David Haviland v The Andrew Lownie Literary Agency Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Murray |
| Judgment Date | 01 July 2022 |
| Neutral Citation | [2022] EWHC 1688 (QB) |
| Docket Number | Case No: QB-2020-001358 |
| Court | Queen's Bench Division |
[2022] EWHC 1688 (QB)
THE HONOURABLE Mr Justice Murray
Case No: QB-2020-001358
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Robert Sterling (instructed by Carruthers Law) for the Respondent
Mr John Stables (instructed by Brett Wilson LLP) for the Applicants
Hearing date: 27 July 2021
Approved Judgment
THE HONOURABLE Mr Justice Murray
This judgment was handed down remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down are deemed to be 1 July 2022 at 10:30 am.
This is an application by the defendants, The Andrew Lownie Literary Agency Ltd (“the Agency”) and Mr Andrew Lownie, made by application notice dated 4 May 2021, for summary judgment and/or strike-out in respect of Mr David Haviland's claim (“the Application”).
The defendants seek summary judgment in their favour on the whole of the claim under CPR r 24.2 on the basis that Mr Haviland has no real prospect of establishing that he has suffered or is likely to suffer serious harm to his reputation as a result of the publications sued upon and there is no other reason why the disposal of the claim, or that issue, should await trial.
In the alternative, the defendants seek the strike-out of the claim under CPR r 3.4(2) (a) on the basis that the Re-Amended Particulars of Claim (“RAPoC”) and the claimant's response dated 5 March 2021 to the defendants' request dated 12 February 2021 for additional information under CPR Part 18 (“the Part 18 Response”) disclose no reasonable grounds for bringing the claim as Mr Haviland cannot, and is not likely to be able to, show serious harm to his reputation as a result of the publications sued upon.
In the further alternative, the defendants seek the strike-out of the claim under CPR r 3.4(2)(b) and the court's Jameel jurisdiction on the basis that the claim is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings because any harm Mr Haviland may have suffered is so trivial that proceedings would be disproportionate or, in other words, that no “real and substantial” tort has been committed.
Factual background
Mr Haviland worked at the Agency from 2012 to 2018.
Mr Haviland and Mr Lownie are co-directors of a publishing company, Thistle Publishing Limited (“Thistle”).
After his departure from the Agency, Mr Haviland brought a claim against the Agency in the Employment Tribunal. That claim (Case No: 2304296/2018, 24 March 2021) was dismissed for want of jurisdiction. The Tribunal found that Mr Haviland was not an employee of the Agency.
This claim, as it currently stands, concerns five email messages sent by Mr Lownie to the operators of a website named Reedsy.com (“Reedsy”). Four of the emails were sent in April 2019, and one was sent in June 2019.
Reedsy is a website on which people who wish to, or do, work in the book publishing industry can promote their services. Such people post (self-publish) their own profiles on Reedsy. The purpose of the website is to facilitate contact between those offering freelance publishing services and those seeking such services. It is in that respect akin to LinkedIn but aimed at the publishing industry. It is a contact directory or noticeboard that facilitates business between service providers and clients. Given the nature of the services advertised, the clients are, for the most part, if not exclusively, authors.
Reedsy's business model is to take a percentage of fees generated between service providers and clients. Its charging model is said to be similar to that of Airbnb for property lets in that it charges both the service provider and their client.
Reedsy allows a service provider or freelancer to register without charge a profile as a service provider in one of six categories, namely, editor, designer, publicist, marketer, ghost-writer, or web designer. Reedsy also allows a person who is seeking the services of a freelance editor, designer, publicist, marketer, ghost-writer or web designer to register without charge as a client. Reedsy operates an algorithm that makes recommendations of service providers to clients.
According to the RAPoC, apparently relying on a feature article in Forbes magazine (4 March 2019), Reedsy as of 2019 had a community of 150,000 author-clients and carried profiles for 1,500 service providers across the various categories.
A person may register on Reedsy as both a service provider and a client, but, according to clause 4.4 of Reedsy's Terms of Use, “you are only permitted to register for one account as a Client and one account as Service Provider”.
Mr Haviland opened a service provider account as an editor on or around 15 March 2019 and opened a second service provider account as a ghost-writer on or around 26 March 2019.
The alleged defamatory publications
In April 2019 Mr Lownie raised objections with Reedsy regarding the accuracy of entries in Mr Haviland's editor profile. According to Mr Lownie, he was not at that time aware that Mr Haviland also had a ghost-writer profile. Mr Lownie's objections were set out in an email sent to service@reedsy.com on 15 April 2019 at 17:09 (“Email 1”) and, in more detail identifying references in Mr Haviland's editor profile to eight books, in an email sent to service@reedsy.com on 15 April 2019 at 17:16 (“Email 2”).
On 15 April 2019 at 17:15, just before Email 2 was sent, Mr Emmanuel Nataf, the Chief Executive Officer of Reedsy, sent an email responding to Email 1 to Mr Lownie, copied to Ms Jessica Kim, another Reedsy employee whose email signature (on an email sent by her to Mr Haviland on 16 April 2019 at 13:43) shows her title as “Reedsy Community Manager”. In that email, Mr Nataf stated the accuracy of Mr Haviland's editor profile was Mr Haviland's responsibility and asked whether Mr Lownie had discussed his concerns with Mr Haviland.
On 15 April 2019 at 17:52, Mr Lownie responded to Mr Nataf, copied to Ms Kim, copying the substance of Email 2 (identifying the same eight books) and adding further comment (“Email 3”).
On 17 April 2019 at 10:43, Mr Lownie sent a further email to Mr Nataf, copied to Ms Kim, asserting that it was Reedsy's responsibility “to carry true information”, thanking Reedsy “for making the requested changes”, and noting “a few more factual inaccuracies which need to be corrected” in Mr Haviland's editor profile (“Email 4”).
On 10 June 2019 at 10:53 Mr Lownie sent an email to Ms Kim, copied to Mr Nataf, asserting that, although entries on Mr Haviland's editor profile had been changed, there were errors in entries on Mr Haviland's ghost-writer profile that needed to be corrected (“Email 5”).
The text of each of Email 1, Email 2, Email 3, Email 4, and Email 5 is set out in the Annex to this judgment. These emails are the publications that were found by the court at an earlier stage to be defamatory at common law (see [21.(iii)] below).
Procedural history
The relevant parts of the procedural history are as follows:
i) On 14 April 2020, Mr Haviland issued this claim seeking damages, including special and aggravated damages, for alleged libels in seven email messages sent by Mr Lownie and seeking an injunction against the Agency and Mr Lownie restraining further publication. The original Particulars of Claim served were dated 12 August 2020.
ii) On 20 October 2020, Nicklin J made an order (sealed on 26 October 2020) that there be a trial of preliminary issues to determine (a) the natural and ordinary meaning of six of the seven emails complained of (the meaning of one of the emails having been admitted) and (b) whether, in each case, the meaning so found was defamatory of Mr Haviland at common law. In the same order, Nicklin J gave directions for the determination of those preliminary issues, including that it be on the basis of written submissions.
iii) On 29 January 2021, Nicklin J handed down his judgment (neutral citation: [2021] EWHC 143 (QB)) and made his order setting out the natural and ordinary meaning of each of the seven emails complained of in the original claim. He found that two of them were not defamatory of Mr Haviland at common law, and gave judgment for the defendants in respect of those, with Mr Haviland to pay the defendants' costs of the claim in respect of those. He also gave directions for Mr Haviland to serve further amended particulars of claim consequent on his determinations, and he gave related case management directions. The natural and ordinary meaning of each of the five email messages that Nicklin J found to be defamatory at common law are set out in the Annex to this judgment.
iv) On 12 February 2021, Mr Haviland served the RAPoC.
v) On 12 February 2021, the Agency and Mr Lownie made a request for further information under CPR Part 18, to which Mr Haviland responded on 5 March 2021.
vi) On 16 April 2021, the defendants made an application for trial of preliminary issue in relation to the issue of serious harm under section 1 of the Defamation Act 2013.
vii) On 19 April 2021, Nicklin J refused the defendants' application of 16 April 2021, without a hearing and ordering the defendants to pay the costs of the application, appending detailed reasons for doing so. He also gave consequential case management directions.
viii) On 4 May 2021 the defendants made the Application.
ix) On 6 May 2021, Nicklin J made an order giving directions for the hearing of the Application.
Evidence
The principal evidence presented by the defendants in support of the Application are two witness statements dated 4 May 2021...
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...jurisdiction has become less important, the general principles remain in place: Haviland v The Andrew Lownie Literary Agency Ltd [2022] EWHC 1688 (QB) at 36 Section 12 of the Defamation Act 1952 (“the 1952 Act”) provides: “In any action for libel or slander the defendant may give evidence ......