drawing of such an inference more difficult, it does not make it impossible.

It may well be that the threshold that the Claimant must overcome at trial in proving that the words allegedly spoken to Ms Harris are indeed the exact words used, and that they bore the meaning the Claimant attributes to them, is a high one. A slander is often difficult to prove, because so much turns on the precise words used and the context in which they were used. And it may be that the task in relation to publication to a third party is equally challenging, as Ms Phillips submits. But I do not need to express a view on the likelihood of the Claimant succeeding in proving these facts, and I do not do so. It is sufficient that I find, as I do, that the prospect of the Claimant doing this is not so remote as that I should characterise the claim as an abuse of the process of the court on the ground that there is no arguable case that there was publication to a person or persons other than Ms Harris.

It is a separate question whether, after the initial complaint had been made in this matter, and the Defendant’s response on the same date, 16 May 2011, there was any “good ground to fear that unless a satisfactory undertaking [is] given, the statements would be made again”, or any basis for claiming a permanent injunction at trial.

Ms Phillips submits that the Claimant would not be entitled to a permanent injunction at trial, or not one that would be of value to the Claimant. She relies on Jameel v Dow Jones & Co Inc [2005] QB 946 paras [74] and [76]:

“74.

Where a defamatory statement has received insignificant publication in this jurisdiction, but there is a threat or a real risk of wider publication, there may well be justification for pursuing proceedings in order to obtain an injunction against republication of the libel. We are not persuaded that such justification exists in the present case.

75.

There seems no likelihood that Dow Jones will repeat their article in the form in which it was originally published. It has been removed from the web site and from the archive…

76.

In these circumstances, if this litigation were to proceed and to culminate in judgment for the claimant, it seems to us unlikely that the court would be able, or prepared, to formulate and impose an injunction against repetition of the defamation in terms that would be of value to the claimant. We do not believe that a desire for this remedy has been what this action has been about, or that the possibility of obtaining an injunction justifies permitting this action to proceed.”

There is, she submits, now no real risk of wider publication in the future. Moreover, any injunction would affect the Convention right to freedom of expression (Art 10), and so by HRA s.12(4) the Court must have particular regard to that right. The Claimant is a corporation, and the facts of the present case do not engage any right under Art 8, so the only Convention right engaged is the Defendant’s right under Art 10.

Mr Price submits that if the Claimant succeeds at trial in proving that the Defendant has infringed the Claimant’s rights, the normal rule is that a permanent injunction will then be granted.

It is true that after a trial injunctions are commonly granted with little if any opposition or argument. However, there is no general rule that permanent injunctions will always be granted to successful claimants in defamation actions.

In Duncan & Neill 3^rd ed para 24.14 the editors state in relation to final, or permanent injunctions after a trial: “An injunction will be appropriate only where the court is satisfied that there are grounds for apprehending that the defendant will repeat those defamatory allegations”. The reference in the footnote is to the passage in Jameel relied on by Ms Phillips.

In Gatley on Libel and Slander 11^th ed para 9.28 the editors write that a permanent injunction will be granted if “there is reason to apprehend further publication by the defendant”. Carter-Ruck on Libel and Privacy 6^th ed para 15.97 is to a similar effect. In both of those books the footnote reference is to Proctor v Bayley (1889) 42 Ch D 390, and the passage cited is at p398, where Cotton LJ said:

“That the patent is valid, and that the Defendants have infringed it, is not in dispute, the question is whether there is any ground for an injunction. It does not follow that because a man has done a wrongful act an injunction will be granted against him, though he is liable to damages for the wrong. The Court of Chancery said, “Where a man threatens and intends to do a wrongful act, we will, before it is done, grant an injunction to prevent his doing it, and we will grant it where the act has been done and is likely to be repeated”—the jurisdiction is simply preventive…. Where a patent is infringed the patentee has a primâ facie case for an injunction, for it is to be presumed that an infringer intends to go on infringing, and that the patentee has a right to an injunction to prevent his doing so. ... In the present case the Defendants have infringed the patent, but we must look at all the circumstances to see whether there is any ground for inferring that they intend to continue to infringe it.”

At p401 Fry LJ said:

“Now an injunction is granted for prevention, and where there is no ground for apprehending the repetition of a wrongful act there is no ground for an injunction. It was pressed on us that the Defendants insisted on their having a right to do what they had done, but, looking at all the circumstances of the case, this foolish attempt to justify a past act does not raise any presumption that they intend to repeat it. The injunction therefore falls,…”

There are dicta to the same effect in Roache v News Group Newspapers Ltd [1998] EMLR 161 (also cited in Duncan & Neill and Gatley), although that case is distinguishable in that the Court of Appeal considered that the defendant would have offered an undertaking in the usual form (which the Defendant in this case has declined to do in the form sought by the Claimant). At p173 Stuart Smith LJ said:

“There was also a claim for an injunction; that is standard form in a defamation action; though whether there is any real risk that a defendant will repeat the libel so justifying the grant of an injunction will vary greatly according to the circumstances of the case”.

HRA s.12 is of limited assistance in this case. An injunction would only arise for consideration after the trial if the court had found that the slander had been proved and was false. There is little protection under Art 10 for the repetition of statements that have been found to be false. But I accept that in considering whether to grant a permanent injunction, and if so in what form, a trial court will be careful not to prohibit the Defendant from making statements which are true, or which are honest opinion. So it is important to consider to what form of injunction the Claimant would be entitled, if it succeeds at trial.

The form of the injunction pleaded by the Claimant in the Particulars of Claim is to restrain the Defendant “from further publishing the said or any similar false and/or defamatory words of and concerning the Claimant”. In the present case, the first two defamatory meanings pleaded by the Claimant are meanings which are factual statements, whereas the third may be said to be a statement that is an opinion. I shall assume that if the Claimant succeeds at trial in its claim for defamation, and the court found there was a real risk of repetition of the words complained of, it would have a real prospect of being granted an injunction restraining the publication of the allegations in paras 5.1 and 5.2 of the Particulars of Claim or any similar false and/or defamatory words of and concerning the Claimant. If the Claimant succeeds in its claim in slander, it will be on the footing that the court finds that the words complained of were, or included, defamatory words which were false.

The claim in malicious falsehood is different, because it is for the Claimant to prove falsity. Ms Phillips submits that the particulars of falsity in the Particulars of Claim are vague and imprecise. It is for this reason, she submits, that the Defendant has been unwilling to give any of the forms of undertaking sought by the Claimant in correspondence. But since there is no application to strike out the claim in malicious falsehood, I shall assume that the allegation of falsity is an issue on which the Claimant will succeed at trial.

The form of undertaking sought by the Claimant is in terms different from that pleaded in the Particulars of Claim, although not materially so. By letters dated 16 May 2011 para 6.3, 2 August 2011 para 11, 13 October 2011 para 5.1 (with the addition of the word ‘substantially’) it asked for an undertaking: “(in a form to be agreed by us) that you will not repeat the statements, or make any [substantially] similar statements … to any third party”. The word “false” is omitted, perhaps reflecting that the injunction is sought on the basis only of the claim in slander.

The letter of claim was sent to the Defendant early on 16 May 2011. The same morning Mr Ellis of the Defendant replied, raising some questions. But the e-mail went on to say:

“I await your response to those points raised above. In the meantime, to give your client some comfort, I have instructed EW’s commercial director to advise all EW’s sales colleagues: (1) that so far as I am currently aware your client offers an ‘indemnity’ scheme to all its prospects/clients and that its advisers include some barristers and/or solicitors (non practicing); (3) [sic] that I currently have no knowledge that it is unable to pay out or does not pay out on valid claims under its scheme; and (4) that any untrue/defamatory statements made by any EW colleague would be against EW values, not permitted and treated by EW as a disciplinary matter”.

The communication to be made by the commercial director was not disclosed at that time, but has recently been disclosed, as set out in para 46 below.

After further exchanges in which the Defendant made proposals (23 June 2011, 20 July 2011, 24 August 2011), the form of undertaking offered by the Defendant on 19 October 2011 was:

“to use its reasonable endeavours to ensure that it will not …make any statements to the effect that [the Claimant] does not employ any employment law solicitors (non-practicing) or barristers or that clients of [the Claimant] never deal with employment law solicitors (non-practising) or barristers or that [the Claimant] never pays out on claims and/or is unable to pay out on any claims for as long as that remains to be the case. For the avoidance of doubt if it is or becomes the case that [the Claimant] does not employ employment law solicitors (non-practising) or barristers or that clients of [the Claimant] would not be dealing with employment law solicitors (non-practising) or barristers, or that [the Claimant] stops paying or does not pay out on claims or [the Claimant] becomes unable to pay out on claims [the Defendant] will be released from the relevant part of this undertaking”.

The main objection which the Claimant makes to the form of undertaking offered by the Defendant is that it is not unqualified, but only to use its best endeavours. But the Claimant also objects that the undertaking relates only to the present time, and to the other restrictions to which it is said to be subject.

In my judgment, if the Claimant were to succeed at trial, and an injunction granted, it would be an unqualified one, and it would relate to the meanings which the court found the words complained of to bear. I assume for present purposes (without deciding) that it would be related to the meanings pleaded in the Particulars of Claim. But in so far as the meanings relate to facts as they were at the time of the complaint, an injunction would not be granted to prohibit the Defendant from making statements which were true at the time of trial, or at the time at which the statement was made, if it was made after trial.

That does not resolve the question whether the Claimant has now an arguable case that there is a real risk that the Defendant will repeat the alleged slander.

Mr Price submits that there is little sense in the Defendant declining to give the unqualified undertaking, if it has no intention of repeating the alleged slander and falsehood. But that is not the test, for the reasons given by Fry LJ.

In my judgment, if the Claimant were to succeed at trial, the court would not grant an injunction solely on the ground that the Defendant had declined to offer the unqualified undertakings in the form that the Claimant sought, or had refused to admit that the slanders had been spoken. What matters is the likelihood of repetition.

As Mr Price has stressed, the Defendant has never asserted that the words complained of are true in the meaning attributed to them by the Claimant. And there is no suggestion of an intention to repeat them. On the contrary, the Defendant has sought to reassure the Claimant in correspondence, whether or not it has set about that in the manner which the Claimant required.

I conclude that the Claimant has no arguable case that there is now, or will at trial be found to be, a real risk that the Defendant will repeat the alleged slander.

I would have reached that view on the basis of the correspondence exchanged between the parties. But there is now further evidence. In the witness statement of Mr Ellis dated 28 February 2012 the Defendant disclosed for the first time an e-mail dated 16 May (the date of the first complaint by the Claimant) to all the Defendant’s staff which included the following:

“Today, Citation’s lawyers have written to us to allege that an EW employee has told a Citation prospect the following;

1.

that Citation are ‘unable to pay out on claims’.

2.

that Citation does not have qualified lawyers working for it

3.

that the prospect would therefore not have qualified lawyers working for it; and that

4.

Citation does ‘not pay out on any claims’.

It goes without saying that we have denied these claims, although we have asked for further detail of the source and the prospect to whom these alleged comments were made.

The Claimant has throughout made clear that it has no evidence that it has suffered actual damage. I accept that if damages are awarded under s.3 of the Defamation Act 1952 they would not be nominal, since that would defeat the purpose of that section: Joyce v Sengupta [1992] EWCA Civ 9; [1993] 1 WLR 337, 347A. But the Claimant is a company, and can recover no damage for distress. And it has made clear that the purpose of this action is to obtain an injunction, and not to recover damages.

The purpose of an award of damages in such a case as this is vindication of a claimant’s reputation. Where there has been no slander to the public at large, but only to an unknown number of prospective clients, vindication in the form of a public judgment following a trial is unlikely to be necessary, or of value, since it would involve public repetition of the words complained of. The Claimant’s chief executive, Mr Hill, says in his statement: “This action is not and has not been about damages and Citation has never sought damages from [the Defendant]”.

The acceptance by the Defendant that it must not repeat the words complained of is likely to be as valuable a form of vindication that can in practice be achieved.

I make no criticism of the Claimant or its advisers for the persistence with which they sought an unqualified undertaking up to the point at which the claim form was issued and served. A litigant, or prospective litigant, is entitled to try to obtain a legitimate objective which is greater than its strict legal rights. But the refusal of the Defendant to give that unqualified undertaking does not of itself make the pursuit of such an unqualified restriction a legitimate aim of an action. Whether or not the Claimant wished for more, what it had achieved by 13 October 2011, when it issued its claim form, and in any event by 28 October 2011, when it served its claim form, was in practice all that it could achieve which would be of any value to it in vindicating its reputation.

It follows that this claim is an abuse of the process of the court and must be struck out.