Malicious Falsehood in UK Law

This state of the authorities suggests that damages for anxiety and distress are not recoverable for malicious falsehood. If that is the law it could lead to a manifestly unsatisfactory and unjust result in some cases. Take the example I gave earlier of a person who maliciously spreads rumours that his competitor's business has closed down. Or the rumour might be that the business is in financial difficulty and that a receiver will soon be appointed.

The history of malicious falsehood as a cause of action shows it was not designed to provide a remedy for such injury: the remedy for such loss is an action for defamation in which, incidentally, damages for injury to feelings may be included in a general award of damages: see the Fielding case, per Lord Denning M.R. at p.851 and Salmon L.J. at p.855.

The application of the rule can also be said to carry with it the potential for swinging the balance unfairly against one party of the other, resulting in no compensation in cases when fairness might suggest that some should be due, or in over-compensation in others. The court ought only to risk the suffering by the claimant of such injustice if there are compelling policy reasons why the single meaning rule, itself an anomaly, ought to prevail in malicious falsehood claims as in defamation.

Since the hearing in this case, I have handed down judgment in Peck v Williams Trade Supplies Limited [2020] EWHC 966 (QB) in which I considered the tort of malicious falsehood and reviewed the role played by s.3(1) in such actions ([12]–[15]).

Sir Brian Neill's well known article "Privacy: a challenge for the next century" in Protecting Privacy (ed B Markesinis, 1999) contains a survey. Common law torts include trespass, nuisance, defamation and malicious falsehood; there is the equitable action for breach of confidence and statutory remedies under the Protection from Harassment Act 1997 and the Data Protection Act 1998.

Fifthly, Lewison LJ does not refer to many of the authorities discussed above, no doubt because they were not cited. Rather, it requires an assessment of whether it is likely that there is, or will be, confusion, applying the standard of perspicacity of the average consumer. It is clear from the case law that this does not mean likely in the sense of more probable than not.

This argument starts from the well-established rule that a witness is absolutely immune from liability for anything which he says in court. They cannot be sued for libel, malicious falsehood or conspiring to give false evidence: Marrinan v. Vibart [1963] 1 Q.B. 528. The interests of justice require that they should not feel inhibited by the thought that they might be sued for something they say.