Umeyor v Ibe [2016] EWHC 862 (QB)

Case No HQ14D04721[2016] EWHC 862 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/04/2016
Before
MR JUSTICE WARBY
Between
Bartholomew UmeyorClaimantInnocent IbeDefendant
Mohammed Bashir (instructed by SLA Solicitors) for ClaimantAdrian Davies (instructed under the Bar Public Access scheme) for DefendantHearing Hearing dates: 12-14 April 2016
JudgmentMr Justice Warby :INTRODUCTION
[1]This is the trial of a claim for slander. Slander claims are very unusual today. Many communications that would have been spoken in the past are now text-based, so that any defamation claim would be in libel. But slander claims have always been rare. There are probably many reasons for that, but among them are the difficulties sometimes encountered in proving the exact words spoken; the general principle that slander is not actionable without proof of special damage; and the fact that the range of exceptions to that rule is limited; and the fact that spoken words are, as a rule, less likely than written publications to cause serious harm to reputation. The last three of these factors are no doubt inter-related. All four factors are relevant in the present case, which illustrates several of the difficulties to which slander claims can give rise.

THE CASE IN A NUTSHELL

[2]The claimant and the defendant are both of Nigerian origin. Each was at all material times a member of the Mbaise Union (The Union). Mbaise is the name of a region and of a people in Igboland, in the South East of Nigeria. The Union is an unincorporated association created by members of the Mbaise community in the UK, which meets in General Meeting on the fourth Sunday of each month to discuss issues affecting the community, and other Union business.[3]The claimant complains of words he alleges were spoken by the defendant at a General Meeting of the Union on 28 September 2014 (the Meeting). The claimant’s case is that the words used, in his absence but to a substantial number of members of the Union, accused him of using the money of the Union to buy prostitutes in Nigeria. The defendant admits that he spoke about the use of the Union’s money by the claimant, but he denies that he made the statement complained of. He denies that such a statement would be actionable as a slander in any event, or that what he said caused serious harm to reputation. He further contends that he spoke on an occasion of qualified privilege. In response the claimant accuses him of malice.[4]In fairness to the claimant I should perhaps spell out that there is no suggestion by the defendant that the claimant did spend the Union’s money on prostitutes, or use prostitutes; and I should say that in another defamation claim by the claimant, to which I shall refer, this court has concluded that the claimant dealt with the Union’s money honestly. The truth of the allegation which the defendant is said to have made is not in issue at this trial.

SUMMARY OF ISSUES AND CONCLUSIONS

[5]The issues in relation to liability are, in summary:-(1) whether the claimant has proved that the defendant made the statement complained of; if so(2) whether the claimant has proved that the statement is actionable as a slander; if so(3) whether the defendant has established a defence of qualified privilege; and if so(4) whether the publication was malicious.[6]I have concluded that the claimant’s case fails at stage (1), and that it would in any event have failed at stage (2). I have also concluded that the Meeting was an occasion of qualified privilege, to which the defendant’s words were relevant, and that no case of malice has been made out. The claim would have failed on those grounds if the claimant had passed stages (1) and (2). For all these reasons, which are explained below, the claim will be dismissed.

THE FACTUAL BACKGROUND IN MORE DETAIL

[7]The following facts are not in dispute between the parties or, to the limited extent they are disputed, are made out on the evidence before me.

The parties

[8]The claimant is a past President of the Union, having held that post for more than 5 years. At the time of the Meeting he had ceased to be President, in circumstances I shall outline later. The claimant was however, at the time of the Meeting, a member of the People’s Democratic Party (PDP), a political party in Nigeria about which I have very little further evidence, and he was the Party’s Ward Chairman in Nnarambia Ward, Ahiazu, Nigeria.[9]The defendant is a Christian minister, ordained in Holland in 2012, and the co-ordinator of the United Nigerian Chaplaincy in the UK. He has been a member of the Mbaise Union for over 20 years. He was for many years a welfare officer of the Union, and also of the Ahiazu Progressive Community (APC) UK.

The funds entrusted to the claimant

[10]In 2012 members of the Union collected money to be sent to Nigeria for a medical mission, to support those too poor to pay for medical treatment. The mission was primarily run by the American branch, or sister branch, of the Union, but the Union agreed to provide money to support its aims. The claimant agreed to take the sum of £2,500 to Nigeria for that purpose. To that end, the Union paid the claimant that sum by cheque. He paid the money into his personal bank account. That was a process with which the Union was quite content.[11]On 4 April 2012 the claimant went to a foreign exchange bureau by the name of Dolphin Global Services (Dolphin), and paid them £2,500 on the basis that they would pay the naira equivalent, less their commission, into a bank account of his in Nigeria. That is what they did. The net sum in sterling was £2,420. Later, in Nigeria, the claimant spent the naira equivalent of that sum discharging a hotel bill incurred by the American mission.[12]Two documents were generated by these transactions: a receipt provided to the claimant by Dolphin (the Money Transfer document), and a paying in slip from the hotel in Nigeria (the Deposit Slip). The Money Transfer document had two odd features: it bore the name of Barry Grandom, and it was dated 11 April 2011, a year before the date of its creation. The claimant was and is unable to explain these oddities, beyond saying that it was the clerk who wrote these things on the Money Transfer document. Whether any Barry Grandom exists is unknown. The Deposit Slip showed that money had been paid to the hotel, but not why.

Concerns are raised

[13]The claimant was asked by the Union to account for what had become of the money. He accepted in his evidence to me that the Treasurer, Mr Felix Nwakamma, asked for an account, and was concerned about the matter, and not satisfied with the documentation. He accepted that it was not surprising that Mr Nwakamma was not satisfied with the Money Transfer document. The claimant would not accept that anyone else asked, or was concerned or dissatisfied about his account of events. I find however that it was a matter of concern to others. This much is perfectly clear from other evidence.[14]The claimant attended a meeting of the Executive of the Union on 16 March 2013 at which he was asked questions about the use of the Union’s money to pay the hotel bill. He refused to answer questions about this. He was removed as President in about October 2013. On 27 October 2013 he petitioned for his reinstatement. In a document dated 14 March 2014 Mr Nwakamma responded to the petition. He wrote of “dodgy receipts” and “forgery”. The claimant sued Mr Nwakamma for libel in respect of this document.

The Meeting

[15]The claimant’s libel action against Mr Nwakamma was a matter on the agenda at the general meeting of the Union on 28 September 2014 held in the St Pancras Community Centre in Camden, London NW1, The meeting was attended by some 150 people, of whom 26 are identified by name in the Particulars of Claim. These included the claimant’s wife, Rose Umeyor, and four other individuals who gave evidence to me.[16]The defendant addressed the meeting, in the Ibo language, and spoke about the claimant’s dealings with the Union’s funds. Of some relevance to the dispute about what he said are the contents of the minutes, drawn up later by the General Secretary Mr Echewoada Nwawudu. The minutes record the following:
“3 Agenda items: 3.1 The court case: The issue of the court case was raised and discussed. TT said he saw himself as representing Mbaise and the case was going where it was going; he said the money was remitted to pay for the hotel and the receipt was dated 2011 when the Medical Mission was in 2012. He said Mr Umeyor should be asked to remove the case and let members resolve the matter. TP said the Executive had asked Mr B. Umeyor to come and give an explanation and some elders had tried to resolve the matter; but until Mr Umeyor was present he did not want not discussed further.”
[17]Under “Any other business” there was reference to “The comments by Rev I. Ibe”:
“5.1 The comments by Rev. I. Ibe: Rev. I. Ibe said our constitution said we should suspend Mr. B Umeyor; and also we should get receipts. (Later) TP said Rev. I. Ibe had told him that someone had attacked him. Rev. I. Ibe spoke about the matter. TP said it was a verbal attack. TP said Rev. I. Ibe had raised irrelevant issues. (Later) Members criticised Rev.I. Ibe’s earlier comments as being inappropriate and insulting. (Later) TT explained what had happened with the involvement of the police (called by Rev. I. Ibe). Some members moved a motion to suspend Rev. I. Ibe; other members moved a motion saying it would be better for him to listen to the criticism and be present for any decision. This was agreed. TP said that he thought we should leave further discussion of this matter until the next meeting”
[18]The claimant was not at the Meeting, nor was he in the UK at the time. He had travelled to Nigeria in August 2014 for a business trip, and had planned to remain there until December. In the early morning of 29 September 2014 Mrs Umeyor phoned him to tell him that the claimant had made harmful allegations about him at the meeting. On 2 October 2014 the defendant brought proceedings in the Romford County court against Mrs Umeyor and others, claiming an injunction. The claimant came to learn of those proceedings. He returned to the country on 4 October 2014. The 26 October meeting[19]There was a further meeting of the Union on 26 October 2014 at which the matter of what the defendant had said at the September meeting was considered further. The minutes of this meeting are also in evidence. They contain the following relevant passages:
“ 2 The minutes and matters arising: 2.1 The minutes: Mr E. Nwawudu, the general secretary (TGS), read the minutes of the September 2014 general meeting. TT said that Rev. I. Ibe’s first remarks were made under matters arising. Mrs C. Nkem said that other people had spoken on the issue of the court case. TT said that it appeared that only he spoke on the matter. Mrs R. Umeyor said that she wanted Rev. I. Ibe’s actual remarks recorded in the minutes. TVP said it was not appropriate to record that because it was rude and vulgar. Mrs R. Umeyor said she wanted it recorded because it was said before members. Mr B. Umeyor said he wanted to move a motion to reject the minutes but members said Mr B. Umeyor could not comment about the minutes as he was not present. Mrs C. Nkem and Mr F. Nwakamma supported the adoption of the minutes. 2.2 Note: : The issue is that Rev.I.Ibe is alleged to have made certain remarks. Those remarks were in Igbo. TGS was requested to vouch for an English translation. This is not possible. Also people have interpreted the remarks in different ways: some saying they referred to Mr Umeyor; others that they were more general- about wasting money. Also an apology has now been made. … 2.5 The dispute between Rev. I. Ibe and Mrs R. Umeyor: TSS said what happened last month was a disgrace and we had moved a motion to suspend Rev. I. Ibe but he had now made a presentation. Rev. I. Ibe said last month he had been angry and his presentation was an apology. … 3. Agenda Items: The meeting became extraordinary disorderly, with people speaking over each other. None of the items on the main agenda were taken up.”

This claim

[20]On the afternoon of 5 November 2014 the claimant emailed the defendant a letter headed “False allegations against me”. He wrote “You will remember that on 28 September 2014, during the Mbaise union meeting, you took the microphone and told the Mbaise people that I used their money to pay for the services of prostitutes in Nigeria. This statement was made to the hearing of all members of the union.” He then referred to the Romford County Court proceedings. He said these were malicious and had been dismissed as totally without merit, but had caused him to cut short his trip to Nigeria and fly back. He concluded by threatening proceedings for defamation unless the defendant withdrew the statement complained of and provided him with a written apology. (There had been no apology. The reference to an apology in the minutes of 26 October was not to any apology to the claimant.)[21]The defendant responded by email less than 90 minutes later. He made the point that the claimant was not one of those whom he had sued in the County Court. He went on “I advise that you refrain from making false legal allegation and threat.” He said that the matter referred to by the claimant as having been dismissed was receiving serious attention and had been transferred to another court.[22]This action was started by a claim form issued on 13 November 2014, and served the following day by SLA Solicitors, without any further pre-action correspondence. Particulars of Claim were prepared by the solicitors, without the help of Counsel. A Defence was served in December 2014, denying the use of the words complained of and raising the defence of qualified privilege in the alternative. No Reply was served.

The Nwakamma trial

[23]The claimant’s libel action against Mr Nwakamma was tried by Jay J on 10-12 October 2015. The judge concluded that the Transfer Receipt and Deposit Slip were aptly described as “dodgy”, but that the allegation of forgery was not true, or honest opinion, or protected by qualified privilege. The judge therefore upheld the claim and awarded damages. In his judgment of 16 October 2015, giving reasons for these conclusions [2015] EWHC 2980 (QB), Jay J held that the meaning of Mr Nwakamma’s document was that the claimant had, dishonestly and with a view to personal gain, submitted documents which he had either forged himself or had procured others to forge. He also said as follows:
“64. I retain significant concerns about the documents the Claimant submitted to the Financial Secretary in July 2012. In my judgment, to borrow the Defendant’s terminology, they are “dodgy”. … the Claimant has never provided any satisfactory explanation for the surname “Grandom”
. The first name, “Barry”, is probably a reference to him, as indeed is the mobile phone number, but “Grandom” remains a mystery. Equally mysterious is the erroneous dating of the document. It is difficult to accept that anyone in this line of work could have got both the day and the year wrong. Two possible inferences, amongst others, are capable of arising: first, that Dolphin habitually uses “Grandom” (presumably with the Claimant’s full knowledge) for money-laundering or similar purposes; secondly, that the document was created some time after the transfer was made, but before the General Meeting in July 2012. These possible inferences are fortified by the Claimant’s failure to call relevant evidence from Dolphin: instead, the trial bundle contains a letter from the company which is both inconclusive and unsatisfactory. … 69. … I observed the Claimant very closely indeed, and made a careful note of his answers. … I have concluded that he was an honest witness who would not have defrauded, and did not defraud, the Union of £2,500. What happened to the money, and the related issue of motive, are highly relevant to the issue of forgery. … 73. In my judgment, the Defendant has failed to prove that the disputed documents were, or are, forgeries, with the imputation that the Claimant has acted dishonestly. 90. The Claimant falls to be compensated for damage to his reputation and any accompanying distress. … the Claimant himself was remiss in failing to provide a proper explanation, with evidence in support of it, at all material times in and after March 2013. Moreover, these were suspicious documents, even if they were not forgeries. The Claimant’s failure to explain “Grandom” gives rise to the strong suspicion that he may have been involved in money-laundering activities, or something similar…. 92. …. I entirely reject Mr Bashir’s submission that his client is entitled to a five-figure sum. 93. My award of general damages in this case is in the amount of £2,000.”

THE PLEADED ISSUES

[24]Problems with the claimant’s statement of case have been apparent from an early stage, and have persisted. Some were pointed out in the Defence, some were the subject of applications and orders in the case management phase of this action, and yet others were highlighted in the defendant’s skeleton argument for trial, and by me at the outset of this trial. In summary, the Particulars of Claim as originally served failed to disclose a reasonable basis for a claim. They failed adequately to plead the words complained of; or a proper basis on which those words might be actionable as slander; or that the publication had caused or was likely to cause serious harm to reputation. The last of these matters is a necessary ingredient of any defamation claim in respect of any publication on or after 1 January 2014: Defamation Act 2013, s 1. These problems were only put right as a result of applications which the claimant was prompted to make on the first day of the trial, and which took up the whole of that day. This part of the background is of some relevance to my decisions, so I summarise it.[25]On 3 December 2015, HHJ Parkes QC made an order designed to redress some of the problems with the original Particulars of Claim. These set out the case as if the Meeting had been conducted in English. The Defence asserted that the defendant’s address was conducted in the Ibo language. The Judge ordered the claimant, if that was the case, to amend to plead the words used in that language and their translation. That was eventually done, though not until 8 March 2016, and only after an “unless” order had been made by Jeremy Baker J on 3 March 2016.[26]HHJ Parkes QC also ordered the claimant in any event to amend “either to plead his full case on special damage or to set out how the words complained of are actionable without proof of special damage.” On 3 March 2016 Jeremy Baker J made an unless order to enforce that requirement also. The Amended Particulars of Claim served on 8 March did amend the claimant’s case on damage, and they did so quite extensively. But they did not plead any “full case” on special damage. On the contrary, they abandoned any such claim, by deleting the only part of the existing statement of case which contained anything capable of amounting to an allegation of special damage. The Amended Particulars of Claim did not “set out”, either, what if any case the claimant advanced as to how the words were actionable without proof of special damage. Accordingly, pursuant to CPR 3.8, the sanction prescribed by the order of Jeremy Baker J took effect, unless the claimant applied for and was granted relief from sanctions pursuant to CPR 3.9. The prescribed sanction was the striking out of the Particulars and the dismissal of the claim.[27]For good measure, as I observed when these issues arose, the Amended Particulars of Claim failed to allege that “serious” harm to the claimant’s reputation had either been caused, or was likely to be caused, by the publication of the statement complained of. So for this further reason the Amended Particulars of Claim still failed to disclose a reasonable basis for a claim.[28]After evidence and argument, however, I granted an application for relief from sanctions and gave permission to re-amend, to cure the defects I have mentioned. I was also persuaded to grant permission to serve out of time a Reply alleging, by way of an answer to the defence of qualified privilege, that the defendant published the words complained of maliciously. An allegation that the defendant knew that the words he spoke were untrue was introduced on 8 March 2016 in paragraph 6 of the Amended Particulars of Claim. That is not the right place for an allegation of malice designed to defeat a defence of qualified privilege. The allegation appeared, moreover, as one of a number of particulars pleaded in ostensible support of a true “innuendo” meaning. For that purpose it was immaterial. In any case, the innuendo meaning pleading was plainly misconceived, as well as having been introduced by amendment without permission. I struck it out. But I allowed the factual allegations to be re-pleaded as particulars of an allegation of malice to be set out in a Reply.[29]The outcome of this process is that the key features of the claimant’s pleaded case are, in summary, as follows:(1) The Ibo words spoken by the defendant to those present at the Meeting were “Umeyor jiri Ego Mbaise kpoo ashawoo na Nigeria”.(2) The true English translation of those words is “that the claimant was ‘using the money of the union to buy prostitutes in Nigeria’”.(3) The natural and ordinary meaning of those words is “that the claimant had used the funds of the Union to purchase prostitutes”. That meaning is said to carry with it twelve inferential imputations. It is sufficient to say that these fall into two broad categories: (a) theft, fraud or other dishonesty; and (b) sexual immorality.(4) The words are actionable without proof of special damage because:- a) they imputed the commission of a criminal offence, namely theft contrary to s 1 of the Theft Act 1968 (this being the twelfth of the inferential imputations); and/or b) they were calculated to disparage the claimant in the way of one or more offices, professions, callings, trades or businesses held by him at the time. Two are relied on: (i) Honorary Chairman of the AMPC, Ahiazu Progressive Community Launching Committee and (ii) membership of the PDP and Chairman of its Nnarambia Ward in Ahiazu. In this connection reliance is placed on s 2 of the Defamation Act 1952.(5) The publication of the statement complained of caused serious harm to the claimant’s reputation, the loss of opportunities to chair formal functions of the AMPC Committee, and his resignation from the office of Ward Chairman with the PDP.[30]All of these allegations are disputed. The defendant’s pleaded case is that he did not say what is attributed to him but used Ibo words which, in translation, bore the following meaning, or one to similar effect:
“Now he refused what he was told by the elders and the whole community, according to our constitution he should be suspended and he should bring us a receipt. Otherwise, if our children look at the minutes of our community, it will look like we squander our money in a hotel in Nigeria, as the receipt does not bear any record of Mbaise.”
[31]The remaining issues for my decision arise from the defendant’s reliance on the defence of qualified privilege, which the claimant contests; and the allegation of malice which is now pleaded in the Reply in order to defeat any privilege I may find was applicable.

THE EVIDENCE

[32]Unsurprisingly, perhaps, for a slander case, the documentary evidence is limited. It all post-dates the Meeting. It consists principally of the minutes of the Meeting, the minutes of the meeting of 26 October 2014, the correspondence before action, and the judgement of Jay J in Umeyor v Nwakamma. That judgment is relied on by the defendant for its impact on the opinions of others about the claimant.[33]I heard oral evidence from the claimant and three witnesses called on his behalf: his wife, and two other members of the Mbaise community who were present at the Meeting: Mr Valence Eze and Elder Adolphus Agbasonu. They gave evidence of what they heard, and how they and others reacted. The defendant gave evidence, and called Mr Cyriacus Enemaradu as a supporting witness. Mr Enemaradu was present at the meetings of 28 September and 26 October 2014, and supported the defendant’s denial that he said anything about the claimant hiring prostitutes. THE ISSUES CONSIDERED (1). Has the claimant proved the publication of the statement complained of?[34]Relevant principles are conveniently summarised in Gatley on Libel and Slander 12th edition:
“32.13 Action for slander. Where there is no admission by the defendant that he spoke the words complained of or words to like effect, the claimant must call evidence of what the defendant said and of who heard him. The actual words spoken must be proved; it is not sufficient for witnesses to state what they believe to be the substance or effect of the words, or their impression of what was said. The burden is of course on the claimant to do so. … 32.16 Foreign language. Where the words complained of are in a foreign language the claimant must prove, if not admitted, first, the actual words published, and secondly, their English translation. If the English translation of the words allegedly published cannot be agreed, it will be necessary for the claimant to call an interpreter.”
[35]Gatley goes on to make the point that in a foreign language case it must be proved that at least one of those who hear the words knows the foreign language, as otherwise there would be no intelligible communication, and no publication. (see also Gatley para 6.1). That however is not a problem in this case. The uncontradicted evidence is that all those present at the Meeting knew Ibo. I would probably have inferred this in any event. But there are other difficulties.[36]The claimant’s witness statements were served in 2015, at a time when his case was pleaded as if the words complained of had been spoken in English. The witness statements did not set out the Ibo words alleged to have been used. They did not mention that the words had been spoken in Ibo. That only emerged in the Defence. It led to HHJ Parkes QC’s order and the consequent amendment of the Particulars of Claim. But the claimant’s witness statements were not amended, nor were any further statements served, after service of the Amended Particulars of Claim. The witness statements stood as evidence in chief at this trial.[37]Mrs Umeyor’s written evidence was that the defendant “said that my husband … had used the union’s funds to pay for the services of prostitutes in Nigeria”. Mr Eze’s statement said the defendant “said that Mr Umeyor used the union’s money to pay for the services of prostitutes in Nigeria”. Elder Agbasonu’s statement said the defendant “had accused the former president of using the union’s money to pay for prostitutes in Nigeria.” Mr Bashir elicited evidence from each of these witnesses that the statement they had attributed to the defendant was made in Ibo. He did so without objection from the defence. But he did not elicit any evidence of what Ibo words had been used.[38]The claimant has therefore called no evidence to prove that, disputed, element of his pleaded case. The evidence that he did adduce was evidence in the English language about the substance, effect or meaning in English of words said to have been spoken in Ibo by the defendant at the Meeting. But the Ibo words themselves were unspecified. Further, evidence of the meaning in English of the unspecified Ibo words was given by lay witnesses, not by an interpreter. Given the principles identified above, this is problematic, for at least two reasons. First, no evidence has been led to prove the critical element of any defamation claim: the words complained of. Secondly, the only evidence as to the English translation of what was said in Ibo comes from lay witnesses. These witnesses may have expertise in the two languages; it may be that such a person could properly give expert translation evidence; but evidence of this kind is and can only be expert evidence: see Sobrinho v Impresa Publishing SA [2015] EWHC 3542 (QB) [21-24]. These witnesses have not proved any expertise, and they clearly do not have the independence normally required of an expert witness.[39]These are not mere technicalities. Liability for defamation depends on meaning, which is a subtle and nuanced thing. Quite small differences in wording can lead to significantly different meanings. In order to avoid the wrongful imposition of liability, precision is necessary. A feature of slander cases is that there can often be much room for dispute about what precisely was said. If words are published in a foreign language there is often room for debate about the proper English translation, even if the words are printed: Sobrinho v Impresa is an example: see [9-14]. In this case, the parties are at loggerheads about the nature, substance and meaning of what the defendant said. There was already hot dispute about the matter amongst the members of the union as long ago as 26 October 2014: see para 2.2 of the minutes, quoted above. I have no means of determining whether the witnesses’ evidence as to the English translation of what was said is reliable.[40]These difficulties are not resolved by the fact that Mr Davies asked both Mr Eze and Mr Agbasonu what Ibo words had been used by the defendant, and to translate them. Mr Agbasonu responded by giving a summary in English, to the same effect as the one in his statement. Mr Eze gave the Ibo words, but I do not know Ibo, so I could not compare them with the pleaded case. Mr Eze summarised what the Ibo words meant in English in this way “he used the £2,500 for the services of prostitutes in Nigeria and he comes here to tell us a load of rubbish”. It was evident that he could not be precise. In any event, this was no more expert evidence than the same witness’s evidence in chief. And in the absence of any independent expert evidence, I have no means of reliably assessing its accuracy.[41]Nor can the claimant’s difficulties in this respect be put to one side on the basis suggested by Mr Bashir: that the defendant has not positively disputed the accuracy of the translation pleaded in paragraph 2 of the Amended Particulars of Claim, and that his witness Mr Enemaradu accepted that the word “ashawoo” can mean “prostitute”. It is for the claimant to prove his case, and Mr Eneramadu’s unequivocal evidence was that the word “ashawoo” “never came out of [the defendant’s] mouth”.[42]This is a highly unsatisfactory state of affairs, and one which would justify rejection of the claimant’s case for lack of sufficient evidence. But, in the end, I find myself able to reach a conclusion, based on all the oral and written evidence, that the defendant did not use the Ibo words alleged, or any words which can be accurately translated in English in the way that has been pleaded, or any words that bore the meaning or meanings complained of. The gist of what he said was, or included, something to the following effect: that the documentation relating to the use of the money was unsatisfactory; the records would make it appear that the Union had squandered its money on a hotel in Nigeria; the Union should investigate whether the reason why the hotel had produced the kind of receipt it did was that the claimant had taken a woman to the hotel, and did not want his wife to know; and that the claimant should be suspended in the meantime. I cannot make a finding as to precisely what was said, still less as to what Ibo words were used to convey such statements, as there is no evidence on these points. But I am satisfied that this is in substance the likely truth of the matter, and that the claimant’s witnesses are mistaken in their account of what was said.[43]This finding of fact is a blend of the evidence given by the defendant and by Mr Enemaradu about what the defendant said at the Meeting. I can state quite shortly the reasons for reaching this finding. The claimant’s witnesses were not, in my judgment, telling lies in their evidence to the court on this issue. But nor, in my view, was the defendant giving knowingly false evidence when he denied point blank ever using the word “ashawoo”, or any other word that translates as “prostitute”, and asserted that what he said was in substance as pleaded in his Defence. There did not seem at first to be any obvious reconciliation of what seemed to be a stark conflict between two rival positions. Both had weaknesses. I have dealt with those of the claimant’s evidence. So far as the defendant’s account was concerned, he had to contend with the minutes which (as Mr Bashir understandably emphasised in closing) show that some of those who had heard what the defendant said took the view that it was unacceptable and, to quote the minutes, “inappropriate and insulting”, “rude and vulgar”. Those are not apt descriptions of the words used by the defendant, on his own account. But then Mr Enemaradu gave his evidence.[44]Mr Enemaradu is an elderly man of the Mbaise people who told me he was the “brother” of the claimant (meaning a close relative) and a “friend” of the defendant. He was called to confirm a short witness statement in which he stated that he had attended both the meetings and that “Rev Innocent Ibe has never accused Mr Bartholomew Umeyor of hiring prostitutes.” Mr Enemaradu spoke with emphasis and conviction. His honesty was not challenged. His evidence was said to be unreliable on the basis that he had come to help the defendant, and that his statement made in August 2015 only spoke of what had not been said, and said nothing of what the defendant had said. But he responded convincingly that he had come to tell the truth. And when he was asked in re-examination what the defendant actually said his answer was in my view a persuasive one.[45]His answer was that the defendant “put a statement to the Union” that the receipts which were submitted were not right, and that he “put an opinion: examine whether he used it to take a woman to the hotel.” He was then asked by me to give as precise an account as he could. He said that what the defendant said was “an opinion to the Union to investigate”. He was emphatic that what had been suggested as worthy of investigation was not prostitution. In substance, he was saying that the defendant had suggested that the Union investigate whether the reason for the odd and unsatisfactory documentation might be that the claimant had used the hotel for an extra marital affair, and paid for it with the union’s money.[46]Not only was this witness’s honesty not impugned, he appeared to me to be a man of transparent integrity. I am satisfied that his recollection was sound, so far as it went, and I accept his evidence. This account of things is consistent with my assessment of the defendant’s evidence as essentially honest, despite the flaws to which I shall come later. This account explains sufficiently the adverse reactions recorded in the minutes of the two meetings. If this is what was said it is understandable that the claimant’s witnesses could have got the impression, which I am satisfied was false, that an accusation of hiring prostitutes had been made. On this version of events there was no allegation of using prostitutes; but there was a statement which raised the possibility that the claimant had engaged in extra marital sex with a woman at a hotel in Nigeria and that the Union’s money had been used for that purpose.[47]Gatley deals at paras 32.14 and 32.15 with the issue of “variance between words alleged and words proved”:
“The requirement to prove the actual words spoken does not mean that there must be complete correspondence between the words pleaded and the words proved. As long as the words proved are a material and defamatory part of the words alleged, or words which are substantially to the same effect, the claimant is entitled to have it decided, whether the words alleged or words to the like effect have been proved, or of course he could seek leave to amend his particulars of claim. 32.15 Fatal Variance. However if the words proved materially alter or qualify the sense of those set out in the particulars of claim, the variance will be fatal to the claimant, unless he can persuade the judge to grant him permission to amend the particulars of the claim.”
[48]Mr Davies has pointed out in closing that it was open to the claimant to apply for permission to re-re-amend, in order to rely in the alternative on the account of events given by Mr Enemaradu. Mr Bashir has not made any such application, nor did he invite me to find in his client’s favour on that alternative basis without an amendment. Rightly so. This case does not fall within the territory described in these passages from the textbook. It is not a case where the use of particular words has been proved, but the proof differs from the allegation. It is a case where no particular words have been proved. It would have been impossible to frame a draft amendment for which permission could have been granted. The fact that the limitation period has expired could have been an obstacle: see CPR 17.4. In any event, the difference between the imputation complained of and the gist of what was actually said is in my judgment one of substance. It would not have been fair to allow the claim to be put on this quite different basis.[49]The imputation complained of includes two separate and distinct accusations: that the claimant acted dishonestly (by misusing union funds) and immorally (by using prostitutes). These are allegations of guilt, at “Chase” level 1, to use the taxonomy from Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772, [2003] EMLR 11. The defendant could only have pleaded truth if he had been able and willing to adduce evidence to prove guilt of at least one of those things. The imputation actually conveyed by what he said, though it cannot be precisely defined, is suggestive of a different form of sexual immorality. More significantly, the imputation – in both its aspects - is not one of guilt. It is at “Chase” Level 2 or 3: reasonable grounds to suspect, or to investigate. I accept Mr Davies’ submission that the meaning is more likely to have been at Level 3, and on the lines that there were reasonable grounds to investigate whether the claimant had misused Union funds by paying for personal hotel use, to carry on an extra-marital affair.[50]If this had been the gist of the statement reported to the claimant after the September meeting he might not have sued. If he had, it seems to me that there would have been a good argument that the statement was not actionable as a slander, in either of its aspects: see below, and Gatley para 4.6. However that may be, I accept Mr Davies’ submission that the defendant might have advanced a defence of truth in respect of the Chase level 2 or 3 imputation of dishonesty. If he had done that, there is a real prospect that he would have succeeded. Indeed, the claimant has not sought to dispute that the documentation and his conduct both appeared questionable at the material times. The case, if any, would in all likelihood have been a very different one.[51]For these reasons this claim must fail. I shall nevertheless go on to consider the other issues. I do so in fairness to the parties, and to the evidence and argument they have devoted to the other points in the case. It is my clear conclusion that this claim would have failed in any event for further and additional reasons. (2). Is the statement complained of actionable as a slander?[52]I have concluded that the statement complained of would not, even if it had been proved, have been actionable as a slander. There is a degree of artificiality about this exercise in the circumstances, but I would accept for present purposes that the pleaded English translation bears the meanings complained of, and that those meanings have a defamatory tendency. They clearly have a defamatory tendency in that they impute dishonesty in the form of personal use of funds entrusted to the claimant for charitable purposes. I am inclined to think that in the circumstances of this case they would also be defamatory at common law because they impute disreputable sexual behaviour. Even making all these assumptions, however, the claim would have failed because it would not have overcome the twin hurdles presented by the common law of slander and the serious harm requirement imposed by the 2013 Act.[53]I shall deal in turn with the imputations of immorality and of dishonesty, which are clearly separate and distinct. Immorality[54]Spoken words imputing unchastity to a woman used to be actionable as slander without proof of special damage: Slander of Women Act 1891. That provision is repealed by the Defamation Act 2013, s 14. An imputation of sexual immorality by a man has never has been actionable as a slander “per se”. The claimant can only rely in this respect on the common law and statutory provisions by which spoken words are actionable without proof of special damage if they are calculated to disparage a person in an office held or carried on by him at the date of the publication complained of. That exception to the general requirement for proof of special damage is modified by s 2 of the Defamation Act 1952, the effect of which is that spoken words which disparage a person in this way are actionable even if they are not spoken of him “in the way of” the office, as the common law generally required.[55]As I have noted, the Re-Amended Particulars of Claim plead two “offices”. No evidence has been called to prove that the claimant held the first. The claimant did give evidence of his role as a member and a Ward Chairman of the PDP in Nigeria. However, mere membership of a political party cannot be an “office” for these purposes; and it is in my view impossible to regard an imputation of hiring prostitutes as “calculated to disparage” the claimant in his political office as a PDP Ward Chairman.[56]The authorities make clear that “calculated to” means “likely”. They also establish that the court must consider whether the words “would be likely adversely to affect the claimant’s professional reputation (and not just his private character) in the eyes of reasonable people”: Gatley paragraph 4.17. An example given in the same paragraph is pertinent: it is suggested that an imputation against a judge of inattentiveness or falling asleep on the bench would qualify but not, today, one of adultery. It is also important to note that the standard is an objective one: that of reasonable people. “Likely” does not mean more probable than not, but something less; but the demands of Article 10 mean that some more than minimal weight must be given to the concepts of “likelihood” and “disparagement”: Andre v Price [2010] EWHC 2572 (QB) [97]-[98].[57]I do not consider that reasonable people would think significantly the worse of the claimant as a political officer if they were told that he had used prostitutes. His private and public conduct would be reasonably regarded as separate matters. It is of some relevance to note that a debate is current in the media at the time of this trial, concerning a Cabinet Minister’s relationship with a sex worker. The issue under debate is not whether such a relationship of itself affects the minister’s fitness for office. The public interest arguments under discussion are different. It is true the individual concerned was a single man at the time of the relationship. This claimant was married at the material times. But a claim that he had been accused of marital infidelity cannot be sustained on the basis of the natural and ordinary meaning alleged. A true innuendo would be required.[58]There is another reason why this aspect of the claim could not be upheld on the basis of disparagement in political office. I have so far approached the issue on the assumption that the question is whether the imputation is of a kind that would have a tendency to damage the claimant’s reputation in the office in question. Mr Davies’ submission is, however, that the true question is whether it would be likely do so as a matter of fact. I think that is right. It is more consistent with the underlying rationale of this exception to the general rule, which must have to do the likely impact of the statement. Likelihood in fact, rather than mere tendency, is certainly the basis on which Tugendhat J approached the matter in Andre v Price. At [99-103] the judge considered the words in the context in which they were spoken (to a relatively small number of people in a TV studio audience) and assessed whether, in the light of the evidence as to the circumstances a jury might find that the disparagement “met the measure of seriousness necessary to bring the case within section 2.”[59]The allegation in that case was one of an extra-marital affair. Tugendhat J concluded that a reasonable jury properly directed could not uphold the claimant’s case. In this case I am the finder of fact. My conclusion is that there is simply no evidential basis on which I could accept that any statement made to a small audience in Camden, to the effect that the claimant acted or may have acted in a sexually immoral way, was at all likely in fact to disparage the claimant in a political office held by him Nigeria. There is no evidence of any re-publication to anybody in Nigeria, or of any other causal link that would make this likely. (I should add that I also reject the claimant’s case on damages, that his resignation as PDP Ward Chairman was caused by what the defendant said at the Meeting. I shall come back to that point.)[60]It follows that insofar as it imputed sexual immorality the alleged statement would not have been actionable even if it had been proved. Hence, the issue of whether serious harm to reputation has been proved to flow from this aspect of the alleged defamation is doubly hypothetical. But I will state and explain my conclusions, as they are linked to my findings on the same issue in respect of the second imputation complained of. My conclusion is that the claimant has failed to prove serious harm to his reputation flowed from this aspect of what was said. The statement made was not as alleged by the claimant. It did raise the issue of sexual immorality. But I am not persuaded that it caused serious harm.[61]The need to allege and prove serious harm to reputation appears to have been overlooked on the claimant’s side at all times up to the first day of this trial. Thus, the amendments of 8 March 2016 did not deal with the point. The original witness statements, prepared in 2014 and 2015, did not deal with it. They remained unaltered throughout. Some of the statements affirmatively suggested that those who heard the words complained of had not believed them. Mrs Umeyor’s statement said that after the defendant spoke she challenged him for making “such a statement with no truth” and accused him of being “interested in making false allegations”. She told of calling her husband in Nigeria on the morning of 29 September 2014 and “informing him” of “how Mr Ibe is spreading false news about him.” Elder Agbasonu’s statement said that the defendant’s accusation “was highly condemned by all members of the Union” and spoke of his confronting the defendant to tell him his behaviour was “entirely unacceptable”.[62]The defendant’s skeleton argument for trial cited passages from the witness statements, and argued that the claim must fail as both the claimant’s pleaded case and his evidence were deficient on the issue of serious harm. By the end of the applications on day 1 of this trial, the pleading deficiency had been made good; nothing had been done to the witness statements. But by that stage anybody who had been sitting in court on the claimant’s side would have been well aware of the need to prove serious reputational harm, and that the claimant’s existing statements were said to fall short of achieving this. The claimant and his witnesses had been in court throughout.[63]When those witnesses came to give evidence on day 2 the first two were asked by Mr Bashir, without objection from the defence, to supplement their witness statement by stating whether they had believed the statements complained of. Each affirmed that they had done so. Mr Eze said that “coming from a man of God I believed it”. Mrs Umeyor said she had concluded that what the defendant said, as “a man of God”, was true. Elder Adolphus Agbasonu said in cross-examination “Coming from a Reverend and a prophet I would be stupid to doubt it.” In re-examination he said that he had “no reason to disbelieve” what the defendant said “because of his position”.[64]Mrs Umeyor and Mr Agbasonu were challenged by Mr Davies over the apparent conflict between such evidence and what they had said in their statements, which implied (it was suggested) that they had in fact disbelieved what they thought they heard. The suggestion made was that they had been encouraged to change their evidence to help the claimant. Each denied this. Mrs Umeyor’s explanation for the content of her statement was that she had not wanted to disclose to the defendant or to her husband that she believed what had been said. Mr Agbasonu’s evidence was that the condemnation of which he wrote in his statement was not prompted by a belief that what had been said was untrue. Those present had condemned the statement as one that was inappropriate for such a meeting. He said that the statement was believable but “The approach – the manner – in which it was done may not be accepted. I am condemning what comes out of his mouth.”[65]I agree with Mr Davies’ interpretation of the witness statements of Mrs Umeyor and Mr Agbasonu. These gave a clear impression that what the defendant said had caused upset, but that it had not been believed by the witnesses. The way in which evidence to the contrary emerged leads me to treat it with considerable caution. So does the remarkable consistency of the explanations given by each witness as to why they believed what was said. To help resolve the issue, I have turned to the minutes.[66]These clearly record that there was upset at what the defendant said, and I am entirely confident that the defendant was condemned for what he said. But why? Para 5.1 of the Meeting minutes records that the remarks were criticised as an “attack”, which was “irrelevant”, and “for being inappropriate and insulting”. The later minutes describe the words as “rude and vulgar”. The minutes seem to me to be more consistent with the witness statements, and the view that the audience members were shocked by the fact of the accusation rather than an acceptance of its truth. I regard it as significant that there was a move to suspend the defendant, but no move to suspend the claimant.[67]My conclusion is that I cannot treat the claimant’s evidence on this issue as a reliable basis for a finding that serious harm to reputation was caused. Only three of 150 people present gave evidence, and their evidence was not satisfactory. The statements, taken overall, tend to suggest that those present did not believe what was said. The minutes tend to support this. Too little else emerged, too late, and in too confusing and self-contradictory a way to take the case across this important evidential threshold. I have gained the strong impression that this is a community with a powerful sense of what it is and is not proper to discuss at such a meeting. The defendant’s demeanour in the witness box makes me confident that the way he spoke was provocative. I am confident that the audience were shocked that the defendant should raise such a topic, and that he should raise it in heated terms. That is a more likely explanation of their condemnation than a belief in the truth of any imputation of sexual immorality. Dishonesty[68]I do not consider that the claimant can justify pursuit of this aspect of his claim by relying on the rule that spoken statements are actionable without proof of special damage, if they disparage a person in his office. I readily accept that a statement which imputes the dishonest misapplication of trust monies is one that has a tendency to harm a person’s political reputation. But for the reasons already given, I approach this issue on the basis that what must be proved is that the statement complained of would be likely as a matter of fact to cause some substantial disparagement to the claimant’s reputation as the PDP’s Ward Chairman. On that basis, for the reasons already indicated, there is only one reasonable conclusion open to me on the evidence: that it would not.[69]As already noted, I reject the allegation that the defendant’s words in fact caused the claimant’s resignation from his Ward Chairmanship. This contention was first put forward in the re-amendments made at the start of the trial. No further witness statement was served. The matter was dealt with extremely briefly in oral evidence, and in terms which lead me to reject this part of the claim without hesitation.[70]Cross-examined, the claimant’s account was that he had been asked by his superior to resign, and had done so immediately, on 18 December 2015. He did not name the superior. I have no other evidence on the point. I do not consider that there is any credible or acceptable evidence on which I could conclude that the resignation flowed from anything said by the defendant at the Meeting, 15 months earlier. There is no evidence that what was said at the Meeting was republished in Nigeria. The claimant’s evidence was, however, that news of Jay J’s October 2015 decision had “filtered through” to Nigeria. He also gave evidence that he had been the target of other harmful allegations. It is far more likely, in my judgment that it was these factors, or something else, that accounted for the claimant being asked to resign in December 2015.[71]The claimant’s alternative basis for suing in slander without proof of special damage looks more promising. There is no need to prove special damage if the statement complained of imputes a crime punishable by imprisonment. The Re-Amended Particulars of Claim identify such a crime, namely theft contrary to s 1 of the Theft Act 1968: the dishonest appropriation of property belonging to another, with the intention permanently to deprive. At first blush, that does appear sound. The sting of this part of the alleged statement is the dishonest misapplication of the union’s funds for personal purposes.[72]Mr Davies has two answers. First, he says that on the facts there was no appropriation of any “property”. He refers me to well-known authorities, cited in chapter 19 of Smith & Hogan’s Criminal Law 14th ed: Hall [1972] 2 All ER 1009 and Foster [2011] EWCA Crim 1192. In Foster the defendant’s work colleagues had entrusted him with substantial sums for the purpose of pooling them to place large bets on football and other sporting events. He pooled those funds with others, not subject to any such restriction, and drew on the global fund for his own purposes. The Court of Appeal set aside his conviction for theft. The editors summarise the position in this way:
“Even if D is under an obligation to deal with some of the funds in a particular way, … if this is pooled with funds that are not subject to the obligation … then D cannot be guilty if it is funds from this pool … [that] he has used for his own purposes.”
[73]Secondly, Mr Davies points out that the effect of sections 1-2 of the Criminal Justice Act 1993 is that theft can be prosecuted in England and Wales if, but only if, one of the ingredients of the offence was committed within the territorial jurisdiction of these courts. All the conduct attributed to the claimant in the words complained of took place in Nigeria, submits Mr Davies. So the pleaded case must fail.[74]These are technical and unattractive arguments, and they have not persuaded me. There is no evidence that the Union’s funds were pooled with other monies in the claimant’s account. In any event, the starting point must be to ask, not what the claimant actually did, but what the statement complained of suggested to ordinary members of the audience that he had done. This, clearly enough, was the misappropriation for personal use of monies entrusted to the claimant by the Union. The ordinary reasonable listener, not knowing the precise details, would naturally conclude that he had dishonestly used money belonging to the Union for personal gain, with no intention of handing it back. Such conduct is theft in English law. I agree that the ordinary listener would have concluded that this was all done in Nigeria. I agree that such behaviour could not be prosecuted here. But in my view this part of the law is not as artificial as Mr Davies suggests.[75]If spoken words impute conduct which is criminal according to the standards of this jurisdiction why should the accuser be immune from suit, merely because he suggests the conduct took place elsewhere? I have been shown no authority which limits the scope of this common law rule to conduct which could be prosecuted in this jurisdiction. I would conclude that words imputing conduct which is criminal according to our own laws and the laws of any civilised country are actionable as slander, regardless of where the conduct occurs.[76]Three Commonwealth authorities referred to in Gatley at paragraph 4.6 note 41, and very properly produced by Mr Davies, support that view. I refer in particular to the words of Robinson CJ in Smith v Collins (1846) Up Can QB 1 at 3:
“But surely we may infer that in any civilized community which has laws and property to protect, to steal must be an offence of a very grave character. How they may punish it we may not precisely know. But I think the good sense of the rule as now maintained is that the charging a man with committing abroad such a crime as would subject him to the punishment of felony here, by the common law fixes with equal certainty the character of the imputation and places the man in fully as degraded a position in society.”
See also the later Canadian case of Porter v McMahon (1885) 25 NBR 211, 215 and Fox v Goodfellow [1926] NZLR 58, 62.[77]Another equally valid approach would be to apply the “presumption” that, in the absence of evidence to the contrary, foreign law is the same as English law. I would see no reason not to adopt that approach. Nigeria is a common law country with an established legal system. So I conclude that this aspect of the alleged statement would have been actionable as a slander without proof of special damage. But this part of the claim would have failed for lack of proof that the alleged statement caused serious harm to his reputation. The statement actually made, even if otherwise actionable, did not cause such harm.[78]Some of the reasons for those conclusions will be evident from what I have said in dealing with the first of the imputations complained of: overall, the strong audience reaction which the defendant’s words provoked is explained by shock at his use, in dramatic terms, of language about sexual immorality. Secondly, I note that the strong personal reaction of which Mrs Umeyor gave evidence was entirely related to what she thought was a suggestion that the claimant had used prostitutes. Thirdly, whilst any suggestion of financial misconduct, even at Chase Level 2 or 3, would normally be expected to cause significant reputational harm., and I am quite prepared to infer that some such harm was caused, I should not consider the issue of serious harm in blinkers.[79]The situation at the time of the Meeting was that funds had been entrusted to the claimant; questions had been raised about how they had been dealt with; documents had been produced which are, on the claimant’s admission, unsatisfactory; 18 months later, he had refused or failed to provide an explanation; one was still being sought; the situation was unresolved. All those present knew, in substance, all of this. In short, the context in which the defendant’s statements were made included the fact that there were suspicions, which had a proper foundation, that the claimant might have dealt dishonestly with the Union’s funds. The claimant’s own conduct had contributed to such suspicions. Rumours are not admissible in mitigation, but “directly relevant background context” is: Burstein v Times Newspapers Ltd [2001] 1 WLR 579. I regard the claimant’s conduct, and the suspicions reasonably entertained about him by audience members at the Meeting, as falling in the second category and as relevant, for the same reasons, to whether serious harm was caused.[80]In this context, in this case, the absence of evidence that anybody reacted adversely to what was said about (possible) financial wrongdoing becomes a matter of some significance. This action has been on foot for 18 months and apart from the PDP resignation, which I have dealt with, the claimant’s evidence contains no assertion that there has been any hostile remark made, or any other outward behaviour towards him indicating a harmful impact on his reputation.[81]I also take account of Jay J’s judgment in Umeyor v Nwakamma. This makes clear on the one hand that the Judge considered suspicion was reasonable in March 2014, when the documents appeared “dodgy”; but, on the other hand, it contains a clear vindication of any taint of actual dishonesty. Although these are unpleaded points, the claimant has taken no objection. Mr Bashir accepts that the judgment is in principle of some relevance when considering harm to reputation. I think he is right to do so. There is authority that bad reputation can be established by proving a conviction (Goody v Odhams Press Ltd [1967] 1 QB 333), or judicial strictures in a civil action (Waters v Sunday Pictorial Newspapers [1961] 1 WLR 967, 973 (Willmer LJ); Turner v News Group Newspapers Ltd [2006] EWCA Civ 540, [2006] 1 WLR 3469 [48] (Keene LJ)). I accept that favourable conclusions expressed by a Judge in a final public judgment after trial in a civil action are in principle equally admissible as evidence of the restoration or vindication of a reputation, which must be relevant to an assessment at trial of the harm done to date.[82]Not everyone who was at the Meeting will have read the whole of Jay J’s later judgment, but I am sure that these issues were of such importance to members of the Union that the gist, and key features, of the judgment will have become known to the vast majority. I treat the judgment as providing that audience with authoritative support for the suspicions entertained in the past, but clear vindication of any suggestion of guilt. Six months before this trial, therefore, any remaining suspicion that the claimant had stolen the Union’s funds had been effectively erased in the eyes of reasonable Mbaise Union members. Any harm done by what the claimant said had been substantially undone. The upshot is that the statement, if it was ever defamatory by the yardstick of s 1 of the 2013 Act, had ceased to be so: cf Cooke v MGN Ltd [2014] EWHC 2831 (QB), [2015] 1 WLR 895 [21-22], [44-45]; Lachaux v Independent Print Ltd [2015] EWHC 2242 (QB), [2016] 2 WLR 416 [68]. (3). Qualified privilege[83]The relevant law is uncontroversial. It is set out in Gatley at para 14.15:
“Where a communication is made by someone with an interest in the subject matter to someone who has a corresponding interest in receiving the communication, it is made on a privileged occasion.”
I accept Mr Davies’ submission that the Meeting is a classic example of an occasion on which such a privilege would normally protect what is said. The claimant’s use of the Union’s funds was a matter of legitimate interest and concern to all members of the Union. The libel action, which concerned the claimant’s use of the funds, was an agenda item. It had been decided that it would be discussed.[84]The fact that the President took the view that discussion should be curtailed does not, in my judgment, deprive statements made on a topic which was of common and legitimate concern of the privilege they would otherwise enjoy. I have not been provided with any evidential or legal basis on which the wishes of the President should be regarded as conclusive on this issue.[85]It has been argued that the alleged statement imputing payment for sexual services fell outside the scope of any privilege that may have existed. The point advanced is that any such statement was irrelevant. But the law is that mere irrelevance does not deprive a statement of privilege. The issue is discussed in some detail in the authorities, reviewed in Gatley at paras 14.63 – 14.64. It is enough to say that a statement which is logically irrelevant may be evidence of malice, but it will only fall outside the protection of the privilege if it has no reference whatever to the occasion, and is entirely irrelevant and extraneous. That cannot be said of any reference made to the possible use of the Nigerian hotel for sexual liaisons with a woman. Any such suggestion was, on any view, firmly linked with the privileged topic of whether the Union’s money had been misapplied or misused by the claimant. (4). Malice[86]The remaining question is whether the defendant spoke maliciously. Malice in this context has a clearly defined meaning, the classic exposition being that of Lord Diplock in Horrocks v Lowe [1975] AC 135, with which three other members of the House agreed. The key features for present purposes are that malice is a dominant improper motive; the defendant speaking on a privileged occasion is entitled to be protected unless some such motive on his part is proved; knowledge that the statement will injure the claimant is not proof of such a motive; but proof that the defendant lacked an honest belief in the truth of what was said will generally be conclusive evidence of malice.[87]Commonly, knowledge of falsity is alleged as the basis for a plea of malice, and that is the core proposition here. It was pleaded, and it was put to the defendant, that he knew that the claimant had not used the Union’s money to buy prostitutes. I have found that the defendant did not say any such thing. But in fairness to the defendant I should record that I was left wholly unconvinced by the claimant’s case of malice. The basis for the allegation that the defendant positively knew what he said was false turned out to be that he lacked evidence to support the proposition, and had failed to investigate. None of this was put to the defendant. But as a case it fell short anyway.[88]No motive for telling deliberate falsehoods is pleaded, nor was one put in cross-examination. I asked Mr Bashir what his client’s case was as to motive, if he had any such case. The answer was that the claimant alleges that the defendant’s intention was to destroy the claimant and/or to remove him and some of his friends from the Union. That was not put to the defendant. Nor was any reason put forward as to why the defendant might have wished to harm the claimant. A wish to harm him and remove him from the Union because he had stolen or misapplied its funds of failed properly to account for them would not, of course, be an improper motive in any event.[89]The defendant did not make an impressive witness. He was combative to the point of obstreperousness. He was impatient. He showed arrogance, a strong sense of his own importance and integrity. He was self-righteous. He found it difficult to provide answers to simple questions, preferring to engage in long speeches on topics which were sometimes only loosely related to those which he had been asked to deal with. He was intemperate and swift to condemn others for wrongdoing. The following, however, is a list of characteristics or behaviour which have been held over the years not to amount to malice: forming a belief not based on any reasonable grounds, or on inadequate research, or conduct which is hasty, credulous, foolish, involves jumping to conclusions, or is irrational, stupid, pig-headed, obstinate, or the product of “gross and unreasoning prejudice”. The catechism is familiar. The principal authorities are collected in para 17.7 of Gatley.[90]In my judgment the defendant spoke at the Meeting in haste and anger, intemperately, and unwisely. He had no affirmative basis for raising the possibility that the Union’s monies had been used by the claimant in connection with an extra-marital affair. That possibility was a speculative and extravagant inference from the unsatisfactory nature of the documentation. No doubt what he said was also uttered in an extravagant manner and emphatic tone. That, in my experience, would be characteristic of the man. The minutes of 26 October 2014 record that he was angry on 28 September. But I have found that the defendant did not make a direct accusation of any such sexual misconduct. The focus of his remarks was on the possibility, which at that point appeared to be a real one, that there had been a misuse of Union funds. Whatever it was exactly that he said about taking a woman to the hotel, I do not believe it was said dishonestly, out of any dominant improper motive. It was put forward, in my judgment, as a possible explanation for the “dodgy” documentation. There was no improper motive. It was not malicious.[91]Still less could I accept that the defendant acted maliciously in suggesting, as I am confident he did, that the claimant may have misused the union’s funds. There was at the time an ample basis for an honest person to harbour that suspicion, and he did.

CONCLUSIONS

[92]I can summarise these as follows:(1) The claimant has failed to prove that the defendant spoke the words complained of, or words to the same or similar effect. I find that he spoke words to a materially different effect, although there is no evidence as to precisely what those words were. The claimant has not sought to amend to complain of the different statements. I would not have allowed it if he had.(2) The complaint that the defendant accused the claimant of using prostitutes would have been dismissed even if it had been proved that he did so: an imputation of sexual immorality is not actionable in slander generally, or on the facts here. The same is true of the statement the defendant did make, which raised the possibility of an extra-marital affair. Nor was it proved that anything said on the topic of sexual immorality caused serious harm to the claimant’s reputation.(3) If the defendant had accused the claimant of stealing the Union’s funds that would have been actionable in principle as a slander; but the defendant did not make that accusation. He did use words that raised the possibility that the claimant had misused Union funds, but that is not the same. The statement actually made could not have been the subject of a successful slander claim. An imputation at such a level may not be actionable in slander at all, and in any event the words used did not cause serious harm to reputation. Any harm they did cause had been undone well before this trial by the judgment of Jay J in Umeyor v Nwakamma.(4) In any event, the defendant spoke on an occasion of qualified privilege and was not malicious.[93]The claim is dismissed.

Cited in 12 later judgments

and 3 more of the most senior