Full case report

Cammish v Hughes (CA)

Reference [2012] EWCA Civ 1655
Court Court of Appeal

Judge Arden LJ; Lloyd Jones LJ; Tugendhat J

Date of Judgment 12 Dec 2012


Summary

Libel – meaning – fact or comment – honest comment and single meaning rule – Jameel abuse – costs as a condition of dismissal


Facts

The Appellant Defendant, Clive Hughes, (‘D’) was a businessman. He owned and ran two companies which sought planning permission for the construction of two biomass power stations in South Wales. The Respondent Claimant, Robin Cammish, (‘C’) was also a businessman. He owned and ran the QP Group, a group of companies providing management consultancy services. He was also chairman and director of a company called Coedbach Action Team Ltd which opposed the grant of planning permission for the two power stations, doing so in part by attending planning inquiries.

In April 2010 a 12 page bundle of documents was sent anonymously to a number of individuals, referring to C’s part in the action group and the fact that public records indicated that between him and his partner he had dissolved at least 20 companies, going on to say “not able to sell anyone of them and coming to Swansea to tell you how to do it”. A handwritten message said that C’s role in dissolving 15 companies “= not able to run them”. In a witness statement C explained that he had not incorporated the companies that had been dissolved in order to ‘run’ them, stating that they had been set up to protect IP rights relating to his main business. C said that following the dissemination of the bundle he arranged a number of meetings with persons who had received the bundle to assure them that no impropriety was involved.

In pre-action correspondence C claimed, partly on the basis of handwriting evidence, that D was the author of the bundle. D denied this.  Proceedings ensued. D identified himself in his Defence as the bundle’s author. D denied the defamatory meaning attributed to the words by C (‘that he was a seriously incompetent business person’ and, applying Thornton v Telegraph Group Ltd [2011] 1 WLR 1985, denied that they were defamatory of him at all.  Alternatively D asserted that if and insofar as the words were defamatory of C they were honest comment on a matter of public interest.  Furthermore D pleaded, in reliance on Jameel v Dow Jones [2005] QB 946, that the proceedings were not ‘worth the candle’ and ought to be brought to a conclusion summarily. D issued an application seeking a ruling on whether the words were or were not defamatory of C and, in the event that they were found to be defamatory of him, for judgment to be entered summarily for D nonetheless on the ground that the claim was an abuse of process. Meanwhile C issued an application for an order striking out the defence of honest comment.

Both applications came before HH Judge Chambers QC (sitting as a Judge of the High Court) in the Cardiff District Registry. Since trial was to be by judge alone, the parties were content for the Judge to rule as a preliminary issue on what the words actually meant. The Judge ruled that the natural and ordinary meaning of the words complained of was “because he was unable to run them the Claimant has had to dissolve 15 companies which he wanted to sell. This shows that he is a seriously
incompetent businessman who is far from being the man to come to Swansea to tell the protesters how to run their protest”: [2012] EWHC 976 (QB). The Judge ruled that in this meaning the words were defamatory of C, including that they crossed the ‘threshold of seriousness’, and declined to stop the proceedings as an abuse of process, principally on the ground that D had lied in the pre-action correspondence about his authorship of the words complained of and C was entitled to pursue the proceedings to achieve vindication in that regard.  With the permission of the Rt Hon Sir David Keene, D appealed.


Issue

The main issues on appeal were as follows:

(1) Meaning: whether the Judge had taken the correct approach to the issue of meaning or whether he had reached a view that was plainly wrong.  In particular, whether the Judge had been correct (a) to hold that the words complained of crossed the threshold of seriousness and (b) to find a meaning which conveyed a factual imputation when, according to D, were plainly comment; and

(2) Jameel abuse: whether the Judge had approached the application correctly and whether he had been right to conclude that there was some tangible benefit to be obtained by C which warranted the proceedings being pursued to a trial.


Held

Held, allowing the appeal but on certain conditions as to costs:

 

(1) Meaning

The Judge had been correct in his finding as to the meaning of the words complained of. The words were defamatory of C and crossed the threshold of seriousness, not because they cast doubt on C’s creditworthiness as the Judge had held, but because they tended to denigrate him in the way of his business. Reputation was of particular importance to a businessman, who had to persuade others to trust that he would competently perform business commitments.

(2) Fact or Comment

The words complained of were clearly comment: the use of the equals sign demonstrated that what followed the statement as to the fact of the dissolutions was D’s view. Serious incompetence, the imputation found by the Judge, was a meaning that entailed a value judgment. The unsustainable nature of D’s deduction about the dissolutions was irrelevant as the defence is available regardless of whether the comment was right or wrong.

That this was so meant that, following prospective amendment of the pleadings, C would need to establish Cheng-type malice (‘no genuine belief in the comment expressed’) to succeed at trial. That he would be able to do so seemed fanciful: see in this regard the observations of Lord Phillips in Joseph v Spiller [2011] 1 A.C. 852 at [108]. Furthermore, and materially in the instant case, it was at least arguable that the defence of honest comment was available if (a) the author of a statement did not intend or believe his words to convey the meaning attributed to the words by the court, and (b) in the meaning which he did intend and believe the words to convey, he believed the statement to be true.

(3) Jameel abuse

Applying the principles in Jameel, C would be no better off than he was if the case continued to trial for the following reasons: (1) the small number of publishees of the words complained of; (2) the vindication of C’s position and reputation comprised in the Court of Appeal’s judgment; (3) no better vindication than this might be obtained at a trial, which would inevitably turn on the issue of malice; (4) damages would inevitably be small when compared with the costs incurred; (5) no prejudice would be suffered by C from the loss of opportunity to obtain an injunction; (6) significant time had passed since the bundle was sent out and it was preferable that sleeping dogs should continue to lie; and (7) the dismissal of the claim would be on specified minimum conditions as to costs adverse to D, namely, that D should pay C’s costs up to and including the service of the Defence. Under these circumstances there was nothing to be gained by C in proceeding to trial.


Comment

There are two notable aspects of the judgment:

(1)

This is only the third time that the Jameel jurisdiction has been considered by the Court of Appeal in a defamation case since the decision in Jameel itself (the others being Khader v Aziz [2011] E.M.L.R. 2 and Lait v Evening Standard Ltd [2011] 1 W.L.R. 2973).

The court applied the accessible formulation of the test outlined by Eady J in Schellenberg, namely whether “there is any realistic prospect of a trial yielding any tangible or legitimate advantage such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources”.

The court showed itself ready to strike out a claim where the answer was that there is no such prospect, taking into account the factors identified above. One unusual aspect of the decision is that the Court made an order for costs against the successful party as a means of providing “further protection and vindication”: see paragraph [64] of the Judgment. This shows that the Jameel jurisdiction might be exercised where suitable compensatory costs orders in a C’s favour will cure any potential injustice flowing from the summary dismissal of the proceedings.

(2)

Where the Judge is called upon to rule upon the meaning that was actually conveyed by allegedly defamatory words (i.e. in cases which are not going to be tried with a jury), he or she should ordinarily also rule on whether the words are in the nature of fact or comment.


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