Building Register Ltd v Weston & Anor [2014] EWHC 784 (QB)

[2014] EWHC 784 (QB)Case No HQ12D04594
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/03/2014
Before
MR JUSTICE DINGEMANS
Between
Building Register LimitedClaimant(1) Mark WestonFirst Defendant(2) All Clean LimitedSecond Defendant
Justin Rushbrooke QC (instructed by Hugh James Solicitors) for ClaimantDavid Price QC (of David Price Solicitor & Advocates) for DefendantsHearing Hearing dates: 12 March 2014
JudgmentMr Justice Dingemans :Introduction
[1]This is the hearing of preliminary issues of: “a) the meaning borne by the words complained of, and; b) whether the allegations complained of are allegations of fact or expressions of opinion”; pursuant to the order of Master Eastman dated 19 July 2013.[2]This libel action is brought by the Claimant, Building Register Limited. The Claimant provides an online directory and managed data registration service under the name “the Building Register” for suppliers and contractors in the construction and cleaning industry who wish to have their details made available to potential customers.[3]The action is brought against the First Defendant, Mark Weston, and the Second Defendant, All Clean Limited. The First Defendant is the managing director of the Second Defendant. The Second Defendant is a commercial cleaning company based in Worcester, and is a former customer of the Claimant. The Defendants became dissatisfied with the way in which the contract with the Claimant had been concluded and renewed, and the services that the Defendants received.[4]The Defendants set up a website “BuildingRegistercomplaints.co.uk”. It gave readers the opportunity to voice complaints regarding the service of the Claimant. The website was operational between 23rd October and 6th November 2012. Links to the website were emailed by the Defendants to about 70 customers of the Claimant. The relevant publication[5]The relevant parts of the publication on the website, with the bold from the original publication, are set out below:
“My name is Mark Weston and I’m Managing Director of All Clean Ltd, a cleaning company specialising in after build cleans for the construction industry. Just over a year ago I was subjected to heavy sales pressure over the phone by this organisation, Building Register. They are a computer software company that claim to present your critical company information such as health and safety documentation in front of your potential customer in an easy to read format. During the sales process they introduced me to their website and in order to gain more information I inadvertently clicked a tab which they then claimed was an electronic signature. As a result I had to part with £1600.00. Although I complained at the time about this they refused to budge on the fact that I had apparently placed an order. I was annoyed that I had been duped like this but I consoled myself with the thought that if half of the benefits they sold me came through, at least I would get my money back and it would be of some benefit. Soon after parting with my cash things started to go wrong! Firstly the national coverage I had been sold turned out to be regional, after a protracted argument they did give me national coverage. We then had very little help setting up our details, then all went quiet until the end of august 2012 when I had a call from my “new” account manager. I explained to her that I had never had an account manager, however she went onto explain that as I had not cancelled back in June I was liable for another year’s subscription starting in September and as my first year had been discounted … it was going to cost me a further £2,150.00, a rise of £550 over the first year! I asked her why they had a clause that if you didn’t remember to cancel after 9 months you were liable for another 12 months. She said it was because in the past a number of organisations had sued them because their membership to the site had lapsed and yet they were still expecting the benefits! How bizarre is that! I told her that absolutely no benefit had come to my company over the past 9 months and I most certainly did not want to continue with them for another year. She said that I had benefited a great deal from the site and she sent me a list of companies that had clicked on my information. I can prove that I have not done business with any of them, in fact not one of them has even been in contact for a quotation! The upshot of all this is that Building Register are suing me for £2154.00 and I’ll be putting in a counter claim for the original £1600 because I believe I was mis-sold their product in the first place. I will be calling on the Building Register staff I’ve dealt with over the phone to attend court so that I can cross examine them. I will also be asking why in their recording when you phone them they say they are putting you through to one of their six offices, is not true, I’ve established they don’t have six offices and this is simply another example of their embellished sales tactics… Building Register use these bullying tactics on small organisations such as mine, probably correctly assuming that most will buckle and pay money for no benefit… ”
Soon after parting with my cash things started to go wrong! Procedural matters

Soon after parting with my cash things started to go wrong!

[6]The Claimant served Particulars of Claim pleading the natural and ordinary and inferential meaning of the words. The Claimant claimed general damages and special damages in respect of cancellations from other customers.[7]On the 18th January 2013 a Defence was served, which it appears had been prepared by the First Defendant and which did not comply with the provisions of the Practice Direction for defamation claims relating to statements of case. The Defence suggested that the Defendants would justify the statements on the website.[8]By order dated the 18th March 2013 Master Eastman ordered the Defendants to file and serve by 4pm on 12th April 2013 an amended Defence verified by a statement of truth in accordance with CPR Part 22.1 which complied with paragraph 2.5 of the Practice Direction to CPR Part 53. Provision was made for service of a Reply and a further case management conference on 4th June 2013.[9]On the 30th April 2013 Master Eastman made an order, having read the Claimant’s solicitors’ letter dated 25th April 2013 and the Defendants’ email dated 29th April 2013, that unless the Defendants comply with paragraph 2 of the order of 18th March 2013 by 4pm on the 10th May 2013 there should be judgment for the Claimant. An amended Defence, in substitution for the first Defence, was served on the 9th May 2013.[10]The publication of the website was admitted but it was not admitted that the words were defamatory, or that the number of readers were substantial, or that all the recipients of the email would have read the words. It was also pleaded that the words on the website were true or substantially true. The meanings that the Defendants alleged to be true were set out. In the alternative the defence of honest comment was pleaded. It was pleaded that the Defendants would rely if necessary on section 5 and 6 of the Defamation Act 1952.[11]A Reply was served dated the 3rd July 2013. In the Reply reference was made to legal proceedings in the Maidstone County Court between the Claimant and Second Defendant, in which the Judge had given judgment for the Claimant on its claim in the sum of £2846.15. Issues of res iudicata and issue estoppel were said to arise. A draft re-amended Defence has since been produced.[12]Various correspondence has taken place between the parties in which unsuccessful attempts have been made to agree the meaning of the words. Relevant legal principles[13]There was much common ground in the submissions before me, and I am grateful to both Mr Rushbrooke QC and Mr Price QC for their assistance. It might be noted that this judgment is a ruling on the meaning borne by the words complained of, as opposed to a ruling on whether or not the words are capable of bearing defamatory or particular meanings. As such this judgment is to determine the actual meaning of the words, rather than delimiting the meanings which the words are capable of bearing.[14]When deciding the meaning of words, a judge is providing written reasons for his conclusion as to the meaning to be attributed to the words sued upon. A Judge should not fall into the trap of conducting an over elaborate analysis of the various passages relied on by the respective protagonists. The meaning is to be determined from the viewpoint of the layman, not by the techniques of a lawyer, see Waterson v Lloyd [2013] EWCA Civ 136; [2013] EMLR 17 at paragraph 53. The exercise has been described as one of ascertaining the broad impression made on the hypothetical reader by the words taken as a whole. The natural and ordinary meaning of words includes what the reasonable man will infer from the words, see Gatley on Libel and Slander, 12th Edition, at 3.18. The Court is entitled to reach its own conclusions on meaning, and is not required to adopt meanings advanced by either party.[15]The applicable principles were summarised by Sir Anthony Clarke MR in Jeynes v News Magazines Limited [2008] EWCA Civ 130 at paragraph 14:
"The legal principles relevant to meaning … may be summarised in this way: (1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Overelaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any 'bane and antidote' taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7)… the court should rule out any meaning which, 'can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation …' …. (8) It follows that 'it is not enough to say that by some person or another the words might be understood in a defamatory sense.'"
[16]As to the defence of honest comment, guidance is set out in Joseph v Spiller [2010] UKSC 53; [2011] 1 AC 852 at paragraphs 3-5, which adopted, with important modification, the dicta of Lord Nicholls in Tse Wai Chun v Cheng [2001] EMLR 31. So far as is relevant to this application it is necessary to record that the comment must be recognisable as a comment, as distinct from an imputation of fact. The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is made, otherwise the comment will be treated as a statement of fact. It has been said that the sense of comment “is something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc”, see Branson v Bower [2001] EWCA Civ 791; [2001] EMLR 32 at paragraph 12 and the authorities there considered. A statement may be fact or comment, depending on context.[17]It might be noted that in order to establish the defence of honest comment, the comment must be based on facts which are either true or protected by privilege. In some cases, where there are facts on which the comment is based which need to be proved, the distinction between fact and comment may not be as important as in other cases, and compare Lord Phillips’ comment at paragraph 109 in Joseph v Spiller. However the defence of honest comment remains an important safeguard for freedom of expression.[18]As to the meaning of defamatory, there are a number of well-known definitions of the legal meaning of the word "defamatory". Sir Thomas Bingham MR in Skuse v Granada Television Limited [1996] EMLR 278 at 286 said:
"A statement should be taken to be defamatory if it would tend to lower the plaintiff in the estimation of right-thinking members of society generally or would be likely to affect a person adversely in the estimation of reasonable people generally."
To be counted as defamatory an allegation must pass a certain threshold of seriousness: Thornton v Telegraph Media Group Limited [2010] EWHC 1414 (QB); [2011] 1 WLR 1985 at paragraph 90.[19]There was some discussion about human rights in the submissions before me. It was common ground that a corporate Claimant has no article 8 rights, although article 1 protocol 1 rights might apply, and that article 10 rights of the Defendants are engaged. However the law of England and Wales, as developed in cases including Joseph v Spiller, provides a principled framework for the vindication of the relevant rights. The recent adjustments to the law made in the Defamation Act 2013 do not apply to this case.[20]Although the order in which issues should be addressed might vary, see for example British Chiropractic Association v Singh [2010] EWCA Civ 350; [2011] 1 WLR 133 at paragraph 32, I propose to determine matters in the following[21]It is common ground that, whatever my ruling on this preliminary issue, the action will continue. The parties will be able to reflect on the meanings determined, and adjust their statements of case in relation to justification and comment in the light of the ruling. As I noted in argument, a consequence in this case of the way in which the respective submissions on meaning and justification have developed is that the Defendants were arguing, in part, for a more defamatory meaning of some of the words than the Claimant. That said my duty is to attempt to apply the established legal principles to the words. The meaning of the words[22]The meanings alleged by the Claimant and Defendants have developed from the original statements of case, and have been refined in correspondence and in the Skeleton Arguments, and they were further modified in submissions.[23]The meanings alleged by the Claimant, and the responses from the Defendant, were: 1) “the Claimant duped the Defendants into placing an order with it online and then bullied them into paying substantial sums of money for a service which they could not reasonably have thought they were ordering”. The Defendants agreed this meaning in part, but disputed the use of the word “substantial” and queried what the words “which they could not reasonably have thought they were ordering” added. 2) “the Claimant uses bullying tactics of this kind on customers who are small organisations”. This meaning was part agreed by the Defendants, who also submitted that the meaning was “used bullying tactics calculating that as a small organisation, there was a strong chance that the Second Defendant would buckle”, as appears from paragraph 24(1) below. 3) “the Claimant failed to provide Mr Weston with the service he had contracted for, providing only regional coverage when he had been sold national coverage”. This was agreed, although there was some agreed modification on both sides in submissions. 4) “the Claimant dishonestly claimed to have six offices when in fact it did not but simply made the claim as one of its embellished sales tactics”. This was agreed, although there was some agreed modification on both sides in submissions. 5) “the Claimant mis-sold to its customers by providing a service which it knew to be worthless or virtually worthless but which it promised would confer substantial benefits on them.” This was agreed in part. The Defendants suggested “which it knew did not deliver the substantial benefits that it promised” in substitution for “which it knew to be worthless or virtually worthless but which it promised would confer substantial benefits on them.”[24]The Defendants’ additional meanings were: 1) “The Claimant employed heavy sales pressure on the Second Defendant which massively oversold the product, failed to draw the Second Defendant’s attention to the automatic renewal provision in the hope that it would not be spotted, used bullying tactics calculating that as a small organisation, there was a strong chance that the Second Defendant would buckle.” 2) “It is to be inferred that such conduct is systemic”. The Claimant objected to these additional meanings as duplicating the meaning set out by the Claimant, and involving too much compilation.[25]In my judgment the passage has the following meanings, for the reasons shortly expressed:(1) “The Claimant duped the Defendants into placing an order with it online”. This meaning appears from the words in the second paragraph, and is a nearly literal use of the words.(2) “The Claimant failed to provide Mr Weston with the service he had contracted for, initially providing only regional coverage when he had been sold national coverage.” This was an agreed meaning, and it appears from the fourth paragraph of the website. The word “initially” needs to be inserted into the original agreed meaning, because the website made it clear that national coverage was subsequently provided.(3) “The Claimant lied about having six offices when in fact it did not.” This was a variation of the agreed meaning that the Claimant “dishonestly claimed”. I have also put “embellished sales tactics” into the meaning at (6) below.(4) “The Claimant unreasonably insisted on payment by reference to an automatic renewal clause when the Claimant had provided no benefit to the Second Defendant”. Although the Claimant had not set out that part of the text which related to the automatic renewal provision in the Particulars of Claim, Mr Rushbrooke made it clear that it was part of the Claimant’s complaint, and there is a clear overlap with other relevant meanings. This meaning is a modification of the Defendants’ suggested meaning. The word “unreasonably” is derived from the Claimant’s reported insistence on payment when there has been no benefit.(5) “The Claimant mis-sold to the Second Defendant a service which it knew did not deliver the substantial benefits that it promised”. I did entertain some doubts in submissions about whether it was correct to spell out the allegation of knowledge on the part of the Claimant about the absence of substantial benefits. This was because the website set out the response on behalf of the Claimant about the benefits of companies clicking on the Second Defendant’s information. However I accept the joint submissions of the Claimant, and the Defendants (see paragraphs 37 and 38 of the Defendants’ Skeleton Argument), that this is a proper inferential meaning from the whole website article. This is because the use of the words “duped” and “mis-sold”, and the phrase “is not true” in the article, which affect the meaning which is to be inferred. The meaning is specific to the Second Defendant, which the hypothetical reasonable reader would have taken from the Defendants’ website.(6) “The Claimant used heavy and embellished sales tactics, and then used bullying tactics on small organisations calculating that most would buckle and pay for no benefit”. This meaning is taken from words used in the article, but picks up parts of the whole article. Defamatory meaning[26]By the end of the submissions it was common ground that all of the meanings were defamatory. It is plain that the words “heavy sales pressure” on their own would not be defamatory, but, in the context of this article they would be likely to affect a person adversely in the estimation of reasonable people generally in the context of this article. In many settings the meaning set out at 25(2) above would not be defamatory, but I accept the joint submissions that, in the context of this website, the statement would be likely to affect a person adversely in the estimation of reasonable people and just crosses the threshold of seriousness. Fact or comment[27]There was common ground in the submissions before me, but whether the meanings now at 25(1), (4), (5) and (6) are fact or comment does need to be determined. As noted in paragraph 17 above, honest comment will need to be based on facts which are either proved or protected by privilege.[28]The meaning at 25(1) (“The Claimant duped the Defendants into placing an order with it online”) is in my judgment a comment. If there had been no facts set out in the website, this would have been a statement of fact. However the First Defendant describes the online process which had been undertaken and then stated “I was annoyed that I had been duped like this”. The facts are set out, and the comment was then added.[29]The meanings at 25(2) and 25(3) are statements of fact. The meaning about what coverage was provided is a statement of fact. The meaning about a lie being told is also a statement of fact.[30]The meaning at 25(4) (“The Claimant unreasonably insisted on payment by reference to an automatic renewal clause when the Claimant had provided no benefit to the Second Defendant”) is in my judgment a comment. There are factual matters set out but the term “unreasonably” is suggestive of comment.[31]The meaning at 25(5) (“The Claimant mis-sold to the Second Defendant a service which it knew did not deliver the substantial benefits that it promised”) has caused me the most difficulty. There are plainly matters of inference, for example the statement about what the Claimant knew, which is an indication that the statement is a comment, see Branson v Bower in paragraph 16 above, but there are also statements about promises of benefits. However, as appears from paragraph 25(5) above, this is an inferential meaning from the whole of the website, affected by terms which were evaluative in context (such as “duped”) and for these reasons, this meaning is a comment.[32]The meaning at 25(6) (“The Claimant used heavy and embellished sales tactics, and then used bullying tactics on small organisations calculating that most would buckle and pay for no benefit”) is in my judgment a comment. The First Defendant has set out a number of factual matters, and then made statements such as “heavy”, “embellished” and “bullying”, as well as drawing inferences about the Claimant’s intentions. Conclusion[33]For the reasons given above the website has the meanings set out in paragraph 25 above. Those meanings are defamatory of the Claimant. The meanings in paragraph 25(2) and (3) are meanings of fact, and the meanings in paragraph 25(1), (4), (5) and (6) are comment.[34]The parties have asked for time to consider this ruling and to discuss matters between themselves, before attending for a case management conference. I consider that time for reflection is likely to assist the parties, and save Court time. In these circumstances I will direct that, unless this action is compromised in the interim, the parties are, by 15th April 2014, to apply for a Case Management Conference with an agreed time estimate, to be heard after 15th April 2014.

order

the meaning; whether the meaning is defamatory; and whether the meaning is fact or comment.

Cited in 1 later judgment