KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Strand, London, WC2A 2LL |
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B e f o r e :
(Sitting as a Deputy Judge of the King's Bench Division)
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BENJAMIN THOMAS JOHNSON |
Claimant |
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- and - |
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STEPHEN HELM |
Defendant |
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Eleanor Guildford (instructed by Farleys Solicitors LLP) for the Defendant
Hearing date: 17 June 2025
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Crown Copyright ©
Richard Spearman K.C.:
INTRODUCTION AND NATURE OF THE ISSUES
"The worse (sic) fitter I have ever seen, ruined everything he touched, didn't do a full day. (ii) Damaged everything and can't draw a straight line. Cut into the units which didn't need touching. Plasterboarded the walls and we lost 10cm for no reason. Lazy, dirty and dangerous health concerns regarding his work as (iii) he pushed pipes in to the waste pipe for washing machine and dishwasher and sealed with silicone (iv) which backed up waste from toilet into the machines. Ben Johnson (and father the plumber) is are (sic) to be avoided at all costs. He refunded our deposit and (v) admitted liability by doing that however wouldn't pay the extras to rectify and remove everything he did and doesn't care about the impact to our home. Avoid avoid avoid. (i) He even cut out the back of units due to a skirting board being at the back which should have been removed yet then realised he hadn't put the legs on the units so when the legs went on the units he cut (sic) were higher than the skirting board. Absolute joke, embarrassing and when questioned for consumer rights claim said his feelings were hurt as we were questioning his character.
Should not be in business so avoid."
"Further or alternatively, insofar as the words complained of made or contained the following expressions of opinion, they were a statement of opinion within section 3 of the Defamation Act 2013: (i) That the Claimant had undertaken the work described within the review without reasonable skill and care and/or negligently and in substandard manner; (ii) That the Claimant had significantly damaged the Defendant's property in undertaking the work; and (iii) That the Claimant had admitted liability for undertaking the work without reasonable skill and care and/or negligently".
"The parties must liaise and confirm whether or not there are any disputes as to the meanings of the published statements (including whether or not they are defamatory and whether they are statements of fact or opinion) and consider whether the court should direct that any disputes as to meaning should be dealt with as a preliminary issue and should set out their positions to the court and each other by not less than 7 days before the hearing."
(1) They confirmed that, in keeping with paragraph 9 of the Particulars of Claim and paragraph 8 of the Defence, there is no dispute as to natural and ordinary meaning.
(2) They conceded that the words complained of are defamatory at common law.
(3) They contended, as the Defendant's primary position, that each statement complained of by the Claimant in the Particulars of Claim was a statement of opinion, having regard to the context that they were published as part of a "review".
(4) In the alternative, they contended that:
i. The words "He even cut out the back of units due to a skirting board being at the back which should have been removed yet then realised he hadn't put the legs on the units so when the legs went on" was a statement of opinion.
ii. The words "the units he cut (sic) were higher than the skirting board" was a statement of fact.
iii. The words "damaged everything" was a statement of opinion – "as this is the Defendant's subjective view on the extent of the damage caused".
iv. The words "he pushed pipes in to the waste pipe for washing machine and dishwasher and sealed with silicone" was a statement of fact.
v. The words "which backed up waste from toilet into the machines" was a statement of opinion.
vi. The words "admitted liability [by refunding the deposit]" was a statement of opinion.
THE PARTIES' SUBMISSIONS
(1) [13-006] "…That the common law authorities can provide guidance on the question is clearly helpful, but as Warby J commented in Yeo v Times Newspapers Ltd: "the requirement that comment be recognisable as comment as distinct from a factual imputation is not as straightforward as at first it might seem". Elevated to the Court of Appeal, Warby LJ explained further that the determination is "a highly fact-sensitive process that focuses on the particular statement at issue". It is a fair summary that "jurists … had difficulty in defining the difference between a statement of fact and a comment in the context of the defence of fair comment", and there may be significant practical difficulties in distinguishing opinion from fact."
(2) [13-009] "Words must always be considered in their context, and the context may point to the conclusion that words which could, taken literally, be a statement of fact, are opinion … A particular type of publication that can cause difficulty is the review. Often in such publications, assertions are made that, read literally, appear to state hard facts. In Burstein v Associated Newspapers Ltd, the Court of Appeal granted summary judgment to the defendant on the basis that it would be perverse to regard the words— a review of an opera which was held to be "just" capable of meaning that the author admired terrorism—as anything other than comment:
"Insofar as the final sentence in the review might be said to be capable of being read as a statement of fact, it was patently intended as a summary of and a commentary on the factual description of the opera set out in the preceding part of the review… Moreover, the words complained of were contained in a review by a critic, as any reader would appreciate, and which the reader would expect to contain a subjective commentary by the critic.""
"(i) The statement must be recognisable as comment, as distinct from an imputation of fact.
(ii) Opinion is something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc.
(iii) The ultimate question is how the word would strike the ordinary reasonable reader. The subject matter and context of the words may be an important indicator of whether they are fact or opinion.
(iv) Some statements which are, by their nature and appearance opinion, are nevertheless treated as statements of fact where, for instance, the opinion implies that a claimant has done something but does not indicate what that something is, i.e. the statement is a bare comment.
(v) Whether an allegation that someone has acted "dishonestly" or "criminally" is an allegation of fact or expression of opinion will very much depend upon context. There is no fixed rule that a statement that someone has been dishonest must be treated as an allegation of fact."
"The key principle of law is that the answer to the question of whether a statement is of fact or of [comment] "must always be the one that would be given by the ordinary reasonable reader"; "This is a highly fact-sensitive process that focuses on the particular statement at issue. It is obvious that the court cannot be bound or guided by findings made in other cases, about different words" per Warby LJ in Millett v Corbyn [2021] EMLR 19 at paras 18 and 19.
I am also familiar with and apply the principles summarised by Nicklin J in Blake v Fox [2022] EWHC 3542 (KB) at paras 28-35, by Warby J in Yeo v Times Newspapers Ltd [2014] EWHC 2853 (QB) at paras 88-97 and by the Court of Appeal in Butt v Secretary of State for the Home Department [2019] EWCA Civ 933 at paras 25-39. Butt includes (at paras 34-35) approval of the classic observation of Cussen J in Clarke v Norton [1910] VLR 494 at 499 that comment is "to be taken as meaning something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, judgment, remark or observation". Inferences of fact may be comment (paras 37-38). However, the "ultimate determinant… is how the statement would strike the ordinary reasonable reader" (para 39 of Butt). Zarb-Cousin v Association of British Bookmakers [2018] EWHC 2240 (QB) per Nicklin J at para 26 is also relevant."
"Section 3(3) of the Defamation Act 2013 requires that, in order for the defence of honest opinion to apply, "the statement complained of [must have] indicated, whether in general or specific terms, the basis of the opinion". The publication need not give sufficient information to enable the reader to determine whether the comment was well-founded, but simply sufficient to alert the reader to the general subject matter of the comment: see, for example, Yeo v Times Newspapers Ltd [2015] 1 WLR 971, Warby J at [90]-[91]. A reference to "the general nature of the underlying issue" is sufficient: Godfrey v Institute of Conservation [2020] EWHC 374 (QB), Saini J at [31].
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each of the statements complained of are a combination of a statement of fact and expression of opinion. I agree with the Defendant that, in each case, the reviewer has indicated, whether in general or specific terms, the basis of their opinion. This is because the reviewer has narrated their experience of the Claimant, and their opinion of the Claimant is based on that experience which is set out in the review. This is the case in respect of each review."
(1) The statement "He even cut out the back of units" was a statement of fact.
(2) The statement "there was a skirting board at the back" (sic) was a statement of fact.
(3) The statement "He pushed pipes in to the waste pipe for washing machine and dishwasher and sealed with silicone" was as statement of fact.
(4) All the other words complained of comprised statements of opinion.
DISCUSSION AND CONCLUSIONS
(1) The earliest words contained in the Review that the Claimant has selected for complaint are "Damaged everything". Read in context, namely that this is a piece detailing allegedly poor and unsatisfactory work carried out by the Claimant, I consider that these words constitute a statement of opinion. The substance of the Review consists of listing a number of things that the Defendant is said to have done, and then expressing views on the basis of those matters such as that he is to be "avoided at all costs". In my judgment, the words "Damaged everything" would be understood by the ordinary reasonable reader as representing or comprising the author's shorthand for the effect of the deficiencies set out elsewhere in the Review.
(2) I consider that the next two sets of words contained in the Review that the Claimant has selected for complaint should be read together, as follows: "he pushed pipes in to the waste pipe for washing machine and dishwasher and sealed with silicone which backed up waste from toilet into the machines". It is conceded by the Defendant, rightly if not inevitably in my view, that the words "he pushed pipes in to the waste pipe for washing machine and dishwasher and sealed with silicone" comprise statements of fact. In my judgment, the words "which backed up waste from toilet into the machines" would also, especially in the immediate context that they form part of the same sentence, be understood by the ordinary reasonable reader as a statement of fact. In any event, it seems to me that they do not carry any, or any significant, defamatory imputation in addition to that conveyed by the first set of words. In substance, the allegation is that the Claimant botched the pipework. The later words identify an alleged consequence of that, not separate shoddy work.
(3) The next words contained in the Review that are selected for complaint by the Claimant are the following: "He even cut out the back of units due to a skirting board being at the back which should have been removed yet then realised he hadn't put the legs on the units so when the legs went on the units he cut (sic) were higher than the skirting board". Again, the statement "He even cut out the back of units" is accepted by Ms Guildford on behalf of the Defendant, rightly if not inevitably in my view, to be a statement of fact. In my judgment, the remainder of the words complained of under this heading would also, especially in the immediate context that they form part of the same sentence, be understood by the ordinary reasonable reader as comprising statements of fact. If and to the extent that some of these words, read in isolation, could be argued to represent an expression of opinion, such as that "the skirting board … should have been removed" , I do not consider either (i) that this is how they would be understood by the ordinary reasonable reader, or (ii) that they could have the effect of rendering as statements of opinion the totality of the words complained of in this instance, or the totality of those words beyond "He even cut out the back of units" which are accepted to be a statement of fact.
(4) The last words contained in the Review that have been selected for complaint by the Claimant are "admitted liability". These words appear in the phrase "He refunded our deposit and admitted liability by doing that". In my judgment, these words comprise a statement of opinion. The facts upon which that opinion is based are identified in the same sentence, namely "he refunded our deposit", and the way in which the ordinary reasonable reader would understand the two words complained of is to the following effect: "in my (the author's) view the Claimant admitted that he was liable [for carrying out bad work] by refunding our deposit".