Dhir v Saddler [2017] EWHC 3155 (QB)

Case No C02LS677[2017] EWHC 3155 (QB)IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONMEDIA & COMMUNICATIONS LISTVenue (LEEDS DISTRICT REGISTRY), Leeds Combined Court Centre, 1 Oxford Road, Leeds LS1 3BGDate 6 December 2017
Before
THE HONOURABLE MR JUSTICE NICKLIN
Between
Raj DhirClaimantBronte SaddlerDefendant
David Mitchell (instructed by Michael Lewin Solicitors) for ClaimantJohn Samson (instructed on a direct access basis) for DefendantHearing Hearing dates: 7-9, 13-14 November 2017
Judgment
[1]This is the judgment following the trial of a slander claim. Slander claims are rare. Those that make it to a full trial rarer still. This uncommonness is largely due to the difficulties that many claimants have in proving that particular words were spoken about them on a particular occasion. In this claim, although much else is disputed, the words spoken by the Defendant have been agreed from the outset.

The parties

[2]The Claimant, Raj Dhir, is 75. He is a business man and owner of Harewood International Products LLP, which is a family business based in Leeds. He is married and has three children: two daughters, Reena and Ruchi, and a son, Rishi.[3]The Defendant, Bronte Saddler (known as “Annie”) describes herself in her witness statement as an old-age pensioner and is also in her 70s. She is a member of the Seventh Day Adventist Church in Leeds and has five children – three sons and two daughters - and nine grandchildren.[4]One of her sons, Andrew, has, since 2001, had an on-off relationship with Reena Dhir. That relationship has led to the Dhir and Saddler families into conflict and acrimony and ultimately to this action.

The claim

[5]The claim arises from words spoken by the Defendant at a meeting of the Seventh Day Adventist Church, 169 Meanwood Road, Leeds (“the Church”) on 19 July 2015. I will go into more detail below, but the meeting was primarily concerned with a complaint that had been lodged with the Church about the conduct of the Saddler family, in particular Andrew Saddler (“Mr Saddler”). Mr Saddler was, formerly, a member of the Church.[6]Mr Saddler married Eleanor in 2011. They are now separated. For at least part of their marriage, Mr Saddler’s relationship with Reena continued. The Dhir family considered that the relationship between Reena and Mr Saddler was not a healthy one. They believed that he was exploiting her financially. As he was married, Andrew’s relationship with their daughter was regarded as adulterous. So, in February 2015, the Dhir family complained to the Church about the relationship and what they perceived as the Defendant’s knowledge and sanctioning of it.[7]Under its procedures, the Church could entertain such a complaint and ultimately, if substantiated, could sanction a member for his/her misconduct. And so it was that on 19 July 2015 members of the Church gathered to hear about the Dhir family complaint about the Saddlers. As a matter of chronology, Mr Saddler had left the Church earlier in 2015 and so by the time of the meeting it no longer had jurisdiction over him in respect of the Dhirs’ complaint.[8]The Claimant, his wife, Ruchi and Rishi all attended the Church meeting. From the Saddler family, in attendance were the Defendant, her son, Clyde, and her daughter-in-law, Eleanor. The meeting was attended by others from the Church, including Emily Tebbs-Ogutu (a former member of the Church Board), who gave evidence at the trial. She was a friend of Eleanor and had become acquainted with Ruchi Dhir. One of the issues I have to decide is, so far as possible, how many people were in attendance at the meeting to hear the words that were later to become the basis of this slander claim.[9]What is clear, however, is that at the meeting, Ruchi Dhir addressed those present. She read from prepared notes. I need quote only part of these notes. I do not know whether they were read to the meeting word for word, but this will serve to capture a flavour of her presentation to the Church:
“Andrew came back in my sister’s life in January 2014. He was and still is married to Ellie. I found out by accident about the relationship in July and confronted both my sister and Andrew by telephone… We have watched for 14 years as my sister has been abused, lied to and cheated by Andrew Saddler and it is very hard for a family as close as ours to watch. Time after time, Andrew has come back into my sister’s life and led her on and then told her that he didn’t really love her and never said he would marry her. Recently, when we had a meeting with the church elders after one elder had approached Andrew about his current extra marital affair, he simply said that he wanted out of his marriage with Ellie and to start a relationship with my sister: well as far as we, as Reena’s family are concerned, this has always been to do with money and never to do with love. The evidence is staggering – apart from my sister’s bank statements… showing payments over the years for his mortgage and other amenities, since July 2014, Andrew enjoyed two five star holidays paid for by my sister to Dubai and Thailand, staying in 7 star resorts… I have held back for fourteen years because, in my heart and religion, I believe people are and can be good. But I have stopped believing this in the case of Andrew Saddler and his mother. There is no care or love here, he has a habit. And he has a habit of manipulating women, be it my sister… or anyone else, for material gain…”
[10]Reference was made by Ruchi Dhir to a meeting that she, her father and her brother Rishi had had with the Defendant at her home in September 2014 (“the September meeting”). Again, if the notes are accurate, she gave an account of this meeting to the Church. She claimed that the Defendant had said to the Dhirs that she would never accept Andrew’s relationship with Reena and that she only had one daughter-in-law, Eleanor.[11]After Ruchi Dhir’s presentation, the Defendant was given an opportunity to speak. There is some dispute over whether she spent time in her address criticising the Church and the way that it had behaved towards her in the handling of the Dhirs’ complaint, but what is clear – and admitted by the Defendant – is that she said that, at the September meeting with the Dhirs at her home, “he [the Claimant] threatened to slit my throat”.[12]It is the publication of those words, to the assembled congregation of the Church, that has given rise to this claim.[13]Much time has been devoted, at the trial, to an analysis of what was said at this meeting, by whom and in what order. The Defendant complains that she was ambushed at the meeting and that the Church had denied her a fair opportunity of dealing with allegations that were made against her. Even more time was spent on a detailed scrutiny of the events running-up to the meeting. Little of this is of any assistance in resolving the issues that have to be decided, but these events form the backdrop to this meeting.[14]Ostensibly, this evidence has been advanced because the Defendant relies upon a defence of truth, and in consequence, I have to decide who is telling the truth about what took place at the September meeting. Five people were present during the meeting – the Claimant, the Defendant, Ruchi (for part) and Rishi. Eleanor Saddler joined part way through the meeting. They have all given evidence during the trial. Two accounts of this meeting have been advanced. One of those accounts is not true. I have to resolve which. There are no contemporaneous documents to shed light on which account is true. In consequence, each side has attacked the credibility of the opposing side’s witnesses and their account of the meeting. It is this issue of credibility that has propelled the parties far and wide in search of material to undermine the credibility of each other and the witnesses who have been called. I will deal below, when I come to deal with the defence of truth, with how much of this credibility evidence was ultimately of any assistance to me in resolving the issues of who is telling the truth about what took place at the September meeting.

The Proceedings

[15]A letter marked “letter before action” was sent by the Claimant to the Defendant on 6 August 2015. In it, the Claimant sought a retraction in writing from the Defendant of the allegation that he had threatened to slit her throat. He indicated that, if such a retraction was not forthcoming, he would pursue a case of slander against the Defendant.[16]The Defendant did not respond to that letter. The matter rested there until, on 15 July 2016, solicitors instructed by the Claimant wrote again to the Defendant to complain about what she was alleged to have said at the 19 July 2015 meeting of the Church. The solicitors sought from the Defendant a written apology, an undertaking that she would not repeat the allegation, compensation for the damage to the Claimant’s reputation and his legal costs. If there was a response to this letter, it has not featured at the trial.[17]Clearly mindful of the limitation period for defamation claims, on 14 July 2016, a Claim Form had been issued. It was not served on the Defendant until much later and Particulars of Claim were not served until around 8 November 2016. In his statement of case, the Claimant set out the words he alleged that the Defendant had spoken and contended that they meant that:
“(a) the claimant has criminal tendencies; (b) in particular, that he was given to threats of violence, and (c) specifically, murderous threats against the Defendant.”
[18]The Defendant dealt with the early stages of the litigation (and all the way to a couple of weeks before trial) acting in person, assisted by her son, Clyde, who has legal qualifications and experience. She filed her Defence on 8 December 2016. Perfectly candidly, the Defendant accepted that she had spoken the words attributed to her in the Particulars of Claim at the 19 July 2015 meeting at the Church. She maintained that “the natural and ordinary meaning of these words is that the Claimant threatened to slit [her] throat” and she relied, simply, on a defence of truth based on what she alleged had happened when the Dhirs had visited her home at the September meeting.[19]A Reply was served by the Claimant. He denied that it was true that he had made the alleged threats.[20]The Defendant instructed Counsel, John Samson, who represented her at the trial, about 2 weeks prior to trial. Upon being instructed, Mr Samson naturally reviewed the case and the pleadings. In the days before the trial, an application seeking permission to amend the Defence was issued. Apart from minor tidying-up, the amendments sought fell into three broad categories:(1) a revised defence of truth with particulars in support of the meaning “when crossed in family matters, the claimant is prone to anger, intimidating and bullying behaviour and making wild threats”;(2) a defence of qualified privilege; and(3) a denial that the publication complained of by the Claimant had caused or was likely to cause serious harm to his reputation (as required by s.1 Defamation Act 2013) and/or that, in all the circumstances, the Claimant could demonstrate no real or substantial tort and his claim should therefore be dismissed as an abuse of process under the principle recognised in Jameel –v- Dow Jonesand Co Inc [2005] QB 946.[21]The Claimant consented to the proposed amendments. Nevertheless, given the proximity of the trial date, I considered that the Court’s approval should be obtained for the amendments as there was at least a clear risk that the trial estimate of 3 days would be jeopardised by the widening of the issues in the proposed amendments.[22]Following argument on 6 November 2017 (the day before the trial was listed to commence), the amendments in categories(1) and(2) above were either abandoned or disallowed. I gave my reasons at the time. With the agreement of the parties, I went on to determine the actual meaning of the words spoken by the Defendant. For reasons given in a separate judgment, I ruled that the meaning of the words was:
“the Claimant had threatened to slit the throat of the Defendant.”
[23]The trial was thus able to commence on 7 November 2017 proceeding directly to the calling of evidence.

The Issues

[24]Having determined meaning before the trial commenced, the following issues require determination, logically in this[25]Ordinarily, the cause of action for slander requires proof of special damage caused by the publication. However, there are certain established categories of slander in which the claimant is relieved of this obligation. Relevant for this case is the well-established exception that words imputing to the claimant the commission of a criminal offence punishable by imprisonment are actionable per se: Webb –v- Bevan (1883) 11 QBD 609, 610 per Pollock B.

Submissions

[26]Mr Mitchell for the Claimant submits that this is an obvious case. The words impute that the Claimant has committed the offence of making a threat to kill. Section 16 of the Offences Against the Person Act 1861 provides:
“A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out, to kill that other or a third person shall be guilty of an offence and liable on conviction on indictment to imprisonment for a term not exceeding ten years.”
[27]He submits that a threat to slit someone’s throat is a colloquial expression that refers to a gruesome way to kill someone.[28]Mr Samson for the Defendant relies upon authorities that suggest that to say of someone that he has threatened or intends to do something in the future that is a criminal offence is not actionable per se. He has referred me to §4.8 in Gatley which states (omitting most footnote references):
“Words which merely impute an intention or inclination to commit a crime are not actionable without proof of special damage, for criminal intention does not amount to a crime. But to impute an attempt to commit an indictable crime is actionable without proof of special damage, for an attempt to commit an indictable crime is an offence punishable corporally. Thus where the words were ‘she would have cut her husband’s throat and did attempt to do it’, it was held that no action lay for the words, ‘she would have cut her husband’s throat’, but that an action was maintainable for the remaining words which charged an attempt (Scot –v- Hilliar (1611) Lane 98). A fortiori therefore it is not actionable to state an opinion that the claimant will commit a crime in the future or that he would commit a crime if the opportunity presented itself.”
[29]He also submits, relying upon the wording of s.16, that it is necessary for the Claimant to show that all of the ingredients of the offence have been made out.

Decision

[30]I am quite satisfied that the words “he threatened to slit my throat” impute the commission of the offence of making a threat to kill under s.16. That is an offence punishable by imprisonment and so the slander claim can be maintained by the Claimant without proof of special damage. My reasons for this conclusion are: i) The passage from Gatley does not assist the Defendant in this case. The s.16 offence is an offence of making a threat to kill. It does not require that the threat be carried out. If the threat had been “he threatened to steal my wallet”, then Mr Samson’s point would have been a good one. There is no offence of threatening to steal; the offence is only made out when the theft has taken place and therefore the statement is one as to future conduct and would not be actionable per se. However, with threats to kill, the offence is complete when the threat is made, providing that the prosecution establishes that the person charged intended that the other person would fear that the threat would be carried out. ii) I also reject Mr Samson’s second point; that the Claimant must establish all the elements of the offence. The authorities make clear that a slander can be actionable without proof of special damage even where the charge is one of general criminality, providing that, in context, the words impute some offence for which the claimant could be punished with imprisonment (see §4.7 Gatley): “The meaning of the words is to be gathered from the vulgar import, and not from any technical legal sense” (Colman –v- Godwin (1783) 3 Doug.K.B. 90, 91per Buller J). Here the meaning is quite clear. iii) Obviously, context is very important. “Words which prima facie impute a crime are not actionable without proof of special damage if it is clear from their context, or from facts stated by the speaker or known to the hearers, that they were in fact neither used nor understood to convey a criminal imputation” (§4.10 Gatley). There is no evidence of any surrounding context for the Defendant’s words that could lead to them to be understood in any way other than imputing the commission of the offence of making a threat to kill. Had the Defendant said, as context for her remark, that the Claimant had not been serious or had been joking, then the position might be different. But here, she reported the threat made by the Claimant in all seriousness. Certainly, there was nothing in the context of her statement that would have given the hearer any reason to doubt that the threat was made by the Claimant with full menace.

Extent of Publication

[31]Although relevant to damages (if that stage is reached), the extent of publication is potentially relevant to the issues of Serious Harm and Jameel Abuse.[32]The evidence as to the number of people who were in attendance at the Church when the Defendant’s words were spoken has varied widely. Although there are two versions of “minutes” of the meeting, neither includes any information about the number or identity of those who attended. i) The Claimant’s pleaded case was that there were present “approximately 300 to 400 members of the congregation” (the same estimate that had been given in the letter of claim dated 15 July 2016). ii) The Defendant’s pleaded case (in the Amended Defence) was that “no more than 70” were present. iii) The Claimant’s witnesses said the following: a) The Claimant did not put a figure on the attendance in his witness statement for trial. When cross-examined, it was put to the Claimant that it was not true that there were 300-400 people present. The Claimant responded that he could not count the people, but it was a “full-house”. He said that he could not comment on whether the figure was 70 people. b) Ms Tebbs-Ogutu did not give any estimate of attendance in her witness statement. When asked supplemental questions in examination-in-chief, she said that the capacity of the church (including the upper balcony) was around 500. When cross-examined she rejected the suggestion that the number present was below 70. She said that it was “definitely” above 70; “much above” 70. c) In her witness statement, Ruchi Dhir said that:
“… it was a full Church. It was quite intimidating as there must have been in excess of 100 people present… Literally every pew was filled”
. When cross-examined, she maintained her evidence that every pew was filled, but confirmed that she was not aware that there were pews in the balcony. d) Rishi Dhir put the figure as “several hundred” in his witness statement. He maintained this estimate when cross-examined and added:
“the Church was full because it was intimidating”. iv) The Defendant’s evidence was as follows: a) The Defendant stated in her witness statement that “no more than 70 members were in attendance”
. In examination-in-chief, she said that “it is a large Church”, which holds “a fair amount of people” (sic). Asked whether every pew was filled, she responded by saying that the 19 July 2015 meeting was a business meeting and not a service and not as many people came to business meetings. She estimated that there were between 60-70 people present, who were scattered around the pews. When cross-examined, it was put to her that the meeting was “particularly busy”. She replied:
“more than ever” and said that that was because the Pastor had called around. She denied that she had encouraged people to come to the meeting. b) Eleanor Saddler did not give a figure in her witness statement, but in examination-in-chief said that there “no more than 40 people”. c) Clyde Saddler did not give a figure in his witness statement. In examination-in-chief, he said that there were “50 members or so” at the beginning of the meeting. As I have noted above (paragraph 18), Clyde Saddler played a significant role in helping his mother draft her Defence. When cross-examined he said, referring to the number of publishees pleaded in the Defence, that he decided, “we will give them 70”
. But he claimed in evidence that it was “nowhere near” that. He said that if there had been 120 people present, then “you would have known and noticed that”. He said it was “40-50 more like”. In re-examination, asked how many were present at the end of the Defendant’s presentation to the meeting, he said it was around the “35—40 mark”.

Submissions

[33]Mr Samson on behalf of the Defendant submitted that the original 300-400 estimate was a dishonest exaggeration. Only Rishi Dhir’s evidence suggested that the attendance was of this sort of order. He submits that I should accept the lower estimates given by the Defendant’s witnesses.[34]In closing, Mr Mitchell did not urge me to find a particular figure for the attendance. Realistically, he did not press the pleaded case of 300-400. He invites me to accept the evidence of Ms Tebbs-Ogutu as someone who was(a) a member of the Board of the Church (and so more likely to be able to give a realistic estimate); and(b) independent of the parties.

Decision

[35]As I have set out, the evidence conflicts. For reasons I explain in more detail below, I have found some of the evidence of Eleanor Saddler to be unreliable. Both she and Clyde Saddler struck me as witnesses who were obviously clever and both seemed to me to have appreciated the potential importance of the decision as to the number of publishees. Having seen them give evidence, I gained the clear impression that they were seeking to minimise the number of people that were at the meeting rather than assisting the Court with their genuine recollection. Neither had previously given an estimate in their witness statement. Clyde Saddler’s use of the strange phrase, “we will give them 70”, satisfies me that the figure of “no more than 70” pleaded in the Defence was born more of expediency than a genuine effort to recall the number that were present at the meeting. On this point, I also regard as significant the evidence of the Defendant when cross-examined. I made a specific note at the time of her answer when she was asked whether the meeting was particularly busy. Her immediate response - “more than ever” – struck me as entirely genuine. It appears to me to be consistent with the thrust of Ms Tebbs-Ogutu’s evidence.[36]It is impossible to ascertain the precise figure, not least because the evidence suggests that some people left at points during the meeting. The best I can do is to make a reasonable estimate based on the evidence. I derive most assistance from the evidence of Ms Tebbs-Ogutu on this issue, largely for the reasons Mr Mitchell urged.[37]In my judgment, and on my assessment of the totality of the evidence, I am satisfied that the Claimant has demonstrated publication of the alleged slander to at least 90 people at the meeting. Recognising that the Claimant has the burden of proving publication, the figure I will settle upon is 90 people. As my decisions below on the issues of Serious Harm and Jameel Abuse do not depend upon a precise number of publishees, I am satisfied the figure is not ultimately likely to have a significant impact on the disposal of this claim.

Serious Harm

[38]The basic legal principles do not appear to be in dispute (or at least neither Counsel has sought to suggest that there is any dispute).[39]Under s.1 Defamation Act 2013, to succeed with any defamation claim (including slander) a claimant has to show that the publication of the statement complained of “has caused or is likely to cause serious harm to the reputation of the claimant”.[40]“Serious harm”, under s.1, is to be determined at the point of publication of the words complained of: Lachaux–v- Independent Print Limited [2017] EWCA Civ 1334 [67] and [82(2)]. The words “is likely to cause” are to be taken as “connoting a tendency to cause”: [50].[41]In Lachaux, Davis LJ stressed the importance of distinguishing between harm to reputation and the consequences of it (see [27], [32], [59] and [82(2)]).[42]If the objective meaning of the statement complained of is seriously defamatory, then an inference of serious harm can and should be drawn [70] [83(3)]. Once that threshold is reached, further evidence (as to reputational harm) will then be likely to be more relevant to quantum and any continuing dispute should ordinarily be left to trial [83(3)].[43]As to the sort of rebuttal evidence upon which a defendant might seek to rely at trial, Davis LJ said [79]:
“There may… be cases where the evidence shows that no serious reputational harm has been caused or is likely for reasons unrelated to the meaning conveyed by the defamatory statement complained of. One example could, for instance, perhaps be where the defendant considers that he has irrefutable evidence that the number of publishees was very limited, that there has been no grapevine percolation and that there is firm evidence that no-one thought any the less of the claimant by reason of the publication. Whether such evidence is in truth unanswerable … is then for the court to determine. Alternatively, if subsequent events or evidence show that there has ceased to be a "real and substantial tort" then a strike out application, in accordance with the principles of Jameel, may also be available…”
[44]The Judge’s scepticism that, in cases of publication of a seriously defamatory allegation, evidence could successfully be adduced to persuade the Court not to draw the inference is likely to reflect the reality in many cases. As I noted in Alsaifi –v- Trinity Mirror plc[2017] EWHC 2873 (QB) [95(iii)]:
“In mass media cases (where it is unlikely that the readers can be identified) it is almost impossible to advance evidence that publishees did not believe the allegation made against the claimant.”
[45]Where the publishees are identifiable, a defendant may have a more realistic prospect of displacing the inference of serious harm. For example, in Bode –v- Mundell[2016] EWHC 2533 (QB), Warby J found that the Defendant had, on the evidence, demonstrated that no serious harm to reputation had been caused by the publication of a limited circulation email. The Judge was satisfied that [56]:(1) there was no evidence of the Claimant’s reputation having been harmed in the eyes of the publishees; on the contrary(2) of those who had read the allegations, the evidence demonstrated that none of the publishees believed them.

Submissions

[46]The Claimant’s closing submissions did not deal with serious harm and dealt with the issue only in passing in his trial skeleton. I infer that is because it is thought that the seriousness of the allegation made by the Defendant means that the serious harm requirement is satisfied.[47]In his trial skeleton argument, Mr Samson, for the Defendant, submitted that:
“… the Claimant will be unable to establish that the publication of the alleged slander caused any harm, let alone serious harm, to his reputation. Publication was confined to a private gathering of the 70 or so people present at the disciplinary hearing on 19 July 2015 none of whom had any dealings or connection with the Claimant… It is not [alleged]… that the claimant has a close relationship with any of the publishees, or that their attitude to him is a matter of importance to his personal or professional life. Nor are any particular facts about their treatment of him alleged, such as ‘shunning or avoiding’ him.”
[48]Finally, it is submitted that, as the Claimant’s complaint against the Defendant was upheld at meetings that followed the alleged slander, that showed his reputation could not have been seriously damaged by the allegation made by the Defendant.

Decision

[49]I have already found that the statement made by the Defendant at the meeting meant “the Claimant had threatened to slit the throat of the Defendant” (see paragraph 22 above). That was to impute to the Claimant the commission of the criminal offence of making a threat to kill punishable, upon conviction, by imprisonment (see paragraph 30 above). The allegation was published to 90 people at the meeting of the Church on 19 July 2015 (see paragraph 37 above).[50]The seriousness of the allegation is one where I am quite satisfied that it raises an inference of serious reputational harm (as explained in Lachaux - see paragraph 42 above). Mr Samson does not challenge that. However, on behalf of the Defendant he does contend that the small scale of publication means that the Claimant cannot demonstrate serious harm. His submissions on this point were premised on a publication to 70 or so people, but his argument would apply equally to the figure of 90 that I have found.[51]In light of Davis LJ’s observation that serious harm might not be established where the defendant has “irrefutable evidence that the number of publishees was very limited” (paragraph 43 above), where stands the requirement for “serious harm” in slander cases? In a typical slander case, the number of publishees will (almost by definition) be very limited; most slanders are uttered to a small audience not to a crowd of tens of thousands in Wembley Stadium.[52]In the context of slander claims, a publication to 90 people might be regarded as pretty substantial, but measured against defamatory statements published in national broadcast or print media, publication on this scale is very limited.[53]When considering this question, it is interesting to note that Parliament did not overlook slander when it framed the Defamation Act 2013. Section 14 removed two categories of slander that were actionable without proof of special damage. Section 1 (and the rest of the Act) clearly applies equally to slander claims. So, Parliament must have envisaged that a slander was capable of causing serious harm to reputation (otherwise s.1 would have excluded the requirement for slander or slander might perhaps simply have been abolished altogether). Necessarily, therefore, Parliament must have thought that serious harm could be caused by the sort of very limited publication that would typically be found in most slander claims.[54]Whilst the issue of serious harm will always be highly fact specific, it does seem to me that this does rule out the simple proposition that a defamatory publication to, say, a handful of people is incapable of causing serious harm to reputation. In my view, the effect of Lachaux is that the requirement is to show serious harm caused to the reputation of the claimant in the eyes of the publishees; not damage to the claimant’s reputation in the eyes of people generally. If it were the latter, then almost every slander claim would not be actionable under s.1. For the reasons I have identified, that cannot have been the intention of Parliament.[55]In my judgment, the authorities demonstrate that it is the quality of the publishees not their quantity that is likely to determine the issue of serious harm in cases involving relatively small-scale publication. What matters is not the extent of publication, but to whom the words are published. A significant factor is likely to be whether the claimant is identified in the minds of the publishee(s) so that the allegation “sticks”. i) The oft-cited phrase (usually in the context of Jameel abuse applications) is that the assessment of harm of a defamatory publication has never been (simply) a “numbers game”, a phrase that appears to have been coined by Eady J in Mardas –v- New York Times Co[2009] EMLR 8 [15]. ii) A feature of the “sticking power” of a defamatory allegation that has potential relevance to the assessment of serious harm is the likelihood of percolation/repetition of the allegation beyond the original publishees (“the grapevine effect”) (Slipper –v- BBC [1991] 1 QB 283, 300per Bingham LJ). In Sloutsker –v- Romanova [2015] [2015] EWHC 545 (QB); [2015] 2 Costs LR 321, Warby J said [69]:
“… It has to be borne in mind that the assessment of whether there is a real and substantial tort is not a mere numbers game, and also that the reach of a defamatory imputation is not limited to the immediate readership. The gravity of the imputations complained of… is a relevant consideration when assessing whether the tort, if that is what it is, is real and substantial enough to justify the invocation of the English court's jurisdiction. The graver the imputation the more likely it is to spread, and to cause serious harm. It is beyond dispute that the imputations complained of are all extremely serious.” iii) Perhaps of most significance to slander claims is whether the defamatory words really connect with the claimant in the mind of the publishee. In Haji-Ioannou –v- Dixon & Others [2009] EWHC 178 (QB), Sharp J said [31]: “Publication of a libel or indeed a slander, to one person may be trivial in one context, but more serious than publication to many more in another. Much depends on the nature of the allegation, and the identity of the person about whom and the person or persons to whom it is made. To that extent, the decision in each case is ‘fact sensitive’…”
. It is one thing to be slandered (even seriously) in front of an unknown passer-by (e.g. in front of C, A says to B, “you stole that item from the shop”), it is quite another for a person to be slandered to his/her employer. In the first example, if the passer-by does not know the claimant, even though, in the circumstances, s/he has been sufficiently identified, then the harm caused to reputation will be limited because of the anonymity. Importantly, it would usually be impossible for there to be any grapevine effect, because the publishee cannot pass on the information in a way that has any damaging effect on the claimant. iv) But it has never been a requirement in the torts of either libel or slander for a publishee to know the claimant. At common law, the torts require publication of defamatory words that refer to the claimant. In the passer-by example, reference to the claimant is supplied by his/her presence and the fact that the remark is addressed to him/her by the defendant. If the claimant is identified by name in the publication, then (excluding very common names like ‘John Smith’ where more by way of identification might be needed) that will be sufficient reference to sustain a defamation claim. v) In Multigroup Bulgaria Holding AD –v- Oxford Analytica Ltd [2001] EMLR 28 [22], Eady J observed that it could not seriously be suggested that “under English law an individual human being has to surmount a preliminary hurdle in order to bring defamation proceedings by showing an established reputation”. Relying on this authority, the authors of Gatley summarise the law (correctly in my view) (§7.3) (footnote references omitted) in this way: “… Where the claimant is expressly identified by name, it is not necessary to produce evidence that anyone to whom the statement was published did identify the claimant. The question is not whether anyone did identify the claimant but whether persons who were acquainted with the claimant could identify him from the words used. Thus if a local newspaper in Cornwall publishes a false story to the effect that ‘John Smith of 24 Acacia Avenue, Carlisle, has been convicted of fraud’ that is actionable by John Smith even though no one who knew him read the story. However, where a common name and no more is included in an article, the name itself will not suffice to identify any individual who bears that name, though the context in which the name appears, coupled with the name may, however, do so.” vi) Reflecting the distinction between damage to reputation and the consequences of it (from Lachaux (see paragraph 41 above)), providing the words refer to the claimant, the fact that s/he is known to the publishees is relevant not to the assessment of the harm caused to his/her reputation by the publication, but the consequences of it. The prior knowledge may assist either the defendant (e.g. because of his knowledge of the claimant, the publishee disbelieves the allegation) or the claimant (e.g. the publishee acts on the publication to the claimant’s detriment).[56]If a defendant is unable to rebut the inference of serious harm, but contends that a claim should nevertheless be dismissed because it involves only a very small-scale publication, it seems from Lachaux that it is to the Jameel jurisdiction that the Court must turn. The issue is then whether the limited number of publishees (and the likely reputational harm occasioned by the publication) means that there has been no real and substantial tort or the cost of continued litigation is “out of all proportion” to what can be achieved: Jameel [69]-[70].[57]I turn therefore to consider the particular circumstances of the publication of the Defendant’s defamatory words at the meeting of the Church on 19 July 2015. It is quite clear from the Claimant’s presence at the meeting, its agenda and the context of the Defendant’s address, that all 90 people would have understood her words to have referred to the Claimant. For the reasons I have set out above (paragraph 55(iv) and (v)), the Defendant’s submission that “none of [the publishees] had any dealings or connection with the Claimant” is not relevant to the assessment of serious harm. It is correct that the Claimant has produced no evidence of any ‘shunning and avoiding’ but that sort of behaviour is a consequence of reputational harm. If a claimant can demonstrate ostracism from a community, that may be very good evidence (subject to proof of causation) that his reputation has been seriously harmed, but the absence of such evidence does not prove the opposite.[58]In terms of evidence that might displace the inference of serious reputation harm that arises from the gravity of the allegation, there is very little upon which the Defendant here can rely. She has not been able to put forward the sort of evidence that was determinative in Bode –v- Mundell. The Church could not provide a list of those who were in attendance at the meeting and who heard the alleged slander. In consequence, the Defendant could not identify the publishees so as to be able to embark on the exercise of attempting to establish (if she could) that no real harm had been caused to the reputation of the Claimant in their eyes. In fact, the Defendant has not obtained a witness statement from a single person who attended the meeting saying (for example) that s/he did not believe the allegation made against the Claimant. For the reasons explained above (see paragraphs 44-45 above), adopting this course only offers any real prospect of success if all (or at least a very large majority) of the publishees have been identified and give evidence displacing the inference of serious reputational harm.[59]There was some suggestion during the trial that there had been some laughter in the Church when the Defendant made her allegation about the Claimant’s threat to slit her throat. That there was laughter was put to both the Claimant and Clyde Saddler when giving evidence. Both denied it. Inherently, it does seem to me to be improbable that, in the context of this meeting, such an allegation would have provoked laughter. On the evidence, this point cannot rebut the inference of serious reputational harm. Had there been widespread laughter it might have provided a basis on which the Court could have been invited to infer that at least a significant number of the publishees did not take the allegation seriously, but the evidence does not demonstrate that there was any laughter at the meeting.[60]The final point relied upon by the Defendant is the fact that, following the 19 July 2015 meeting, the Church upheld the Dhir family’s complaints about the Defendant at a meeting on 16 August 2015. It is submitted that this shows that, at least those voting in favour at the 16 August 2015 found the complaint substantiated and therefore, it is said, they disbelieved the Defendant. This evidence is far too tenuous to provide a basis on which to conclude that, in fact, no serious harm had been caused to the Claimant’s reputation. I do not know(a) whether those who voted at the 16 August 2015 meeting were present at the 19 July 2015 meeting; and, even if they did;(b) whether a vote to uphold the Dhirs’ complaint demonstrates that they disbelieved the Defendant’s allegation. The basis of the Dhirs’ complaint was largely unconnected to the Claimant’s alleged threat. I do not have the evidence to resolve the point, but it seems to me that it would have been perfectly possible for a member voting at the 16 August 2015 meeting to have upheld the Dhirs’ complaint without necessarily disbelieving the allegation that the Claimant had made a threat to kill the Defendant.[61]In conclusion, I am quite satisfied, therefore, that the seriousness of the allegation and the circumstances of its publication are such that the Claimant has demonstrated that serious harm has been caused to his reputation.

Jameel Abuse

[62]The contention that the Claimant’s claim ought to be dismissed as being Jameelabusive was included in the Defendant’s trial skeleton; indeed, it was added specifically to the Amended Defence as a basis for resisting the Claimant’s claim. Furthermore, in the trial skeleton it was also alleged that the Claimant was abusing the process of the Court because, it was said, he was motivated, not by a desire for vindication, but for the collateral (and illegitimate) purpose of forcing an end to the relationship between Andrew Saddler and his daughter, Reena.[63]Neither of these bases for dismissing the Claimant’s claim as an abuse of process was pressed in the Defendant’s opening or closing submissions. The skeleton argument had been prepared before my ruling on the meaning of the words spoken by the Defendant at the meeting and the skeleton sought to advance a lower meaning of the words that reduced the seriousness of the allegation.[64]As the points have not been formally abandoned by the Defendant, I should deal with them shortly. i) Once the trial has been reached, a fortiori after it has been completed, it would be a pretty extraordinary case in which a Court would be likely to conclude that there is so little at stake that the further expenditure of resources on the action is out of all proportion. If that argument in not apparent and pursued before the trial begins, the resources to be incurred after the trial are likely to be so trivial (relatively speaking) that it would be almost perverse to refuse to adjudicate on the claim on the merits but instead to dismiss it as Jameel abusive. ii) In light of my findings as to meaning, publication and serious harm, I reject any suggestion that there was so little at stake in the claim that it could amount to an abuse of process. If the Claimant is successful with his claim, it would appear to me that vindication alone, particularly following a public trial at which a truth defence was steadfastly advanced, would weigh heavily against the contention that there was nothing of value at stake for the Claimant. This was a very serious allegation. Further, and in any event, the Defendant has adduced no evidence as to the scale of the costs of this action, so I have no basis even to begin to measure the suggestion of disproportionality. iii) Cases where the Court dismisses a defamation claim as an abuse of process because of some impermissible collateral purpose are rare. Strong evidence is required that a claimant is in reality seeking something beyond the protection and vindication of his reputation before the court could stay his action as an abuse of process (Goldsmith –v- Sperrings Ltd [1977] 1 WLR 478, 500 per Scarman LJ). The hurdle is very high. In Broxton –v- McClelland [1995] EMLR 485, 497-498 Simon Brown LJ extracted the following principles from earlier authorities:
“(1) Motive and intention as such are irrelevant…: the fact that a party who asserts a legal right is activated by feelings of personal animosity, vindictiveness or general antagonism towards his opponent is nothing to the point. As was said by Glass JA in Champtaloup –v- Thomas (1976) 2 NSWLR 264, 271 (see Rajski –v- Baynton (1990) 22 NSWLR 125 at p.134): ‘To impose the further requirement that the donee [of a legal right] must be actuated by a legitimate purpose, thus forcing a judicial trek through the quagmire of mixed motives would be, in my opinion, a dangerous and needless innovation.’ (2) Accordingly the institution of proceedings with an ulterior motive is not of itself enough to constitute an abuse: an action is only that if the Court's processes are being misused to achieve something not properly available to the plaintiff in the course of properly conducted proceedings. The cases appear to suggest two distinct categories of such misuse of process: (i) The achievement of a collateral advantage beyond the proper scope of the action - a classic instance was Grainger –v- Hill where the proceedings of which complaint was made had been designed quite improperly to secure for the claimants a ship's register to which they had no legitimate claim whatever. The difficulty in deciding where precisely falls the boundary of such impermissible collateral advantage is addressed in Bridge LJ's judgment in Goldsmith –v- Sperrings Limited at page 503 D/H. (ii) The conduct of the proceedings themselves not so as to vindicate a right but rather in a manner designed to cause the defendant problems of expense, harassment, commercial prejudice or the like beyond those ordinarily encountered in the course of properly conducted litigation. (3) Only in the most clear and obvious case will it be appropriate upon preliminary application to strike out proceedings as an abuse of process so as to prevent a plaintiff from bringing an apparently proper cause of action to trial.” ‘To impose the further requirement that the donee [of a legal right] must be actuated by a legitimate purpose, thus forcing a judicial trek through the quagmire of mixed motives would be, in my opinion, a dangerous and needless innovation.’ (i) The achievement of a collateral advantage beyond the proper scope of the action - a classic instance was Grainger –v- Hill where the proceedings of which complaint was made had been designed quite improperly to secure for the claimants a ship's register to which they had no legitimate claim whatever. The difficulty in deciding where precisely falls the boundary of such impermissible collateral advantage is addressed in Bridge LJ's judgment in Goldsmith –v- Sperrings Limited at page 503 D/H. (ii) The conduct of the proceedings themselves not so as to vindicate a right but rather in a manner designed to cause the defendant problems of expense, harassment, commercial prejudice or the like beyond those ordinarily encountered in the course of properly conducted litigation. (3) Only in the most clear and obvious case will it be appropriate upon preliminary application to strike out proceedings as an abuse of process so as to prevent a plaintiff from bringing an apparently proper cause of action to trial.”
[65]There is no basis on which I could properly conclude that this claim is being used by the Claimant, not for the purposes of vindication, but the impermissible collateral objective of, it is alleged, bringing to an end the relationship between the Claimant’s daughter and the Defendant’s son. I struggle to see how suing the Defendant (as Andrew Saddler’s mother) would be likely to achieve that objective in any event. The Defendant did not put forward any explanation or evidence as to how it might and no suggestion along these lines was made to the Claimant. Cross-examination on this subject was limited to the suggestion that the claim was “part of your campaign to end the relationship between Reena and Andrew”, which the Claimant rejected. In answer, he said that he was “here for one thing; my slandering (sic).”[66]I reject the suggestion (if it still be maintained) that this action was an abuse of process on either of the bases alleged.

Truth

[67]The Claimant’s skeleton is silent on the legal framework for a truth defence under s.2 Defamation Act 2013. Mr Samson submits: i) the common law principles that apply to the former defence of justification apply equally to the s.2 defence of truth; and ii) the Defendant has the burden of showing that the defamatory imputation is substantially true, and he refers to Eady J’s determination in Turcu –v- News Group Newspapers Ltd [2005] EWHC 799 (QB) [109] that ‘substantially true’ means that “the court should not be too literal in its approach or insist on proof of every detail where it is not essential to the sting.”[68]I accept those submissions accurately reflect the law. In some cases, the issue whether the defendant has proved the substantial truth of a defamatory imputation may give rise to fine points of judgment as to whether the defendant’s evidence is sufficient to demonstrate the truth of the imputation. This will be particularly the case where the defendant relies upon a number of instances said to demonstrate the relevant conduct. Here matters are stark. There is no room for argument about whether the Defendant has proved the imputation “substantially true”. On the facts of this case, the answer whether the Claimant threatened to slit the Defendant’s throat at the September meeting is binary; either he did, or he did not. There is no room for interpretation; no-one suggests that there is room for a finding that his words were misunderstood, that they were a joke or that witnesses have misremembered events or failed to appreciate the nuance of what the Claimant is alleged to have said. As I said at the outset (paragraph 14 above): one of the parties’ accounts of this meeting is not true; there is no room for mistake.

The evidence, parties’ submissions and decision on the facts

[69]In civil litigation, the court can, and usually does, order that a witness’s statement should stand as their evidence-in-chief. Given that it was clear that there was going to be a very substantial attack on the credibility of the accounts given by each of those present at the September meeting, I directed that the evidence of each witness on this topic was to be given orally in examination-in-chief. With hindsight, I am quite satisfied that this was the right decision because I have benefited greatly from seeing each giving his/her account.[70]In this review of the evidence I am only going to concentrate on the key issues and the evidence that helps me to resolve them.

(a) The Relationship between Reena and Andrew

[71]The root cause of this dispute is the relationship between Reena Dhir and Andrew Saddler. It is, I think, common ground that this relationship started in 2001. The relationship was ‘on-and-off’ at various points from that date. The Dhir family disapproved of this relationship. I do not need to go through the evidence in detail, but Ruchi thought that her sister’s relationship was “destructive” and Andrew was “predatory” and financially exploitative (see further her statement to the meeting in paragraph 9 above). For his part, Rishi thought that there was “emotional and financial abuse in the relationship” with his sister having spent “vast sums of money on holidays, gifts, bills and mortgages”. The Claimant himself said that he believed that it was “a relationship of grooming and financial exploitation of [his] daughter”.[72]For balance, and in fairness it is right for me immediately to refer to the evidence of Reena, who was a witness for the Defendant. She denied that the relationship was exploitative and in her witness statement she was clear and firm: “I am not brainwashed or groomed and cannot reiterate that enough. I am a 42-year-old woman, who has made some mistakes but learnt and believe me I am not a push over the way I am being made out to be… What my family think is happening in my life is untrue and it is so sad to see my father has let my younger siblings act in the way they have with a lack of respect for their sister”.[73]Andrew Saddler, complained in his witness statement that the Dhir family had “relentlessly sought to end [their] relationship.” When cross-examined, he denied that the relationship with Reena was exploitative.[74]Having seen Reena Dhir and Andrew Saddler give evidence, I very much doubt that Reena has been “brainwashed”. She was articulate, considered and firm in her evidence. It was clear when she gave evidence that she was very upset by her family’s behaviour, but she hoped that one day there could be some reconciliation. I need not (and should not) probe any further into the relationship between Reena and Andrew. Both are adults. The privacy of their relationship has been intruded upon far too much during this trial already. It is neither necessary nor appropriate for me to seek to resolve the serious allegations made by the Dhir family against Andrew (even if I could). It is a matter of regret (and as I warned during the trial potentially to be regretted by the Dhir family for years to come) that allegations about the nature of their relationship and Andrew’s behaviour have been pursued as vigorously as they have been in this trial when, as must have been appreciated, they could only ever have been (at best) peripherally relevant to the issues I have to decide.

(b) The immediate run-up to the September meeting

[75]The Defendant’s evidence was that she had not been expecting the Claimant and his son and daughter when they turned up at her house at the September 2014 meeting. She said that they were not invited into her home, and they had essentially entered as trespassers when she found them in her dining room. In support of this, she relied upon the fact that the meeting took place in the dining room which, the Defendant said, was not where she would have chosen to entertain invited guests.[76]The Claimant’s case (and evidence) is that the meeting with the Defendant had been pre-arranged the day before. Ruchi and Rishi Dhir said that they had arranged a meeting at Ms Tebbs-Ogutu’s house on Sunday 28 September 2014 to which both Eleanor and Reena were to attend as well. Reena was not aware that Eleanor was to be present. In her evidence, Ruchi said that, before Reena arrived, Eleanor had told her (Ruchi) that she would like to have a meeting the next day at the Defendant’s house with Andrew present. She said that Ms Tebbs-Ogutu had passed a message from the Defendant at this meeting that she did not approve of the relationship between Andrew and Reena.[77]Rishi gave a similar account. He said that when Reena arrived at the meeting and was introduced to Eleanor she was “obviously taken aback” but that she spoke calmly and said that she and Andrew were only back in touch “as friends”.[78]Eleanor Saddler did not mention the meeting on 28 September 2014 in her witness statement for trial. In examination-in-chief she confirmed that she had attended the meeting on 28 September 2014. She knew that the intention was that Reena would be brought to the meeting. She said she was really hurt to learn that her husband was cheating on her. At the time, she said, her interest was to understand “what was going on” and to see whether anything could be done to save her marriage. She said that a message was relayed at the meeting from the Defendant. The Defendant had been invited to the meeting by Ms Tebbs-Ogutu but she had said the Defendant would not attend without telling Andrew.[79]Eleanor was cross-examined about her failure to mention the 28 September 2014 meeting in her witness statement. She said that “these are things that [she] had blocked out of [her] memory”. I found that answer unconvincing.[80]Reena Dhir also did not deal with the 28 September 2014 meeting in her witness statement. However, it is plain to me from its terms that Reena wrote entirely her own statement (in the sense that it was not structured in a way to deal with evidence relevant to the dispute as it would have done had a solicitor assisted with its drafting). She was not asked about the meeting on 28 September 2014 in examination-in-chief. In cross-examination, she said that she was tricked into attending the meeting (that she was tricked was accepted by Ruchi and Rishi) and that it was the first time she had met Eleanor, although she knew that Andrew was married. She said she recalled no discussion about a meeting the following day.[81]In examination-in-chief, but not in her witness statement, the Defendant said that, possibly the day before the September meeting, Ms Tebbs-Ogutu had telephoned her and told her that Reena’s sister was planning a meeting at her house. The Defendant said that she was told that if she wanted to come to the meeting, she could, but that she should not say anything to Andrew. She denied sending any message via Ms Tebbs-Ogutu to the meeting. When cross-examined, the Defendant agreed that, at this time, her position was that Andrew should not have been in a relationship with Reena because he was married to Eleanor. Mr Mitchell asked her whether it was adultery, to which the Defendant replied: “it was what it was”.[82]Following that meeting, Reena spoke to Rishi and asked him to go around to her house. When he got there, a friend of Reena, Indy, was present. Unheard by Reena, Indy told Rishi that Reena had been in a relationship with Andrew since the beginning of the year, that she had taken him to Thailand and Dubai and that he was “financially abusing her and using her”. Rishi told Ruchi what he had learned. They agreed that they should inform their parents the following morning.[83]There was a meeting of the Dhir family the following day Monday 29 September 2014 (the day of the September meeting). At this meeting, Ruchi and Rishi told the Claimant and his wife that Reena had re-commenced her relationship with Andrew Saddler. The Claimant said that he was told by Ruchi that a meeting had been arranged with the Defendant and the Claimant asked if he could come along.[84]I consider the significance of the meeting on 28 September 2014 to be that it demonstrates that there was a concern about the relationship between Reena and Andrew prior to the September meeting the following day. I cannot resolve on the evidence whether the Defendant was aware of the plan that there should be a meeting the following day, but key participants of the September 2014 meeting (including Reena’s participation on the telephone) had met the day before - Reena, Ruchi, Rishi and Eleanor – and they had been discussing the relationship between Reena and Andrew. From the evidence, it is clear that, of those, Ruchi, Rishi and Eleanor, all wanted the relationship to end. So that is the context. Assessed against that, the failure of Eleanor Saddler’s witness statement to include any reference to the 28 September 2014 meeting in her witness statement is potentially significant. I will return to this point below.

(c) The September meeting

[85]The evidence of what took place at the September meeting from those who were present is as follows: The Claimant i) In his evidence, the Claimant said that he, Ruchi and Rishi were invited into the Defendant’s home. Ruchi then left and went in a car to collect Eleanor Saddler. Whilst she was gone, he said discussions were amicable and that he had stated to the Defendant that they (as parents) needed to help their children “out of the situation” (meaning their relationship). There was some chat, he said, about the Defendant’s other children and he looked at some of the Defendant’s photographs that were on the walls in the dining room. He said Rishi had talked to the Defendant about his work as an orthopaedic surgeon. ii) Ruchi returned after about 5 minutes with Eleanor. The Claimant said that discussions continued about the relationship between Andrew and Reena. He said that the Defendant had stated that she only regarded Eleanor as her daughter-in-law, Reena she looked upon as a “mistress” and she would not accept the relationship between her and Andrew. The Claimant said that it was the Dhir family’s preference that the relationship between Reena and Andrew should end. iii) The Claimant said that he expressed his concerns about Andrew’s alleged exploitation of Reena’s financial position and he said the Defendant had said she was not surprised. She was however, he said, surprised at the amounts involved (alleged to be £20,000 to £30,000). It was alleged that the Defendant had said that she had been “trying to get Andrew to live his life honestly”. Attempts were made, he said, by both the Defendant and Eleanor to get Andrew to attend the meeting, but he was said not to be available. iv) The Claimant said that he thought that he and the Defendant “were on the same page” as the Defendant appeared to want the marriage between Eleanor and Andrew to work. That appeared to be the desire of Eleanor too, so the Claimant thought all parties shared the same objective. The Claimant thought that it would help if the Defendant could speak to Reena on the telephone to make her positon clear. She did so, and the Claimant said that the Defendant had told her that she would not accept her (Reena) and that she only had one daughter-in-law, Eleanor. v) The meeting concluded, the Claimant said, with him and Rishi giving the Defendant their business cards and that there were hugs between those present. He said that the Defendant had agreed to discuss and resolve the matter with Andrew and Eleanor. Rishi Dhir vi) Rishi Dhir gave an account of the meeting largely in the same terms as his father, but with some further details. He said that after Eleanor had arrived at the meeting there was discussion about Andrew’s financial debt to Reena as a result of payment of Andrew’s and the Defendant’s mortgage. Rishi said that the Defendant had said that she had tried to teach Andrew ‘right from wrong’ and would help pay back any money owed. He said the meeting ended amicably with the Defendant telling him that she sometimes had joint pains and him responding that she could ring him for medical advice. Ruchi Dhir vii) At the commencement of her evidence, Ruchi Dhir told me that she had a conviction for insurance fraud and was currently subject to a suspended sentence order, which was due to end in March 2018. viii) She too gave an account of the September meeting that was largely in the same terms as her father. In cross-examination, Mr Samson highlighted the fact that certain passages of her witness statement were word-for-word the same as her brother’s witness statement. It was put (to both of them) that they had colluded in putting forward a (false) account. Both denied that. Having seen both give evidence, I am satisfied that these similarities are not as a result of improper collusion. If they were colluding, it would have been very foolish of them to produce statements that were so obviously the same in various sections because that would so easily have been discovered (as it was). It is, in my view, much more likely that the similarities arise because of the way in which witness statements are prepared in modern litigation. A solicitor takes the statement from the relevant witness and then draws it up for the approval of the witness. It appears to me much more likely that the solicitor who was responsible for this simply cut and paste sections of one statement into the other. If that is what happened, then it would demonstrate a rather lax and lazy approach (and one that risks undermining the credibility of the witness’s evidence at a trial), but it was not done for any nefarious purpose. I am quite satisfied that neither Ruchi nor Rishi Dhir would have allowed something that they did not think was the truth to appear in their witness statements. ix) When cross-examined, the Claimant, Ruchi and Rishi all denied that the Claimant had made any threat to kill the Defendant at the September meeting. The Defendant x) In her witness statement, the Defendant incorrectly stated that the September meeting was on 14 September 2014. It is not a material error; everyone is agreed that the meeting was on 29 September, and it is clear that the Defendant was in her statement talking about the September meeting. xi) The Defendant said that the Claimant, Ruchi and Rishi had arrived at her home asking to speak to her about her son, Andrew. She said that she told them that she would not do so without having talked to her son first. She asked them to wait outside while she went to try and telephone her son. When she returned to the front door, they were not there. She said that she was then surprised to find them standing in her dining room “quite uninvited”. The Defendant said that she again told the Dhirs that she would not discuss Andrew without having spoken to him first. Ruchi Dhir, she says, left saying that she was going to collect Eleanor, leaving the Defendant with the Claimant and Rishi. xii) In her witness statement, the Defendant said this:
“… the Claimant twice threatened to slit my throat, once in the presence of just Rishi Dhir, whilst Ruchi Dhir had gone to pick up Eleanor, and a second time when my daughter-in-law, Eleanor, and Ruchi Dhir were present. At the time when the Claimant made this second threat, Ruchi Dhir shouted, ‘Dad! Dad!’ and Rishi Dhir ushered his father out of my home…” xiii) There is a striking lack of detail about the context within which those threats were alleged to have been made; there is no explanation as to how (or why) the Claimant had come to make the threats. xiv) In examination-in-chief, she provided more information. She was asked to describe the meeting in her own words. My note of her answer is as follows: “I saw them in the dining room. I was surprised that they were in the dining room because I asked them to wait outside until I got Andrew. I was a bit shocked. I did not expect them to be in the room. For a couple of minutes, I did not say anything. I asked them why they were in the house. I did not want any confrontation. They came into the house and I did not want to confront them as there was three of them. I did not invite them into the house. After that, I said to them that I couldn’t get Andrew and I didn’t think I could talk about the situation, and as I mentioned Andrew’s name, [the Claimant] said, I don’t want him at my house. I don’t want him as my son-in-law, he’s no good. I said, “let us pray” to calm things down. I prayed and when I finished [the Claimant] started walking around the room looking at the photos. [Ruchi] said that she was going to get Ellie. I said to her. Why are you doing that? She picked up her phone and she went… As she left the room, [the Claimant] kept looking at the photos. There is a column where most of the graduation photos are and he looked at them and he kept looking at them. He said, “where is he, where is he?”
I said, “who?”. He said, “Andrew”. I pointed up to another row. “There he is”; there was a picture of him standing next to Obama, and [the Claimant] said, “why is a nobody standing like that standing next to someone like that. Who does he think he is? I don’t want him as a son-in-law.” I said:
“You cannot have Andrew as a son-in-law as he is married to Ellie. I promised her mum that I would look after her.”
Then [the Claimant] said:
“You better look after her or I’ll slit your throat.” [The Claimant] then went back to his seat. I stayed where I was. Ruchi and Ellie came back and Ruchi went to where she had been sitting before. Ellie came in with her. Ellie was beside me, next to [Ruchi]… [When Ruchi returned] her dad was talking about Reena and how she had been with Andrew for 14 years. I said, “now Andrew is married she should have some self-esteem.” ... Ruchi said, “if I phone Reena would you talk to her and tell her to get some self-esteem because she may listen to you.”
So, she phoned Reena and I spoke to Reena more a less telling her that this is what they were saying and asking whether she was having a relationship with Andrew. At first, she said that they were friends. I said that her sister had said that there is a relationship and she said, “yes”. I said that I could not condone or sanction the relationship because he was married. I asked whether she knew if Andrew was married and she said she did… After the telephone call, [the Claimant] was still adamant that he did not want Andrew to be his son-in-law and that he was no good. He had nothing. Again, he said, “I don’t want him as my son-in-law”. Again, I said you cannot have him because he is married to Ellie. [The Claimant] got more worked up. Without any warning, he just flipped at me. Leant towards me. “You better look after her, or I’ll slit your throat.” His daughter said, “Dad! Dad!” and his son moved him away from me. They went outside. First to the hallway and as they were going out he said, “here’s a card. Phone me when you are ready to talk.” I took the card. I didn’t look at it… I thought it was quite arrogant to behave like that and then to give me a card and say when you are ready call me. That was it. As far as I remember.” xv) I have set that out in its entirety because (a) it is the heart of the defence of truth; and (b) because it makes the lack of detail in the original witness statement all the more striking. xvi) Mr Samson asked the Defendant why she did not call the police about the incident. She said:
“He just got worked up and could not control himself and flipped and that was what I thought: he just flipped. I don’t think he would have slit my throat. He could not control his emotion after he had worked himself up.” xvii) Mr Samson asked the Defendant whether she told anyone in her family about the incident. She said: “No. I didn’t think that they needed to know… I normally let things drop. I wouldn’t have said anything to them.” xviii) She told Mr Samson that she had not used the term “mistress” to describe Reena. She said that to her the term mistress is used as a form of respectful address: “Good morning, mistress Bell”
. The term she said she would use for an adulteress was “concubine”. xix) When cross-examined, the Defendant accepted that she had not raised the alarm with the two workmen who were present at her house and nor had she telephoned the police although she accepted she could have done. She denied that there was any discussion about money. She accepted that when Ruchi returned with Eleanor, she did not mention to Eleanor that she had been threatened and that when she spoke to Reena on the telephone she had not mentioned it to her either. She agreed that after the meeting was finished she did not tell anyone what had happened. She said that she did not know how Andrew would have got to find out about it. xx) When asked about the gesture the Claimant had made of drawing his finger across his throat, she said the first time he made the threat he drew his finger over his own throat. On the second occasion, he drew his finger over her throat. She said he got up and walked around the table to do that. Eleanor Saddler xxi) In her witness statement, Eleanor said that she received a telephone call at home asking her to attend a meeting with her mother-in-law and members of the Dhir family to discuss issues relevant to her marriage. She said that she was picked up by Ruchi and taken to the meeting. She outlined the discussions and then said this:
“During the discussion, [the Claimant] stated that should Andrew and myself divorce, and Andrew wanted to marry Reena, he would take them to wherever they wanted to get married and then he would cut Reena out of the family. Rishi at this point said words to the effect that they are Indians and they could take Reena to India, take away her passport and make her disappear. As the meeting was nearing its end, [the Claimant] said to my mother-in-law, “you had better look after her (referring to me), if you don’t I will (he placed his finger on his throat and motioned a cutting action)”
. Ms Ruchi Dhir tried to stop him from finishing the sentence and then they all left.” xxii) When giving evidence-in-chief, she said this after having described where each person was in the room when she arrived (again I will set out my full note of her description of the September meeting):
“We sat down. [The Claimant] was talking about Andrew and Reena’s relationship saying that he was not happy and that he would not accept Andrew as his son-in-law; how Andrew and Reena had been in a relationship before Andrew and I were married. At the beginning, he seemed okay. But over time he got agitated. He was looking at me striking his hand. “If Andrew and Reena decided to get married. I would take them to the registry office myself and then I would disown her.”
Rishi joined in. “We are Indians we could take her away to India and make her disappear.” A lot of the talking was done by [the Claimant]. [The Defendant] said that Andrew cannot be his son-in law. [The Defendant] said, “he is already married to Ellie. If you are saying that your daughter has been in a relationship for so long where is her self-esteem.” That is when Ruchi said, “would you be happy to repeat that to Reena?”. Ruchi rang Reena. [The Defendant] repeated what she said. She said that she would not accept her as her as her daughter-in-law and that she did not condone the relationship. That was the end of the phone call. At that point, [the Claimant] said, “you need to look after your daughter-in-law, she is a nice girl. If you don’t look after her…” then he motioned. He was getting ready to leave, that was my assessment. He was getting his coat on to go. He and Rishi got to the door. All of us were going out. [The Claimant] hugged me at the door and then everyone went out. They went in their car and I walked home to my house.” xxiii) When cross-examined, she confirmed that the Claimant had not spoken any words threatening to slit the Defendant’s throat; he had just gestured. Mr Mitchell put it to Eleanor that she did not do anything once she had seen the gesture and neither did she discuss the event with the Defendant after the meeting. Eleanor agreed to both points.

(d) Events after the September meeting

[86]I shall set out now further evidence that was adduced during the trial that sheds light on which account of the September meeting is true. i) The first time that anything appears to have been mentioned about the threats alleged to have been made by the Claimant at the September meeting was in a telephone call from Reena to Ruchi on 25 January 2015 (almost 4 months later). In her witness statement, Ruchi says that she received a call from her sister who told her that she had spoken to Andrew and he had said that the Claimant was in danger. The reason given was that, during the September meeting, the Claimant had made a death threat to the Defendant. She said that Reena said to her that she should “silence [her] father as [he] was in danger as he should not have said those things to [the Defendant].” ii) Reena did not mention this telephone call in her witness statement. When cross-examined about the call described by her sister, she accepted that there had been a call, but denied that she had told Ruchi that their father was in danger. She said that she had found out about the threat on that day when she was told by Andrew. She had telephoned Ruchi to ask whether their father had done what was alleged. iii) In his witness statement, Andrew Saddler did not mention when he had first learned about the alleged threat to his mother by the Claimant or from whom. When cross-examined, he denied that he had told Reena that her father was in danger. He said that he had told her, simply, that there had been a threat to kill his mother. Mr Mitchell asked Andrew Saddler who was it that had told him about the threat. Mr Saddler said that he could not remember. Mr Mitchell asked him whether it was not a matter of considerable upset that the Claimant had twice threatened his mother. Mr Saddler agreed that it was, but pressed again he said he could not remember who had told him. He accepted that the police had not been informed of the incident and said that the Defendant “did not want any trouble. Nothing more was going to be said about it as I understood it.” iv) What happened next is of some importance. Having learned about the alleged threats made by her father, Ruchi Dhir sent a text message, on 25 January 2015 to Eleanor. The full exchange is (“the Text Messages”): Ruchi: Hi. Have you confirmed to Andrew that there was no threat made to your mother-in-law and I have never apologised to you for my father? Eleanor: I’ve confirmed that you have never apologised to me, that’s what you asked of me. Ruchi: There was no threats made to your mother in law. Please confirm this to both of them. You were there and it was an amicable meeting. Eleanor: I have said I do not remember any threats, I’ve told Andrew that... v) Eleanor did not mention the Text Messages in her witness statement. Asked about them in examination-in-chief, she gave what I regard as a highly implausible account. She started off by saying that she could see what the text messages said (which I infer was a way of acknowledging that they appeared to contradict her account that the Claimant had made a threat). She then began a very long purported explanation, the thrust of which was as follows:(1) she had learned that the Church had received a complaint (from the Dhirs);(2) Ruchi had been asking questions about Andrew’s car and his movements that had concerned her and led her to fear for him;(3) there had been a telephone call between her and Ruchi in which Ruchi alleged that Eleanor’s “gangster husband” (i.e. Andrew) had been making threats to her father. Ruchi had been irate. Eleanor told her to calm down or she would put the phone down. Ruchi did not calm down, so Eleanor terminated the call; and(4) it was after that call that she sent the text. vi) That explanation did not, in fact, provide any reason for why she would have sent a text saying that she could recall no threats when (on her evidence) she knew a threat had been made. Perhaps recognising this, she sought then to expand her explanation and (from my note) said this, speaking about the telephone call immediately prior to the text message exchange:
“She was angry and kept asking questions. I felt quite intimidated. I just wanted to be rid of her. My concern was that I wanted to speak [to the Defendant] to find out about the threat. She does not usually say. If something is bothering her she does not say unless it is really getting to her. I was thinking, ‘let me give her a call to find out how she is’”
. She then turned to attempt to give what appeared to me to be an explanation of why the Defendant had not reported the threat to anyone. Referring to the September meeting she said:
“… I perceived [the Claimant] as agitated and angry based on what was being discussed. It looked like he was not making progress. I saw he was angry. I did not think any more about [the threat]. [The Defendant] did not mention it afterwards. So, I thought ‘okay, maybe it wasn’t such a big deal’, the way she had reacted to what he had said. She seemed okay at the time. I remembered the words but I had not considered it a serious threat because [the Defendant] didn’t” vii) The explanation did not improve in cross-examination. She accepted that, in the text message, she had told Ruchi that she did not recall any threats. When asked why she had not told Ruchi that a threat had been made, this was my note of her answer: “I have explained. The background was that there had been a very irate phone call prior to this message being exchanged. I had just learned about the threat at the time. I didn’t want to talk to Ruchi again because she was rude and intimidating. Although I remember the gesturing [of the Claimant]. He was someone who had gone from being relatively calm… My perception of what he had said or done I put it down to him getting worked up.” viii) In examination-in-chief, Eleanor suggested that she needed to speak to the Defendant “to find out about the threat” and in cross-examination she appears to have said that she had “just learned about the threat”
. But on her account, she had witnessed it herself and so there would be no need to ask the Defendant about it. ix) None of this provides any credible explanation for why she told Ruchi that she did not recall any threats if (on her evidence) she had witnessed one.[87]The Defendant relies on two incidents involving the Claimant which she says demonstrates that he is a man who is capable of making a death threat when he is angry.[88]The first is an incident that took place at Reena Dhir’s flat in March 2015 (“the Flat Incident”). The Claimant and his wife had come around to the flat unannounced. The Claimant let himself in with a key. Reena Dhir said in her evidence that she did not know that he had a key. The Claimant maintained, repeatedly in his evidence that it was “his flat” and that he paid for it. Whether that is right or not, it is plain that the flat was Reena’s home and he entered uninvited. When they entered, both the Claimant and his wife fell to the ground. There is a dispute on the evidence, which I do not need to resolve, as to whether they stumbled and fell (as Andrew and Reena say in their evidence) or whether they were pushed to the ground (and the Claimant then kicked) (which is the Claimant’s account). What happened next, however, was recorded on Andrew Saddler’s phone. I have watched the footage a number of times. It is plain that the Claimant is very angry. There is shouting between those present. The Claimant can be clearly seen grabbing at and pulling Reena’s hair. Andrew Saddler tells him to stop it. The Claimant then retreats, with his wife, into the kitchen. Andrew Saddler holds the door shut and tells Reena to leave the flat.[89]When the Claimant was cross-examined about the incident, he initially denied that he had pulled his daughter’s hair, saying (ridiculously) that her hair had “come into his hand”. Without accepting any responsibility for essentially assaulting his daughter, he maintained that he had been kicked, that it was his flat and complained about being “locked” in the kitchen.[90]When Andrew Saddler was cross-examined, astonishingly, it was put to him that when he was holding the kitchen door shut he had struck Reena. This allegation was unheralded in the evidence. I asked on what evidence this allegation was being put to Mr Saddler. Mr Mitchell told me that it was the evidence of the video recording itself. That was a plainly inadequate basis. There was nothing in the video recording that showed that Mr Saddler had struck Reena. I gave Mr Saddler the opportunity to watch the video recording and to tell me what was happening when he was holding the door to the kitchen shut and had been alleged to have struck Reena. The sound that Mr Mitchell (or the Claimant) had decided was a slap or punch delivered to Reena was, Mr Saddler explained, his putting the phone between his teeth so both of his hands were free. I accept that explanation. The putting, on such a plainly inadequate basis, of an allegation of what (if true) would have amounted to domestic violence was completely unacceptable. The allegation should never have been made.[91]The second incident was on 26 April 2016 (“the Car Incident”). On that day, an employee of the Claimant, Ayesha Hussain, visited Andrew Saddler at his shop. She gave evidence at the trial for the Claimant. Mr Saddler alleged in his witness statement that she entered his shop and threatened him. In her evidence, Ms Hussain said that she was ashamed of what she had done and said, but that she had done it off her own bat, not at the behest of the Claimant. The circumstances in which Ms Hussain came to be in the shop (she had been driven to the locality by the Claimant and another employee, Lucas, was also in the car) lead me to doubt that claim, but I do not need to resolve that issue because there is again footage recorded by Andrew Saddler of what happened shortly afterwards. Mr Saddler went after Ms Hussain when she left the shop and followed her to the Claimant’s car in which he found the Claimant. An argument then ensues with a large amount of shouting. At one point, the Claimant says this to Mr Saddler:
“Do you know something? I might end up somewhere, but you won’t live any more”
. Mr Saddler responds (repeating the Claimant’s words back to him):
“You won’t live? If something happens to me it will happen to you? Don’t come here threatening me”
. The Claimant replies: “You’re fucking living with [a] Malawian girl. You’re cheating I’m gonna…” and then he is interrupted as the police arrive.[92]Leaving aside whether Ms Hussain was also his emissary, Mr Samson relies upon this as an incident of the Claimant himself threatening violence towards Andrew Saddler. The threat made in the Car Incident is of a different order to that alleged to have been made at the meeting. This was in the thick of a heated argument between the two men. Nevertheless, Mr Samson relies on both incidents as support for the submission that the Claimant is capable of using violence and, when provoked and/or angry, of making serious threats of violence.[93]Many other allegations and counter-allegations have been traded in the course of the trial or raised in the evidence. I will not refer to them as they do not assist me in resolving the key issues.

Decision

[94]I have come to the firm conclusion that the Defendant has not proved that the Claimant made a threat to kill at the September meeting. Indeed, I have come to the positive conclusion that he did not. My reasons for this conclusion are: i) I am satisfied that the Text Messages show the true position. Eleanor Saddler was present at the September meeting at least to witness whether the second alleged threat was made. My conclusion is that when she told Ruchi that she did not recall any threats, she was telling the truth. I reject Eleanor Saddler’s attempt to explain otherwise in her evidence as dissembling. ii) I regard the Saddler family’s response to the alleged threats as demonstrating that there were no such threats: a) It is not credible that, had the threats that the Defendant alleges were made at the September meeting by the Claimant actually been made, the Defendant would not have mentioned or discussed it at all following the meeting with her family. On her case, three members of the Dhir family had essentially barged their way into her home and the Claimant had made two threats – apparently seriously – to slit her throat. On the Defendant’s account that was a shocking incident of some moment. b) Leaving aside that it is the Defendant’s evidence that she did not tell anyone about the threats, it is not credible that Andrew Saddler cannot recall when or from whom he learned about the threats to kill that had been made against his mother by the Claimant. The making of a threat to kill is not a trivial matter the detail of which is quickly lost to memory. Had such a threat been made, it must be a near certainty that upon learning about it (if not from his mother), Andrew Saddler would have immediately contacted her and to find out what had happened. That is not the sort of thing a person forgets. c) Substantially the same points can be made about the response of Eleanor Saddler. On her evidence, she was a witness to one of the threats to kill. She says that she did not discuss that with the Defendant (or apparently anyone else). That is simply not credible. If she had witnessed the threat she would have told her husband, Andrew. Both he and she would be able to recall clearly when this happened and what they did with the information. d) By the end of January 2015, however, Andrew Saddler was clearly in possession of the information about the alleged death threats. Even then, he still did nothing about it (apart from, on Ruchi Dhir’s evidence, sending a message via Reena that their father was in danger). In his witness statement, Andrew Saddler said:
“over the last 3 years (i.e. dating back to July 2014), I have suffered constant/persistent harassment and abuse from the Dhir family particularly [the Claimant] along with his employees to the point that I have had to involve the police on a number of occasions”
. The Car Incident, for example, led to Mr Saddler making a complaint of harassment to the police. The idea that, had he received information that his mother had been twice threatened with having her throat slit by the Claimant, he would not have reported this immediately to the police is simply not credible. iii) The Defendant’s evidence of what happened at the meeting is not credible. a) On her account, despite the fact that three members of the Dhir family had made their way, uninvited, into her home, she did not ask them to leave. Even making allowance for the fact that she might have been too anxious to ask them to do so on her own, there were workmen present in or near her home upon whom she could have called for assistance. Certainly, after Eleanor had arrived, there was nothing to stop her from demanding that the Dhir family should leave. On the Defendant’s version of events, the first threat was made, then Eleanor arrived, the Defendant did not mention anything to Eleanor, did not ask the Dhirs to leave, and continued the meeting. It is simply beyond belief that a person who had been seriously threatened with having their throat slit would countenance continuing a meeting with the person who made that threat. b) The account the Defendant gives of how the Claimant came to make the threat during the meeting is implausible. It was also presented, for the first time at the trial and not in her witness statement. The threat itself apparently came out of nowhere, and does not make any sense. Why would the Claimant threaten to slit the Defendant’s throat if she did not look after Eleanor? On the Defendant’s account, the Claimant was angry and making demands that the relationship between Andrew and Reena should come to an end. If he was going to make a threat to kill to achieve that objective, there was nothing to stop him from making that perfectly clear, for example by telling the Defendant that he would slit her throat if she did not put an end to the relationship. iv) In contrast, the Claimant’s account of the meeting is coherent and, importantly, supported by the events that immediately precede it. The Dhir family had held meetings prior to the September meeting the consistent theme of which was their effort to bring an end to the relationship between Reena and Andrew. The September meeting was simply the next in the series of those meetings and the Claimant’s account of it is entirely consistent with what was plainly the object of those meetings. v) In terms of witnesses, I found the evidence of Ruchi and Rishi Dhir to be consistent and credible. I have rejected the suggestion that they have colluded. Although Ruchi does have a conviction for serious dishonesty, this has not affected my view of her credibility. There is nothing similar in relation to Rishi Dhir upon which the Defendant can point to to attempt to undermine his credibility. He is an orthopaedic surgeon. If he were to be found to have lied to a court, that would likely be career ending. Why would he risk that and lie? If his father had made the threats alleged, in my view he (and Ruchi) almost certainly would have done everything they could to prevent the Claimant embarking on this litigation. vi) I have asked myself the same question – why lie? – in relation to the Defendant and Eleanor, the two other people present at the September meeting. I have no clear answer to that question in their case. It has been suggested by the Claimant that the reason was to try and divert attention away from the Dhirs’ complaint to the Church about the Saddler family or to deter the Dhirs from continuing with it. I am not persuaded by that argument. If that was the objective, it was a pretty extraordinary way to try and achieve it. I therefore have to leave unresolved the question of why the Defendant made this false allegation against the Claimant. As juries in criminal trials are reminded, people who lie may do so for many reasons. Not all of those reasons may make sense to an objective observer. I do not need to find a reason why the Defendant has lied; I simply need to be satisfied on the evidence that she has. For the reasons I have given, I am. vii) Had I been more uncertain about the evidence, and reliant to a much greater degree on my assessment of the veracity of the Claimant’s evidence, the evidence relating to the Flat and Car Incidents might have had some (limited) weight. For the reasons I have explained, I have arrived at the conclusions I have without having to place much reliance upon the Claimant’s own evidence. I have accepted his evidence of what took place at the September meeting, but the support for doing so comes mainly from elsewhere in the evidence.

Damages

[95]Neither Counsel has referred me to any authorities on the general approach to be adopted when assessing damages in defamation cases. Some reference has been made to individual cases, and I will refer to those below.[96]The relevant principles are helpfully gathered together by Warby J in Barron –v- Vines [2016] EWHC 1226 (QB): [20] The general principles were reviewed and re-stated by the Court of Appeal in John –v- MGN Ltd [1997] QB 586… Sir Thomas Bingham MR summarised the key principles at pages 607 – 608 in the following words:
"The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must [1] compensate him for the damage to his reputation; [2] vindicate his good name; and [3] take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation the most important factor is [a] the gravity of the libel; the more closely it touches the plaintiff's personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. [b] The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. [c] A successful plaintiff may properly look to an award of damages to vindicate his reputation: but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that [d] compensatory damages may and should compensate for additional injury caused to the plaintiff's feelings by the defendant's conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way. Although the plaintiff has been referred to as "he" all this of course applies to women just as much as men." [21] I have added the numbering in this passage, which identifies the three distinct functions performed by an award of damages for libel. I have added the lettering also to identify, for ease of reference, the factors listed by Sir Thomas Bingham. Some additional points may be made which are relevant in this case: (1) The initial measure of damages is the amount that would restore the claimant to the position he would have enjoyed had he not been defamed: Steel and Morris –v- United Kingdom (2004) 41 EHRR [37], [45]. (2) The existence and scale of any harm to reputation may be established by evidence or inferred. Often, the process is one of inference, but evidence that tends to show that as a matter of fact a person was shunned, avoided, or taunted will be relevant. So may evidence that a person was treated as well or better by others after the libel than before it. (3) The impact of a libel on a person's reputation can be affected by: a) Their role in society. The libel of Esther Rantzen [Rantzen –v- Mirror Group Newspapers (1986) Ltd and Others [1994] QB 670]was more damaging because she was a prominent child protection campaigner. b) The extent to which the publisher(s) of the defamatory imputation are authoritative and credible. The person making the allegations may be someone apparently well-placed to know the facts, or they may appear to be an unreliable source. c) The identities of the publishees. Publication of a libel to family, friends or work colleagues may be more harmful and hurtful than if it is circulated amongst strangers. On the other hand, those close to a claimant may have knowledge or viewpoints that make them less likely to believe what is alleged. d) The propensity of defamatory statements to percolate through underground channels and contaminate hidden springs, a problem made worse by the internet and social networking sites, particularly for claimants in the public eye: C –v- MGN Ltd (reported with Cairns –v- Modi at [2013] 1 WLR 1051) [27]. (4) It is often said that damages may be aggravated if the defendant acts maliciously. The harm for which compensation would be due in that event is injury to feelings. (5) A person who has been libelled is compensated only for injury to the reputation they actually had at the time of publication. If it is shown that the person already had a bad reputation in the relevant sector of their life, that will reduce the harm, and therefore moderate any damages. But it is not permissible to seek, in mitigation of damages, to prove specific acts of misconduct by the claimant, or rumours or reports to the effect that he has done the things alleged in the libel complained of: Scott –v- Sampson (1882) QBD 491, on which I will expand a little. Attempts to achieve this may aggravate damages, in line with factor (d) in Sir Thomas Bingham's list. (6) Factors other than bad reputation that may moderate or mitigate damages, on some of which I will also elaborate below, include the following: a) "
Directly relevant background context" within the meaning of Burstein –v- Times Newspapers Ltd [2001] 1 WLR 579 and subsequent authorities. This may qualify the rules at (5) above. b) Publications by others to the same effect as the libel complained of if (but only if) the claimants have sued over these in another defamation claim, or if it is necessary to consider them in order to isolate the damage caused by the publication complained of. c) An offer of amends pursuant to the Defamation Act 1996. d) A reasoned judgment, though the impact of this will vary according to the facts and nature of the case. (7) In arriving at a figure it is proper to have regard to (a) Jury awards approved by the Court of Appeal: Rantzen 694, John, 612; (b) the scale of damages awarded in personal injury actions: John, 615; (c) previous awards by a judge sitting without a jury: see John 608. (8) Any award needs to be no more than is justified by the legitimate aim of protecting reputation, necessary in a democratic society in pursuit of that aim, and proportionate to that need: Rantzen... This limit is nowadays statutory, via the Human Rights Act 1998.”[97]I shall gratefully adopt that summary of the law.

Submissions

[98]The Claimant’s trial skeleton referred me to only one authority on the issue of damages: Woodward –v- Grice [2017] EWHC 1292 (QB). In that case, King J awarded £18,000 (£8,000 of which were aggravated damages) for a website publication “read by at most 100s of people rather than 1000s” [53] making a false allegation against a solicitor that he had been struck off. There was no plea of truth (or any other defence) advanced and the Defendant had published an apology (albeit the Judge found rather late in the day). I am not clear what principle is sought to be derived from this case (and nothing more was said of it in the Claimant’s closing submissions). I have not found it of assistance.[99]In his trial skeleton, Mr Samson submitted the following: i) the award of damages should be nominal: Wallis –v- Valentine [2003] EMLR 8; ii) the Claimant’s behaviour is relevant on the issue of damages. If a claimant behaves badly, “as for instance by provoking the defendant, or defaming him in return”(Broome –v- Cassell & Co Ltd [1972] AC 1027, 1071g) damages could be reduced; iii) wholly disreputable conduct in the course of litigation is of the “utmost relevance” to the assessment of damages: Campbell –v- News Group Newspapers Ltd [2002] EMLR 43; iv) the Defendant can rely on the circumstances of the wider dispute as, he submits, “tending to show the disposition of the Claimant” as directly relevant context in which the slander came to be published: Burstein –v- Times Newspapers Ltd [2001] 1 WLR 579; and v) the Defendant can rely in mitigation of damages on the Flat and Car Incidents relying upon Pamplin –v- Express Newspapers [1988] 1 WLR 116, 120.[100]Mr Mitchell did not address the issue of damages in his closing submissions. Mr Samson submitted that the audience that heard the slander was small and included a number of members of the Defendant’s family. He suggested that there would also have been people who would not have believed the allegation made by the Defendant. He submitted that “in reality, this case is nothing to do with vindication”. His principal plank of mitigation, however, is the conduct of the Claimant, which (relying on the above authorities) he submits should substantially reduce any award of damages.[101]Neither Counsel has referred to any personal injury awards as possible comparators. In his closing submissions, Mr Mitchell relied upon the awards of damages in Houston –v- Smith (unreported, Court of Appeal, 16 December 1993) and Cairns –v- Modi. i) Houston was a slander case involving an allegation, spoken in a doctors’ waiting room, suggesting that the claimant had sexually harassed another doctor and members of staff. A similar statement was made the following day by the defendant. There was no apology and the defendant relied upon and persisted with a limited plea of justification. The jury awarded £150,000. On appeal, the sum was reduced to £50,000 (equivalent Mr Mitchell submits to an award today of over £110,000). Hirst LJ held that the award was “at the very top of the range for a slander of this kind”. It was only appropriate because of the “very grave and exceptional aggravating factors… Had the slander remained within the confines of the waiting room… the appropriate sum would have been a very small fraction of £50,000.” ii) The Claimant in Cairns was an international cricketer alleged, in some tweets, to be involved in match-fixing. No apology was published and a full defence of justification was advanced at trial. The original tweets had been published to around 100 people (although there had been some repetition to around 1,000 people). The Judge awarded £90,000 (equivalent, it is submitted, to an award today of nearly £105,000) of which £15,000 was aggravated damages for the way the defendant had conducted the case. An appeal against the award was dismissed.

Decision

[102]I deal first with the harm to the Claimant’s reputation. At the 19 July 2015 meeting, the Defendant made a very serious allegation against the Claimant. If true, he could have faced prosecution for the offence of making a threat to kill. It was published to 90 people. I can, and do, infer from that that the allegation has caused serious harm to the Claimant’s reputation in the eyes of many of those who were present. The Defendant may well have appeared to be authoritative to the publishees when she recounted what she alleged the Defendant had done at the September meeting. Certainly, she would have appeared to have been someone with direct knowledge of what had happened. There is some evidence that might suggest that at least one publishee may not have taken the Defendant’s allegation at face value. In his witness statement, the Claimant said that, immediately after the Defendant had made her allegation at the Church, he “started to rise from [his] seat to object but [a] member of the church behind me put his hand on my shoulder and told me not to worry… and said she is always ‘going on like this’”. I bear that in mind, but I have no evidence on which to determine whether this view was taken by others in the congregation.[103]The seriousness of the allegation meant that it would be likely to have a significant ‘sticking power’ in people’s memories. I should therefore make some allowance for the propensity of the ‘grapevine effect’ when assessing the harm to reputation (see paragraph 55(ii) above). Against that, it is right to note (and take into account) that the Claimant has adduced very little evidence of actual reputational harm (whether caused by the direct publication to those at the Church or by any ‘grapevine effect’). In his witness statement, the Claimant referred to an employee of his, Alfonso, who was not present at the Church when the slander was uttered, but who had heard about it from others. That is tangible evidence of the ‘grapevine effect’ in operation. Apart from this, there is no other evidence of the Claimant having to deal with the allegation when it is raised by someone subsequently, and he does not suggest that he has been shunned or avoided in his daily life. That does not mean such reputational damage has not occurred, but it means that the scale of that damage is not as great as it sometimes can be.[104]The Claimant was present at the meeting. That seems to me to be relevant for two reasons. First, he would have been identified (or at least identifiable) to all present. Second, it must have been acutely embarrassing and upsetting for the Claimant to witness the attack on his reputation. The first is relevant to the damage to the Claimant’s reputation. The second is relevant to the impact on the Claimant’s feelings, to which I now turn.[105]In his witness statement the Claimant said this about the impact on him:
“I was very upset by the allegations made by [the Defendant]. I am a very calm person and I was worried that her allegations would damage my reputation in the community. My business obtains employees from the very area in which a lot of the congregation live and indeed one of my staff members is a member of the Church… Whilst I would hope that many people may not believe the allegations to be true, I worry that some people may believe the false allegations made by [the Defendant]. This has not only been tremendously traumatic for me personally since my intention in contacting her was always resolution and she has used this to attack me. It is also extremely detrimental to my business which is part of the local community and upon which my family and staff rely. It does not make recruitment or retention of staff any easier. And will not until these false allegations are formally retracted.”
[106]There is no evidence of the slander being detrimental to the Claimant’s business, whether in terms of recruitment or retention of staff or otherwise. The Claimant can legitimately rely on the anxiety that his fears that the slander would have this effect, which comes out clearly from this passage. The Claimant referred in his evidence to his having a number of health problems. He does not suggest that these have been caused by the slander, but he says that “the stress of this does not assist my health”. On this point, it was clear to me that the Claimant did find giving evidence at the trial physically taxing and he had to make repeated use of an inhaler.[107]Malice is not pleaded, either in the Particulars of Claim or the Reply. However, a claimant is entitled to rely upon the way that the defendant has conducted the case. Here, the most significant aggravating factor is the persistence in a plea of truth in answer to the claim. The Claimant must inevitably have known that her allegation was false, yet she has maintained it all the way to and through a public trial. This has an impact on the assessment of damages (see factor 2(c) from John – paragraph 96 above): first, because it aggravates the stress and hurt feelings that a claimant inevitably feels in confronting serious allegations of wrongdoing that are maintained in the face of his/her denials; second, it also underlines the need for vindication.[108]In some defamation cases a defendant is willing to retract an allegation and to apologise. There, the role played by (and need for) a substantial award of damages in providing the element of vindication is diminished. Sometimes, the Court’s judgment can provide an element of vindication. How much it does is likely to vary case by case, but a court judgment is unlikely to prove a wholly effective means of vindication, simply because few people read court judgments. In Cairns –v- Modi Lord Judge CJ explained the part played by these factors in fixing the appropriate sum in damages [32]:
“…[I]t cannot be right in principle for a defendant to embark on a wholesale attack on the character of a claimant in a libel action heard by a judge without having to face the consequences of the actual and potential damage done to the victim both in the forensic process and as a result of further publicity. There will be occasions when the judgment will provide sufficient vindication, but whether it does so is always a fact-specific question. The judge will be well placed to assess whether the terms of the judgment do indeed provide sufficient vindication in the overall context of the case. In the present case, we think it unlikely that cricket fans will have downloaded the judgment of Bean J and read it with close attention. It is more likely, as in so many cases, that the general public (or rather, interested ‘bystanders’ who need to be convinced) will be concerned to discover what might be called the ‘headline’ result. What most people want to know, and that includes those who read the judgment closely, as Mr Caldecott submitted, is simply ‘how much did he get?’”
[109]In that way, the Court’s award of damages serves as “an outward and visible sign of vindication”: Cleese –v- Clark [2004] EMLR 3 [37] per Eady J.Where the allegation made against the claimant is very serious that sign must be unambiguous. A claimant should be able to “point to a sum awarded by [the court] sufficient to convince a by-stander of the baselessness of the charge”: Broome –v- Cassel & Co Ltd1071 per Lord Hailsham.[110]Some libel trials attract significant media attention and coverage. This has the effect of bringing the defamatory allegation made against the claimant to a much wider audience. In such cases, the need for vindication is increased, but equally a significant vindicatory element may be likely to be provided, if the claimant is successful, by media reports of the judgment. These are all factors that will vary on a case by case basis. In this case, I am not aware of any media reports of the trial.[111]I turn to consider the factors relied upon by Mr Samson to reduce the award. I reject, without hesitation, the suggestion that the award of damages should be nominal. Not only does that not begin to recognise the serious reputational harm that the Defendant’s very grave allegation will have caused, it would also send out completely the wrong message. The notional bystander identified by Lord Judge CJ, when told that a claimant has been awarded, say, 10p in damages for a seriously defamatory allegation, might very well reach the conclusion that the Court thought that there was ‘something in it’. I have found that the Claimant did not make the threat to kill that was alleged by the Defendant (or anything similar). For the reasons identified above (paragraph 109), the award of damages I make must be sufficient to satisfy any bystander that there was, in fact, ‘nothing in it’.[112]There can be no real suggestion that the slander was provoked by the Claimant, or that it was part of some tit-for-tat exchange.[113]I will deal with Mr Samson’s two final submissions (see paragraph 99(iv) and (v) above) together.[114]Is the Defendant entitled to rely on these incidents in mitigation of the damages award? The starting point is the rule in Scott –v- Samson (see Barron –v- Vines [21(5)] paragraph 96 above) and Plato Films –v- Speidel [1961] AC 1090. Had the Defendant sought to plead these two incidents in mitigation of damages, then I should very much have doubted that they would have been permitted. However, there is a long-standing exception to this rule recognised in Pamplin –v- Express Newspapers, in which Neill LJ said the following (at 120):
“[A] defendant is also entitled to rely in mitigation of damages on any other evidence which is properly before the court and jury. This other evidence can include evidence which has been primarily directed to, for example, a plea of justification or fair comment.”
[115]As is clear, this principle was recognised in the context of jury trial. In effect, it allowed a defendant to rely upon such facts as he was able to prove in his (failed) defence of justification or fair comment to reduce the damages. In practice, this allowed a defendant to rely upon evidence which, had it been advanced purely as mitigation of damages, would likely have been excluded. It might be thought that this principle was premised on practicality rather than principle (but c.f. Turner [46]below); how was a jury supposed to exclude from its consideration evidence that they had heard during the trial if they rejected the plea of justification/fair comment?[116]Nevertheless, the Pamplinprinciple has been applied recently and to non-jury cases (see Cruddas –v- Calvert & Others [2015] EMLR 16 [135]-[138], although Cruddas was an example of partial justification). In Turner –v- News Group Newspapers Ltd[2006] 1 WLR 3469, Keene LJ considered both Pamplin and Burstein as bases for reliance upon other ‘misconduct’ of a claimant to reduce damages: [42] … [I]t needs to be borne in mind that the principle of Scott –v- Sampson has never, before or since, been absolute. There have always been important exceptions or limitations to it, and to some extent these were reflected in Lord Denning's speech in Speidel's case. The essence of the principle remains, as May LJ stressed in Burstein's case, that generally a claimant cannot be subjected to a roving inquiry into aspects of his life unconnected with the subject matter of the defamatory publication and specific evidence relating to such aspects cannot be called in mitigation of damage. That was the gist of the majority judgments in Speidel's case, in so far as they dealt with general principles. [43] But once one is dealing with matters which are directly relevant to the subject matter of the libel, even though they do not establish the truth of the defamatory words, the position has long been different. Perhaps the most obvious is the admission of evidence put before the jury on a plea of justification or fair comment which ultimately fails. It has long been established that evidence of specific acts properly admitted on such a plea may none the less be taken into account by the jury when assessing damages even though the plea has failed. This goes back to the early 19th century (see Chalmers –v- Shackell (1834) 6 C & P 475) and has been accepted in other common law jurisdictions for many years, as can be seen in Sutter –v- Brown 1926 AD 172. But it is also well recognised in modern English law. Perhaps the best known example is to be found in this court's decision in Pamplin –v- Express Newspapers Ltd (Note) [1988] 1 WLR 116. [44] That was a case where the defendant pleaded, inter alia, a defence of justification and called evidence in support thereof. On damages, the trial judge directed the jury that they could take into account, in mitigation of damages, evidence of specific acts of misconduct put before them by the defendant as part of the unsuccessful defence of justification. That direction was upheld on appeal. Neill LJ summarised the principle laid down in Scott –v- Sampson, but then added, at p 120:
“So much for evidence which is directed solely to establishing the plaintiff's previous bad reputation. But a defendant is also entitled to rely in mitigation of damages on any other evidence which is properly before the court and jury. This other evidence can include evidence which has been primarily directed to, for example, a plea of justification or fair comment.”
The other two members of the court adopted a similar approach. [45] That case was followed in another Court of Appeal decision, Jones –v- Pollard [1997] EMLR 233. There again the defendants had pleaded justification and called evidence to support that plea. At the close of evidence, the bulk of the particulars of justification were struck out by the trial judge. It was none the less held by this court that the jury had been entitled to take into account, when assessing damages, the evidence put before them concerning the particulars of justification eventually struck out, so long as the evidence related to “the relevant sector of the plaintiff's life”: see pp. 251, 252, per Hirst LJ. [46] It is, of course, important to recognise that such evidence is restricted to that which can “properly” go before a jury in support of a plea of justification or fair comment. With that in mind, one is bound then to seek to discern the principle which lies behind these decisions that such evidence can be taken into account in mitigation of damages if the defence fails. Patently it cannot be based upon the assumption that the jury would in any event be unable in practice to ignore such evidence. It is a fundamental proposition of English law that juries, when directed to ignore evidence which they have heard, will faithfully do so, a proposition which operates as much in the criminal context as it does in the civil, and where any doubts as to its validity would have far-reaching consequences. One must therefore seek some other rationale. It seems to me that it must lie in the fact that such evidence, “properly” admitted on a plea of justification or fair comment, is likely to have some direct bearing on the subject matter of the libel, even though it falls short of establishing such a defence. It may be that this court in Burstein was seeking to formulate a principle which provided the rationale for this well-established practice.”[117]I am rather sceptical as to the confidence expressed by the Judge about the ability of a jury to put out of their mind irrelevant material at the direction of the trial judge. That may be realistic for the sorts of slips that happen from time to time in criminal trials, but I am highly doubtful that a jury could have been expected to exclude entirely from their consideration evidence that may well have represented a substantial part of the defendant’s case in a libel trial. Likewise, a jury in a criminal trial could scarcely be expected faithfully to disregard the evidence of one or more prosecution witnesses who, ex hypothesi, have given damaging evidence against the defendant that is later ruled to be inadmissible. In Speidel (at 1143), Lord Denning said (in a slightly different context, but the point is the same):
“It is not good for the law that a judge admit a ‘roving’ cross-examination to credit and then go on to tell the jury to ignore it when they come to assess damages, knowing that it is an impossible thing to ask them to do. Better not to have it introduced at all.”
[118]Nevertheless, Turner does provide clear authority (in the passages underlined) for the admission, in mitigation of damages, of evidence of acts of misconduct of the claimant in the relevant sector of his reputation. There is an issue as to what evidence “properly” before the Court can be relied upon. Keene LJ (in [46]) appears to limit the admissibility to evidence that was before the court on (failed) plea of justification or fair comment. With respect, I think the principle was wider than that. In Pamplin,Neill LJ stated the principle as applying to any evidence properly before the jury which could include evidence advanced in support of a justification or fair comment defence (see paragraph 114 above). It was not limited to evidence in these categories.[119]In this case, the evidence of the Flat and Car Incidents was admitted on the issue of the Claimant’s credibility and his propensity to act (or threaten to act) in a violent manner. The usual rule on issues of credit is that if the claimant denies what is put to him in cross-examination, no further evidence can be called to rebut the denials. But if he admits the conduct alleged, then that becomes evidence in the case. Proper case management, the need to avoid mini-trials on a myriad of peripheral issues and to prevent “a roving inquiry” will mean that the Court will keep cross-examination on credit to what is necessary to deal with the case justly. Here, as both incidents were recorded (and the footage available), there was little dispute as to what it showed. The other “credibility” evidence that was adduced at trial was either disputed or it is irrelevant and I ignore that when considering the factors that reduce the award of damages.[120]The conduct of the Claimant in the Flat Incident and the Car Incident clearly reflects badly on him. They indicate that he has in the past resorted to violence (to his own daughter) or the threat of violence to Andrew Saddler. This conduct is in the same sector of his reputation as the allegation made by the Defendant. As I have noted above (paragraph 105), the Claimant described himself in his evidence as a “very calm person”. The purpose of that was to lead evidence of his good reputation and/or his upset at the falsity of what had been alleged against him. The Flat and Car Incidents show that he has the capacity, perhaps when angered and/or provoked, to be anything but calm.[121]In principle, relying on Pamplinand Turner, it seems to me that the Defendant can rely on this evidence and I should have regard to it when fixing the appropriate sum in damages.[122]Balancing these competing factors, I have decided that the appropriate and proportionate sum to award in damages is £35,000.

order

i) whether the publication complained of was actionable per se (i.e. without proof of special damage), or, put another way and on the facts of this case, whether the Claimant can show that the claim is in respect of an imputation that he had committed a criminal offence punishable by imprisonment (“Actionable per se”); ii) the number of people to whom the words complained of had been published (“Extent of Publication”); iii) whether the Claimant can demonstrate that the publication of the words spoken by the Defendant “has caused or is likely to cause serious harm to [his] reputation” (s. 1 Defamation Act 2013) (“Serious Harm”); iv) whether the claim is an abuse of process under Jameel (“Jameel Abuse”); v) whether the Defendant could demonstrate “that the imputation conveyed by the statement complained of [was] substantially true” (s.2 Defamation Act 2013) (“Truth”); and vi) (if the Claimant succeeds on liability) the appropriate sum to award by way of compensation (“Damages”). Actionable per se

Cited in 32 later judgments

and 23 more of the most senior