Marathon Mutual Ltd & Anor v Waters & Anor

Reference: [2009] EWHC 1931 (QB), [2009] All ER (D) 06 (Aug)

Court: Queen's Bench Division

Judge: HHJ Moloney QC

Date of judgment: 31 Jul 2009

Summary: Defamation - Libel - Slander - Malicious falsehood - Whether the tort of malicious falsehood requires reference to the claimant in the words complained of - Whether pleadings needed to be amended

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Appearances: Adam Speker KC (Defendant) 

Instructing Solicitors: Hammonds LLP for the Ds; Cs instructed Counsel by Direct Access


C1 was a mutual protection fund specialising in insurance care homes. C2 was a separate business which manages C1’s fund. D1 was a former director of C1 having left in September 2008 and a current director of D2. C1 complained in libel, slander and malicious falsehood in respect of a letter alleged to have been written by D1 and words spoken by D2 in a telephone conversation. C2 also complained in malicious falsehood. C1 and C2 served Amended Particulars of Claim which the Ds applied to have struck out on various grounds.


(1) Whether C1 must amend its claims in slander and malicious falsehood;

(2) Whether C2 could maintain a claim in malicious falsehood.


(1) C1’s amended pleaded cases was gravely deficient in form and substance. It had to set out its case separately in respect of each cause of action; plead proper particulars of falsity and malice and special damage if relied upon.

(2) Provided it also amended its case, C2 could maintain a claim in malicious falsehood. The Ds were correct that the modern law of malicious falsehood requires there be some reference, direct or indirect, in the words complained of to the claimant or to its business, property or other economic interest but it was not necessary to go further and establish identification of the claimant in the minds of the publishees. Here there was an arguable case that C2’s business was referred to.


A useful decision on a malicious falsehood point that has not arisen for a long time. The Cout held that some reference to the claimant in the words complained of was required but it was not necessary that the claimant was identified by publishees.