BWxs Legal Services Ltd v Trustpilot A/S

Hearing date: 7 March 2024

Approved Judgment

This judgment was handed down remotely at 3pm on Wednesday 12 June 2024 by circulation to the parties or their representatives by e-mail and release to the National Archives.

HIS HONOUR JUDGE Lewis

The claimant is a law firm that specialises in debt recovery work. The defendant operates the well-known website called Trustpilot.

These are libel proceedings brought in respect of reviews about the claimant that were published on Trustpilot.

The claim was originally brought in respect of 136 reviews. The claimant then amended its claim and now complains of just twenty of the reviews posted between 21 February 2020 and 17 July 2021 (“the Twenty Reviews”).

The claimant's pleaded claim is for damages between £10,000 – £50,000, an injunction and an order under s.12 of the Defamation Act 2013 (“DA2013”) that the defendant publish a summary of the court's judgment.

The background to these proceedings is set out in a judgment of Tipples J dated 24 January 2023, handed down following the trial of a preliminary issue: BW Legal Services Ltd v Trustpilot A/S [2023] EWHC 6 (KB).

On 12 July 2023, the defendant served a 73-page defence and pleaded:

a. general defences to the claim on the basis that it is not a publisher, etc under statute or common law, and has a complete defence to the claim as an operator of a website (s.5 DA 2013);

b. in respect of each review sued upon, defences of truth (s.1 DA2013), honest opinion (s.3) and publication on a matter of public interest (s.4); and

c. that the Twenty Reviews (or any of them) have not caused and/or are not likely to cause “serious harm” to the claimant's reputation, within the meaning of s.1 DA2013.

The claimant served its reply on 8 November 2023.

The defendant now applies for summary judgment on the basis that the claimant has no real prospect of establishing that the publication of the Twenty Reviews (or any of them) has caused, or is likely to cause, serious harm (and serious financial loss) as required by s.1 DA2013. In the alternative, the defendant seeks to strike out the claim pursuant to CPR rule 3.4(2)(b) for abuse of process arising out of delay.

Summary judgment

CPR rule 24.2 provides that the court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if:

“(a) it considers that—

(i) that claimant has no real prospect of succeeding on the claim or issue; or

(ii) that defendant has no real prospect of successfully defending the claim or issue; and

(b) there is no other compelling reason why the case or issue should be disposed of at a trial”.

The approach to be taken when considering a defendant's application for summary judgment is well established. In Amersi v Leslie & another [2023] EWHC 1368 (KB) at [142], Nicklin J summarised the main principles. Of particular significance for this application is what is said about the approach to be taken when a respondent says that they will produce further evidence at a later stage of proceedings:

“The, now familiar, principles governing summary judgment were summarised in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) [15] per Lewison J (and approved by the Court of Appeal in AC Ward & Sons Ltd v Catlin (Five) Ltd [2009] EWCA Civ 1098). Drawing upon other relevant authorities the following can be stated:

(1) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman [2001] 1 All ER 91. The criterion is not one of probability; it is absence of reality: Three Rivers DC v Bank of England (No.3) [2003] 2 AC 1 [158] per Lord Hobhouse.

(2) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 [8]

(3) In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman. This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel [10]; Optaglio v Tethal [2015] EWCA Civ 1002 [31] per Floyd LJ.

(4) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No.5) [2001] EWCA Civ 550; Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63.

(5) Nevertheless, to satisfy the requirement that further evidence “can reasonably be expected” to be available at trial, there needs to be some reason for expecting that evidence in support of the relevant case will, or at least reasonably might, be available at trial. It is not enough simply to argue that the case should be allowed to go to trial because something may “turn up”. A party resisting an application for summary judgment must put forward sufficient evidence to satisfy the court that s/he has a real prospect of succeeding at trial (especially if that evidence is, or can be expected to be, already within his/her possession). If the party wishes to rely on the likelihood that further evidence will be available at that stage, s/he must substantiate that assertion by describing, at least in general terms, the nature of the evidence, its source and its relevance to the issues before the court. The court may then be able to see that there is some substance in the point and that the party in question is not simply playing for time in the hope that something will turn up: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725 [14] per Moore-Bick LJ; Korea National Insurance Corporation v Allianz Global Corporate & Speciality AG [2008] Lloyd's Rep IR 413 [14] per Moore-Bick LJ; and Ashraf v Lester Dominic Solicitors & Ors [2023] EWCA Civ 4 [40] per Nugee LJ. Fundamentally, the question is whether there are reasonable grounds for believing that disclosure may materially add to or alter the evidence relevant to whether the claim has a real prospect of success: Okpabi v Royal Dutch Shell Plc [2021] 1 WLR 1294 [128] per Lord Hamblen.

(6) Lord Briggs explained the nature of the dilemma in Lungowe v Vedanta Resources plc [2020] AC 1045 [45]:

“… On the one hand, the claimant cannot simply say, like Mr Micawber, that some gaping hole in its case may be remedied by something which may turn up on disclosure. The claimant must demonstrate that it has a case which is unsuitable to be determined adversely to it without a trial. On the other, the court cannot ignore reasonable grounds which may be disclosed at the summary judgment stage for believing that a fuller investigation of the facts may add to or alter the evidence relevant to the issue…”

(7) The Court may, after taking into account the possibility of further evidence being available at trial, and without conducting a ‘mini-trial’, still evaluate the evidence before it and, in an appropriate case, conclude that it should “draw a line” and bring an end to the action: King v Stiefel [2021] EWHC 1045 (Comm) [21] per Cockerill J”.

Serious Harm – the law

Section 1 DA2013 provides that:

“1(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

(2) For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.”

The leading authority on s.1 is the Supreme Court decision in Lachaux v Independent Print Limited [2019] 3 WLR 18. Giving the judgment of the court, Lord Sumption explained that s.1 had raised the threshold of seriousness required to bring a defamation claim, and that “serious harm” must be determined by reference to the actual facts about a statement's impact, and not just to the meaning of the words. Lord Sumption also said the following about the operation of s.1:

“[14] … The reference to a situation where the statement “has caused” serious harm is to the consequences of the publication, and not the publication itself. It points to some historic harm, which is shown to have actually occurred. This is a proposition of fact which can be established only by reference to the impact which the statement is shown actually to have had. It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. The same must be true of the reference to harm which is “likely” to be caused. In this context, the phrase naturally refers to probable future harm… …both past and future harm are being treated on the same footing, as functional equivalents. If past harm may be established as a fact, the legislator must have assumed that ‘likely’ harm could be also…

[21] … [the claimant] must demonstrate as a fact that the harm caused by the publications complained of was serious…. the judge's finding [at first instance] was based on a combination of the meaning of the words, the situation of [the claimant], the circumstances of publication and the inherent probabilities. There is no reason why...