Full case report

Flymenow Limited v Quick Air Jet Charter GmbH

Reference [2016] EWHC 3197 (QB)
Court Queen's Bench Division

Judge Warby J

Date of Judgment 15 Dec 2016


Summary

Defamation – Meaning  – Justification – Qualified Privilege – Abuse of Process – Damages


Facts

The claimant is an aircraft charter company. The defendant is a provider of private jets. The companies entered into a contract to provide two air ambulance flights in July and August 2013.

Both flights went ahead, however payment was not made at the time of the flights, and so debts were accrued. The claimant failed to make full payment of the debts accrued by the July and August flights.

Given this, the defendant sent an email, regarding the claimant, to a mailing list which contained the emails of a substantial number of aviation companies.

 The email, titled ‘WARNING. Company you should not deal with!’ stated that the claimant was in “pecuniary difficulties,” was a “defaulting debtor” and was “not able to pay” the outstanding amounts owed to the defendant.


Issue

1.     Did the natural and ordinary meaning of the notice go so far as to suggest that the company was insolvent, or did it merely warn other companies about dealing with the claimant due to the claimants pecuniary difficulties?

 2.     Was the email substantially true in relation to either of the possible meanings at (1)?

 3.     Was the email protected by qualified privilege?

 4.     Was any privilege defeated by dominant, improper motive?

 5.     Given the conduct of the claimant in not paying the defendant, was the claim an abuse of process?

 6.     Should substantial damages be awarded?


Held

1.     The meaning was one of insolvency. A reader would have drawn from the email that the claimant was a defaulter who had failed to pay the defendant the outstanding sums owed, and that the reason for that lack of payment was that the claimant was insolvent.

 2.     The defendant was unable to prove that the claimant was insolvent at the time that the allegation was made, and so the defence of justification failed. However, it was proved by the defendant that the claimant was extremely close to being insolvent. The defendant also proved the substantial truth of the rest of the defamatory meaning conveyed by the email.

 3.     The publication was not protected by qualified privilege. The defendant and the audience did not have a common legitimate interest in the communication of the information about the claimant’s solvency. Neither did the defendant have a social or moral duty to warn other companies about the claimant’s solvency.

 4.     The claimant’s case of malice was rejected as the agent of the defendant who sent the email had grounds for concluding that the reason for the claimant’s non-payment was that it was unable to do so. Though the defendant’s agent was annoyed with the claimant, and wanted to persuade the claimant to pay, his primary motive was a belief that he was under a duty to warn other companies about the claimant.

 5.     The claim was not an abuse of process. The claimant’s bringing of the action was intended to vindicate its reputation, and rebut an imputation of insolvency that was false. This was seen by the court to be a proper use of the court’s process.

 6.     Despite the above, given that the defendant had succeeded proving the partial truth of the email, Warby J decided to reduce the award of damages to the ‘minimal’ level of £10. The court took four factors into account when deciding to award damages:

    the appropriate way in which to reflect the fact that the claimant led the defendant to believe it was insolvent was to take it into account on the issue of damages;

    the significant extent to which the defendant has proved the truth of the defamatory meanings of the words complained of;

    the claimants dishonest behaviour in the past; and

    the claimants ‘disreputable and, ultimately, dishonest conduct’ of its case at trial.


Comment

The judgment provides a useful summary of the law regarding the defamatory meaning of insolvency, and what is needed to prove such an allegation. This case is also a further illustration of the divide between defamation and other causes of action with regard to reducing a dishonest claimant’s award of general damages. In the Supreme Court case of Summers v Fairclough Homes Ltd [2012] 1 WLR 2004, the court decided against reducing the general damages of a dishonest personal injury claimant, on the grounds that significant injury had still been suffered, and, given this, the claimant was entitled to damages regardless of conduct. The law of defamation, as seen here, has taken a different approach, allowing a claimant’s disreputable conduct to reduce the level of general damages (see Spiller v Joseph [2012] EWHC 2958 (QB).


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Instructing Solicitors

Wright Hassell for the Claimant; Fladgate for the Defendant