Fiona George overturns trial verdict on malicious falsehood claim

Fiona George has succeeded in her appeal overturning the Trial Judgment of Saini J of October 2021 on malicious falsehoods. The Court of Appeal (before Lord Justice Underhill, Lord Justice Warby and Lord Justice Snowden) set aside the ruling on malicious falsehood and provides for judgment on the claim with damages to be assessed.

Background

The Claimant worked as a recruitment consultant for an agency run by the First Defendant. After the Claimant had left the Defendants’ employment and begun work at a new agency, the First Defendant alleged in an email to the Claimant’s employer that the Claimant was in breach of her contract with the Second Defendant as she had continued to approach the Second Defendant’s clients and conduct business with them after she had moved to a new company. Following this, Claimant brought a claim against the Defendants for libel, slander and malicious falsehood.
The claim was heard by Mr Justice Saini who dismissed the Claimant’s case due to lack of proof of harm. S.1(1) of the Defamation Act 2013 required that serious harm had been caused to the Claimant’s reputation and Saini J felt that the publications in question were not sufficient to reach this threshold. The Claimant was successful in proving that the Defendants had published statements falsely and maliciously. However, the judge further rejected her claim of malicious falsehood as he did not consider there was a case of special damage and nor did the Claimant’s cases fall within an exception in s.3(1) of the Defamation Act (DA) 1952. Mr Justice Saini concluded that the Claimant must prove that they had been caused financial loss by the publication of statements complained of and that a claimant could not make a case for hurt feelings.
The Claimant appealed the decision regarding malicious falsehood, with the issue at hand concerning the correct interpretation of s.3.

Issue

The main questioned raised was, what must the Claimant prove to apply s3(1) of the DA 1952? As concluded by the Judge, must the Claimant prove that financial loss had actually occurred? Or is it enough that it was likely that, at the point of publication, the statements made would cause some financial loss to the claimant? And if so, what can the Claimant actually recover in terms of damages?

Judgment/Held/Reasoning?

It was concluded that Mr Justice Saini had been wrong to adopt the first approach outlined above and the Claimant’s contention was the correct interpretation of the law. The Appeal Judges determined that Parliament had intended for the Claimant to prove that the publications complained of were likely to cause economic loss and that previous authority on the matter did support this. On the facts, the Claimant satisfied this test. The Appeal Judges declined to rule out an award for damages even though there was no actual pecuniary loss in the event and concluded that it was not possible to say with complete certainty whether publications (such as the ones complained of) would not cause distress. Furthermore, it was held that even if the Claimant were to recover damages for distress and injury to feelings, these damages would be not nominal. The assessment for compensation was remitted to the High Court for determination and the Judgment regarding malicious falsehood was entered for the Claimant.

Commentary

The case has called into question the proper interpretation of s.3 DA 1952 and clarified that a claimant will be entitled to compensatory damages even when they are unable to prove actual financial loss. The interpretation of the law has been made clear. However, it remains uncertain as to whether a claimant should be awarded general damages when false and malicious publications are likely to cause pecuniary harm but do not on the facts.

In the High Court, Fiona George was represented by Yinka McKay Wood, James Heath and Isabella Ritchie, instructing William Bennett QC and Gemma Mcneil Walsh of 5RB.

In the Court of Appeal, Ms George was represented by Yinka McKay Wood, James Heath, Eleanor Turnbull and Riva Savjani, instructing William Bennett QC and Godwin Busuttil of 5RB.

Read the Judgment here.