Fiona George v Linda Cannell
| Jurisdiction | England & Wales |
| Judge | Lord Justice Warby,Lord Justice Snowden,Lord Justice Underhill |
| Judgment Date | 27 July 2022 |
| Neutral Citation | [2022] EWCA Civ 1067 |
| Docket Number | Case No: CA-2021-003377 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1067
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Warby
and
Lord Justice Snowden
Case No: CA-2021-003377
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Mr Justice Saini
Royal Courts of Justice
Strand, London, WC2A 2LL
William Bennett QC and Godwin Busuttil (instructed by Thomson Heath & Associates) for the Appellant
David Price QC (instructed by Brabners LLP) for the Respondents
Hearing date: 14 June 2022
Approved Judgment
This judgment will be handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30am on 27 th July 2022
Introduction
Fiona George (“the claimant”) worked as a recruitment consultant for an agency owned and operated by Linda ‘Lynn’ Cannell (“the first defendant”), called LCA Jobs Limited (“ LCA”). After the claimant left LCA and took a new job with another agency, the first defendant spoke to one of the claimant's clients and sent an email to her new employer, alleging that the claimant had been acting in breach of restrictive covenants in her contract with LCA by approaching LCA's clients and soliciting business from them. The claimant sued the first defendant and LCA for libel, slander, and malicious falsehood.
The claimant established that these words were published, that they were defamatory of her, that the allegation that she had acted in breach of contract was false, and that the defendants had published that allegation maliciously. But Saini J (“the Judge”) dismissed all the claims for want of proof of harm. He held that the defamation claims failed because the claimant had not established that either publication caused serious harm to her reputation as required by s 1(1) of the Defamation Act 2013. The malicious falsehood claims were dismissed on the grounds that the claimant had not proved special damage as required by the common law, nor had she shown that her case fell within the exception to that requirement contained in s 3(1) of the Defamation Act 1952.
The claimant now appeals with the leave of the Judge against the dismissal of her claims in malicious falsehood. She accepts that she failed to establish special damage but argues that she proved enough to justify findings in her favour on liability based on s 3(1) with damages to be assessed. That is the order we are asked to substitute for the order made by the Judge.
Section 3(1) provides:-
“In an action for slander of goods, slander of title or other malicious falsehood it shall not be necessary to allege or prove special damage
(a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form; or
(b) if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication.”
The issues
The main issue is: what does a claimant need to prove to take advantage of s 3(1) of the 1952 Act? Two main options have been identified. Does the claimant need to show that with hindsight it can be seen that the false and malicious statement of which she complains probably caused her some financial loss (“the historic approach”)? That, in summary, was the conclusion of the Judge. Or is it enough to show something less: that the statements were such that it was inherently probable that in the ordinary course of events they would cause the claimant some financial loss? (“the forward-looking approach”). That, broadly, is the case for the claimant.
If the claimant is right on the main issue, a further question arises: can she recover anything more than nominal damages? More specifically, in the absence of actual financial loss is there any tenable claim for damages to compensate for injury to feelings?
Background to the appeal
To put these issues in context, I need to say a little more about the key facts and the course of the proceedings. But as the facts are recited in some detail in the judgment below, and I only need to deal with points of relevance to the issues on the appeal, I can be relatively brief.
The claimant's employment with LCA came to an end on 19 November 2018. On 3 January 2019, she started work with Fawkes and Reece (“F&W”). Her manager there was Graeme Lingenfelder. One client with whom the claimant dealt in her new role at F&R was Matthew Butler of Balgores Property Services (“Balgores”). Balgores was also a long-standing client of LCA. But after the claimant moved to F&W Mr Butler commissioned her to conduct a search for staff. That came to an end on 21 January 2019.
At 4.30pm that day, the first defendant sent the claimant an email (“the George Email”) accusing her of being in breach of the “post-employment obligations under the terms of your employment, not to solicit business from LCA clients and candidates”. The first defendant announced that she would write to F&R as well as to LCA's clients “to advise them of your actions and your violation of the terms of your post-employment data protection policy”, and threatened to take “severe legal action” against the claimant “without hesitation” if she did not confirm within 7 days that she would not contact those clients.
At 4.32pm on 21 January 2019, Mr Butler sent the claimant an email in these terms:-
“Please can you put our search for staff from you on hold. I have spoken again to Lyn Cannell today she advises that as part of your terms you should not be approaching her clients. As you know, I have dealt with Lyn for 10 yrs and until you have come to a resolution with her, I think its best we put on hold for now. I wish you all the best in future”.
The claimant's inferential case based on this email was that the first defendant had said to Mr Butler the following or words to substantially the same effect (“the Butler Words”):-
“The Claimant signed a contract with the Defendants by which she agreed not to contact companies for whom the Defendants had worked. By searching for new staff for Balgores she had breached that contract. Therefore, Balgores should stop using the Claimant to find candidates.”
The defendants admitted that there was a conversation between the first defendant and Mr Butler but denied that any such statement had been made. At the trial Saini J found that the claimant had proved her case on this issue.
At 4.37pm on 21 January 2019, the first defendant sent Mr Lingenfelder an email (“the Lingenfelder Email”) in the following terms:-
“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)”.
The defendants admitted publication of the Lingenfelder Email but disputed the claimant's case on its meaning and the meaning of the Butler Words (assuming those were spoken).
At a trial of preliminary issues before Richard Spearman QC, sitting as a Deputy Judge of the High Court, the court determined the natural and ordinary meaning of the Butler Words (assuming proof of publication) and the Lingenfelder Email: [2020] EWHC 3386 (QB). The judge found that each publication bore the following meaning, and that this meaning was defamatory at common law:-
“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”.
At trial, the Judge held that this was the only reasonable meaning of the...
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