Appeal will examine law of malicious falsehood
On 17 October 2023, a two-day hearing starts before the Supreme Court of the United Kingdom (Lord Hodge, Lord Hamblen, Lord Leggatt, Lord Burrows and Lord Richards) in the malicious falsehood case of George v Cannell.
It is believed that this will be the first time that the highest court in this jurisdiction has considered the tort of malicious falsehood in 123 years, that is since the decision of the House of Lords in The Royal Baking Company v Wright, Crossley and Co (1900) 18 RPC 95.
The central issue of law that the appeal raises is “What does a claimant need to demonstrate to rely on s3(1) of the Defamation Act 1952 in a claim for malicious falsehood?” A subsidiary issue is whether damages for distress and injury to feelings are properly recoverable in a claim for malicious falsehood and, if so, in what circumstances.
Section 3(1) of the Defamation Act 1952 provides: “In an action for slander of title, slander of goods or other malicious falsehood, it shall not be necessary to allege or prove special damage – (a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are publishing in writing or other permanent form; or (b) if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication.”
The facts of George v Cannell are, in summary, these. The claimant, Ms Fiona George, worked as a recruitment consultant for an agency owned and operated by Ms Linda Cannell (the first defendant) called LCA Jobs Ltd (the second defendant). After the claimant moved to a different agency, the first defendant spoke to one of the claimant’s clients and sent an email to her new employer alleging – the claimant claimed falsely and maliciously – that she was acting in breach of restrictions in her contact with LCA Jobs Ltd which prevented her from contacting LCA Jobs Ltd’s clients. The claimant sued the defendants for libel, slander and malicious falsehood.
At trial, Saini J dismissed the libel and slander claims for want of serious harm ([2021] 4 WLR 145). So far as concerned the malicious falsehood claim, he concluded that the first defendant had published two statements (the Butler Words & the Lingenfelder Email) falsely and maliciously, but that the publications had not caused the claimant the special damage pleaded and further that the requirements of s3(1) were not satisfied so as to give rise to liability against the defendants (although the judge had originally reached the contrary conclusion).
The claimant appealed with the permission of the judge. The appeal was allowed ([2023] QB 117). Warby LJ, giving a judgment with which Underhill LJ (V-P of the Court of Appeal (Civil Division)) and Snowden LJ agreed, held that “the aim, purpose, and effect of s 3(1) was to relieve a claimant of the need to plead or prove any actual loss on the balance of probabilities as a matter of historical fact. The statutory test is forward-looking. It is enough for a claimant to prove the publication by the defendant of a false and malicious statement of such a nature that, viewed objectively in context at the time of publication, financial loss is an inherently probable consequence or, putting it another way, financial loss is something that would probably follow naturally in the ordinary course of events. This interpretation of s 3(1) respects the intention of Parliament, is consistent with authority, and Convention-compliant”.
The Court of Appeal decided that the claimant passed this test in relation to the Butler Words and the Lingenfelder Email, restored the judge’s original conclusion, entered judgment for the claimant and directed a hearing to determine quantum, including the quantum of damages that the claimant should receive for injury to feelings.
The defendants appealed. Permission to appeal was granted by the Supreme Court in December 2022.
William Bennett KC and Godwin Busuttil of 5RB represent the claimant (the respondent to the appeal), instructed by Thomson Heath solicitors. The hearing will be live-streamed on the UK Supreme Court website.