Hodges v Naish

The Claimant (“C”) was a former friend and business partner of the Defendant (“D”), both men being leading exponents of Irish dance, who worked together in a business known as Fusion Fighters.

The parties’ business relationship broke down in early 2019, in circumstances such that their friendship ended also.

C claimed damages for slanders allegedly spoken by D to certain individuals in February, March and April 2019, and an injunction to prevent their repetition.

C claimed that D had slandered him by publishing statements to: a former client of the parties, Elaine Walker, during a telephone conversation on 24 February 2019; two of the parties’ former colleagues, Conor Kennedy and John McCullough, during a car journey to Bristol on 2 March 2019; and to the parties’ former colleague Kevin Goble in a telephone conversation on 4 April 2019.

C claimed that on each occasion, D published an allegation of child grooming, and that this was a slander which was defamatory at common law, was actionable per se and caused serious harm to his reputation.

D denied publishing the words complained of, and disputed that serious harm had been caused to C’s reputation, pointing to the fact that C had reassured his former colleagues, meaning that they did not believe that what he told them was true, and that in consequence D’s words caused no harm, and certainly not any serious harm.

C also sought to dis-apply the limitation period in respect of the alleged publication by D to Mr Goble on 4 April 2019, which had not been included in C’s original Particulars of Claim filed and served on 4 April 2019.

(1) Did D publish the words complained of to the three alleged publishees?

(2) What meaning did the words complained of bear?

(3) Was the meaning borne by the words defamatory at common law?

(4) Did D’s publications amount to slanders which were actionable per se?

(5) Did D’s publications cause serious harm to C’s reputation?

(6) Should the limitation period be dis-applied in respect of the publication to Mr Goble?

Giving judgment in C’s favour in whole or in part on each preliminary issue:

(1) In respect of the publication to Ms Walker, while the Judge found it highly likely that in conversations with her D did make allegations of sexual misconduct on C’s part, he could not, in the absence of direct evidence, infer that D used the particular words which are pleaded. In respect of the Kennedy/McCullough publication and the Goble publication, the Judge found that on each occasion D did publish a statement including an allegation of child grooming.

(2) The Judge found that: the Kennedy/McCullough publication bore a meaning including that C had groomed under-age girls by social media with a view to having sex with them once they reached the age of consent; and that the Goble publication meant that Mr Goble should be careful of getting involved with C, because he had been grooming children through social media.

(3) D conceded the actionability at common law of the two instances of publication found and the Judge had no doubt that both publications were so actionable.

(4) C had brought himself within both of the exceptions to the rule that slander is not actionable without proof of special damage because an allegation of child grooming connotes a general charge of paedophile criminality, and because the words complained of were calculated to disparage C in his business as a teacher and performer of Irish dance.

(5) C’s explanation to the three publishees and their acceptance of it did not neutralise the impact of what D said. The evidence showed that they were shocked and troubled by the allegations, made by C’s former close friend, and in that sense the allegations “stuck”. Long term damage had been done to the publishees’ relationships with C. D’s words had caused serious harm to the standing of C in their eyes, and real damage to their friendships with him.

(6) The Judge dis-applied the limitation period in respect of the publication to Mr Goble, finding that C took action when he learned of the alleged publication, and the delay in him including it in his claim appeared to have been the result of the failure of his legal advisers to take the necessary action to plead it. C did his best to pursue his complaint promptly, and the Judge did not doubt that he had always had a genuine wish to pursue vindication.

Against a background in which damaging statements were made about C by D to many people that cannot be sued upon, because the words used are not known, there would have been real prejudice to C if he could not pursue his claim in respect of one of two occasions of actionable publication which he was able to establish. D in any event had to plead a defence to the Kennedy/McCullough publication, in very similar terms, which greatly reduced the prejudice which he would suffer by disapplication of the limitation period. A defence of truth, or privilege was unlikely to be either unavailable because of the delay in pleading the Goble publication, or to be less cogent than it would have been otherwise.

It was equitable to allow the claim based on the Goble publication to proceed.

Slander claims are increasingly unusual in an era when many more communications are written down. The judgment considers a number of issues which typically arise in such claims when they are brought, including proof of publication, actionability per se, and serious harm where publication is limited.

It contains an interesting discussion of Lord Sumption’s judgment in Lachaux in this context, which indicates ways in which the practical consequences for defamation litigation of the Supreme Court’s decision remain unresolved.