The claim concerns a falling out between the Claimant and the Defendant in April 2018, culminating in allegations that the Defendant twice slandered the Claimant. The dispute centres on events at the Marlands Shopping Centre in Southampton at that time. The Defendant’s wife, Samantha Seabourne-Hawkins, was running a retail unit, “The Cave” in a larger shop, called “The Loft Ladder”, in the Marlands Centre. The Loft Ladder comprised some 8 separate retail units. Mrs Seabourne-Hawkins had rented her unit for around 4 years, selling incense, crystals and giftware.

The Defendant worked as a delivery driver for a large company, but he would occasionally work in the shop with his wife. Mrs Seabourne-Hawkins also employed Kristina Kleina in the shop on a part-time basis. Ms Kleina had previously worked in another shop in The Loft Ladder.

The Claimant was a regular visitor to The Loft Ladder by April 2018. It appears that he was a manager of one of the other units. From around 2016, the Claimant had struck up a friendship with Ms Kleina that pre-dated Ms Kleina working at The Cave. Their friendship had foundered in April 2018 (see [14]-[21] below).

The Claim Form was issued on 29 March 2019. It included a claim for damages for “defamatory statements made verbally in April and July 2018”. Particulars of Claim were served with the Claim Form. The two alleged slanders were pleaded as follows:

the first alleged slander (“the First Slander”):

the second alleged slander (“the Second Slander”):

The natural and ordinary meaning that the Claimant contends each publication bears is pleaded as follows:

the First Slander:

the Second Slander:

The Claimant alleges that the First and Second Slanders have caused serious harm to his reputation (as required by s.1 Defamation Act 2013). His pleaded case relies upon the following:

the seriousness of the allegations made;

the fact that the Claimant was interviewed by Hampshire Police on 16 July 2018 in respect of the First Slander; and

the fact that the Claimant had a job offer at a florist shop rescinded as a result of the First Slander (see [26]-[31] below).

He alleges that, from June 2017, the Claimant had started to display “unwanted behaviour” towards Ms Kleina and, on 6 April 2018, he had thrown a watch at her after she had asked him to leave her alone (“the watch incident” – see [17]-[18] below).

He denies speaking the words alleged to amount to the First Slander. The circumstances of the alleged First Slander were:

the Claimant was angry about being asked not to speak to Ms Kleina and ran at the Defendant with his fists clenched;

a heated conversation took place between the Claimant and the Defendant outside the Loft Ladder; and

the Claimant and the Defendant then made their way to the security office at the Marlands Shopping Centre and a security guard, Martin Barfoot, had to calm down the Claimant.

He denies speaking the words alleged to amount to the Second Slander. He accepts speaking to the security guard, and having explained his concerns about the Claimant and his conduct towards his wife and Ms Kleina, but he had said nothing about the Claimant interfering with girls.

As to meaning, the Claimant’s meanings are disputed. The meaning of the Second Slander did not allege commission of a criminal offence and was therefore not actionable without proof of special damage and none was alleged.

In relation to the Claimant’s case on serious harm:

the Defendant denies that either Slander caused or was likely to cause serious harm to the Claimant’s reputation;

there was no causal link between the First Slander and the Claimant’s police interview on 16 July 2018; and

there was no causal link between the First Slander and the withdrawal of the job offer at the florist shop.

Prior to trial, the parties agreed the issues to be determined by the Court. These were simplified during the trial. At the beginning of the second day of the trial, the Claimant abandoned the Second Slander claim. Rightly, the Claimant recognised that he could not maintain his claim in relation to the Second Slander when both the Defendant and Ms Gorman, respectively the alleged publisher and publishee of the Second Slander, denied that the Defendant had spoken the words alleged, and there were no other witnesses. Following the abandonment of the Second Slander, the parties agreed that the issues to be decided by the Court are therefore:

what is the natural and ordinary meaning of the First Slander?

has the First Slander caused, or is it likely to cause, serious harm to the Claimant’s reputation? and

is there a causal link between the First Slander and the Claimant having his job offer rescinded or any other alleged loss/damage?

If the Claimant fails to demonstrate (i), then his action will be dismissed. Issues under (ii) only arise if he has established publication of the First Slander.

The Claimant relies on the evidence of two witnesses who gave evidence at the trial: himself and Sheryl Dowd.

In addition to himself, the Defendant’s witnesses at trial were Eileen Gorman, the security guard to whom the Second Slander was allegedly published; his wife, Samantha Seabourne-Hawkins; Ms Kleina; and Ruth Booker.

I deal with the evidence of the witnesses when considering the issues I have to resolve below, but there are three matters that I should deal with first:

the history of the relationship between the Claimant and Ms Kleina, because it provides the essential context for the slander claim;

the Defendant’s evidence – from Ms Booker – that the Claimant told her that he had got someone to lie for him about having offered him a job; and iii) the Claimant’s claim that he lost a job as a result of the First Slander.

Although not directly relevant to the issues I have to decide, the immediate context of the dispute between the Claimant and the Defendant is the former’s relationship with Ms Kleina. What follows is a brief history of that relationship. It attempts to identify matters of common ground between the parties, but insofar as it trespasses on disputed matters, it is not necessary for me to resolve any dispute as, ultimately, it does not assist me in resolving the main issues in the case.

Ms Kleina started working, part-time, for Mrs Seabourne-Hawkins in around April 2017, but her friendship with the Claimant pre-dated that. In her witness statement, Ms Kleina states that the Claimant assisted Ms Kleina’s mother with a claim for sick pay. As a thank you for his assistance, Ms Kleina’s mother had given the Claimant a present of a watch on or around his birthday on 23 June 2017. The Claimant invited Ms Kleina to a picnic to celebrate his birthday. Ms Kleina did not want to attend this event, as she was apparently the only other guest. Although she did go to the picnic, Ms Kleina said that she made up an excuse about having another appointment so that she did not have to stay too long. In December 2017, the Claimant bought tickets for him and Ms Kleina to attend the Marlands Centre Christmas Party. Ms Kleina told the Claimant that she did not want to go with him.

On Valentines’ Day 2018, the Claimant sent Ms Kleina flowers and chocolates accompanied with a note: “to touch your heart as you have touched mine”. Ms Kleina did not want a romantic relationship with the Claimant. She ended the friendship and blocked the Claimant from contacting her on her telephone. Ms Kleina told Mrs Seabourne-Hawkins what had happened, and Mrs Seabourne-Hawkins asked the Claimant not to come to The Cave on Sundays, when Ms Kleina worked there.

Matters came to a head in early April 2018. The Claimant says in his witness statement that, by then, his friendship with Ms Kleina had deteriorated and she was not speaking to him. On 6 April 2018, he came to The Cave to speak to Ms Kleina. In his statement, the Claimant describes what happened as follows:

In her statement, Ms Kleina described the incident as follows:

Mrs Seabourne Hawkins was not working at The Cave when the incident happened; she was on holiday with the Defendant. In her statement, she said that Ms Kleina telephoned her shortly after the incident and was quite shaken and upset. At Mrs Seabourne-Hawkins’ suggestion, Ms Kleina reported the watch incident – and other alleged harassment – to the police on 30 April 2018 (see further [61] below).

In July 2018, the Claimant sent a letter to the Admissions Department of Southampton University. Ms Kleina had applied for a place at the University and the Claimant had proof-read a letter of application that she had sent at the beginning of the year. In his letter to the University, the Claimant wrote:

Ms Foubister cross-examined the Claimant about his motive for sending this letter. She asked him why he had waited until July 2018 before sending his letter. The Claimant said that Ms Kleina had not applied to the University before then. That

Ms Booker had worked in a neighbouring shop in The Loft Ladder and later in a nearby shop. She knew the Defendant and his wife and the Claimant. In her witness statement, Ms Booker stated that the Claimant had come into her shop on more than one occasion “bragging that he [had] got someone to lie for him about offering him a job, but because of the allegations that [the Defendant] was supposed to have said, he is saying that they no longer want him.” Ms Booker also stated that, on one occasion, the Claimant had asked her mother if she would be a witness for him and sign a letter stating that she would not offer him a job as a result of the First Slander. Ms Booker stated that her mother was not prepared to sign any such letter.

When she was cross-examined by Mr Owen-Thomas, Ms Booker confirmed that she could not remember precisely when the conversations between her and the Claimant had taken place. Asked to recall further detail of the conversations, Ms Booker said that, on one occasion, the Claimant had come into the shop and said to her that he was “out to get Sam and Jimmy”. She said that she had reported what the Claimant had said to the Defendant and his wife a couple of days after the incident. Mr Owen-Thomas asked Ms Booker whether she had made any notes of the alleged conversation with the Claimant. She stated she had not, but that she had provided the Defendant’s solicitors with a hand-written note of her recollection of the conversation. Mr Owen-Thomas put it to Ms Booker that she was not telling the truth and she had made up the alleged encounters with the Claimant. He suggested to her that she was unable to provide any date on which these events had happened because she realised that the Claimant might be able to demonstrate that he could not have been in the shop on the relevant date. Mr Owen-Thomas even suggested to Ms Booker that the hand-written note she claimed to have sent to the Defendant’s solicitors did not exist. Ms Booker stood by her evidence.

After a short break, the Defendant’s solicitors produced the hand-written note to which Ms Booker had referred in her evidence. Although the document itself was not dated, Paul Brook, the Defendant’s solicitor, confirmed in a witness statement provided during the hearing, that he had taken a scan of the hand-written statement from Ms Booker shortly after she had provided it to him. The document was scanned by Mr Brook on 2 April 2019. The Claim Form had been issued some 3 days earlier.

Mr Owen-Thomas did not seek to cross-examine Mr Brook on the contents of his statement or to recall Ms Booker for further cross-examination. I permitted Mr Brook’s witness statement to be admitted in evidence, given the allegations that had been made against Ms Booker. The Claimant did not oppose this. In the hand-written note, Ms Booker recorded this:

Ms Dowd was the director and owner of the Boutique de Fleur florist shop in Southampton. Her evidence was that, in early February 2018, she had been looking for a part-time delivery driver for her business. On Valentines’ Day 2018, the Claimant had worked for her doing deliveries and she had been impressed by him. Later, in March, she said she had discussed with the Claimant whether he might become the shop’s full-time delivery driver. She said that she offered him the job on 3 April 2018, and that it was intended that he would take up his position on 8 May 2018. However, she said that, on 20 April 2018, the Claimant had come to her shop and told her that, the previous day, the Defendant had accused him, “in front of two security guards”, of sexually assaulting a member of the Defendant’s staff. She said that the Claimant told her that he felt that it was best to be honest about the accusation as he still wanted the job that Ms Dowd had offered to him. The Claimant told Ms Dowd that the allegation was not true, and, in her evidence, Ms Dowd confirmed that she did not believe the allegation. Nevertheless, she decided to rescind the job offer as, she said, she could not “take any risk whatsoever of an incident occurring similar to the accusation that had been made”.

In his evidence, the Claimant stated that he had gone to the Boutique de Fleur on 20 April 2018 “to discuss work”:

Ms Dowd was cross-examined by Ms Foubister. Ms Dowd confirmed that she had made the offer of the job to the Claimant on 3 April 2018, but had done so orally; she had put nothing in writing. Asked about that, Ms Dowd said that there was no need for any confirmation of the terms of the job offer until the Claimant had accepted, and they had worked out the terms. Ms Foubister asked Ms Dowd about a letter dated 27 April 2018 that she produced with her witness statement. The terms of the letter were as follows:

Ms Foubister asked Ms Dowd why it was necessary for her to write a letter to the Claimant rather than simply call him. Ms Dowd replied that she felt it needed something more, something that was “formalised and finalised”. Ms Foubister put it to Ms Dowd that the Claimant had asked her to write the letter of 27 April 2018. Ms Dowd denied that and said the she had been “advised that [she] needed to make it official”. Asked who had given this advice, she replied simply “a friend”, without identifying him/her. She accepted that the original offer of the job on 3 April 2018 had been made orally and the terms had not been discussed. Ms Foubister asked what was the point, in the letter of 27 April 2018, of inserting terms that had not been discussed or agreed for a job offer that had been withdrawn. Ms Dowd said that she had wanted to “finalise things” and so that she would have a document “for her records”. Ms Foubister put it to Ms Dowd that the Claimant had written the letter of 27 April 2018 or told Ms Dowd what to write. Ms Dowd denied that.

Ms Foubister put it to the Claimant, when he gave evidence, that he had persuaded

I can state my conclusions on this evidence quite shortly. They bear most significantly on the Claimant’s credibility.

I am unable to accept the evidence of the Claimant or Ms Dowd as to the rescission of the job offer. The letter of 27 April 2018 is a very odd document. Looked at in isolation – before considering Ms Booker’s evidence – the circumstances in which it is said to have come into existence are not credible. According to Ms Dowd (and the Claimant) she had offered the Claimant the job on 3 April 2018, but, on 20 April 2018, told him that she would have to reconsider the offer after the Claimant had disclosed that the allegation of sexual assault that had been made the day before. The original job offer

If Ms Dowd had genuinely withdrawn a job offer she had previously made to the Claimant, there would have been nothing wrong in her recording that fact in a witness statement in which it would have been material to state the likely terms on which the Claimant would have been employed even if these had not been agreed. But Ms Dowd denied having been asked by the Claimant to write the letter of 27 April 2018 and denied that he had written it for her. On her evidence (and that of the Claimant), the letter was unsolicited. I cannot accept that evidence. In his closing submissions, Mr Owen-Thomas accepted that, following the original job offer, the Claimant and Ms Dowd had yet to “thrash out the terms”, but submitted that I should accept her evidence on the basis that it was perfectly credible that she may have wanted “to put down such terms as were in her mind” and “to close this chapter”; “she wanted to communicate it in a formal and complete way”. In her closing submissions, Ms Foubister submitted that the 27 April 2018 letter “looks like a fabricated withdrawal of a non-existent offer”. I regret to say, I agree. The letter of 27 April 2018 bears the hallmarks of manufacture; it even includes the same phrase “honest and upfront” that appears in the Claimant’s witness statement.

Then there is the evidence of Ms Booker. Having seen Ms Booker cross-examined, and her reaction to it being suggested to her that she was lying in her account of the Claimant having come into her shop, more than once, “bragging” that he had got someone to lie for him to state, effectively, that he had lost a job because of the First Slander, I am quite satisfied that Ms Booker was telling the truth. Her account is corroborated by the written note she sent to the Defendant’s solicitors. The allegation that she has manufactured this account is fanciful.

In any defamation action, the claimant bears the burden of demonstrating that the defendant published the allegedly defamatory statement to a third party. The standard of proof is the balance of probabilities.

In a slander action, where the defendant does not admit publication, the claimant must prove, by evidence, the precise words spoken by the defendant. In Bode -v- Mundell [2016] EWHC 2533 (QB), Warby J explained the requirements as follows:

Two requirements of defamation law are central to the defendant’s application. The first is that precision in the pleading and proof of publication, including the actual words used, is always essential. It is not enough to plead or prove the gist or substance of what was said. In libel this is rarely a problem. In slander, it often is. A recent example is Umeyor -v- Ibe [2016] EWHC 862 (QB) , where the claimant failed to plead or prove a proper case on publication.

The pleading requirement is set out in CPR 53 PD 2.4 [now see CPR 52

For the same reasons, a claimant has to prove publication of particular words at the trial. Gatley puts in this way:

The reference here is to witnesses, but of course the best evidence will be a recording. In this action, as will be seen, the claimant has no recording, nor any witnesses to the alleged slander. His case relies on inference from documents he obtained some months after the alleged slanders.

These requirements are not mere technicalities. As explained by Keene LJ in the passage cited from Best , the actual words used are critical because everything else flows from the words: meaning, whether defamatory, defences and damages. See also Umeyor at [39].

The key evidence relating to the incident on 19 April 2018 is:

an “Incident Report” compiled on 19 April 2018 by Martin Barfoot, the security officer at the Marlands Shopping Centre; and

CCTV footage (and stills taken from it) of at least the initial stages of the confrontation between the Claimant and the Defendant, albeit the footage is not very good quality and has no sound.

It is common ground between the parties that the two security officers who can be seen in the CCTV footage are Mr Barfoot and Mr Teodorescu. In his evidence at trial, the Claimant said that both Mr Barfoot and Mr Teodorescu had heard what he claims the Defendant said. Mr Barfoot and Mr Teodorescu were not called to give evidence, by either party.

The Defendant’s solicitors sent Mr Barfoot two letters – dated 17 July 2019 and 5 September 2019 – asking him whether he would provide a statement setting out what he recalled about the incident between the Claimant and Defendant on 19 April 2018. A letter from Mr Barfoot, dated 12 December 2019, has been admitted by agreement of the parties. In it, Mr Barfoot says:

Mr Barfoot’s letter, which I consider genuinely expresses his position, might stand as a warning to any claimant considering bringing a claim for slander of the risk of fading memories. Had he been approached, and asked for his recollection of events, shortly after 19 April 2018, Mr Barfoot may have been able to provide evidence of what had taken place and, critically, what had been said between the two men. As it was, Mr Barfoot was apparently not approached until mid-2019. Those contemplating slander actions would be well advised to prioritise the gathering of evidence in support of their claim whilst events are still fresh in witnesses’ minds.

I do not have an equivalent letter from Mr Teodorescu. Asked about this in his evidence by Ms Foubister, the Claimant confirmed that Mr Teodorescu had refused to give a statement. On 20 December 2019, a witness summons was issued, on the application of the Claimant, directing Mr Teodorescu to attend the trial and give evidence. I am told that the witness summons was not served on Mr Teodorescu by the Claimant. I do not know whether Mr Teodorescu is in the same position as Mr Barfoot and I do not know, had he been called to give evidence, what he would have said. As a result, and as Mr Owen-Thomas recognised in his closing submissions, the issue of publication depends largely upon an assessment of the Claimant’s word against that of the Defendant.

The CCTV footage (and stills) cannot assist as to what was said. There is a dispute in the evidence of what was said at what point in the footage, and the CCTV has no sound. There is therefore no value in engaging in speculation of whether, if the words were spoken at one point in the footage, they could have been heard by one or more of the security officers. The Claimant, when he was giving evidence, seemed to me to be prone to advancing theories about what could have been heard by the security officers. This was simply speculation. It is no substitute for evidence from the people who were actually present, which I do not have.

What the CCTV footage does demonstrate is that there was an argument between the Claimant and the Defendant outside the management office doors. Both Mr Barfoot and Mr Teodorescu are present, and Mr Barfoot makes efforts to keep the two men apart. The Defendant turns to walk away. As he is moving through the doors, the Claimant appears to direct a remark at the Defendant (who at this point has his back to the Claimant). The Defendant immediately turns around, drops his bag, and seeks to pursue the Claimant through the doors, but is prevented from doing so. At this point, Mrs Seabourne-Hawkins arrives. Remarks appear to be directed through the door (presumably to the Claimant). Mrs Seabourne-Hawkins is allowed to go through the doors. She is inside for some 25 seconds before coming back out to join her husband. The CCTV shows the Defendant and Mrs Seabourne-Hawkins talking with Mr Teodorescu for around 10 minutes.

Mr Barfoot’s report was completed by him on 19 April 2018 (“the Incident Report”); so shortly after the incident. He recorded the following:

In his witness statement, the Claimant described the incident, and the immediate run up to it, as follows. He had been standing outside The Loft Ladder with the Defendant, Mrs Seabourne-Hawkins and Steven Wright, another shop owner at the Shopping Centre. Mrs Seabourne-Hawkins had told the Claimant not to come “into her space” and said, “you are not allowed to speak to Kristina”. The Claimant replied, “you do not have the right to tell me who I can and cannot speak to and that if Kristina doesn’t want to talk to me it is for Kristina to tell me that, not you, you are not her mother and I can speak to whoever I want.”

The Claimant stated that it was at this point that the Defendant began to walk away, but then turned back and said: “you’re scum”. The Claimant said that he asked him: “what did you just call me?” The Claimant then said something to Mrs SeabourneHawkins, and the Defendant interrupted to state: “just do as you are told”. At this, the Claimant said that he began to walk away and said that he was going to “sort this out” with the management of the Marlands Shopping Centre.

In his statement, the Claimant then explains what happened next by reference to stills from the CCTV footage. The material part of the Claimant’s evidence is this passage:

A point made by Ms Foubister, when cross-examining the Claimant, was that the CCTV stills - identified by the Claimant as depicting the moment that he claimed the Defendant spoke the words - show that only Mr Teodorescu was present. Mr Barfoot is seen arriving a short time afterwards. The Claimant, in his Particulars of Claim, had not named Mr Teodorescu as having been one of the persons who heard what the Defendant was alleged to have said.

In cross-examination, Ms Foubister asked the Claimant why there was no mention of the other security officer in his letter of claim. The Claimant responded that he had not written the letter and had only been given a copy of it on the morning of the trial.

In his letter of claim, dated 30 November 2018, the Claimant’s solicitors described the incident, as follows:

Ms Foubister then asked the Claimant about the following paragraph in his witness statement:

The Claimant’s account and his evidence on this point has been inconsistent and is not convincing. In my view, assessed overall, the letter of claim, the Particulars of Claim and the Claimant’s witness statement strongly suggest that, by 30 November 2018, the Claimant did not have a clear recollection of the events and particularly what the Defendant had said. Rather than be candid about that, in his witness statement, with the

In relation to the aftermath of the First Slander, after he had entered the management offices (as described in [44] above) the Claimant said this in his witness statement:

What emerges from this passage is that, on the Claimant’s evidence, there were two more people who could have corroborated his, near-contemporaneous, complaint that the Defendant had accused him of sexual assault: Claire Heaven and PCEO Wicks. The Court has no evidence from either of them, despite the obvious potential importance of their evidence in supporting the Claimant’s account.

The first contemporaneous documentary record of the claim that the Defendant had alleged that the Claimant was guilty of sexual assault is in a text message sent to Ms Kleina on 22 April 2020:

The Claimant relies upon the first of those messages as providing corroboration of his claim that the Defendant had made an allegation of sexual assault, but this text message does raise further questions.

First, there is no suggestion anywhere else in the case that Mrs SeabourneHawkins had made such an allegation. When cross-examined, the Claimant accepted that the reference in this text message to Mrs Seabourne-Hawkins making an allegation that he had sexually assaulted Ms Kleina was not true.

Secondly, the reference to the police is inconsistent with the Claimant’s evidence. In the section of his witness statement set out above ([54]), the Claimant said that he had reported to the police in the evening of 19 April 2018 the false accusations made against him by the Defendant, but was told that it was a civil matter. It was highly unlikely, therefore, that the Defendant (or his wife) could expect a visit from the police.

In his witness statement, the Defendant gave a similar description of the events that took place outside The Loft Ladder. He says that after the Claimant had told Mrs Seabourne-Hawkins that she could not tell him to whom he could speak, he (the Defendant) stepped forward and pointed his finger at the Claimant and said, “you will not talk to her. You assaulted her last week when you threw your watch at her.” After some further words, the Defendant said that he told his wife, “come on, let’s go, he’s scum”. In response, the Defendant said that the Claimant ran towards him with clenched fists and came right up to his face. The Defendant said, “get out of my face, your breath stinks”. The Claimant, he said, then stepped back a few paces and shouted, “I’m going to the management.”

In her witness statement, Mrs Seabourne-Hawkins gave a similar account. In particular, she confirmed that her husband had said to the Claimant: “you will not talk to her [Kristina]. You assaulted her when you threw a watch at her and we’re going to the police about you.”

Mr Owen-Thomas did not suggest to either the Defendant or his wife that it was not correct that the allegation made by the Defendant in the incident outside The Loft Ladder was that the Claimant had assaulted Ms Kleina by throwing the watch at her.

The Claimant was interviewed by police on 16 July 2018. This was a voluntary interview, under caution, in connection with allegations of harassment and assault made against the Claimant by Ms Kleina and Mrs Seabourne-Hawkins (respectively referred to as KK and SS in the transcript of the interview). During this interview, the Claimant mentioned the events that led to the First Slander. He said this:

When he was cross-examined, the Claimant accepted that, if the Defendant or his wife had thought that he had sexually assaulted Ms Kleina, they would have reported the incident to the police. Neither had done so.

As to the First Slander, the Defendant’s evidence in his witness statement was:

In his cross-examination, Mr Owen-Thomas suggested to the Defendant that he thought that the Claimant’s interest in Ms Kleina was sexual and that, because of the substantial age difference between them, it was inappropriate. The Defendant did not accept that. He said that he did not know what sort of relationship the Claimant had with Mr Kleina; he had become concerned when it became apparent to him that the Claimant was not respecting Ms Kleina’s request that the Claimant should leave her alone and not speak to her. The Defendant denied that he had made any allegation to the security officers, in the argument that took place outside the management offices, that the Claimant had assaulted Ms Kleina. He reiterated that he had told the Claimant, earlier, outside the shop, that he had assaulted Ms Kleina by throwing the watch at her.

During cross-examination, the Defendant repeated that the Claimant had made the disparaging remark about his wife as the Claimant had gone through the doors to the management offices. Having reviewed the CCTV footage, I consider that the Defendant’s reaction is certainly consistent with, and generally supports, the Defendant’s evidence on this point. The Defendant did accept that he was speaking with Mr Teodorescu for some time – he estimated 10 minutes – after the Claimant had gone into the management offices and that “a lot was said during those 10 minutes”.

The Defendant’s witness statement deals with several other matters relating to the dispute with the Claimant, but it also contains the following account of an incident on 13 December 2018 (i.e. some 2 weeks after the letter of claim had been sent to the Defendant by the Claimant’s solicitors – see [51] above):

The evidence of what was said by Gavin is, of course, hearsay. He has not been called to give evidence and his evidence has therefore not been tested. Mr Owen-Thomas did not challenge the Defendant’s evidence of what Gavin had said. Ms Foubister did cross-examine the Claimant about this issue. The Claimant denied that he had told Gavin that adding “sexual” to the allegation would lead to it being treated more seriously. He did accept, however, that, in a defamation case, an allegation of sexual assault was likely to be regarded more seriously by the court.

Having considered the evidence, my conclusion is that the Claimant has failed to prove, on the balance of probabilities, that the Defendant spoke the words alleged to constitute the First Slander. On the evidence, I am satisfied that the Claimant has invented the claim that the Defendant alleged that the Claimant was guilty of sexual assault. My reasons for my conclusions follow.

I think it is inherently implausible that the Defendant would have made an allegation of sexual assault against the Claimant. Although the Defendant considered that, by throwing the watch at Ms Kleina, the Claimant had assaulted her, he did not consider that it was a sexual assault. An allegation of sexual assault, if made by the Defendant, would have been a fabrication by him. Having seen the Defendant give evidence and be cross-examined, I do not consider that the Defendant would have manufactured such an allegation; and no plausible explanation has been advanced for why he would do so.

If the Defendant had made an allegation of sexual assault against the Claimant in the hearing of one or both of the security officers, then I am satisfied that certain things would have happened in consequence. First, having seen him give evidence, I am sure that the Claimant would have been incensed by it. It was not something, in my judgment, he would have let go. This expected reaction is not consistent with evidence of what did happen.

The CCTV footage shows that it is the Claimant who goes through the doors of the management area. By this point, the Claimant’s evidence is that Defendant had made the allegation of sexual assault. The allegation is that the Defendant had said the words: “You need to sort him out”. In context, that can only have been directed at the security officers. In other words, the Defendant was seeking to raise the allegation of sexual assault with the security officers. Yet, the Defendant did not follow the Claimant into the management offices to pursue this complaint. He waited outside for a while, before leaving with his wife.

In his police interview, the Claimant did say that he took immediate steps to obtain “the discs of evidence”. If that was a reference to the CCTV recording of the incident during which the First Slander was alleged to have been spoken, then that appears to demonstrate a clear recognition by the Claimant of the need to gather evidence of what had happened. Much the more important evidence to obtain was that of the two security officers: Mr Barfoot and Mr Teodorescu (and also the supporting evidence of the recent complaint from Claire Heaven and PCEO Wicks – see [55] above). There is no corroboration of any allegation of sexual assault in the Incident Report. In my assessment, if he had been accused sexual assault, in front of the two security officers, the Claimant would have taken immediate steps to try to gather evidence of what the two security officers had witnessed and heard. He did not do so in the immediate aftermath. So far as the evidence demonstrates, the first efforts to contact Mr Barfoot were not made until mid-2019. Although Mr Barfoot has stated that he cannot recall the incident and what was said, I consider that, as a matter of generality, the more serious an allegation that is made, the more likely it is that a person hearing it would remember it. An allegation of sexual assault – had it been made – would have been very serious. If it had been made, I consider that Mr Barfoot would likely have recorded it in his Incident Report and second, I consider that, even after the passage of time, it is likely that he would have remembered it.

No evidence has been provided from Mr Teodorescu, Ms Heaven, or PCEO Wicks to corroborate the Claimant’s evidence.

Further, had an allegation of sexual assault been made as alleged in the First Slander, I would have expected the Claimant to have confronted the Defendant about it very shortly afterwards. There is no trace of any such complaint from the Claimant about what would have been a serious and baseless allegation. I am quite satisfied, having seen him give his evidence, that the Claimant simply would not have left the matter there. There is no evidence of challenge of the Defendant by the Claimant. On the evidence I have, the first time the Claimant confronted the Defendant with the claim that he had made an allegation of sexual assault against the Claimant appears to be in the letter of claim sent on 30 November 2018, over six months later.

Finally, I am satisfied that the Claimant has sought to manufacture evidence of the loss of a job at the florist shop and there is evidence, albeit hearsay, of the Claimant manufacturing the allegation of sexual assault. The evidence of Ms Booker – which I accept – not only supports the conclusion of manufacture of the evidence of the lost job at the florists – it also shows that the Claimant said he was “out to get” the Defendant. This motivation is also corroborated by the (albeit hearsay) evidence from Gavin, that the slander action against the Defendant was going to cost the SeabourneHawkins “over £100,000”. That evidence, in turn, is also consistent with the vindictive

In the final analysis, I cannot and do not believe the evidence given by the Claimant that the Defendant spoke the words alleged to form the First Slander. I can and do accept the Defendant’s denial of having done so.

The consequence of this finding is that the Claimant’s claim will be dismissed. It is not necessary for me to decide the other issues, although the factual findings I have made would likely also have disposed issues (ii)(b) and (c) (see [9] above) in the Defendant’s favour.