Otuo v Morley & Anor

On 24 November 2014, Master Leslie refused to grant the Defendants summary judgment in this slander claim. Permission was given to appeal by William Davis J on 20 February 2015. It is an unusual case and, like the Master, I have found it troubling. This is mainly because the Defendants are seeking to rid themselves of the claim on a summary basis at a stage when the statements of case are inchoate: they leave it unclear as to how much of a factual dispute there would be if the case is allowed to proceed to trial.

Mr Otuo was a member of the Jehovah’s Witnesses for some 40 years until in 2012 he found himself “disfellowshipped”. He claims that one of the significant consequences of this was that he was shunned by friends and family and, in particular, that he has had no contact with his elderly mother for several years. He believes that this was wholly unmerited and has never been able to understand why he was treated in this way. There are prescribed procedures for the taking of such disciplinary steps although Mr Daniel, who appeared for the Defendants, emphasised that they are to be found in a confidential rule book to which reference should not be made in court save in so far as it is absolutely necessary.

What appears to have happened is that allegations of “fraud” had been made against the Claimant in a letter from an unnamed third party (which he says he has never seen) and these were examined by those given responsibility under those rules for doing so. Mr Daniel was at pains, however, to emphasise that the notion of “fraud” in this context was not such as to entail criminality, but rather bore a specific religious connotation, which he sought to define in his written submissions as follows:

“Fraud is defined as the intentional use of deception, trickery, or perversion of truth for the purpose of inducing another to part with some valuable thing belonging to him or to give up a legal right.”

I confess to some puzzlement, as it seems to be a distinction without a significant difference. Surely anyone accused by reference to that definition would be seriously defamed in the eyes of any reasonable listener: it would clearly be an allegation of dishonesty. Yet Mr Daniel argued that “… if not de minimis, the actual damage sustained was very limited”.

At all events, the relevant committee, on its findings of fact, determined that the Claimant should be “disfellowshipped” with all the profound consequences which, according to the Claimant, flowed from that. He told me that he was aware of the identity of the unnamed third party and doubted whether he ever wrote such a letter or accused him of “fraud” (in any sense). He says that he pressed for a sight of the letter from the outset but that it was never vouchsafed to him. He doubted whether it ever existed. At the resumed hearing before me, on 18 June 2015, those doubts were reinforced when Mr Daniel told me that it had been destroyed on data protection grounds; that is to say, because the Defendants took the view that they had no legitimate reason for keeping it.

In due course, the Claimant took such steps as were open to him under the prescribed procedures to challenge the finding of the original committee and his consequent “disfellowship”: he wished to be reinstated. He assumed that this would be dealt with on paper, but the Defendants decided to hold a meeting to consider his application, which he was invited to attend in July 2013. It was at an early stage of this meeting that the defamatory words were spoken by the First Defendant which led to the present slander claim.

The words complained of are as follows:

“So just going back to July of last year when you were disfellowshipped, I think it was July 19 that it was announced to the congregation, is that correct? I think it was … do you… how do [you] view then what you were disfellowshipped for? Do you understand what you were disfellowshipped for? … Just to summarise what I thought you have said, is that even today you would not accept it was fraud … That is what you seem to be saying?”

The Claimant suggests that these words meant inter alia that he “… has been disfellowshipped from his congregation for committing the criminal act of fraud”. There is also pleaded an innuendo to the effect that he had been disfellowshipped “… for unrepentantly committing the criminal act of fraud”. He would no doubt argue that the words are thus actionable without proof of special damage.

Although he does not plead a meaning as such, Mr Daniel has argued that one of the reasons why the action should be struck out is that the words are not defamatory in any sense. He says that, in context, they meant no more than that the ground on which he had been disfellowshipped in 2013 was, rightly or wrongly, that of “fraud”. As I have already noted above, however, he drew a distinction between “criminal” fraud and the type of fraud he sought to define, although I find it a difficult boundary to draw. He has to take on the burden of establishing that any reasonable listener would have understood the First Defendant’s question to the Claimant in a non-defamatory sense; for example, to the effect that it was no more than a purely fact finding or administrative enquiry as to the ground on which the earlier decision had purportedly been reached.

Context is always important when assessing whether words are defamatory. Here, the actual meaning to be attributed may well depend on the evidence as to who was present, what exactly was their function and how much background knowledge they had. I am not asked on the present appeal to determine the meaning(s) of the words, but I do not believe that I can at this preliminary stage rule that the words spoken were so obviously not defamatory that the Claimant is left without a cause of action.

Mr Daniel also submitted, in the light of Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946, that the limited publication of the words could have caused no significant damage to the Claimant’s reputation (let alone special damage), since the only people to have heard the remarks were the three other members of the committee who had been convened to address the Claimant’s application for reinstatement. When the First Defendant spoke to them, they were not being told anything which they did not already know. There would thus be an abuse of process if the claim were allowed to proceed.

Indeed, one of Mr Daniel’s grounds for summary disposal was that there had been no publication at all. I do not follow that. Albeit on a very limited basis, the words spoken by the First Defendant were plainly published to anyone within earshot. Whether any such communication was the subject of qualified privilege is a separate matter, which I shall shortly need to address, but I reject the notion that there was no publication at all.

As to the undoubted fact that publication was very limited, I was reminded by the Claimant of the words of Sharp J (as she then was) in Haji-Ioannou v Dixon [2009] EWHC 178 (QB), at [31]:

“Publication of a libel, or indeed a slander, to one person may be trivial in one context, but more serious than publication to many more in another. Much depends on the nature of the allegation, and the identity of the person about whom and the person or persons to whom it is made. To that extent, the decision in each case is ‘fact sensitive’. However, the court should not be drawn into making its decision on the basis of contested facts material to the issue of abuse which properly ought to be left to the tribunal of fact to decide.”

That is an important principle to bear in mind when the court is called upon to address early applications for summary disposal in defamation cases, which have become increasingly frequent in recent years.

If the words meant that the Claimant had been guilty of fraud (by whatever definition), and was thus dishonest, that is a defamatory allegation which is at least capable of causing serious reputational damage. The court should thus be reluctant to shut out such a claim in a case where the facts have yet to be fully explored. I naturally recognise that this claim is not concerned with damage flowing from the original “disfellowship” or from its announcement before the congregation, but only with the consequences of the limited publication sued upon, but even so it would be unduly “robust” in my view to hold that an allegation of fraud can have done no harm at all.

It is not entirely clear to me whether the Defendants are intending to raise a plea of justification (e.g. to the effect that the Claimant was guilty of fraud). The current defence does not say so in terms and certainly does not put forward a Lucas-Box meaning or any particulars of justification. On the other hand, there is included, unusually for a defamation defence, a general traverse. They are generally avoided for the very reason that they could be taken as denying the falsity of the words, and thus stealthily importing a plea of justification. I asked Mr Daniel about this, and he replied that his clients wished to await the outcome of the current application for summary disposal before putting their cards on the table. They did not wish to plead justification unless it became necessary to do so. Plainly, however, I need in the meantime to bear in mind that the Claimant is entitled to a presumption that he is innocent of fraud (or indeed of having been found guilty of fraud) unless and until the contrary is proved by the Defendants.

The Defendants intend to rely on qualified privilege and, although the evidence would need to be carefully considered in the context of the prescribed rules for the relevant internal procedures, there is quite a strong prima facie case to that effect. Nonetheless, the Claimant wishes to put forward a plea of malice against the First Defendant in particular. I understand that he wishes to assert, although no particulars of malice are yet pleaded, that the defendants must have known that there was no evidence of fraud on his part. The Claimant told me that he had been waiting to provide such particulars until at least he had seen the third party letter and the specific accusations it had supposedly made against him. Only in those circumstances, would he be in a position to pinpoint what the Defendants knew or believed about him and the genuineness of the First Defendant’s state of mind at the time of the words complained of. It emerged at the resumed hearing before me on 18 June that the third party’s letter has been destroyed, according to Mr Daniel on instructions, on data protection grounds and that, accordingly, the Claimant will never now be able to make an assessment of it or rely upon it in formulating his particulars of malice. It is fair to say, however, that this latest piece of news has done nothing to allay his suspicions as to their good faith.

I was initially troubled by the Master’s conclusion that there was evidence of malice which would need to be considered at a trial, as this appeared to be one of his principal grounds for refusing the Defendants summary relief. I had in mind the basic principles about pleading malice and the need to go beyond bare assertion. That was one of the reasons for having to adjourn on 15 April 2015, since none of the relevant principles or authorities was before the court; nor had they been considered by the parties: see e.g. Gatley on Libel & Slander (12^th edn), at 28.6 and 30.35, Alexander v Arts Council of Wales [2001] 1 WLR 1840, Seray-Wurie v Charity Commission for England & Wales [2008] EWHC 870 (QB), and Henderson v London Borough of Hackney [2010] EWHC 1651 (QB). This was another consequence of the inchoate state of the pleadings and just one illustration of the disadvantages confronting a litigant in person.

Nevertheless, an indication had been given in the Claimant’s first witness statement as to the case on malice he would wish to put forward. This is probably what the Master had in mind when he said, at paragraph 7 of the transcript, that in his judgment “… there is material from which a court might find that Mr Morley was actuated by some malice”. What the Master did not have, although it was before me, was the Claimant’s second witness statement dated 8 April 2015. This put more flesh on the bones of the anticipated plea of malice. I need cite only one passage, from paragraph 30(h), to illustrate the scope and gravity of the dispute between the parties:

“In spite of the First Appellant maintaining that the accusation of fraud was communicated to him by a letter from the accuser, the Appellants have failed despite several requests to produce a copy of the letter. It is the R’s case that the accusation was fabricated by the First Appellant to cause harm to the R and there was no such accusation from the accuser. The Appellants’ failure to produce this letter clearly supports the R’s assertion.”

I have indicated already that the Claimant’s suspicions have been enhanced by the recent claim that the third party letter has purportedly been destroyed. I am not in a position to say that the First Defendant has trumped up a case in fraud to bring about the Claimant’s “disfellowship”, for reasons of his own, or that he uttered the words at the reinstatement meeting in 2013 in order to manipulate its outcome. Of course not. Nevertheless, I have come to the conclusion that the Master was correct in his conclusion that there is more to this than currently meets the eye. It is not the sort of case which can be terminated by the convenient means of summary disposal nowadays available to the court in the light of the CPR and their application in such cases as Jameel (Yousef) v Dow Jones & Co Inc, cited above. It seems to me that a significant number of the real issues between the parties fall within the description of “fact sensitive” and do not lend themselves to a short cut.

I bear in mind Mr Daniel’s warning that I may be allowing myself to be diverted by a “smokescreen”, but it simply illustrates why the facts need to be properly investigated after full pleadings have become available, disclosure of documents has taken place and witness statements have been exchanged. Only then will the smoke have cleared.

In these circumstances, I must dismiss the appeal.