Mandeep Singh Pannu v Tracy Carter (Defendant/Part 20 Claimant) Medway Council (Part 20 Defendant)

Hearing dates: 28, 29 and 30 November 2017

Judgment Approved

The background circumstances

These proceedings are concerned with events in October 2012. At that time, the Claimant was working as a taxi driver for Strood Cabs Ltd, as he still does. He had previously worked in the transport unit of the Medway Council as a transport inspector and also in its crime prevention unit. The Defendant was and is the joint owner, with Mr Gurdawar Bassi, of ABC Taxis, a firm which is based in Chatham and has on a long term basis provided services to Medway Council. In particular, they supply drivers for transporting children with special educational needs to and from school. I understand that Strood Cabs also perform these services from time to time.

It seems that at some point on or about 15 October 2012 the Defendant was informed by another taxi operator in the area, called Ray Ahmed, of an incident on the Sunday evening (14 October), apparently involving passengers carried in the Claimant's cab, when he was allegedly arrested in connection with the suspected supply of drugs. She had regular dealings with an employee of Medway Council named Amanda Waller and she passed at least some of that information on to her, asking that it be treated in confidence and that she herself should remain anonymous as being the informant. She says that she thought the Council ought at least to be informed about these events because he was, or had been, one of its employees, and was still from time to time supplying his services to the Council as a cab driver. The Claimant sues in slander in respect of that conversation.

On 16 October, Ms Waller sent an email to the Defendant asking that she provide the details of the "allegation". After some hesitation and a further chasing request, the Defendant sent an email on 17 October referring her for the details to a woman who (she thought) had been travelling in the cab at the time of the arrest:

"The most accurate person to speak to with exact facts is Kailey, she is Ray Ahmed's PA for SAS Travel, she was one of the females travelling in M Pannu's taxi on Sunday evening when the incident happened".

That communication is also sued upon as a libel, although it is to be noted that no innuendo is pleaded. Standing by itself, of course, it is difficult to extract from it a meaning defamatory of the Claimant.

There is a dispute as to what exactly the Defendant had told Ms Waller during her telephone conversation. The burden of proof lies on the Claimant to establish that words were spoken which were both defamatory and actionable without proof of special damage. No words are pleaded in direct speech, as good practice generally requires in the case of any alleged slander. In this case, however, I believe I can easily transpose the short plea into direct speech so as not to deprive the Claimant of his cause of action on what might appear to be a technicality. In that form, the words would be as follows: "… the Claimant has been arrested for dealing drugs while driving his taxi on Sunday". Of course, she would not have described him as "the Claimant" at that stage, but he wishes to plead that she identified him by some means in describing what she had been told. The Defendant herself does not accept that she did identify him as being the person arrested at that stage. I will therefore have to return to this issue shortly.

As I understand the pleaded case, the Claimant ascribes to both the original conversation and the subsequent email the same natural and ordinary meaning; namely, that the police had arrested him on suspicion of dealing in illegal drugs. That marks the upper limit of gravity attributed to the defamatory words: Slim v Daily Telegraph [1968] 2 QB 157, 175–176. It is not an allegation of guilt, but amounts only to "reasonable grounds to suspect". (This is sometimes referred to in the jargon as " Chase level 2", by reference to the three tiers of gravity discussed by the Court of Appeal in Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772.)

It seems that the Claimant was shortly afterwards contacted by another council employee, Mr Gary Lindsey, who was Ms Waller's line manager. He reported to him his understanding of what the Defendant had told Ms Waller. Her plea for anonymity had thus obviously been ignored. That was the Claimant's only source of information as to the publication of the alleged slander. In the course of the Claimant's case, no other evidence was introduced as to the defamatory words spoken to Ms Waller. There was nothing from Ms Waller herself or from Mr Lindsey. I only heard the Claimant's account, which was thus second hand hearsay.

The Defendant joined the Council as a Part 20 Defendant and claimed damages for breach of confidence. Mr Bennett represented the Council at the trial and evidence was given by another of its employees, Mr Thomas, who publicly apologised for the breach of confidence. Mr Bennett explained that the Council admitted its breach of confidence and that damages had been agreed with the Defendant. He took no other part in the proceedings.

The Defendant accepted that she had spoken to Ms Waller on 15 October, but she put in issue exactly what she had said. She denied mentioning the Claimant's name or saying that it was he who had been arrested. I believe that she does not actually have a full recollection of what she did and did not say. Neither she nor, it appears, Ms Waller made any contemporaneous note. In those circumstances, the Claimant has the unenviable task of proving that she uttered the slanderous words attributed to her. This was in any event a minimal publication to one person. Ms Waller appears to have passed on a version of what she was told to Mr Lindsey, but there is no evidence that the Defendant's words were published to anyone else – or for any other purpose than that of the Council in pursuing its own enquiries on a confidential basis. Although Mr Panton referred in closing to other people having heard rumours about the Claimant, there is no evidence that the Defendant was the source. Nor was it foreseeable to her that what she told Ms Waller would be passed on except for the legitimate purposes of the Council in discreetly pursuing its enquiries. Nevertheless, limited though the publication was, it is necessary to remember that there does not arise any issue of "serious harm" in the context of s.1 of the Defamation Act 2013 since, because it has been so slow in coming to trial, it is the previous law which has to be applied in this case.

The first issue: Has the Claimant proved publication of the alleged slander?

Ms Wilson emphasises that, even though it may now be admissible, it is undesirable in civil litigation to rely on hearsay for the purpose of proving facts which are centrally important. She referred to Phipson on Evidence (18 ^th edn) at 29–08 and 29–16. In this case, I have other evidence because the Defendant chose to go into the witness box and she answered questions about her conversation with Ms Waller. I am able to come to a conclusion on the totality of the evidence, even though she is somewhat hazy about what passed between them.

I believe that she must have identified the Claimant by reference, if not by name, and indicated also that she had been told that he was arrested in connection with a suspected drugs offence. Although the suggestion was put that she had mentioned Class A drugs, she denies this. In any event, that is not part of the pleaded meaning and the Claimant is not permitted to go beyond that. If she had not identified the Claimant, the message would have made no sense to the recipient. Ms Waller would have been left puzzled as to why she was being given the information. She would no doubt have asked "What has this to do with me?" In any event, she clearly left Mr Lindsey in no doubt as to who was the subject of the warning. He rang up the Claimant straight away.

As to meaning, I conclude that she would have conveyed the natural and ordinary meaning (to one person) that she had been told that he had been arrested because of a suspected drugs offence of some kind. Because of the "repetition rule", that has to be treated as equivalent to a direct allegation. In other words, it is to be regarded as an allegation of reasonable grounds to suspect him of having committed a drugs offence.

The second issue: Are the words to be treated as actionable without proof of special damage?

It has long been established that slanders are not actionable without proof of special damage. None has been pleaded. There are four exceptions and the only one that is of potential relevance here is that relating to an accusation of a criminal offence punishable with imprisonment: see e.g. Gray v Jones (1939) 55 TLR 437. Finally, in his...