Renee Wasserman v Laurence Freilich
| Jurisdiction | England & Wales |
| Judge | Sir David Eady |
| Judgment Date | 19 February 2016 |
| Neutral Citation | [2016] EWHC 312 (QB) |
| Docket Number | Case No: HQ15X03835 |
| Court | Queen's Bench Division |
| Date | 19 February 2016 |
[2016] EWHC 312 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir David Eady
Sitting as a High Court Judge
Case No: HQ15X03835
Eric Shannon (instructed by Seddons) for the Claimant
Andrew Maguire (instructed by Darlingtons Solicitors LLP) for the Defendant
Hearing date: 2 February 2016
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 is an application by the Claimant in a libel action to strike out certain parts of the defence under CPR 3.4(2) on the basis that they do not disclose any reasonable grounds for defending the claim; or that they are an abuse of process or otherwise likely to obstruct the just disposal of the proceedings; and/or that there has been a failure to comply with rules of the court. There was also to have been an application for summary judgment, but when the Defendant sought to introduce a plea of qualified privilege, it was recognised that it was at least potentially viable as a pleading. (That is not to say that the Claimant accepts that any particular occasion was protected by privilege, but that will be a matter for argument later.)
Although there have been various drafts of the defence put forward, I was asked to focus on the most recent, namely that dated 29 January 2016 (i.e. two working days before the hearing). There seems to be no dispute as to publication; it is accepted that the Defendant published the words complained of in various emails to the persons alleged, and that they referred to the Claimant. Now, the main issue turns upon whether the Defendant should be allowed to rely upon a defence of honest opinion under s.3 of the Defamation Act 2013 (corresponding in many respects to the common law defence of fair comment). There is no plea of truth under s.2.
I must shortly turn to the words complained of and the defamatory meanings they are said to bear. First, however, it is necessary to set the scene. The Claimant is the owner of Flat 4, Brinsdale Park, Brinsdale Road, London NW4 1TB. The flats in the block are managed by a company called Moreland Estate Management, which is operated by the Defendant. There is some disagreement between the parties as to what took place over the relevant period in February and March of last year, but what matters for present purposes is the broad outline.
Unusually, the Claimant's version is set out at some length by way of introductory averments in the particulars of claim. On or about 16 February, she says that Ms Holli Hunter discovered a leak of water into Flat 1, which she occupied, and she left a note for the Defendant who happened to be away on holiday at the time. The Claimant was notified next day by a Moreland employee, who told her that it was believed that the source of the leak was in her flat. She arranged for a plumber to attend within an hour of being so informed, and she met the Moreland employee on her premises the same day. She also notified her insurance broker, Mr Ashley Rogoff, and asked him to notify her insurer, Aviva Insurance Plc, so as to arrange a view. She says that at that stage she was merely complying with her obligation to notify under the policy. She was not yet making a claim.
On 17 February, the plumber repaired a leak in her en suite bathroom, but unfortunately this did not stop the primary leak into Ms Hunter's flat. The Defendant, therefore, arranged for a workman to attend on 18 February to attempt to trace and repair the true source of the leak. According to the Claimant, the workman proposed to break into the tiles in her bathroom and also into the ceiling in her service cupboard in the hope of finding the leak. She naturally became concerned at the potential cost of repairing the damage and checked whether he was qualified. When she discovered that he was not, she asked that at least there should be a qualified plumber in attendance. According to her account, the unqualified plumber's employer, Mr Ralph Sternlight, came later the same day and apologised to her. He undertook to ensure that a qualified employee would attend as soon as possible (which would be the next day).
Meanwhile, Ms Hunter's landlord, Mr Jacob Ebrahimoff, seems to have formed the impression that the Claimant was being unco-operative about finding the source of the leak. He decided to send an email to the occupiers of the other flats in the block on 18 February, stating that she would not permit Moreland to deal with the urgent flooding problem. The next day, Moreland's solicitors sent her a letter by hand making the same assertion and threatening legal action. The Claimant says, however, that by the time it arrived the workmen had already started work in her flat so as to identify and repair the leak, as Mr Sternlight had promised. As soon as he became aware of the true situation, Mr Ebrahimoff sent another email withdrawing his earlier allegation against the Claimant (this email was timed at 23.32 on 19 February). Her case is simply that at all times between 17 February and 4 March 2015 she allowed the Defendant's workmen access to her flat to do whatever was necessary, provided that they were qualified or under the supervision of a qualified person.
On 24 February, the Defendant insisted that procedures be carried out at her flat which she described as "invasive and destructive". This was despite the fact that no one yet had been able to track the source of the leak. Next day, at 9.30 a.m., his workmen discovered a burst pipe beneath the concrete screed in her service cupboard. Meanwhile, she had instructed another firm who believed that they could track the leak without causing damage in her flat. Nevertheless, she did not in any way obstruct access by the Defendant's workmen. It is important to note that at some point on 25 February he was sent a video from Mr Sternlight which showed the source of the leak as being under the concrete screed.
It was on 25 February that the Defendant's offending chain of emails began. At 12.35 he sent an email to Mr Sternlight (copying in the insurance brokers and all other residents or owners in the block) which stated that he believed the cause of the problem had been the Claimant's water tank. Much later, on 23 March, the Defendant chose to forward that email to a loss assessor...
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