Ian Webster v British Gas Services Ltd
| Jurisdiction | England & Wales |
| Judge | Justice Tugendhat |
| Judgment Date | 23 May 2003 |
| Neutral Citation | [2003] EWHC 1188 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: JS/03/0043 |
| Date | 23 May 2003 |
[2003] EWHC 1188 (QB)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Tugendhat
Case No: JS/03/0043
James Dingemans QC (instructed by Bar Pro Bono Unit) for the Claimant
Jane Phillips (instructed by DLA) for the Respondent
Hearing dates: 19th May 2003
HTML VERSION OF JUDGMENT
The Claimant in this defamation action is a heating engineer and plumber who has carried on his business for very many years.
The defendants' business includes providing maintenance for heating systems under contracts, which they make with the occupiers of residential property.
In 1999 the claimant carried out plumbing and heating works under a contract with Michael Shanly Homes Limited ("Shanly"). One of the properties in question was a development known as Newholme Court in Surrey. The Claimant installed the heating system at Flat 11 of that development. The Leaseholder of that flat was a Mrs Cheeseman. Very shortly after this she wanted to obtain a Three Star Maintenance Contract for the heating system with the Defendant. For this purpose the Defendant sent an inspector, who has been identified as a Mr Kelly, whose task it was to check that the system was to a standard satisfactory to the Defendant. The result of the inspection was that the defendant's declined to enter into the contract, explaining to Mrs Cheeseman that her system did not meet the defendant's minimum standards. The Claimant was contacted by Mrs Cheeseman and asked to sort out the matter and, so he pleads, he promised to contact her and to report to LShanly.
It appears that there was some delay. The Claimant was, he says, concerned about the damage to his business that the report had caused. There is evidence that LShanly has ceased to give him work as from the inspection in July.
The claim for defamation is in relation to two separate publications in respect of each there is also a claim for malicious falsehood.
The first claim in defamation is one in slander and is pleaded as follows:
"12 on 25 th October 1999 an engineer employed by the defendant (and I interpose to say that he has been identified as a Mr Snell) and acting in the course of his employment attended at Flat 11, Newholme Court for a meeting with Mrs Cheeseman and the claimant. The engineer spoke and published to Mrs Cheeseman the following defamatory words
"the heating system did not meet with British Gas's minimum standards, that there were high levels of flux in the system and also that the system was not adequately flushed".
The meaning which it is pleaded those words meant and word understood to bear, either in their natural ordinary meaning or by way of an alternative plea of innuendo, is that the claimant had not installed the heating system using reasonable care and skill in that he had left high levels of flux in the system and had not adequately flushed the system.
There follows a plea that the words complained of were calculated to disparage him in his business has a heating engineer and to cause him pecuniary damages in respect of his business.
There follows immediately after this claim in slander, a claim based on the same facts in malicious falsehood. It is said that there were not high levels of flux in the heating system and that the heating system had been adequately flushed and had been flushed on two further occasions as later pleaded. There then follows a plea of malice, which I shall return to.
The second claim in defamation is one in libel and is pleaded as follows:
"19 By letter dated 16 November 1999 [and I pause to interpose that that is a letter written by a Miss Martin] the defendant wrote a letter to the claimant. The claimant sent the letter dated 16 th November 1999 to Mrs Cheeseman and LShanly. The claimant was under a duty to republish the letter dated 16 th November 1999 to Mrs Cheeseman and LShanly because of the promise made by the claimant in paragraph 9 above [that is the pleaded promise to report to LShanly] because the letter concerned the heating system in Mrs Cheeseman's flat which was the subject of investigation and, because of the circumstances particularised in paragraph 18 above [that refers to the plea that what had been said on 25 October had been said orally]. The defendant intended that the letter should be published to Mrs Cheeseman and LShanly given the circumstances particularised in paragraph 18 above. Alternatively the publications were a natural, probable and foreseeable consequence of sending the letter to the claimant given the circumstances particularised in paragraph 18 above. In the premises the defendant is liable for the publication of the letter to Mrs Cheeseman and LShanly."
A similar natural and ordinary meaning, alternatively innuendo, is pleaded. There follows a plea of malicious falsehood which is similar to the plea in respect of the slander. For that purpose the plea of malice in paragraph 17, in relation to the slander, is repeated in relation to the libel by the letter.
There is before me an Application Notice dated 11 th March 2002 by which the defendant applies for summary judgment under CPR 24.2, on the grounds that the claimant has no real prospect of
1. Showing that the defendant is liable for the republication by the claimant himself of the letter to LShanly and Mrs Cheeseman,
2. Successfully resisting the defendants defence of qualifying privilege in respect of the alleged slander and, as it turns out the alleged libel,
3. Demonstrating in respect of either statement complained of, whether to rebut a defence of qualified privilege or to make out a claim in malicious falsehood, that the defendant had published the words complained of maliciously. It is submitted there is no other compelling reason why these matters should be disposed of at trial. Alternatively the defendant seeks to strike out the plea of libel and or in the alternative the entire Claim Form and Particulars of Claim under CPR 2.4(2)(A).
The defence as it is at present includes a plea of qualified privilege only in respect of the slander. If the defendant's argument on republication and malice both fail then there is an application to amend the defence to extend the plea of qualified privilege to the libel. In the event that has not been a matter of disagreement and I need say no more about it at this stage.
During the preparation of this hearing the claimant's case, which was presented for him by Mr James Dingemans Queens Counsel, underwent some development. The Skeleton Argument contains an argument on the issue of malice, which goes very considerably further than the existing plea. Counsel for the defendant, Jane Phillips was ready to deal with this and urged me to deal with it in order to avoid a further hearing with the resulting costs and delays. However, I indicated to Mr Dingemans that if I was to do this I ought to have a draft amendment to the Particulars of Malice, which reflected the submissions that he was making. As a result of that, over an extended short adjournment, he prepared a draft. It is right that I should mention that the claimant has means, which are, not surprisingly, limited by comparison to the very substantial costs of pursuing defamation proceedings and he has not found it easy to obtain professional representation.
Since the debate focused on the skeleton argument and then the draft amended Particulars of Malice it is convenient that I should set out the draft rather than the original pleading. It reads as follows:
"17 the words were said maliciously:
Particulars of Malice
17.1 the claimants case is that is to be inferred that the defendant appreciated that the information previously given to Mrs Cheeseman (namely that the heating system did not meet the defendants minimum standards) was wrong and that because of the delay, the defendant did not want to admit its error and in this respect was prepared to condemn the claimants work without justification. The claimant relies on the matters set out in paragraphs 17.2 to [17.3] and then 17.5 below:
17.2 the fact that it was obvious to any heating engineer (including the engineer employed by the defendant who visited flat 11 Newholme Court on 25 October 1999) namely Mattew Snell) that 95% of the joint were compression fittings (plastic pipe in sleeve) which did not require flux. This meant that and there follows some words which are crossed out and they are as follows there could not have been enough flux in the system (whether it had been flushed out or not) to mean that there were high levels of flux stop crossing out. It would be surprising to find elevated chloride levels in the water.
17.3 the disparity of the testing results produced by the defendant from Fernox dated 28 th October 1999 (purporting to show Chloride in the heating system at 98 compared to 58 in the mains water) and the further results obtained by the Claimant from Combustion Chemicals recorded in their report dated 7 th December 1999 (showing Chloride at 60 in the heating system compared with 57.5 in the mains water). The claimant's case is that results obtained by the claimant were properly obtained from Combustion Chemicals and showed accurately the state of the water in the heating system. The two test results show that the water tested was not from the same heating system. The Defendant relies on the fact that Mr Lane was unable to reconcile the test results, as appears from paragraph 3 from his letter dated 8 January 2003, and Mr Phillips has confirmed to the Claimants former solicitors as appears from their letter dated 20 November 2002 (and the claimant as appears from paragraph 6 from his witness statement dated 15 th May 2003) that the test results cannot be reconciled. The Claimants case is that his sample was taken from...
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