England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/12/2017

Sir David Eady :

The background circumstances

1. These proceedings are concerned with events in October 2012. At that time, the Claimant was working as a taxi driver for Strood Cabs Ltd, as he still does. He had previously worked in the transport unit of the Medway Council as a transport inspector and also in its crime prevention unit. The Defendant was and is the joint owner, with Mr Gurdawar Bassi, of ABC Taxis, a firm which is based in Chatham and has on a long term basis provided services to Medway Council. In particular, they supply drivers for transporting children with special educational needs to and from school. I understand that Strood Cabs also perform these services from time to time.
2. It seems that at some point on or about 15 October 2012 the Defendant was informed by another taxi operator in the area, called Ray Ahmed, of an incident on the Sunday evening (14 October), apparently involving passengers carried in the Claimant's cab, when he was allegedly arrested in connection with the suspected supply of drugs. She had regular dealings with an employee of Medway Council named Amanda Waller and she passed at least some of that information on to her, asking that it be treated in confidence and that she herself should remain anonymous as being the informant. She says that she thought the Council ought at least to be informed about these events because he was, or had been, one of its employees, and was still from time to time supplying his services to the Council as a cab driver. The Claimant sues in slander in respect of that conversation.
3. On 16 October, Ms Waller sent an email to the Defendant asking that she provide the details of the "allegation". After some hesitation and a further chasing request, the Defendant sent an email on 17 October referring her for the details to a woman who (she thought) had been travelling in the cab at the time of the arrest:

"The most accurate person to speak to with exact facts is Kailey, she is Ray Ahmed's PA for SAS Travel, she was one of the females travelling in M Pannu's taxi on Sunday evening when the incident happened".

4. That communication is also sued upon as a libel, although it is to be noted that no innuendo is pleaded. Standing by itself, of course, it is difficult to extract from it a meaning defamatory of the Claimant.
5. There is a dispute as to what exactly the Defendant had told Ms Waller during her telephone conversation. The burden of proof lies on the Claimant to establish that words were spoken which were both defamatory and actionable without proof of special damage. No words are pleaded in direct speech, as good practice generally requires in the case of any alleged slander. In this case, however, I believe I can easily transpose the short plea into direct speech so as not to deprive the Claimant of his cause of action on what might appear to be a technicality. In that form, the words would be as follows: "… the Claimant has been arrested for dealing drugs while driving his taxi on Sunday". Of course, she would not have described him as "the Claimant" at that stage, but he wishes to plead that she identified him by some means in describing what she had been told. The Defendant herself does not accept that she did identify him as being the person arrested at that stage. I will therefore have to return to this issue shortly.
6. As I understand the pleaded case, the Claimant ascribes to both the original conversation and the subsequent email the same natural and ordinary meaning; namely, that the police had arrested him on suspicion of dealing in illegal drugs. That marks the upper limit of gravity attributed to the defamatory words: Slim v Daily Telegraph [1968] 2 QB 157, 175-176. It is not an allegation of guilt, but amounts only to "reasonable grounds to suspect". (This is sometimes referred to in the jargon as "Chase level 2", by reference to the three tiers of gravity discussed by the Court of Appeal in Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772.)
7. It seems that the Claimant was shortly afterwards contacted by another council employee, Mr Gary Lindsey, who was Ms Waller's line manager. He reported to him his understanding of what the Defendant had told Ms Waller. Her plea for anonymity had thus obviously been ignored. That was the Claimant's only source of information as to the publication of the alleged slander. In the course of the Claimant's case, no other evidence was introduced as to the defamatory words spoken to Ms Waller. There was nothing from Ms Waller herself or from Mr Lindsey. I only heard the Claimant's account, which was thus second hand hearsay.
8. The Defendant joined the Council as a Part 20 Defendant and claimed damages for breach of confidence. Mr Bennett represented the Council at the trial and evidence was given by another of its employees, Mr Thomas, who publicly apologised for the breach of confidence. Mr Bennett explained that the Council admitted its breach of confidence and that damages had been agreed with the Defendant. He took no other part in the proceedings.
9. The Defendant accepted that she had spoken to Ms Waller on 15 October, but she put in issue exactly what she had said. She denied mentioning the Claimant's name or saying that it was he who had been arrested. I believe that she does not actually have a full recollection of what she did and did not say. Neither she nor, it appears, Ms Waller made any contemporaneous note. In those circumstances, the Claimant has the unenviable task of proving that she uttered the slanderous words attributed to her. This was in any event a minimal publication to one person. Ms Waller appears to have passed on a version of what she was told to Mr Lindsey, but there is no evidence that the Defendant's words were published to anyone else – or for any other purpose than that of the Council in pursuing its own enquiries on a confidential basis. Although Mr Panton referred in closing to other people having heard rumours about the Claimant, there is no evidence that the Defendant was the source. Nor was it foreseeable to her that what she told Ms Waller would be passed on except for the legitimate purposes of the Council in discreetly pursuing its enquiries. Nevertheless, limited though the publication was, it is necessary to remember that there does not arise any issue of "serious harm" in the context of s.1 of the Defamation Act 2013 since, because it has been so slow in coming to trial, it is the previous law which has to be applied in this case.

The first issue: Has the Claimant proved publication of the alleged slander?

10. Ms Wilson emphasises that, even though it may now be admissible, it is undesirable in civil litigation to rely on hearsay for the purpose of proving facts which are centrally important. She referred to Phipson on Evidence (18^th edn) at 29-08 and 29-16. In this case, I have other evidence because the Defendant chose to go into the witness box and she answered questions about her conversation with Ms Waller. I am able to come to a conclusion on the totality of the evidence, even though she is somewhat hazy about what passed between them.
11. I believe that she must have identified the Claimant by reference, if not by name, and indicated also that she had been told that he was arrested in connection with a suspected drugs offence. Although the suggestion was put that she had mentioned Class A drugs, she denies this. In any event, that is not part of the pleaded meaning and the Claimant is not permitted to go beyond that. If she had not identified the Claimant, the message would have made no sense to the recipient. Ms Waller would have been left puzzled as to why she was being given the information. She would no doubt have asked "What has this to do with me?" In any event, she clearly left Mr Lindsey in no doubt as to who was the subject of the warning. He rang up the Claimant straight away.
12. As to meaning, I conclude that she would have conveyed the natural and ordinary meaning (to one person) that she had been told that he had been arrested because of a suspected drugs offence of some kind. Because of the "repetition rule", that has to be treated as equivalent to a direct allegation. In other words, it is to be regarded as an allegation of reasonable grounds to suspect him of having committed a drugs offence.

The second issue: Are the words to be treated as actionable without proof of special damage?

13. It has long been established that slanders are not actionable without proof of special damage. None has been pleaded. There are four exceptions and the only one that is of potential relevance here is that relating to an accusation of a criminal offence punishable with imprisonment: see e.g. Gray v Jones (1939) 55 TLR 437. Finally, in his closing speech, Mr Panton did address the issue, after it had been highlighted by Ms Wilson in her written submissions prior to the trial and also canvassed in her closing speech. The only exception to which he referred was indeed the one relating to criminal offences. Unfortunately, however, that is of no avail because words which allege only "reasonable grounds to suspect" such an offence will not suffice for the purpose. This proposition is supported by the authorities cited in Gatley on Libel & Slander (12^th edn), at 4.6 to 4.9, and accords with principle.
14. For this reason, the claim in slander must fail. I shall nonetheless go on to address the remaining issues in case I am wrong in that conclusion.

The third issue: Is the email of 17 October actionable?

15. As I have already pointed out, the email bears no natural and ordinary meaning which is defamatory of the Claimant.

The fourth issue: Were the words spoken to Ms Waller protected by qualified privilege?

16. By October 2012, there was an established professional/commercial relationship between ABC and the Medway Council. It was in that context that the Defendant discreetly warned Ms Waller (and her alone) that there was suspicion over the conduct of the Claimant (or so she had been informed).
17. It is well settled that in appropriate circumstances a statement that is volunteered (as here) may attract the protection of qualified privilege. It is not necessary for a defendant to show that he/she was responding to a request or enquiry: see Gatley on Libel & Slander (12^th edn), at 14.34 to 14.37.
18. This information was certainly a matter of potential significance to the Council, such that it would be appropriate for its officers to make enquiries and find out the true position. The Claimant had been carrying out duties for the Council in a position of responsibility and trust – including apparently the provision of services for vulnerable children. If he was suspected of or to be charged with a criminal offence, including a drugs offence, that was something which would plainly be of legitimate interest to them. (Cf Watt v Longsdon [1930] 1 KB 130, CA.) She felt she was under a duty to pass on in confidence what she had been told. It is important to remember, however, that the test is an objective one. The matter is not determined by her own belief.
19. There was some debate as to whether there was an express contractual duty on the part of the Defendant's firm to pass on such information to the Council, or whether it was implicit, or to be regarded as arising merely as a matter of moral duty. It seemed to me odd that no one had dug out any relevant contractual documents – let alone disclosed them. Nevertheless, it is clear to me that the matter in hand was indeed one of legitimate common and corresponding interest between them. In particular, they each had a close interest in and responsibility for the safeguarding of vulnerable young people.
20. Mr Gary Thomas' witness statement confirmed that the information passed to the Council by the Defendant was relevant and necessary to enable it to pursue its role as the Claimant's regulator in his capacity as a licensed driver for hire. Information concerning possible misconduct should be passed to the Council, and specifically to the Transport Procurement Unit where Ms Waller was employed, because it would have to consider whether to withdraw the person's licence. For that purpose, of course, it would be necessary first to investigate the allegation and determine whether it was accurate or not. The Defendant and Mr Bassi also gave evidence as to their understanding that it would be expected of those working with the Council that any concerns they may have should be referred to it for consideration. This evidence is not determinative of the issue, which remains ultimately a matter of law for the court to decide.
21. There was in my judgment a social or moral duty for the Defendant to pass on a serious allegation of this kind, for the Council to consider it and take such steps as seemed appropriate. It had, through its officers, a relationship of trust with the Claimant in various capacities and needed to know if there was anything which was likely to jeopardise it. The Defendant's communication was proportionate and went no further than was necessary to achieve her objective.
22. I am quite satisfied, therefore, that the communication was protected by qualified privilege.

The fifth issue: Was the Defendant's communication with Ms Waller actuated by express malice?

23. I would have needed to consider whether the defence of qualified privilege could be defeated on the basis that the communication to Ms Waller was actuated by express malice. Findings of malice are very rare. A claimant will usually need to plead, and then to demonstrate at trial, that the defendant was dishonest or reckless. That is to say, that the person concerned knew the words in question to be false or that he/she was genuinely indifferent to whether they were true or false.
24. It is theoretically possible that a person could make an allegation maliciously even in respect of words she believed to be true. In such a case, it would be necessary to show that the dominant motive in publishing was to inflict damage on the claimant's reputation. In practice, however, no one can ever cite a modern example of malice succeeding on this basis: see e.g. Gatley on Libel & Slander (12^th edn) at 17.5.
25. Since the focus is normally on dishonesty, the pleading requirements are as rigorous as those applying in cases of alleged fraud. It is necessary to set out particulars of malice clearly and with specificity. At the commencement of the trial, admittedly late in the day, Ms Wilson (whose instruction in the case had been relatively recent) sought to strike out most of the particulars on the footing that they were largely ambivalent; that is to say, they were equally consistent with the absence of malice as with its presence. Others were merely bare assertions of malice without particulars in support. There was force in her submissions and I struck out much of the Reply but was, in the end, persuaded to leave some matters in for consideration in the light of the forthcoming evidence.
26. The surviving particulars fell into two broad categories. First, I thought it just pleadable that ABC was in competition with Strood Cabs: this, combined with the fact that the Defendant had published an untrue allegation about one of its drivers, seemed to me to be capable, without further explanation, of giving rise to an inference that it was motivated by a desire to gain commercial advantage over a rival. Secondly, there were pleaded examples of the Defendant making other allegedly false charges against the Claimant in 2014 (in the course of these proceedings): this again gave rise to at least the possibility that she had been motivated by spite when she spoke to Ms Waller.
27. I should add that the absence of an apology does not in the circumstances of this case go to prove malice. The Defendant was acting in accordance with a social or moral duty: it is not her fault that the report she received turned out to be untrue. Nor was it incumbent upon her to carry out her own independent enquiries to establish the veracity of Mr Ahmed's account. That could properly be left to the Council. That is why these matters were struck out of the Reply.
28. It became clear very soon that there is no love lost between the Claimant, on the one hand, and the Defendant and her partner (Mr Bassi) on the other hand. This was quite apparent while they were in the witness box. Mr Bassi, especially, could hardly bring himself to mention the Claimant without making some dismissive or demeaning comment. This could now be explained perhaps, at least in part, by the fact that they have been locked in this litigation for the last five years. At all events, I must not allow myself to be distracted by matters that are significantly removed in time from the relevant date – or to attach disproportionate weight to them. The question is whether in October 2012 the Defendant decided to make the allegation that the Claimant had been arrested dishonestly, and/or out of spite, and/or to gain a competitive advantage over Strood Cabs.
29. These explanations seem to me implausible for a number of reasons. First, it would be counter-productive unless she really was sure of her facts. If she had simply invented the arrest, this would surely do her more harm than good in the eyes of Medway Council. It would soon emerge that there was no truth in the allegation. It seems much more likely that she was given the information by Mr Ahmed and, at that stage, saw no reason to disbelieve it. She then decided to pass it on in confidence to the Council, via Ms Waller, because she genuinely thought that they had a right to know about it, and to evaluate it for themselves. She was certainly not in a position to vouch for it – and did not purport to do so. That is, of course, a state of mind readily to be distinguished from indifference to truth (i.e. recklessness). No doubt, however, in the intervening years she has ruefully wished, from time to time, that she had kept the story to herself.
30. Secondly, the Defendant told me that ABC co-existed with Strood Cabs amicably and on good terms, and indeed that sometimes in busy periods they would pass work on to one another. That was not challenged.
31. Thirdly, there was no reason for her to suppose that the Council would allocate more work to ABC merely because one of Strood's drivers had, supposedly, been arrested on suspicion of drug dealing. The Council would surely make its choices on the practical basis of what services were available in the area, and upon their past experience of the reliability of the various local taxi firms and of the personnel involved.
32. Against this background, it seems to me far less likely that the Defendant was motivated by malice than that she chose to pass on information that genuinely appeared to her significant, and to be of potential interest and concern to the Council. That interpretation accords with the inherent probabilities. Moreover, her reluctance to become involved is borne out to an extent by her hesitancy, on 16 October 2012, when responding to Ms Waller's email request for further detail. I would conclude that malice has not been demonstrated as a motive for publication (let alone the dominant motive), despite the distaste, verging on hostility, which the Defendant and Mr Bassi now appear to feel towards the Claimant.

Overall outcome

33. The claim against the Defendant must therefore be dismissed. I need say nothing in this judgment about the Part 20 proceedings.
34. I am reminded inevitably, at the conclusion of this litigation, of the salutary warning given by Jay J in the recent (much heavier) case of Serafin v Malkiewicz [2017] EWHC 2992, at [354]. There are clearly risks in launching too readily into this type of claim, where there are often more issues to be considered than at first meet the eye, and the uncertainty and complexity of which can sometimes be underestimated. The issues in this case were quite different from those in Serafin, and simpler to resolve, but the hurdles confronting claimants in the law of slander, qualified privilege and malice may also prove hazardous and unexpectedly tricky to negotiate. While that is true in general terms, and careful thought should always be given to the potential pitfalls before starting such a claim, it so happens that the fundamental problem here should have been relatively easy to identify. Unlike Serafin, it did not turn upon matters of conflicting evidence or the credibility of witnesses. It was a basic point of law: slander is not actionable without proof of special damage – unless it can be brought within one of the recognised exceptions. I have little doubt that the claim has caused everyone a good deal of anxiety and stress, to say nothing of the cost (some of it to the public purse). Yet it could so easily have been avoided.