Andrew Peck v Williams Trade Supplies Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin |
| Judgment Date | 23 April 2020 |
| Neutral Citation | [2020] EWHC 966 (QB) |
| Date | 23 April 2020 |
| Docket Number | Case No: QB-2019-000898 |
| Court | Queen's Bench Division |
[2020] EWHC 966 (QB)
THE HONOURABLE Mr Justice Nicklin
Case No: QB-2019-000898
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Claire Overman (instructed by Ratcliffes Solicitors) for the Claimant
Victoria Simon-Shore (instructed by Biscoes Solicitors) for the Defendants
Written submissions: 2 April 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Nicklin
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
I hope you are well!
A bit of an awkward one here and one completely off the record…
I have heard on the grape vine that you may be close to appointing Andy Peck as your new rep to cover Kent (and I'm not sure what other areas) I would like to add my huge reservations against him dealing with any of our Williams branches. He is not well received in our branches in Kent and has been officially named the worst rep of all time, to the point we put an official request in with Ideal boilers for him to no longer visit any of our branches
I am not sure if you are taking him on or not, but as I had heard this I felt only right that I speak to you about it immediately and request very strongly that he does not look after Williams & co as a company if you do decide to take him on …”
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:
i) whether, for the purposes of the Claimant's defamation claim, the Email bears the Claimant's Meaning or the Defendants' Meanings and, if not, what meaning(s) the Email bear(s);
ii) whether the meaning of the Email found by the Court is defamatory of the Claimant at common law;
iii) whether the Email, in the meaning(s) found, is a statement of fact or expression of opinion;
iv) whether, if the Email was an expression of opinion, the Email indicated, in general or specific terms, the basis of the opinion(s) stated; and
v) whether, for the purposes of the Claimant's malicious falsehood claim, the Claimant's Meaning is (a) a reasonably available meaning of the Email; and (b) a meaning that Mr Smith would reasonably have understood the words complained of to bear.
At this stage, I am not concerned with any issue as to serious harm under s.1 Defamation Act 2013.
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).
Defamation: the law
The principles to be applied in determining issues (i) to (iv) are not controversial.
i) For the determination of the natural and ordinary meaning, and whether the Email conveys an allegation of fact and/or an expression of opinion, the relevant principles are set out in Koutsogiannis v The Random House Group Limited [2020] 4 WLR 25 [11]–[17].
ii) Ms Simon-Shore has rightly reminded me of the need for caution when the Court makes the assessment of whether the words complained of would be understood as an expression of opinion or an allegation of fact. The point was made by the Court of Appeal in British Chiropractic Association v Singh [2011] 1 WLR 133 [16], [32] and further explained by Warby J in Sube v News Group Newspapers Ltd [2018] EWHC 1234 (QB) [33]:
“ Singh's case also highlights the dangers of drawing too rigorous a distinction between the question of whether words are defamatory and the question of whether they are fact or comment. To ask the questions separately, in that order, ‘may not always be the best approach, because the answer to the first question may stifle the answer to the second’: [32]…”
Ms Simon-Shore points to the approach of the Court in Zarb-Cousin v Association of British Bookmakers [2018] EWHC 2240 (QB) [38] and Triaster v Dun & Bradstreet Limited [2019] EWHC 3433 (QB) [22] as examples of a flexible and holistic approach being adopted to the determination of the question of fact/opinion.
iii) Whilst the assessment of the natural and ordinary meaning remains wholly objective, where, as here, there is an identified and limited readership, the Court can focus on the hypothetical reasonable reader in the position of the publishee(s) – see Koutsogiannis [12(xi)]. This permits a more evidence-based assessment of the qualities of the hypothetical reader than would be the case with a more widespread publication: Lewis v Commissioner of Police for the Metropolis [2011] EWHC 781 (QB) [49]; Theedom v Nourish Training Limited [2016] EMLR 10 [9]–[11]. Nevertheless, the Court must remain wary of – and avoid – impressionistic assessments of the characteristics of the publishee(s) which are often little more than impermissible assertions by the opposing parties of how a particular reader would understand the words complained of: Koutsogiannis [12(xi)].
iv) As to whether a statement is defamatory at common law, the applicable principles are set out in Allen v Times Newspapers Ltd [2019] EWHC 1235 (QB) [19]. Ms Overman...
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