Peck Williams Trade Supplies Ltd & Ors

This is a claim for libel, malicious falsehood, negligent misstatement and alleged breach of the Data Protection Act 1998 arising from the sending of an email by the Second Defendant to a prospective employer of the Claimant on 16 March 2018 (“the Email”). The Second Defendant is a Commercial Manager of the First Defendant which, the Claimant contends, is liable for the actions of the Second Defendant.

The brief background to the dispute can be summarised as follows. In early 2018, the Claimant was an Area Sales Manager for Ideal Boilers Limited (“Ideal”). He successfully applied for the post of Area Sales Manager for Grant Engineering (UK) Limited (“Grant”). He was offered the job by Grant on 15 March 2018. The Second Defendant sent the Email to Andy Smith, who was Grant’s National Sales Manager and would have become the Claimant’s line manager at Grant. The Claimant contends that, as a result of the Email, Grant withdrew the job offer made to him.

The terms of the Email were as follows (with punctuation – or lack of it – as it appears in the original text): “Hi Andy

The Claim Form was issued on 15 March 2019. Particulars of Claim were dated 8 July 2019. For the purposes of the libel claim, the natural and ordinary meaning that the Claimant contended the words bore was:

“The Claimant is thoroughly unfit to be a sales representative at Grant as he:

(i)

is universally disliked by the sales teams at the First Defendant’s Kent branches;

(ii)

has been officially named by the First Defendant as the worst sales

representative of all time;

(iii)

has, by his conduct at the First Defendant’s Kent branches, caused those sales teams such serious concern that the First Defendant was forced to put in an official request to Ideal that he no longer visit any of its branches; and

(iv)

has, by reason of all these matters, caused the Second Defendant such serious concern that she felt compelled to contact Grant to request that he not deal with the First Defendant in his new role.”

The same meaning (“the Claimant’s Meaning”) is relied upon by the Claimant for the purposes of his malicious falsehood claim. Particulars of the alleged falsity of this meaning and particulars of alleged malice are set out in the Particulars of Claim. They are not material for the issues that I have to decide, and I have not read them. The Claimant has pleaded a claim for special damages, which he contends were caused by the publication of the Email, but has also relied upon s.3 Defamation Act 1952 (set out in [14] below).

The Defendants filed a Defence on 6 August 2019. For the purposes of the libel claim, the Defendants denied that the Email was defamatory of the Claimant at all, but if it conveyed any defamatory meaning, substantive defences of qualified privilege, honest opinion and truth are relied upon. The meaning defended as honest opinion was:

“The Claimant performed poorly in his duties as sales representative for Ideal when dealing with the First Defendant’s Kent branches and, as a consequence, was unpopular within the sales team of the First Defendant.”

The meaning that the Defendants contended was substantially true was:

“The Claimant was unfit to perform the role of sales representative of Grant covering the First Defendant’s Kent branches because he had failed to meet the standards to be expected of a competent and diligent sales representative in his interactions with the First Defendant’s sales team in those branches and their customers.”

I shall refer to these as “the Defendants’ Meanings”.

I have deliberately not read or considered the particulars relied upon to support the substantive defences advanced by the Defendants as they are not relevant to the issues that I have to determine.

By a consent order dated 4 November 2019, Master Davison directed the trial of the following preliminary issues:

With the consent of the parties, no hearing took place. Instead, I have considered the written submissions of the parties on the issues to be determined. In accordance with the practice I outlined in Hewson -v- Times Newspapers Ltd [2019] EWHC 650 (QB) [25], copies of the parties’ written submissions will be made available with copies of this judgment.

Trials of preliminary issues (i) to (iv) have become commonplace in defamation actions. They are amenable to early determination because, as evidence beyond the words complained of is usually not admissible, it is simply a matter of the Court applying well-established legal principles to the publication sued upon. Issue (v) – concerning meaning for the purposes of malicious falsehood – raises much more complicated issues, and, for the reasons I explain below, is not one I think it is helpful or appropriate to determine (see further [12]-[18] below).

The principles to be applied in determining issues (i) to (iv) are not controversial.

At common law, a claimant in a malicious falsehood claim must prove publication to a third party of words referring to him, his property or his business which (1) are false; (2) were published maliciously; and (3) have caused special damage: Ratcliffe -v- Evans [1892] 2 QB 524, 527. As Bowen LJ observed in Ratcliffe -v- Evans,proof of damage was the “very gist of the action” (p.532). Malicious falsehood has been long recognised as one of the economic torts.

In most malicious falsehood cases, the issue of falsity requires a determination of the meaning of the published statement. Although the Court’s task when assessing meaning for the purposes of malicious falsehood claims has many similarities to the exercise that has to be performed in defamation claims, there are material differences. Most importantly, the single-meaning rule – a cardinal principle in defamation – does not apply to malicious falsehood: Ajinomoto Sweeteners SAS -v- Asda Stores Limited [2011] QB 497 [35]. Once the single-meaning rule has been despatched, with it goes the objective assessment of the meaning that the notional ordinary reasonable reader would understand the words to bear. In consequence, whereas in defamation, inquiry into what individual publishees understood the words to mean is (with limited exception in some cases on the issues of harm and damage) irrelevant, in a malicious falsehood claim, the subjective understanding of the individual publishees (if they can be identified) is likely to be an essential element of establishing causation of damage. Relying on the authority of Ajello -v- Worsley [1898] 1 Ch 274, the authors of Clerk & Lindsell summarise the principle as follows (22nd Edition, Sweet & Maxwell, 2019, §23-20):

“In order to succeed the claimant must be able to show that the damage suffered by him flowed directly from the untruth of the statements of which he complains. The damage complained of must be attributable to the falsehood. This may depend on how the falsehood is interpreted.”

A claimant can be relieved of the obligation to prove that special damage was caused by the publication of the falsehood if s/he can rely upon s.3(1) Defamation Act 1952, which provides:

“In an action for … malicious falsehood, it shall not be necessary to allege or prove special damage -

(a)

if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form, or

(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.

The phrase “calculated to cause pecuniary damage” requires a claimant to show that it is more likely than not that s/he has been caused pecuniary damage by publication of the falsehood: Tesla Motors Ltd -v- BBC [2013] EWCA Civ 152 [27]. Nevertheless, the issue of causation remains important, whether a claimant relies upon a plea of special damage or upon s.3 Defamation Act 1952. Put simply, in s.3 cases, unless the Court is satisfied that the publication of the falsehood is more likely than not to cause pecuniary damage, the claimant will have failed to demonstrate this necessary part of his/her malicious falsehood claim.

If there has been publication to a large, but unquantifiable, number of publishees, it is usually impossible to ascertain what meaning(s) they understood the words complained of to bear. In those circumstances, a malicious falsehood claim can be maintained in respect of any meaning that a substantial number of people who read the words would reasonably have understood the words complained of to bear. “In other words, a claimant can seek to show that any reasonably available meaning of the statement in question was false and made maliciously”: Tinkler -v- Ferguson [2019] EWCA Civ 819 [29]. However, where, as here, the publication complained of is to a single individual, the only relevant question is what meaning did the publishee understand the publication to bear and, if there is a dispute about it, whether this meaning is an available meaning for the purposes of malicious falsehood – see observations of Tugendhat J in Ajinomoto Sweeteners Europe SAS -v- Asda Stores Ltd [2010] QB 204[31]. Ascertaining whether the pleaded meaning is an available meaning will be academic if it is not the meaning that the publishee understood the words complained of to bear. It is that meaning which a claimant must demonstrate to be false, published maliciously, and either to have caused special damage or, where the claimant can and does rely on s.3 Defamation Act 1952, that it was likely to do so.

No directions have been given for the filing of any evidence, so I do not have a witness statement from Mr Smith – the sole publishee relied upon. In consequence, I do not know what he understood the Email to mean. In the Particulars of Claim, the matter is dealt with briefly with a simple averment that the Email bore the Claimant’s meaning and that this meaning was both false and published maliciously. There is no mention of what meaning Mr Smith understood the words to bear.

In these circumstances, it is neither necessary nor appropriate to determine issue (v) as a preliminary issue, and with the agreement of the parties, I decline to do so. For the reasons I have explained, resolving whether the Claimant’s meaning is a reasonably available meaning of the Email is irrelevant, unless this is the meaning Mr Smith actually understood the Email to bear. On that issue, I have neither a pleaded case nor any evidence. Further, determining the second issue - whether it was a meaning “that Mr Smith would reasonably have understood the words complained of to bear” - is also irrelevant; indeed, it is entirely hypothetical. The relevant issue is not what meaning Mr Smith would have understood the Email to bear (reasonably or not), but the meaning he did understand the Email to bear.

Ms Overman, on behalf of the Claimant, contends:

For the Defendants, Ms Simon-Shore attacks the form of the Claimant’s Meaning as a breach of the repetition rule. She argues that sub-paragraphs (ii) and (iii) of the Claimant’s Meaning are breaches of the repetition rule, and relies on Warby J’s observations in Price -v- MGN Ltd [2018] 4 WLR 150 [57]. The objection is to that part of the Claimant’s meaning that contends that he “has been officially named by the First Defendant as the worst sales representative of all time” and that the Claimant’s conduct had “caused [the First Defendant’s] sales teams such serious concern that the First Defendant was forced to put in an official request to Ideal that he no longer visit any of its branches.”

On the substantive question of meaning, Ms Simon-Shore submits:

Ms Overman, relying on the principles set out in [11(iv)] above, submits that the Claimant’s Meaning is defamatory because it imputes to him that he is unfit for his job as a sales representative.

Ms Simon-Shore argues that any imputation conveyed by the Email does not cross the threshold of seriousness to be defamatory at common law.

Ms Overman for the Claimant contends that the context in which the words complained of were published is of particular importance. The Email was, she argues, a “last-ditch” effort by the Second Defendant to prevent the Claimant from being offered the job as a sales representative for Grant. If acted on by Mr Smith, she submits that it would inevitably have led to later inquiry into the propriety of the actions of all involved. Accordingly, an ordinary reader would expect the Email to contain specific factual grounds, underpinning the Second Defendant’s expressed concerns, that would stand up to such scrutiny. Those grounds are clearly set out in the Claimant’s Meaning and form the essential sting of the Email. They concern the Claimant’s past conduct; his relationships with others; and the measures that the Defendants had been forced to take as a result. They would plainly strike the ordinary reader as factual in nature.

For the Defendants, Ms Simon-Shore submits:

In her written submissions, Ms Overman accepted that if the Court determined that the Email was or contained a statement of opinion, then the Email did indicate the basis of the opinion stated and that this issue should be determined in the Defendant’s favour.

For the reasons I set out below, my decisions on the preliminary issues are:

Ms Simon-Shore’s preliminary objection to the form of sub-paragraph (ii) of the Claimant’s meaning is-well founded for the reasons she advanced. The principle, identified by Warby J in Price -v- MGN, has also been recognised and applied in Koutsogiannis [32(ii) and (iii)]. In defamation proceedings, a pleaded meaning – whether advanced by a claimant or by a defendant – must identify the act(s), condition(s) or attribute(s) of the claimant which it is alleged is/are defamatory of him/her, not reports of them from others. For example, it is impermissible to plead, as a meaning, “X had been reprimanded by his employers for repeated breaches of health and safety regulations”. This is to say no more than X’s employers had stated/believed/established that X had repeatedly breached the relevant regulations. The form of the defamatory imputation – avoiding the repetition rule – should be, depending upon the overall context of the words complained of, either: “X was guilty of breaching health and safety regulations” or “there were reasonable grounds to suspect that X had breached health and safety regulations”.

The form of the defamatory imputation can usually be checked by considering whether it would be permissible to seek to prove, as true, the relevant imputation. Here, for example, it would not be permissible for the Defendants to seek to prove, simply as a matter of fact, that the Claimant had been “officially named by the First Defendant as the worst sales representative of all time” and/or that the First Defendant had put in a request to Ideal that the Claimant no longer visit any of its branches. That is because, in their different ways, these imputations are in the form of conclusions or statements of others, not the underlying act(s), condition(s) or attribute(s) of the Claimant which are said to be defamatory of him.

The overall impression created by the Email is that, on the basis of his unsatisfactory historic performance of his role as a sales representative for Ideal in his dealings with the First Defendant he was unfit to be appointed to a similar role with Grant. Largely, I consider the Defendant’s Meaning captures the meaning of the Email, but with some material changes. Although the Email does not identify any particular acts of the Claimant which were unsatisfactory, it clearly conveyed the impression that they were sufficiently serious to warrant the Claimant being named “the worst rep of all time” and to have led to a request to be made to his employers that he no longer visit any of the Second Defendant’s branches. These were therefore not trivial failures –for example clashes of personality which might be remedied in the future – but repeated and serious failures to perform his role adequately. I have reflected this aspect in the meaning by the inclusion of the words “consistently fallen seriously below the standards to be expected of a competent and diligent sales representative”.

In my judgment this is very close to a text-book example of the expression of opinion. It can be divided, relatively simply, into the expressed opinion based on indicated facts. The hypothetical ordinary reasonable reader would immediately recognise this as conveying the Second Defendant’s opinion. When someone expresses “huge reservations” that is usually a sure indication that an opinion is being offered. I reject Ms Overman’s argument that the hypothetical ordinary reasonable reader would ponder the consequences of sending the Email – and the suggested post-mortem that would likely follow – and then conclude that the Email contained allegation(s) of fact. This is far too analytical. However, I also reject Ms Simon-Shore’s submission that the Email consists solely of the expression of opinion and does not make any factual allegations. There is a clear underlying factual allegation that the Claimant’s performance had fallen seriously below the standards to be expected of a competent and diligent sales representative. Whilst the Second Defendant does not spell out clearly what the Claimant has done (or failed to do), the imputation is plainly conveyed by implication from the reported facts: the Claimant being named “the worst rep of all time” and the request that he no longer service any of the First Defendant’s branches.

I accept Ms Overman’s submissions on this point. The meaning I have found imputes conduct which would substantially affect, in an adverse manner, the attitude of other people towards the Claimant or have a tendency so to do. For the reasons I have explained in relation to the meaning I have found, the imputation was that there had been serious – not trivial – failures by the Claimant in the discharge of his role as a sales representative.

Although Ms Overman conceded this point, I am satisfied that the Email indicated the basis of the opinion that was expressed: i.e. the past performance of the Claimant in his dealings with the First Defendant’s staff.