Fiona George v Linda Cannell
| Jurisdiction | England & Wales |
| Judge | Mr Justice Saini |
| Judgment Date | 09 November 2021 |
| Neutral Citation | [2021] EWHC 2988 (QB) |
| Docket Number | Case No: QB-2019-004612 |
| Court | Queen's Bench Division |
[2021] EWHC 2988 (QB)
THE HONOURABLE Mr Justice Saini
Case No: QB-2019-004612
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
William Bennett QC and Gemma Mc Neil Walsh (instructed by Thomson Heath & Associates) for the Claimant
John Stables (instructed by Brabners) for the Defendants
Hearing dates: 5 – 8 October 2021
Further written submissions 19 October 2021 and 4 November 2021
This judgment is in 8 main parts as follows:
| I. Overview: | paras. [1–22] |
| II. The Facts: | paras. [23–103] |
| III. The Sting(s) and the Truth Defence: | paras. [104–110] |
| IV. Publication: | paras. [111–113] |
| V. Serious harm to reputation: | paras. [114–138] |
| VI. Malice: | paras. [139–166] |
| VII. Malicious falsehood: | paras. [167–217] |
| VIII. Conclusion: | para. [218] |
| Annexe: Tagg 1 and Tagg 2 (transcripts of oral legal advice) |
I. Overview
By a Claim Form issued on 19 December 2019, Fiona George, the Claimant (C) brings claims for libel, slander and malicious falsehood in respect of four publications alleged to have been made in or around 21 January 2019. The publications are alleged to have been made by Linda Cannell (known as “Lynn”), the First Defendant (D1), and her company, Lynn Cannell Associates Limited, the Second Defendant ( LCA). D1 is the sole director and shareholder of LCA.
LCA is a small and well-established recruitment agency based in Essex. It specialises in recruiting employees (candidates) for estate agents and property companies. LCA has around 100 employer-clients who are primarily estate agents in the South-East of England. In 2018 LCA's important clients included the major estate agencies Balgores and Strettons.
C is a former employee of LCA. Between March and November 2018 C was employed by LCA as a probationary recruitment consultant. C resigned from LCA on 19 November 2018 and in due course she joined Fawkes & Reece, a City-based recruitment consultancy with a focus on the construction industry.
There are four publications sued upon: (a) an email of 21 January 2019 (“the Lingenfelder Email”) sent by D1 to Graeme Lingenfelder (“Mr Lingenfelder”), a director of Fawkes and Reece; (b) oral statements said to have been made by D1 to two individuals at Balgores (Mr Matthew Butler and Mr Martin Gibbon); and (c) oral statements said to have been made by D1 to clients of LCA. The subject of each publication is said to be C and allegations concerning her conduct. I will return to these in more detail at the end of this introduction.
By way of high-level summary, the publications are said to have contained false and defamatory statements as to breach by C of post-termination contractual restrictions on solicitation of LCA's clients, and also breach of assurances by C to D1 that she would not deal with such clients following her departure from LCA. Save in respect of the Lingenfelder Email, the Ds deny making these publications and one of the factual issues before me is whether C has proved they were made.
The terms of the Lingenfelder Email were as follows:
“Hi Graham. I hope you are well and that business is good. You may recall we had a conversation in November regarding the suitability of recruiting Fiona for a potential Recruitment Consultants role with you. Whilst I explained that I felt Fiona possessed some great potential, I also advised that there were reservations, ultimately resulting her departure. Whilst not all of my reservations were revealed during our conversation I recall mentioning her lack of attention to detail and failure to respect LCA rules and processes. It is therefore with great sadness and disappointment, that I write to inform you that despite making clear to Fiona, both verbally and in writing, of her legal obligations under the terms of her employment with LCA, not to solicit business from our clients and candidates (and Fiona's absolute assurances that this is something she would never do), that she has been proactively approaching our clients for new business as well as contacting candidates of LCA. I am writing to you firstly to ask if this is something you are aware of and secondly to ask from one business owner to another to ensure the post-employment restrictions preventing her from contacting our clients and candidates is respected by you and ask for your assurances that this will stop immediately. I have worked hard to build a business based on honesty, trust and loyalty and as I am sure you will appreciate, will do all I can to protect it. I have emailed Fiona today explaining her breach of post-employment obligations and asked her to confirm in writing within the next seven days, that she will desist from contacting our Clients and candidates. Failure to receive confirmation will result if ( sic) me taking legal action which I know will have an impact on her performance (I allowed Fiona over two months off work during her employment with LCA as she was unable to fulfil her duties to a satisfactory level whilst dealing with a personal court case)”.
As will be immediately apparent, one of the main allegations is that C was in breach of post-termination restrictions on soliciting LCA's clients. It is now common ground that C's terms of employment contained no such contractual restriction. However, until about 2 weeks before trial, the Ds sought to argue (as part of a “truth” defence) that the confidentiality provisions of C's contract of employment (see [29] below) were in effect a post-termination non-solicitation clause. I directed that the Ds amend their Defence in this regard (at the same time as making the amendments which followed upon my striking out other parts of the Amended Defence as I describe further in this introduction).
The burden of showing publication of the words complained of by a defendant rests on a claimant: Duncan & Neill on Defamation 5 th edn §8.03. C advances a purely inferential case in relation to three publications the Ds deny making. These are:
(i) slander to Mr Butler, the inference arising from the terms of an email of 21 January 2019 sent by him to C which appears to record that D1 has informed Mr Butler that the C should not be approaching LCA's client as part of her “terms”. I will refer to this email as “the Butler Email” and to the alleged words spoken to Mr Butler as “the Butler Words”;
(ii) slander to Mr Gibbon, the inference arising from words said to have been spoken to C by Mr Butler reporting what he said Mr Gibbon had told him about what D1 is alleged to have said to Mr Gibbon about C's breaches of restrictions on soliciting LCA's clients; and
(iii) slanders and libels to all of the employer clients with whom the Ds dealt, the inference pleaded as arising from the statement made by D1 in an email sent to C by D1 on 21 January 2019 (referred to below as “the George Email”) in which D1 threatened to tell all clients of the claimed breach of restrictions on solicitation by C.
The defamatory meaning of each of the publications complained of was determined by Richard Spearman QC sitting as a Deputy Judge of the High Court: [2020] EWHC 3386 (QB). Before the Deputy Judge the parties helpfully agreed that each of the publications bore the same meaning as the Lingenfelder Email. The meaning of the slanders was determined on a contingent basis i.e. the meaning would apply if C proved that the pleaded words or words to substantially the same effect had been spoken. The Deputy Judge found that each publication bore the following meaning:
“The Claimant, in breach of the restrictions contained in her contract of employment with the Second Defendant, and contrary to her express assurances that she would never do this and thus disloyally and contrary to her word, had been approaching the Second Defendant's clients to solicit business from them as well as contacting the Second Defendant's job applicants”.
It can be seen that there were essentially two limbs identified by the Deputy Judge in respect of criticism of C's conduct by the Ds. I will call these the “breach of contract” and “breach of assurances” aspects. The Deputy Judge went on to describe the nature of the sting(s) at [14] of his judgment but the parties agreed before me that those observations do not bind me and it is for me (taking the Deputy Judge's ruling on meaning) to consider that matter myself.
Amongst other defences, the Ds rely on a s.2(1) Defamation Act 2013 “truth” defence. The Deputy Judge's finding has led to detailed argument before me as to the sting(s) of the libel and the proper scope and nature of the truth defence which the Defendants may advance. Leading Counsel for C submitted that the Deputy Judge's conclusion was a “peculiar” finding given that C did not allege in her Particulars of Claim that words concerning going back on assurances were spoken. However, even if such words were spoken, Leading Counsel made it clear that C does not complain about them. I will need to determine the sting(s) below but for present purposes record that Counsel for the Ds submitted that the sting is one of general disloyalty and untrustworthiness. He relied on the fact that this arises from allegation of breach of obligation by C (whether contractual or based on an oral assurance).
At the start of the trial I struck out parts of the Ds' “truth” Defence and large parts of the witness statements in support. For reasons I gave in my ruling on the...
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