Full case report

Euromoney Institutional Investor Plc v Aviation News Ltd

Reference [2013] EWHC 1505 (QB)
Court High Court, Queen's Bench Division

Judge Tugendhat J

Date of Judgment 12 Jun 2013


Summary

Libel – defamatory meaning – malicious falsehood – meaning in malicious falsehood – statements of opinion – Jameel abuse


Facts

C and D1 were companies that organised business conferences for the aviation industry. D2 was a former employee of a company associated with C, who founded and managed D1, a new entrant into the market.

C complained firstly of an email to a single publishee, written by D2 on behalf of D1, which claimed to have forced C to change the focus of its event, leading to their event being a “carbon copy” of D1’s. Second, C complained of an advertisement in which the Ds claimed to have greater experience in aviation finance than the competition and no record of “fleecing” the industry.

Ds applied to strike out the C’s claim, alternatively asking for a ruling on meaning under CPR 53. C then applied for permission to add Euromoney Trading Limited (“ETL”) as a party, and to amend the original claim form and Particulars of Claim. The amendments abandoned the original claims for special and aggravated damages, and sought to add a claim in malicious falsehood.

D opposed C’s application to amend, objecting to the joinder of a new C and the addition of a new cause of action, submitting that this amounted to abandonment of the original claim and the commencement of a new one.

As to the draft amendments, D submitted that: C had no standing to sue as a non-trading company at the time of publication; that the email had no capable defamatory meaning and any case of defamation in respect of the advertisement was fanciful; alternatively “fleecing” was a value judgment; in relation to malicious falsehood, that C should be required to explain how the alleged falsehood was likely to cause either C or ETL pecuniary damage; that it was improbable that either company would suffer any, especially in the light of the consideration that any pecuniary damage would have manifested itself already; that the statements complained of were value judgments that could not be the subject of a claim for malicious falsehood; and that there was no case on malice pleaded which had any prospect of success. D also submitted that the proceedings were an abuse of process on the basis of Jameel v Dow Jones [2005] QB 94.


Issue

1) Should C’s application to amend and join ETL as a new party be permitted?

a) for the purposes of the libel claim

b) for the purposes of the malicious falsehood claim

2) Was the claim an abuse of the process of the court?


Held

Refusing permission to amend and striking out the claim:

1)

a)

The words complained of in the email were incapable of bearing any meaning defamatory of any Euromoney company to which they might refer. The allegation of copying a business idea may be undesirable criticism but it was not inherently defamatory. Although it might make a customer think the worse of C, it would not lead a right-thinking member of society to do so. As for the advertisement, so far as it differed from the allegation in the email by reason of the inclusion of the word “fleece”, it was only capable of being an expression of opinion or value judgment. It meant that the company referred to had unfairly overcharged its customers and was defamatory in that meaning. However, C had made no complaint about such a meaning in its draft amended Particulars of Claim.

b)

The case on reference in malicious falsehood in principle had a sufficient prospect of success to justify the grant of permission to join ETL, as did the case of likely pecuniary damage.

On the question of meaning for the purposes of a malicious falsehood claim, and whether a preliminary ruling on meaning is available in such a claim, the Judge referred to his recent judgment in Cruddas v Calvert & Ors [2013] EWHC 1427 (QB). There he had held that the procedure of excluding meanings which the words complained of were not capable of bearing was available to be used in malicious falsehood as well as in defamation. This process could be carried out regardless of the fact that the words complained of in malicious falsehood could ultimately bear more than one meaning.

By using the word “fleece” the advertisement was incapable of imputing dishonesty or fraud.Furthermore, considering the statement made by Ds about the relative experience of C’s staff, said by C to be one to the effect that Ds were more trustworthy than C, J held that this was a comparison which could only be a matter of opinion.

J also accepted Ds’ submission that a statement of opinion could not be complained of as a falsehood for the purposes of a claim in malicious falsehood.

Considering the question of malice, J held that there was no prospect of C establishing an intention on the part of Ds to injure C or ETL, or of proving that D2 did not genuinely hold the opinions he had expressed.

2)

Assuming, contrary to the primary conclusions, that the words complained of were defamatory of C or ETL, or that there was a claim in malicious falsehood, there was no real prospect of either corporate claimant obtaining substantial damages or an injunction. Having regard to the pre-action correspondence, C had demanded more than its entitlement, and had in fact achieved everything they were entitled to from Ds prior to the issue of proceedings. The measure of recoverable damages could not be worth the expenditure of costs and other resources, and there was no real and substantial tort.


Comment

The decision is noteworthy for the Judge’s careful consideration of meaning in the context of malicious falsehood. Firstly, it highlights what the same Judge had decided very shortly beforehand in Cruddas v Calvert & Ors [2013] EWHC 1427 (QB), regarding the court’s power to give a ruling on meaning in malicious falsehood cases: the Jeynes principles on meaning can be invoked in a malicious falsehood claim just as much as in a defamation case to exclude an unreasonable meaning at the interim stage.

Second, this process of assessing meaning in a claim in malicious falsehood is broad in scope, and can extend to evaluating whether words are statements of fact or opinion. Following the rulings of the Court of Appeal in British Chiropractic Association v Singh [2011] 1 WLR 133 and Cammish v Hughes [2013] EMLR 13, it is open to the court in a defamation case, whether on a trial of a preliminary issue on meaning or a ‘capability’ application, also to decide the question of fact / opinion. This question may also fall to be resolved when the Jeynes principles are applied in a malicious falsehood action.

Third, the decision clarifies that, where a statement is an expression of opinion, it cannot be complained of as a falsehood for the purpose of a claim in malicious falsehood. The Judge concluded that an example proffered in Gatley at 21.5 as supporting the proposition that it was ‘going too far’ to say that an opinion could never form the subject of a claim for malicious falsehood, was not a true exception to the rule.


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Instructing Solicitors

Mishcon de Reya for C; Taylor Hampton for D


Links

'A Victory for Fair Competition': Press Gazette