Claimant’s appeal successful and s.3(1) Defamation Act 1952 is clarified
Judgment in George v Cannell was handed down by the Court of Appeal today. The Claimant’s appeal was allowed by Underhill, Warby and Snowden LLJ. The decision provides certainty as to the construction of s.3 of the Defamation Act 1952. Its proper interpretation had not previously been addressed by the Court of Appeal since its enactment.
The underlying claim was brought by Ms George against her former employer Ms Cannell over four publications alleged to have been made by Ms Cannell in January 2019. At trial, Saini J dismissed the claims in libel, slander and malicious falsehood. It was held that the claims in malicious falsehood under s.3(1) in respect of two of the publications were not made out as Ms George had failed to prove that pecuniary damage had probably resulted from those publications. Meanwhile, Saini J did find the allegations were false and had been published maliciously (see the 5RB news item here). The Claimant was given permission to appeal on the application and interpretation of s.3(1).
The Court of Appeal found that the words in s.3(1) “calculated to cause pecuniary damage to the plaintiff” was a forward-looking test, requiring a claimant to prove the probability of pecuniary loss judged at the time of the publication, rather than a historic exercise concerned with whether the claimant could prove some probable past pecuniary loss. It was held that the Claimant had satisfied that test on the facts, and so judgment would be entered for the Claimant on her malicious falsehood claims with the assessment of damages remitted to the High Court. The Court did not regard it as an obstacle that the claimant had no claim for substantial compensatory general damages except in relation to distress and injury to feelings.
5RB’s William Bennett QC and Godwin Busuttil, instructed by Thomson Heath & Associates, acted for the Claimant.
A full 5RB case report can be found here.