Euromoney Institutional Investor Plc v (1) Aviation News Ltd (2) Philip Tozer-Pennington
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Tugendhat,Mr Justice Tugendhat |
| Judgment Date | 12 June 2013 |
| Neutral Citation | [2013] EWHC 1505 (QB) |
| Docket Number | Case No: HQ12D05245 |
| Court | Queen's Bench Division |
| Date | 12 June 2013 |
[2013] EWHC 1505 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Tugendhat
Case No: HQ12D05245
Manuel Barca QC (instructed by Mishcon De Reya) for the Claimant
Godwin Busuttil (instructed by Taylor Hampton) for the Defendants
Hearing date: 2 May 2013
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.
This action is part of a dispute between organisers of business conferences. The conferences are for the benefit of people engaged in aviation, and those providing finance to them. Those who attend are representatives of the world's largest airlines, leasing companies, commercial banks and other financial institutions and others, such as lawyers, who provide services to them. It is common ground that there are a number of such conference organisers in the world.
The Second Defendant is a former employee of a company associated with the Claimant. He founded and manages the First Defendant, which is a relatively new entrant into this market.
This action was commenced by a claim form issued on 6 December 2012. The claim was (1) for damages, including special and aggravated damages, for libel in respect of words contained in email messages published by the defendants (2) for "damages for the intentional infliction of harm by unlawful means".
Particulars of Claim were served dated 6 December 2012 ("the Original Particulars of Claim"). They were drafted by the Claimant's solicitors before Mr Barca was instructed.
On 16 January 2013 the Defendants issued an application notice. They applied to strike out all the Claimant's claims on a number of grounds. In the alternative, they asked for rulings on the meaning of the words complained of in accordance with CPR 53 Practice Direction para 4.1. This provides:
"At any time the court may decide —
(1) whether a statement complained of is capable of having any meaning attributed to it in a statement of case;
(2) whether the statement is capable of being defamatory of the claimant;
(3) whether the statement is capable of bearing any other meaning defamatory of the claimant".
On 1 March 2013 the Claimant issued an Application Notice. It asked for permission to add a second claimant Euromoney Trading Limited ("ETL"). It also asked for permission to amend the claim form and the Original Particulars of Claim.
The proposed amendments are radical. The claims for special and aggravated damages for libel are abandoned. Also abandoned is the claim for damages for the intentional infliction of harm by unlawful means. But permission is sought to add a new claim not previously referred to, namely a claim in malicious falsehood.
There are two separate texts complained of. The first is an email ("the Email") addressed to a single publishee and dated 30 August 2012. The second is an email sent to an unknown number of publishees dated 16 November 2012 ("the Advertisement").
The Email has the subject heading: "Invitation to Speak — AE Dublin 2013". It was written by the Second Defendant on behalf of the First Defendant to a Ms Carol Palmer. It reads as follows:
"Dear Carol,
We sent a message to Tom some months ago about speaking on our main banking panel and to date we have no reply. Please note that if he would like to join it then I need to know before the close of business this week.
The panel is at 11.00 hrs on Tuesday 22 January 2013. On it are:
…, Head of Transportation, Credit Agricole Corporate Investment Bank/ …, Development Bank of Japan Inc/ Standard Chartered (BC name)/ …, JP Morgan/ …, DVB Bank/ …, Deutsche Bank/ …, Citi Group/ …, Director at Credit Suisse Securities (USA)/ … TBC/
We have more airline finance teams than have ever been assembled in Dublin before and as you guys will already know we have forced a total change in focus at AFJ's Airfinance Europe conference over the past three months which has led their event to be a carbon copy of ours.
Let me know but every active bank other than yours is in the room. Details for the conference can be found at: www.aedublincom".
The Advertisement was sent out with a subject line: "Airline Economics Growth Frontiers Dublin 2013".
"Quality Guarantee?
Do you trust the innovators who came up with an original plan that the industry accepts as being a winner?
Do you trust the company with the most experience within the aviation finance and leasing sector?
If your answer to the above is yes then you need to be at Airline Economics Growth Frontiers Dublin 2013 [a website address is given].
Innovation that forced the competition to change their name, focus, offering and cost to attend.
More years of experience in the aviation finance and leasing sector than staff at the competition — after all what is a brand without the staff?
And of course — No blemished record of fleecing the industry. We believe in a fair margin and if you buy a delegate pass then you should expect to have a seat at all events without additional costs.
We believe that a finance and leasing conference should focus on those that drive the industry, not those that sell to it. We do not need to be shown the way to see this fact.
We believe that an event should be informative and fun. There will be no sardines to be found pressed to the foyer windows in the City Centre of Dublin in 2013 at our conference.
There are a few remaining places — join us and help us help you".
At the hearing Mr Barca did not oppose the Defendants' application to strike out insofar as it was based on the Original Particulars of Claim. He invited the court to consider only the draft amended claim form and the draft amended Particulars of Claim.
Mr Busuttil opposed the application for permission to amend. A number of the grounds on which he opposed the application closely resembled grounds upon which he had sought to strike out the Original Particulars of Claim. He objected to the joinder of ETL, and to the addition of a new cause of action, both on substantive grounds, and because no claim by ETL, and no claim for malicious falsehood, had been mentioned in the pre-action correspondence. In effect, he submitted, what the Claimant was doing amounted to the abandonment of the original claim and the commencement of a new claim. It should be required to discontinue and issue new proceedings.
The draft includes amendments to the meanings which the Claimant and ETL now seek to attribute to the words complained of, insofar as the complaint is in defamation. The meanings, as pleaded in the draft, are set out below.
The Claimant also pleads, in respect of each of the publications complained of, the facts upon which it and ETL rely in support of their case that the publishee(s) would understand the words to refer to or the Claimant and ETL, or one of them.
Since there is an issue as to whether the Claimant has title to sue it will be necessary to return later in this judgment to consider whether the words complained of are capable of referring to the Claimant.
SUBMISSIONS FOR THE DEFENDANT
In addition to the submission (referred to above) that the Claimant should be required to commence new proceedings, rather than be given permission to amend, Mr Busuttil makes the following substantive submissions in relation to the draft amendments:
i) Defamation:
a) Reference: The Claimant has no claim for defamation because the words complained of could only reasonably have been taken by readers to refer to a company which was running the conference business, and, in accordance with the draft amendment that is ETL alone. The Claimant, as a non-trading corporation at the date of publication has no standing to sue in defamation at all.
b) Meaning: No meaning defamatory of either claimant has been identified which either the Email or the Advertisement are reasonably capable of bearing, alternatively, in relation to the passage in the Advertisement including the word "fleecing" any defamatory meaning can only be an opinion or value judgment.
ii) Malicious Falsehood:
a) The Claimant can have no claim in malicious falsehood for the same reason it can have no claim in libel: it was not the company operating the conference business, it is a non-trading corporation, and so there is no likelihood of it suffering pecuniary loss.
b) This is a case in which the Claimant and ETL ought to be required to explain in their Particulars of Claim how it is said that the alleged malicious falsehood was likely to cause each of them pecuniary damage such as is referred to in the Defamation Act 1952 s.3.
c) It is clear that it is inherently improbable that even ETL would be likely to suffer any such loss or damage, in particular because, if that had been likely, it would have manifested itself already, given that the rival conferences took place in January 2013.
d) Those statements complained of which are not factual in nature, but are opinion or value judgment, cannot be the subject of a claim for malicious falsehood.
e) There is no case of malice pleaded against the Defendants which has any prospect of success.
iii) Abuse of Process: A defamation claim in respect of the Email, or any claim for malicious falsehood, would not be proportionate and "worth a candle" ( Jameel v Dow Jones [2005] QB 946) and therefore would be an abuse of the process of the court.
In addition to these points Mr Busuttil submits that there is a further obstacle to any real prospect of the claimants succeeding in this action, albeit not one that is yet apparent on the evidence. He states...
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