Full case report

Malaga-Cano v Barclay & ors

Reference [2017] EWHC 1498 (QB)
Court High Court

Judge Master Thornett

Date of Judgment 30 Jun 2017


Summary

Slander – Libel – Meaning – Serious Harm – Thornton threshold – Jameel abuse – collateral purpose abuse – common interest privilege – truth – honest opinion – slander per se – “office” or “calling” – Defamation Act 1952 – Defamation Act 2013


Facts

The Claimant brought claims against 12 defendants who were, or had been, on the executive committee of the charitable Anglo-Peruvian Society, arising out of events at the charity’s AGM in April 2015. The claims brought included slander, libel, breach of contract, personal injury / assault / battery. At the hearing of the defendants’ strike-out/summary judgment application, an issue arose as to whether or not the claimant had an arguable case to amend so as to plead slander per se, pursuant to section 2 of the Defamation Act 1952.


Issue

(1) Was the Claimant slandered in respect of any ‘office’ or ‘calling’ held by her, in the meaning of s.2 of the Defamation Act 1952, such that the slander claims should not be struck out for failure to plead pecuniary loss?

(2) Should the other claims be struck out and/or the defendants granted summary judgment on any/all of the causes of action?


Held

(1) Assessment of what constituted an ‘office’ or ‘calling’ was an objective test, although the claimant’s subjective view of the activity could inform that objective test.

(2) The Master rejected the Defendants’ submission (based in-part on Pepper v Hart material from Hansard)  that a ‘calling’ necessarily had to connote an occupation or professional activity: it could in principle include altruistic or unremunerated activities, but the test was whether it was sufficiently established as to present as an objectively recogniseable trait, characteristic or feature of that individual.

(3) On the evidence, there was no basis of the Claimant ever having held an ‘office’ in the society, and she did not suggest that she held such an office at the time the words complained of were spoken. Mere membership of the society could not constitute an office: Warby J in Umeyor v Ibe [2016] EWHC 862 (QB) at [55] applied;

(4) On the evidence, the activities of the Claimant in the society, including her organising bridge tournaments some years prior to the alleged slanders, did not establish a ‘calling’ of some vocational character.

(5) The slander claims were not slander per se and having pleaded no pecuniary loss should be struck out under CPR r.3.4(2)(a)

(6) All the other causes of action were struck out and/or summary judgment granted to the defendants.

Permission to appeal was refused by Master Thornett, and then on-paper by Jefford J. At the hearing of the application for oral renewal of permission to appeal before Warby J, the Claimant withdrew her application through counsel.

 


Comment

One of the few authorities to really focus on the meaning of ‘office’ or ‘calling’ in section 2 of the Defamation Act 1952, and one of the remaining two classes of slander per se which are actionable without pleading and proving special damage. This may also be persuasive authority in respect of the same terms as they apply to malicious falsehood in section 3 of the Defamation Act 1952.


Download this Judgment


Instructing Solicitors

Carter Ruck for all 12 defendants