Triplark Ltd v Northwood Hall (Freehold) Ltd

JurisdictionEngland & Wales
JudgeMr Justice Warby
Judgment Date19 December 2019
Neutral Citation[2019] EWHC 3494 (QB)
Date19 December 2019
Docket NumberCase No: QB-2019-000695
CourtQueen's Bench Division
Between:
Triplark Limited
Claimant
and
(1) Northwood Hall (Freehold) Limited
(2) Philip Whale
(3) David Wismayer
Defendants

[2019] EWHC 3494 (QB)

Before:

Mr Justice Warby

Case No: QB-2019-000695

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MEDIA AND COMMUNICATIONS LIST

Royal Courts of Justice

Strand, London, WC2A 2LL

Alexandra Marzec (instructed by Hamlins LLP) for the Claimant

Adam Speker (instructed by Payne Hicks Beach) for the Defendants

Hearing date: 5 December 2019

Approved Judgment

Mr Justice Warby
1

This has been the trial of meaning and other issues as preliminary issues in this claim for damages for libel and malicious falsehood.

The claim

2

The claim stems from a dispute over the ownership of Northwood Hall, a 1930s apartment block in Highgate, North London. Northwood Hall comprises 194 flats. The Particulars of Claim refer to the claimant company (“Triplark”) as the owner of the freehold of Northwood Hall, and 30 of the flats. Most of the other flats in the block are held by individual leaseholders. The first defendant (“NHFL”) is a company incorporated in December 2017, with a view to implementing a scheme for the collective enfranchisement of the individual leaseholders (“The Scheme”). The second defendant (“Mr Whale”), a retired solicitor, is a director of NHFL and a leaseholder at Northwood Hall. The third defendant, Mr Wismayer, is engaged in the property management business, and involved with the affairs of Northwood Hall.

3

Triplark's case is that during, or before, March 2018 the three defendants entered into a common design to injure the claimant's reputation by publishing false and defamatory statements about Triplark, in an attempt to secure support for the Scheme from leaseholders at Northwood Hall. It is alleged that this common design was implemented in March 2018 by means of two publications (“the Publications”), each of which is said to be a libel or a malicious falsehood actionable at the suit of Triplark.

4

The first Publication is a leaflet or prospectus sent out on or around 5 March 2018 to all the leaseholders or, on Triplark's case, all the flats at Northwood Hall. It is a long document, running to over 6,500 words, signed by Mr Whale, over the company name of NHFL, with an email address Info@NorthwoodHallFreehold.co.uk and a phone number,. It bears the title, NORTHWOOD HALL (FREEHOLD) LIMITED – Collective Enfranchisement – (S13 Leasehold Reform Housing and Urban Development Act 1993) – An invitation to participate, and is said to have been published to all the leaseholders and other residents. It has been called “The Invitation”. Triplark complains of the whole of the Invitation.

5

The second Publication has been called “The Letter”. Like the Invitation it was signed by Mr Whale, over the company name of NHFL, with a corporate email address. It bears the date 24 March 2018, and the claimant's case is that it was sent to all leaseholders and other residents at Northwood Hall. It is headed “ Freehold Enfranchisement, Response to the Allegations made by NWHLG (Northwood Hall Leaseholder Group) and Mr Maunder Taylor”. Triplark complains of the whole of the Letter, which runs to some 4,200 words.

6

Triplark's case is that each of the Publications refers to it, bears natural and ordinary meanings that are defamatory of it, and has caused or is likely to cause serious harm to its reputation within the meaning of s 1 of the Defamation Act 2013. Further and alternatively, Triplark alleges that the words complained of are false, and were published maliciously, and their publication was calculated to cause pecuniary damage to Triplark in respect of its business as a property freeholder.

The preliminary issues

7

The issues for trial, pursuant to an order of Master McCloud dated 11 September 2019, are essentially the same in relation to each Publication. Slightly reformulated for simplicity, they are these:

(1) whether the words complained of bore the meanings complained of, and if not, what natural and ordinary meanings they bore about Triplark;

(2) whether the meanings found are defamatory of Triplark at common law;

(3) whether the words complained of, “in the meanings found, are statements of fact or expressions of opinion”; and if to any extent the answer is that they are expressions of opinion; and

(4) whether the Publication “indicated, in general or specific terms, the basis of the opinion(s) stated”.

8

The arguments have developed in such a way that the first and second issues now embrace the question of whether the words complained of refer to Triplark, and the separate question of whether, if so, the words defame it as a company, rather than some individual(s) responsible for the conduct of its affairs.

9

But I am not now concerned with any other issues raised by the case so far, such as responsibility for publication, whether either of the Publications caused serious harm to reputation, or whether they were false, malicious, or calculated to cause pecuniary loss. Nothing in this judgment should be treated or read as indicating any conclusion on any of those issues. Nor are those necessarily the only issues that would arise. At this stage, no Defence has been served. One of the main advantages of preliminary issues of this kind is to enable the parties to review their positions in the light of final decisions on some key issues, and decide what (if any) further questions need to be raised for determination by the Court.

Legal principles

10

The legal principles that apply when determining the meaning of words for the purposes of a defamation claim are well-established, very familiar to the Court, and not in dispute at this trial. Both sides have cited and relied on the recent distillation of those principles by Nicklin J in Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB) [11]–[12]. It is unnecessary to set them all out, in detail. Some points of importance, for present purposes, are these:

(1) At the heart of the exercise is the need to identify the single meaning that would be conveyed to an ordinary, reasonable reader of the words complained of. The task involves an assessment of the words used, in their context, and no extraneous material.

(2) The reader is assumed to read the whole of the publication, bringing to the process a cast of mind that lies somewhere between the extremes of being “avid for scandal” and “unduly naive.” Sometimes, it is possible, by inference, to attribute some additional characteristics to the reader, given the nature of the particular publication under consideration, and its audience or readership. Caution is required before doing this (see Simpson v MGN Ltd [2015] EWHC 77 (QB) [10]) but, as I will explain later, it is common ground that it can be done in this case.

(3) The meaning to be identified is the natural and ordinary meaning. This includes what is implicit; the ordinary reader can and does read between the lines. But the parties and the Court should beware of over-elaborate analysis. They should also be wary of larding the meaning with evaluative phraseology that in reality derives from the reader's own moral judgments, rather than the words themselves: see Brown v Bower [2017] EWHC 2637 (QB) [2017] 4 WLR 197 [54], Tinkler v Ferguson [2019] EWCA Civ 819 [37].

11

The relevant common law test for whether a meaning is defamatory is uncontroversial. The authoritative formulation is that a statement will be defamatory if it is one that “substantially affects in an adverse manner the attitude of other people towards him, or has a tendency so to do”: Lachaux v Independent Print Ltd [2019] UKSC 27 [2019] 3 WLR 18 [9], approving Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB) [2011] 1 WLR 1985 [96] (Tugendhat J). The word “substantially” in the Thornton formulation is an important element of the common law test, incorporating as it does a threshold of seriousness or gravity that serves to exclude trivial allegations. In one respect, however, this formulation can be slightly misleading. At common law, a claimant does not need to prove the actual impact of a statement; the common law looks exclusively to whether the words have a defamatory tendency. As Lord Sumption put it in Lachaux at [17]. “… the defamatory character of the statement … depends only on the meaning of the words and their inherent tendency to damage the claimant's reputation.” See also my judgment at first instance in Lachaux [2015] EWHC 2242 (QB) [2015] EMLR 28 [15(5)].

12

These principles apply, albeit in slightly modified form, in a case like the present where the claim is brought by a company. It has long been established that a company can sue in respect of an imputation which tends to injure its reputation in business or trade. The authoritative statement of this aspect of the law is that of Lord Keith in Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, 547, which again focuses on whether the offending statement has a defamatory tendency:

“… a trading corporation is entitled to sue in respect of defamatory matters which can be seen as having a tendency to damage it in the way of its business. Examples are those that go to credit such as might deter banks from lending to it, or to the conditions experienced by its employees, which might impede the recruitment of the best qualified workers, or make people reluctant to deal with it.”

Other examples given in Gatley include statements which are “such as to lead ordinary people of ordinary sense to the opinion that it conducts its business in a dishonest, improper or inefficient manner”, in respect of which “the law is the same as in the case of an individual” (Gatley on Libel & Slander 12 th ed para 8.16). These principles are consistent with Article 10 of the Convention: Jameel v Wall Street Journal Europe SPRL [2006] UKHL 44 [2007] 1 AC 359.

13

In view of Thornton,...

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  • Tina Hamilton v News Group Newspapers Ltd
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    ...law, and whether it is factual or in the nature of an opinion. For a recent example, see Triplark Ltd v Northwood Hall (Freehold) Ltd [2019] EWHC 3494 (QB) [7]. (There may still be cases in which the Court can sensibly try, at the preliminary stage, the issue of whether the publication com......
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    ...to determining whether a statement is defamatory at common law of a corporate claimant is summarised in Triplark Ltd v Northwood Hall [2019] EWHC 3494 (QB), per Warby J: “11. The relevant common law test for whether a meaning is defamatory is uncontroversial. The authoritative formulation ......
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    ...likely it is to strike the reader or viewer as an expression of opinion. See Koutsogiannis per Nicklin J at [16] and Triplark Limited v Northwood Hall (Freehold) Limited [2019] EWHC 3494 (QB) per Warby J at [15]–[17]. Defamatory at common law 18 The relevant common law test for whether a m......
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