Jersey Unreported Judgments

Defamation - detailed reasons - application for reverse summary judgment.

[2018]JRC235

Royal Court

(Samedi)

20 December 2018

Before     :

Advocate Matthew John Thompson, Master of the Royal Court.

 

The Plaintiffs did not appear.

Advocate C. Hall for the Defendant.

contents

		Paras
1.	Introduction	1
2.	Background	2-10
3.	Defendant's submissions	11-12
4.	Decision	13-40

judgment

the Master:

Introduction

1.        This judgment contains my detailed written reasons for granting an application for a reverse summary judgment in respect of the plaintiffs' action for defamation. 

Background

2.        The background to the dispute concerns a notice published in the Jersey Evening Post ("the JEP") on 27^th September, 2017, by the plaintiffs which stated as follows:-

 "Members of the public are hereby requested to contact [email protected] if they have been approached by Genevieve Leveille, pictured above, in relation to matters concerning Agriledger Limited or Vidriom Pte Limited.

Mrs Leveille no longer has any involvement in these businesses whether as a director, shareholder, employee, agent, or representative or any affiliates, subsidiaries, or holding companies of either entity.

Mrs Leveille and the UK Company Otentic8 Limited (dissolved on 1 August) are defendants in High Court proceedings in Singapore (HC/S 1349/2016) concerning alleged copyright infringement, breach of obligations and breach of confidence.

Mirandah Law acts for a plaintiff in the case."

3.        It is the defendant's case that while she considered the notice to be defamatory she did not issue proceedings in this jurisdiction because the issues raised by the notice were to be determined in separate proceedings between the plaintiffs and the defendant already issued in Singapore. 

4.        Instead, the defendant contacted the JEP by email attaching a letter which her London lawyers had written on her behalf to the plaintiffs, requesting that the plaintiffs cease from publishing further defamatory remarks about the defendant and that the plaintiffs refrain from claiming a connection to a company known as Agriledger Limited, which the defendant stated was a UK Company owned by her. 

5.        It is this letter which led to the plaintiffs issuing defamation proceedings against the defendant because the letter was published by the defendant by her sending it to the Editor of the JEP. 

6.        The only person who saw the email was the editor.  I have assumed however in the plaintiffs' favour that it was also seen by his personal assistant.   By email dated 7^th November, 2017, the Editor emailed Advocate Hall and stated as follows:-

"I am happy to confirm that I formed no view, whether positive or negative, of those involved in this dispute as a result of receiving correspondence from the various parties in relation to Agrilledger.  As a newspaper editor, I am routinely presented with conflicting arguments from two or more parties and understand the essential importance of not forming a view about those involved based on untested assertions and without further investigation.  I would not be able to do my job with the detached objectivity necessary if this was not the case.  In regard to the dispute in question, I would suggest that it would be extraordinary to assert that I would form an opinion about people with whom I had had no prior dealings in relation to a complex matter involving property in a foreign jurisdiction."

7.        Proceedings were commenced on 26^th January, 2018, against the defendant who is resident in Jersey and therefore was sued as of right.  An answer was filed on 16^th March, 2018.  The Order of Justice was then amended complaining about the following statements:-

"Statement 3

"We understand that Mr Freeman is still avoiding the police in Kenya where he presented false papers to obtain a resident permit."

Statement 4

 "However, the objectives of Mr Freeman and Mr Davies, and of Mr Nielsen, who joined them in June 2016 appears to have been to misappropriate the name, lP rights and the goodwill of [Ms Leveille] and her team and use it for themselves without reference to her."

Statement 13

Mr Davies is dishonest, and he would therefore make an unsuitable business partner or investment target. Further, these words suggest that Mr Davies was not a co-founder of Agriledger.

8.        The Amended Order of Justice therefore pleaded as follows:-

5.        Taken as a whole, in their natural and ordinary meaning the said words meant and were understood to mean that the Plaintiffs had no rights to, or interest in, the Agriledger business and/or were dishonest in representing that they had the same, that Mr Freeman is a criminal, and that the Plaintiffs had generally sought to misappropriate from the Defendant certain rights in the Agriledger business.

6.        The said words were calculated to disparage the Plaintiffs personally and in their said business pursuits.

7.        In consequence, the Plaintiffs' respective reputations have been seriously damaged, and they have suffered distress and embarrassment.

9.        The defendant's application was issued on 22^nd October, 2018.  It was initially to be heard on 28^th November, 2018 but was adjourned to enable the plaintiffs' then advocates to obtain instructions. 

10.      Subsequent to the adjournment, Advocate Leeuwenburg then acting for the plaintiffs wrote to the Royal Court stating that "this firm is no longer instructed in this matter."  It is not clear whether it was the plaintiffs who terminated the retainer of their then legal advisers or whether the legal advisers terminated the retainer.  No replacement advocate has been appointed and the plaintiffs did not appear. 

The defendant's submissions

11.      The defendant's application is that the plaintiffs' case should not be allowed to proceed because it has no reasonable prospects of success or should be struck out.  The primary basis for the application was summary judgment found in Rule 7 of the Royal Court Rules 2004, as amended, which now allows for "reverse summary judgment" i.e. an application by a defendant that a plaintiffs' case has no reasonable prospects of success.  In the alternative the defendant seeks to strike out the plaintiffs' claim. 

12.      In both cases the grounds relied upon are the same namely:-

(a)       There is a threshold of seriousness required to establish a claim in defamation which threshold has not been met;

(b)       The defendant clearly has a defence of qualified privilege to any alleged defamatory remarks; or

(c)       Even if the threshold test is met the plaintiffs have suffered no or little harm and therefore applying Dow Jones & Co. Inc v Jameel [2005] EWCA Civ 75 the defendant is entitled to summary judgment or alternatively to strike out the action.

Decision

13.      In relation to the applicable principles on a summary judgment application these have been considered in a number of cases most recently by me in Solutus Advisors Limited and Anor v Aurium Real Estate London Ultra Prima Limited [2018] JRC 204 at paragraphs 46 to 47.  These are the principles I have applied. 

14.      The unusual nature of this application is that it relates to a defamation action.  As far as I am aware this is the first occasion upon which an application for summary judgment has been made in relation to defamation proceedings in this jurisdiction.  I therefore wish to express my gratitude to Advocate Hall for her written and oral submissions which have been of considerable assistance in relation to the questions I have been asked to decide. 

15.      The first of those questions relates to whether or not there is a threshold of seriousness required to establish a claim in defamation.  The requirement for such a threshold was considered by Tugendhat J in Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB).  In this judgment Tugendhat J carried out an extensive analysis of what was defamatory at paragraphs 28 to 33 leading to a possible classification of defamation cases at paragraph 34. 

16.      As part of his analysis Tugendhat J referred to the English Court of Appeal decision of Berkoff v Burchill [1996] 4 All ER 1008 where Neill LJ had set out some of the definitions of defamation including what he described as definition 3 as follows:-

"In Sim v Stretch [1936] 2 All ER 1237 at 1240 Lord Atkin expressed the view that the definition in Parmiter v Coupland was probably too narrow and that the question was complicated by having to consider the person or class of persons whose reaction to the publication provided the relevant test. He concluded this passage in his speech:

' ... after collating the opinions of many authorities I propose in the present case the test: would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally? '"

17.      The question for Tugendhat J was whether Sim v Stretch required a threshold of seriousness because of the following words of Lord Atkin also in Sim v Stretch as follows:-

"That juries should be free to award damages for injuries to reputation is one of the safeguards of liberty. But the protection is undermined when exhibitions of bad manners or discourtesy are placed on the same level as attacks on character and are treated as actionable wrongs"."

18.      Tugendhat J's analysis led him to say the following at paragraph 90:-

"90 I accept Mr Price's submission that whatever definition of "defamatory" is adopted, it must include a qualification or threshold of seriousness, so as to exclude trivial claims. I accept this submission for two reasons:

i) It is in accordance with the true interpretation of Lord Atkin's speech in Sim. It is also in accordance with the decision of Sharp J in Ecclestone with which I respectfully agree;

ii) It is required by the development of the law recognised in Jameel (Youssef) v Dow Jones as arising from the passing of the Human Rights Act 1998 : regard for Art 10 and the principle of proportionality both require it."

19.      While the seriousness requirement referred to by Tugendhat J in Thornton has not been considered in this jurisdiction, Thornton was cited and applied in Pitman v JEP [2012] JRC 092. 

20.      In my judgment I am persuaded that it is appropriate for defamation actions in this jurisdiction to be subject to the same threshold of seriousness as was developed by Tugendhat J in Thornton v Telegraph Media Group.  The need for such a formulation was to exclude trivial claims.  The formulation for the threshold of seriousness is defined in paragraph 96 of Thornton as follows:-

""the publication of which he complains may be defamatory of him because it [  substantially  ] affects in an adverse manner the attitude of other people towards him, or has a tendency so to do"."

I consider this definition also represents the law of Jersey. 

21.      In England matters developed by the introduction of Section 1 (1) of the Defamation Act 2013 as follows:-

"a statement is not be treated as defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant."

22.      In other words the threshold of seriousness introduced by the Thornton decision based on a publication substantially affecting an individual in an adverse manner was replaced by a test of causing or likely to cause serious harm to an individual person's reputation. 

23.      For the purpose of this judgment, I have not applied the definition in Section 1(1) of the Defamation Act 2013 which does not apply in this jurisdiction.  It is only therefore the common law development in Thornton that I regard as one that can be applied as being in the law of Jersey. 

24.      I was also referred to Lachaux v Independent Print Ltd [2017] EWCA Civ 1334, where the English Court of Appeal considered the appropriate practice where a defendant disputed the existence of serious harm and stated at paragraph 82 (5) as follows:-

"(5) A defendant disputing the existence of serious harm may in an appropriate case, if the circumstances so warrant, issue a Part 24 summary judgment application or issue a Jameel application: the Jameel jurisdiction continuing to be available after the 2013 Act as before (albeit in reality likely only relatively rarely to be appropriately used)."

25.      The Jameel jurisdiction was a reference to Dow Jones & Co. Inc. v Jameel [2005] EWCA Civ 75 a decision of Mr Justice Eady.  In Jameel Mr Justice Eady stated the following at paragraph 40:-

"40 We accept that in the rare case where a claimant brings an action for defamation in circumstances where his reputation has suffered no or minimal actual damage, this may constitute an interference with freedom of expression that is not necessary for the protection of the claimant's reputation. In such circumstances the appropriate remedy for the defendant may well be to challenge the claimant's resort to English jurisdiction or to seek to strike out the action as an abuse of process. We are shortly to consider such an application. An alternative remedy may lie in the application of costs sanctions."

26.      It is also appropriate to refer to paragraphs 70 and 74 as follows;-

"70 If we were considering an application to set aside permission to serve these proceedings out of the jurisdiction we would allow that application on the basis that the five publications that had taken place in this jurisdiction did not, individually or collectively, amount to a real and substantial tort. Jurisdiction is no longer in issue, but, subject to the effect of the claim for an injunction that we have yet to consider, we consider for precisely the same reason that it would not be right to permit this action to proceed. It would be an abuse of process to continue to commit the resources of the English court, including substantial judge and possibly jury time, to an action where so little is now seen to be at stake. Normally where a small claim is brought, it will be dealt with by a proportionate small claims procedure. Such a course is not available in an action for defamation where, although the claim is small, the issues are complex and subject to special procedure under the CPR."

"74 Where a defamatory statement has received insignificant publication in this jurisdiction, but there is a threat or a real risk of wider publication, there may well be justification for pursuing proceedings in order to obtain an injunction against republication of the libel. We are not persuaded that such justification exists in the present case."

27.      The distinction between the Thornton and Jameel cases is that in Thornton, the argument was that there was no threshold of seriousness; in Jameel, the issue was whether a case could be dismissed using reverse summary judgment where a plaintiff's reputation had suffered but there was no or minimal actual damage; this distinction was explained at paragraph 32 of the Lachaux case as follows:-

"32 In the latter case (Jameel), the court decided that the defamatory statements which had been made were serious and actionable. However, having decided that the claim had been actionable, the court nevertheless struck it out as an abuse of the process. The claim was struck out because it was no longer serving the purpose of protecting the claimant's reputation: publication within the jurisdiction had, as established by subsequent evidence since obtained, been minimal and did not give rise to a "real and substantial tort". That is different from the case of Thornton. In Thornton the claim was in effect not actionable, as it could not, as found, meet the required test of substantially affecting in an adverse manner the attitude of other people towards the claimant: thus it was not actionably defamatory."

28.      Both these arguments are invoked by the defendant in this case. 

29.      In relation to the threshold of seriousness, the allegations in the Amended Order of Justice which remain set out above in my judgment, meet the required threshold of seriousness because they make serious allegations of dishonesty.  It is not fanciful and improbable that publication of such allegations is or might be defamatory because it substantially affects in an adverse manner the attitude of other people towards the plaintiffs or has a tendency to do so. 

30.      However, in my judgment summary judgment should be granted in respect of the Amended Order of Justice applying the approach in Jameel. 

31.      Firstly, the plaintiffs have no connection with Jersey, the first plaintiff appears to be from Guatemala; the second plaintiff appears to be from Australia.  They appear to have conducted business in Hong Kong or Singapore.  The company through which they operated was an English company and did not operate in this jurisdiction. 

32.      Secondly, the publication was also only sent to the Editor of the JEP.  In this case I have assumed, as the plaintiffs claim that the letter was also seen by his assistant but was not otherwise published wider and is not going to be so published.  The publication within Jersey was minimal and is not going to be repeated. 

33.      There is therefore no evidence to show that the plaintiffs have suffered any damage in this jurisdiction. 

34.      In Noorani v Calver [2009] EWHC 561 (QB) where a defamatory statement was only published to the claimant's wife and daughter, the High Court stated at paragraph 23 as follows:-

"... It is wholly disproportionate to involve a judge and a fully staffed court, let alone a jury, in the detailed consideration of such an allegation when any result, even at best for the claimant, would be worth less than the costs of achieving it. In this context it is worth noting that the claimant has the benefit of a CFA but the defendant does not."

35.      In Wallis and GHP Securities Limited v Meredith [2011] EWHC 75 (QB) the publication was to the claimant's solicitor.  This led Christopher Clarke J to say at paragraph 60 and 61 as follows:-

"60 The court must determine whether there is a real and substantial tort by reference to the tort complained of in the Particulars of Claim. The publication relied on is to one person only, who is the claimants' solicitor. I doubt that he is likely to have thought the worse of his client on account of it particularly in the light of his client's denials; and there is no evidence to that effect or of any harm from that publication or even of any concern on the part of Mr Wallis as to what Mr Morallee might be thinking of him. Although, as Eady J put it in Mardas v New York Times Company [2009] EMLR 8 at 15 "whether there has been a real and substantial tort within the jurisdiction (or arguably so) ... cannot depend upon a numbers game  ", each case must be determined on its own facts, and much may depend on the identity of the publishee(s) or the publisher 1 , the publication relied on is as numerically minimal as it could get, and was to the claimants' professional agent, who was acting in respect of a commercial dispute with Mr Meredith. It does not seem to me that the claimants require vindication in respect of such a publication to a solicitor who has been busily engaged in stating that the allegation is false; and that any "vindication" by success in the action will be illusory or, at best, minimal. It would not be legitimate for the claimants to justify the pursuit of the proceedings by praying in aid the effect that they may have in vindicating them in relation to any wider publication, quite apart from the fact that they have not shown any: Jameel [66].

61 Further, as Tugendhat, J trenchantly pointed out, solicitors are routinely the recipients of defamatory imputations about their clients (since most allegations of unlawful conduct are likely to be defamatory). Whilst such publication is likely to be covered by qualified privilege on the basis of a common and corresponding interest, and perhaps of absolute privilege, so that any claim based on them will in the end be likely to fail 2 , it seems to me that the court is entitled, in the light of the overriding objective and the interests of proportionality, to discourage and prevent the use of its time, at great expense, on actions in which the only publishee is the claimant's solicitor and thus someone in the claimants' camp."

36.      Mr Andy Sibcy as editor of the JEP is not in a dissimilar position to the claimant's solicitor in Wallis; no doubt he receives a number of communications in relation to articles in the JEP or letters appearing on the letters page.  The email to Advocate Hall of 7^th November, 2018 set out above which is self-explanatory also makes it plain why Mr Sibcy did not form a view of correspondence received without further investigation. His evidence means that a trial of the present proceedings is not required where limited publication has occurred. 

37.      Finally, I was referred to the case of Bode v Mundell [2016] EWHC 2533 (QB) at paragraph 68 where reverse summary judgment was granted for a libel action in the United Kingdom based on a publication to a few individuals and where it was accepted that the publication in the UK caused no harm and the recipients did not believe what was said. In the present case the publication was only to two individuals at best who did not form a view on what was said to them. 

38.      For the above reasons the defendant's application is granted as I am satisfied to the level required on a summary judgment application that no real and substantial tort has occurred in this jurisdiction.  In the circumstances of this case, there is no need for a trial. 

39.      In relation to the defence of qualified privilege, this was defined in Adam v Ward [1917] AC 309 as follows:-

"It was not disputed, in this case on either side, that a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential."

40.      In relation to this ground I wanted further argument to be satisfied that summary judgment was appropriate on the basis that the defendant could claim qualified privilege.  In particular, while I understand that the defendant has an interest in responding to an advert placed by the plaintiffs in the JEP, I wanted further argument on whether the JEP was under a corresponding interest or duty to receive such a communication notwithstanding the words of Mr Sibcy I have cited above.  However as I have dismissed the claim on the basis of there being no or minimal damage within this jurisdiction for the reasons set out above, it is not necessary to resolve this part of the defendant's application and I was not pressed by Advocate Hall to do so. 

Authorities

Royal Court Rules 2004, as amended

Dow Jones & Co. Inc v Jameel [2005] EWCA Civ 75

Solutus Advisors Limited & Anor v Aurium Real Estate London Ultra Prima Limited [2018] JRC 204

Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB)

Berkoff v Burchill [1996] 4 All ER 1008

Sim v Stretch [1936] 2 All ER 1237 at 1240

Pitman v JEP [2012] JRC 092

Defamation Act 2013

Lachaux v Independent Print Ltd [2017] EWCA Civ 1334

Noorani v Calver [2009] EWHC 561 (QB)

Wallis and GHP Securities Limited v Meredith [2011] EWHC 75 (QB)

Bode v Mundell [2016] EWHC 2533 (QB)

Adam v Ward [1917] AC 309