Manleys ranked as Top Tier Law firm

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Manleys have been ranked in tier 1 in Media and Entertainment, with Mark Manley being praised as ‘exceptionally strong’ and managing partner Leanne Wheeler is commended as ‘very thorough and insightful’.

“The specialist media practice has an extensive celebrity and media industry client base across the UK and also acts for a growing number of high-profile politicians and public figures. It is acting for Professor Mundell in the defence of a defamation case and is advising ex Joy Division and New Order bassist Peter Hook on a derivative claim by Vitalturn that holds all the rights to the New Order trademark and to the band’s back catalogue.”

The firm has further been ranked in Commercial Litigation, Intellectual Property, Reputation Management, and Electoral Law.

The ‘tremendously helpful’ and ‘fully committed’ team provides ‘a superb service’ and ‘handles complex issues with ease and speed’

On an individual basis, many of the team were acknowledged for their excellent work.

Mark Manley has been recognised for his work in both reputation management and commercial litigation by being ranked as a Leading Individual in both areas.

Special mentions and recommendations went out to consultants Nama Zarroug, and James Roochove. Partner; Leanne Wheeler, and Senior Associate; Katie Mickleburgh were also recognised as recommended Lawyers for the outstanding work they have done at Manleys.

Mark Manley mediation practice Mediata was also commended, Mark ‘achieves outcomes, relying on his experience to deploy every trick in the book’.

Manleys Solicitors fields a team of ‘hardworking lawyers that are genuinely committed to each case. The team is always conscious of keeping costs down and of advising on the most effective course of action for the clients to take.’

By Georgia Quinn

 

Manleys prepare to “Rock the House”

Manleys Solicitors are proud to be sponsoring Parliament’s two largest creative competitions, Rock the House and Film the House.

Rock Film House

The Parliamentary competitions seek to raise awareness of the importance of protecting intellectual property rights with politicians and the general public.

Musicians and filmmakers are urged to enter material to their local MP, who then nominate one entrant for each competition. These are then judged by industry experts at a “battle of the bands event”. The winner of Rock The House will play a live set for industry executives, label representatives and national press at the Houses of Parliament. Other prizes include studio time and cutting edge equipment.

bands

Queen Guitarist and music legend Brian May, a patron of Rock the House, said “The UK is a hotbed of musical talent from all genres, and if the British music industry is going to grow and thrive then musicians need to be able to make a living from selling their product. This competition gives all musicians, from all backgrounds the chance to get out there and make live music – one of the thing Brits do best”.

Other patrons include Alice Cooper, Rick Wakeman (Yes), Ricky Warwick (Thin Lizzy) and Gus Wood (Young Guns)!

James Roochove, a solicitor at Manleys, said “We are delighted to be supporting these events, which showcase the great creative talent there is across the country. Given our specialism in media and IP law, we are very aware of the importance of intellectual property rights, and raising awareness with politicians and aspiring musicians & film makers is a fantastic idea which we are thrilled to support”.

To find out more, please go to http://rockthehouseuk.com/endorsements.html or http://filmthehouse.com/prizes.html 

Rock-The-House-Poster

Press contact:

Jessica Baker                                     Tel: 01244 230002

E: jessica.baker@manleys-law.com

Manleys Solicitors                               Tel: 01244 230000

DON’T FORGET THE RIGHT TO BE FORGOTTEN!

With the ever-increasing growth of the internet there is a higher risk that information published about individuals can be false, misleading, out-dated or defamatory.

In 2010 a Spanish citizen lodged a complaint to the National Data Protection Agency against a Spanish newspaper, Google Spain and Google Inc. because when searching his name an auction notice of his repossessed home, created nearly 12 years previously, would appear at the top of the search results. The proceedings concerning the repossession had been fully resolved soon after the notice was created. Therefore, the Spanish citizen argued the reference was irrelevant, out-dated and was an infringement of his privacy rights. He requested that the newspaper remove or alter the pages in question (to omit his personal data) and that Google Spain & Inc. prevent the personal data appearing in search results.

The matter proceeded to the Spanish Courts and was subsequently referred to the Court of Justice of the European Union (CJEU) to answer a number of questions, but most importantly:

“Whether an individual has the right to request that his or her personal data be removed from accessibility via a search engine”

On 13th May 2014, the CJEU in its judgment stated that individuals have the right, under certain circumstances, to ask search engines to remove links with personal information about them. This would apply when information is inaccurate, inadequate, irrelevant or excessive for the purposes of the data processing.

The right to be forgotten is not absolute and will always be balanced against other fundamental rights, such as Article 10 of the Human Rights Act 1998 (the freedom of expression). As such, each request is assessed on its merits and much will be taken into account e.g. the sensitivity of the information concerned, the interest of the public having access to the information etc.

Until recently, if an individual made a successful request to Google, from the UK for example, then the URL would be removed from all European versions of Google Search (google.de, google.fr, google.co.uk etc.) simultaneously. However, from 14th March 2016 any successful request will cause the URL to be delisted from all Google Search domains, including google.com, when accessed from the country of the person requesting the removal.

By example, say Google delist a URL as a result of a request from Joe Bloggs in the United Kingdom. Users in the UK would not see the URL in search results for queries containing Joe Bloggs when searching on any Google Search domain. However, users outside of the EU (or users within the EU using a non-European Google Search domain) would still be able to see the URL on search results.

This is a further step towards protecting the privacy of individuals within their country of residence. Should an individual move to a different country within the EU, a further request could always be made to delist the URL on all Google Search domains accessed from that country.

It is also worth acknowledging that should an individual be successful in getting a website link removed from a search engine, this does not remove the webpage itself. In order to get the page removed the website host should be contacted in first instance.

Taking action against a website host can be costly, time-consuming and complex. Therefore, it might be a suitable alternative to make a request to the relevant search engines to delist the URL(s). This will not permanently remove the webpage as stated above, but will certainly mitigate any future damage.

Need assistance delisting a URL from a search engine?

Contact Sandy Burrows – sandy.burrows@manleys-law.com


Sandy Burrows | Trainee Solicitor

DEFAMATORY CAMPAIGN: PRE-ACTION DISCLOSURE ALLOWED AFTER ISSUING CLAIM

Anglia Research Ltd & another v Finders Genealogists Ltd & another [2016] EWHC 297 (QB)  

The case featured two commercial rivals who specialised in the highly competitive business of ‘heir hunting’. Such business consists of tracing the heirs to unclaimed estates which would otherwise be assigned to the Crown. Once they have traced the deceased’s descendant the ‘heir hunter’ enters into an agreement with the living descendant to secure the estate for a commission (usually a percentage of the recovered estate).

From July 2014, an anonymous Twitter campaign was pursued against the Claimant Company and its directors, Peter Turvey and his son Philip Turvey. In each incident the Claimants were referred to under the disparaging name ‘Purvey’. Following a Norwich Pharmacal disclosure application the information indicated that the Twitter accounts had been created by an employee of the Defendant Company.

The Claimant Company also provided services in probate and administration to realise the assets of the unclaimed estate. It had in the past become involved in removing squatters from a property in Charlton and the Claimants were made aware that one of the squatters had published defamatory material on the petition website Change.org.

Defamatory Postings / Comments

After further Norwich Pharmacal applications by the Claimant, it came to light that the principal of the Defendant Company was responsible for pseudonymous postings on the ‘Which?’ website (that provided a link to the defamatory petition and a defamatory post on Change.org’s own website). There was also a similar posting on moneysavingexpert.com linking the Claimant to the defamatory petition which may have been made by an alleged agent of the Defendants.

On 31st July 2015, the Claimants served a letter before action on the Defendants and they responded on the 14th August 2015. The Defendants admitted the creation of the above postings, but denied that the posts gave rise to actionable claims. They also stated that they had “little interest in adopting aliases to refer to the Claimants online and do not intend to do so in future”.

On 26th August 2015, an employee of the Defendant Company sent an email to a prospective client of the Claimants attaching a PDF file containing much of the defamatory Change.org petition (which by then had been taken down from the internet).

Evidence was later exhibited to the Claimants’ witness statement of an alleged incident during June/July 2015 when a client moved from the Defendant Company to the Claimant Company. An employee of the Defendant Company said she would send the client a “package” containing evidence of the Claimants’ wrongdoings and shoddy work (though no such package was ever sent).

Commencement of Proceedings & Judgement

The Claimants issued the Claim Form on 27th November 2015 (a day before the expiry of the one-year limitation period applicable to defamation claims) in respect of a publication made on 28th November 2014. The Claimants soon after made an application for pre-action disclosure as they were not aware of the full extent of the defamatory campaign by the Defendants. The Claim Form had not actually been served, but copies were provided for the purpose of the disclosure application. Such application had dual purpose: to determine the extent of damage caused in relation to the ‘known about’ incidents and any other defamatory postings / comments made in order to support proposed causes of action on a second Claim Form.

HHJ Moloney QC stated that:

“In defamation, each separate publication even of the same document may be regarded as a separate cause of action. The defamation claims in the two actions clearly relate to distinct causes of action for which separate proceedings might properly be issued. Though it is likely they would in due course be consolidated or tried together, that does not render separate Claim Forms an abuse of process”

After consideration of the jurisdictional requirements under CPR 31.16(3) HHJ Moloney confirmed that the following 3 requirements were met: the parties to the application are likely to be parties to subsequent proceedings; the documents sought would be disclosable in this action by way of standard disclosure; and pre-action disclosure of the documents is desirable to assist in the dispute being resolved without (enduring) proceedings & to save costs.

He ultimately determined the following:

“The Defendants already know whether they have the material sought through disclosure, and if so what it reveals. The Claimants do not. Once both sides are on an equal footing in this respect then:

  1. The Claimants will know whether and in what terms to bring their case;
  2. Both sides will be in a position to engage in informed and realistic pre-action negotiation;
  3. The interests of fair disposal and costs-saving will be advanced.

The present state of uncertainty puts all those desirable outcomes at risk”.

This case raises interesting arguments in relation to defamatory campaigns. Claimants are more likely to be successful in obtaining pre-action disclosure (even if they have actually commenced proceedings) if they can show a pattern of behaviour by the Defendant(s) and an ‘uneven footing’ in relation to the limited information provided.


Sandy Burrows | Trainee Solicitor

Bring back the Superinjunction

Prurient curiosity, the price of fame and the case of the (no longer) “private” threesome.

In PJS v News Group Newspapers ([2016] EWCA Civ 100) timagehe Court of Appeal (Jackson LJ and King LJ) was originally faced with an application by a married celebrity who, with the blessing of his spouse, engaged in a threesome outside of his wedding vows. The Court of Appeal decided he could keep this private having  overturned the first instance judgment of Cranston J who refused an (on notice) application for an injunction to prevent The Sun on Sunday publishing the kiss-and-tell story of one of the participants in the ménage-a-trois.

Battered by an unprecedented press campaign (largely The Sun, The Sun on Sunday and Daily Mail) the Court of Appeal this week finally wilted to cries of “its a farce” and said the injunction should be lifted. Jackson LJ was clearly persuaded that the injunction was now futile given the publication of the identity of PJS via several routes (publications abroad and in Scotland) the internet, social media, bloggers.

Accepting the submissions for The Sun that 2 billion people in the World knew who the injunction was about he appeared resigned  that an Order made in the Court of Appeal had been crippled.

This demonstrates that:

  1. The law has not kept pace with either technology, combined with enforcement of orders between jurisdictions with different laws, and,
  2. The courts in the UK need to take some very stiff action in similar future applications to demonstrate its real ability to ensure that the Rule of Law is not thwarted by mob rule. One of those measures (but there are others – see below) is to return to granting superinjunctions.  If ever there was a fantastic advertisement for the return of the superinjunction the PJS case is it.

The injunction downturn after the outing of Ryan Giggs

The courts have been less troubled with privacy injunctions since MP John Hemming decided to use (or abuse?) Parliamentary privilege for the purpose of “outing” Ryan Giggs despite a High Court Judge ruling that Giggs’ injunction should remain in place.  He wasn’t on his own of course – lots of people on Twitter had done the same.

Hemming seeks to justify what he did by saying it was to counter the risk of so many people being imprisoned (which caused him to thwart the Court Order).  But in reality nobody would have been imprisoned. The use of that Parliamentary privilege effectively placed Hemming above the reach of the law. Presumably that’s why he did it in Parliament under the shield of privilege rather than for example standing outside on the street and announcing “it’s Ryan Giggs” on a placard? Now there’s a subject – being “above the law” as that is precisely what is often levelled at celebrities and sportspeople who seek to protect their private lives.

The price of fame

Since the enactment of the European Convention on Human Rights (ECHR) there has been a frequent conflict between the right to a private life (Article 8) and the right to freedom of expression (Article 10). Courts not just in the UK but in some other European countries, have grappled with applications by the rich, royal and famous engaging their Article 8 rights to protect theirs and their childrens’ privacy. Often the media has opposed such applications seeking to trump the Article 8 rights with arguments under Article 10.  The press, it has been said is the “eyes and ears of society”.

Other factors have started to weigh in the mix when a Court is faced with these conflicting rights, including (but not limited to):

For Claimants: the impact on their children if their Article 8 rights do not prevail.

For Defendants:

  1. The public interest being served
  2. How well known the Claimant is
  3. Whether the Claimant has previously embraced publicity to further his/her career
  4. The need to correct a previous false impression created by the Claimant
  5. The need to report on matters which contribute to an important debate in society

Are these factors not really excuses?

Is a Claimant who uses his or her children as the reason why an injunction should be granted really so concerned about this?  There can be no doubt that nobody wants their offspring to be able to conduct an internet search and read details of their parents’ sex lives in future.  But this is not the first consideration for many an applicant.  In fairness to PJS, for him it may well have been – there was no suggestion of marital deception.

Often it is the case that applicants for injunctions have other goals in seeking to gag stories:

  1. Ensuring their spouses or partners do not find out what they have been up to, and/or
  2. Protecting very valuable commercial endorsement contracts which contain termination clauses in the event of the celebrity/sportsman bringing their product into disrepute.

So whilst it would not be pleasant for the children of some footballers/celebrities to read on the internet of their Dad’s frolicking when they get older (no need for names but it won’t take you long to think of a few), there are other drivers in seeking bans on stories and indeed anonymity.

Defendants are equally adept at coming up with a veritable shopping list of reasons why publication is essential. But the need to publish scandal and gossip which sells is surely the primary motivation.

There are occasions of course when the media do take other factors into account.  So on the wave of phone hacking and the Leveson Enquiry several newspapers apparently decided not to run stories about MP John Whittingdale’s liaison with a dominatrix. Wait for it – the reason we are given by our media is that there was no public interest in the story.  Come on – please let’s keep this real. How is what PJS was up to any more in the public interest than an MP dating a whip-wielding Mistress?

What the public is interested in (particularly in the UK) is a long way off what is in the public interest.  We have witnessed some ridiculous claims from publishers and broadcasters about what is in the public interest over the years. The News of the World once protested that it was in the public interest for the world to read (and of course see) details and graphic images of prostitutes in the act of spanking the outstretched derrière of Max Moseley. What did that have to do with the “public interest”? There is not a scintilla of relationship between the two.  Max Moseley is, or was, in the public eye.  So what? What he elects to do in his sex life is for him to know and not the rest of us.  Why are we (the public) so “interested”?

Your sex life is private – unless you are famous

We then come to the old chestnut of those who have put themselves in the public eye being somehow required to have a higher moral code and adopt some automatic role-model status.  The truth is of course that there is nothing in ECHR which provides a distinction between John Doe and a royal, an MP, a singer, footballer, actor or dare I say reality TV “star”. Article 8 applies to them all equally – or at least it should.  In reality it does not.  It has become fair game for the media to submit that celebrities believe they are invincible, or even “above the law” and that the court should show them that is not the case.

Much of the stinging press directed at convicted former Sunderland FC player Adam Johnson involved highlighting his abuse of celebrity status. Quoting Detective Inspector Aelfwynn Sampson (what a great name!) The Sun reported: “Fame, celebrity and a position of power does not give you the right to break the law in pursuit of whatever you desire.”  It’s not fame or celebrity which means you have no right to break the law.  Nobody has that right – not even Bloggers, or Tweeters. Now whilst one cannot have anything but contempt for what Johnson did, and sympathy for his victim and what she has endured, the fact of Johnson’s celebrity status hardly has much to do with his sexual predator status.  Undoubtedly it will have been the conduit for adulation and attention from young female fans who but for his fame may not have been interested in him.  However, prisons in the UK are sadly occupied by many hundreds if not thousands of convicted paedophiles who had no fame, no fortune and no position of power. Whatever Johnson’s issues, they are unlikely to have emanated purely from celebrity.  Reporting crime is undoubtedly in the public interest, but sexual offence cases take place up and down the country every day of the week without being reported. Johnson occupied the front page of the Sun constantly throughout his case and sentencing.  Why was his case more important than any other?  All sexual cases involve victims – none of them any more or less important than others. There is no doubt his case should properly have been reported in the press but no more or less so than any other similar case.   It was only his fame which caused him to attract the “Animal” headline.  We didn’t get to read about the many other “animal” paedophiles convicted in the same week.

That his case occupied so many columns in the media (more so than other similar cases) is symptomatic of the British public – that we crave the gory details of misdeeds of celebrities be they unlawful or simply salacious.

Back to Article 8 and the right to privacy, one would expect that when those who crafted Article 8 of the European Convention on Human Rights they would doubtless have believed that a person’s sex life was an automatic candidate for what can be defined as private.

Had Max Moseley, or Ryan Giggs, or John Terry, PJS or even Adam Johnson for that matter, been outside of the public eye, it is unlikely you would not have read a single line about what they had done.

People have affairs every day.  You don’t read “John Jones from Cwmbran and his wife have split after he admitted sleeping with the bar maid of the White Lion”.  This is because poor old John doesn’t attract the attention of our celebrities.  Not unless his surname was Terry of course! Ah – he’s different because like Giggs he is a footballer – hence the publication of salacious (private) details of their affairs will prompt the public to spend their hard earned cash on buying a copy to read the gory detail.  It is no more in the public interest to read about footballers than John Jones from Cwmbran – but he doesn’t sell newspapers.  Apologies to any John Jones’s in Cwmbran – illustration only! Terry, Giggs, Moseley et al do.  That is the real reason the media want to write about them.

Why should being famous have any greater significance on the application of legal principles?  “He’s a role model…”  Oh come on please: – when a young man gets noticed as a footballer, makes it onto the big stage and becomes famous for what he does with his feet and head with a ball, he hardly signed up to the Magna Carta of role-modelling.  Ditto the wannabee X Factor entrants, Voice singers, or dare I say, Big Brother house participants.  A lot of young people crave fame these days– testament to the extreme lengths some will go to in order to get noticed and selected for the BB house.  Not to mention those intolerable extended selfie sticks you see everywhere. But whether these wannabees’ want the fame for the possible cash rewards (later public appearances/ articles etc.) or just to be on TV for 10 minutes of fame it’s stretching it quite a bit to say if they do get there it comes complete with some automatic role-model obligation.  Even less should it mean that the law is less likely to protect them than someone who is not in the public eye.

It seems that in the good ol’ USA they DO victimise fame.  In defamation cases special rules apply in the case of statements made in the press concerning public figures, which can be used as a defence. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964) the court established that for a public official (or other legitimate public figure) to win a libel case in the United States, the statement must have been published knowing it to be false or with reckless disregard to its truth (actual malice).  This might be reasonable for those who have sought public office (politicians etc.) who know before putting themselves forward for such office that it DOES come with a role-model obligation, but not so much for someone who is a brilliant musician or sportsperson who makes it big.

In Axel Springer AG v Germany [2012] 55 EHRR 6 [§91] the Court asked:

How well known is the person concerned and what is the subject of the report?

A distinction has to be made between private individuals and persons acting in a public context, as political figures or public figures. Accordingly, whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures (see Minelli v. Switzerland (dec.), no. 14991/02, 14 June 2005, and Petrenco, cited above, § 55). A fundamental distinction needs to be made between reporting facts capable of contributing to a debate in a democratic society, relating to politicians in the exercise of their official functions for example, and reporting details of the private life of an individual who does not exercise such functions (see Von Hannover, cited above, § 63, and Standard Verlags GmbH, cited above, § 47).

In PJS the CA considered Couderc and Hachette Filipacchi Associés v France (Application No.40454/07) 10 November 2015.

It raised the same question as that raised in Axel Springer: How well known is the person concerned and what is the subject of the news report? The judgment records:

(i)  Consequences of the classification as a “public figure”

117….The extent to which an individual has a public profile or is well-known influences the protection that may be afforded to his or her private life. Thus, the Court has acknowledged on numerous occasions that the public was entitled to be informed about certain aspects of the private life of public figures (see, inter alia, Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 45, ECHR 2004-X).

Then helpfully, the Court determined that it IS necessary to distinguish between those who put themselves up for role-modelling and those who don’t:

118….It is therefore necessary to distinguish between private individuals and persons acting in a public context, as political figures or public figures. A fundamental distinction needs to be made between reporting details of the private life of an individual and reporting facts capable of contributing to a debate in a democratic society, relating to politicians in the exercise of their official functions for example (see Von Hannover, cited above, § 63, and Standard Verlags GmbH and Krawagna-Pfeifer v. Austria, no. 19710/02, § 47, 2 November 2006).

119….Thus, depending on whether or not he or she is vested with official functions, an individual will enjoy a more or less restricted right to his or her intimacy:

Great – so at least we now know that John Hemming MP has less right to privacy than for example…..erm…..Ryan Giggs! The irony abounds! But Hemming cannot complain – the Court went on to explain it’s rationale beautifully:

120….The fact of exercising a public function or of aspiring to political office necessarily exposes an individual to the attention of his or her fellow citizens, including in areas that come within one’s private life.

And lest there was any lingering doubt regarding politicians particularly:

121….Thus, the Court has found in particular that politicians inevitably and knowingly lay themselves open to close scrutiny of their every word and deed by both journalists and the public at large (see, inter alia, Lingens, cited above, § 42).

However celebs didn’t escape:

Furthermore, this principle applies not only to politicians, but to every person who is part of the public sphere, whether through their actions (see, to this effect, Krone Verlag GmbH & Co. KG, cited above, § 37, and News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 54, ECHR 2000-I) or their position (see Verlagsgruppe News GmbH v. Austria (no. 2), no. 10520/02, § 36, 14 December 2006).

So it appears indisputably the case that the Article 8 rights of politicians and those who seek public office are less than those who do not seek it.

The fallacy that privacy is a law only available for the rich

It has become common for the media and indeed the public to bemoan the ability of celebrities to be able to afford to make injunction applications to thwart publication of private matters. This is convenient and stokes anger (or is that jealousy?).  The public don’t like it when somebody with money can use the law to achieve something seemingly outside of the capability of a less wealthy person.  But it is just not true. The ending of success fees payable to lawyers under conditional fee agreements in commercial litigation cases did not extend to defamation and privacy. So the notion that you need to be rich to get a privacy injunction is misconceived nonsense.  They are available to anyone whose privacy is threatened.  ATE policies are still available for such cases indeed one was referred to in the recent Burrell v Max Clifford [2016] case.  It is correct of course that without ATE an impecunious or “normal” Claimant could not risk an adverse costs order, but if there is a proper privacy claim then CFA’s and ATE are still possible and so John Jones from Cwmbran need not be concerned about having to fund his injunction application to prevent the revelation of his romp with the bar maid at the White Lion or even to pay The Sun’s legal costs if he loses. So why are the courts not troubled with applications for gagging orders from the John Jones of this world?

The truth is that “normal” people are not interesting to write about so they don’t face the threat of their misdeeds or sexual preferences being splashed across the front pages of red tops.  Accordingly, “normal” people do not need injunctions.

So the criticism levelled at John Terry, Max Moseley, Ryan Giggs, and many other celebrity applicants who seek injunctions is really down to the public believing that celebrities think they are above the law and abuse their wealth.  Both are misconceptions and they are fuelled by media hype.

These applicants and any other celebrity who makes these applications are simply exercising their rights under Article 8 ECHR and moreover, arguably, they have a greater need to deploy those rights than others in whom the press are just not interested.

Bring back the superinjunction?

Back then to the “private” threesome in PJS.  Let’s put aside the somewhat amusing irony that sex involving more than two people may still be private.  Presumably all three or 12 for that matter may allege that each of them had a reasonable expectation that their “party” would remain private amongst those taking part.  Or watching?  Let’s not go there.

Neither PJS, nor his celebrity spouse are politicians. They do not hold public office.  They are in the entertainment industry.  As a result, if between themselves as married adults, PJS and his spouse have, for whatever reasons, agreed that PJS may have sex with others that surely is not something which could ever be a matter of public interest unless they had publicly proclaimed the contrary. It is however without doubt something about which some members of the public will be more than curious and would want to read about.

Perhaps the most telling sentence in the whole of the original PJS Court of Appeal judgment at §33 “The mere gratification of readers’ prurient curiosity does not serve the public interest.”

It is almost beyond debate that the public have a prurient curiosity in information about celebrity sex lives.  Arguably it is a craving more than a curiosity.  It is no doubt why the News of the World had such incredibly impressive circulation and readership figures before its demise.

Contrast the legal position then (potentially no publication just to satisfy the salivating public) with the headlines in the Sun on Sunday at the beginning of its “right to know” campaign. After carrying the silhouette (of perhaps PJS?) on its front page it lead on pages 20 and 21 in the Sunday March 21st 2016 edition with: Sex Gag Disgrace.  Under its new “your right to know” campaign, it told its readers “Fury as The Sun on Sunday is barred from revealing celeb ID”.  Then: “They rule that his right to cheat beats your right to know”.

Quoting none other than John Hemming MP (who else?) the report highlights the “leak fear” of PJS and his partner who, despite having had their Article 8 rights protected by a court still fear online exposure.  An (unnamed) source said: “They are on a knife-edge”.

The silhouette of a man’s head appears with a big red question mark on it.  This is precisely why superinjunctions came into existence. It is this stalking-like, hounding, “who is it” which was the foundation for applications not just for anonymity but to prevent publication of the fact of an injunction.  If PJS and his partner were “on a knife edge” despite two of the countries’ leading judges deciding they should be able to keep their sex lives private, they ought to have been given sufficient protection not to have a “leak fear”.

And boy did the press then fuel that fear.  For nearly two full weeks The Sun, pounded us with articles about the injunction being a farce. Publication of the account of one of the parties in the threesome was published in the USA, naming PJS, and then the same was repeated in Scotland.  “Och Aye They Know” was the front page headline in The Sun.  The front page.  That was THE biggest news story The Sun had that day? Really?

The Daily Mail chipped in with the law being an ass.  Front page.  The decision of a court to ban publication of sexual encounters agreed to between partners was THE biggest news that our newspapers in the UK could publish.  It’s hardly any wonder people are now taking news online in their millions and not buying newspapers.

The peppering of the media demand for the right to name PJS was unbelievable. It has brought a court order to its knees.  That cannot be in the public interest. Bring back the superinjunction? If it did come back it would be entirely of The Sun’s own making given these hysteria inducing type headlines and silhouettes.

Of course let’s not forget that PJS and his spouse had every reason to be fearful. Not only would they have worried about The Sun “who-is-it?” / “right to know”/ “gag farce” (pick your day) constant attack on a Court decision in the press, they also had to be very concerned that John Hemming might out them anyway in Parliament – making a complete mockery of Orders in the High Court and Court of Appeal. It appears the Speaker of the House was equally concerned given his decision to warn MPs not to abuse privilege in this way.

The Sun on Sunday champions the public right to know.  In reality, in days when The Independent has published its last edition and young people would not dream of buying a newspaper instead of taking their news on smartphone or tablet, there is an ever increasing need, nay desperation, for publishers to be able to splash top level sexual scandal which does occasionally sell newspapers.  When a Court decides to engage the proper rights of individuals (celebrities or not) to afford protection over the salivating, baying demands of the crowd for a head, the retort comes in the form of “sex gag disgrace” articles.  Somewhere along the journalistic highway someone forgot what newspapers are supposed to publish: news.  Max Moseley’s bum, Prince Harry’s bum, footballer affairs, eating hamsters and PJS’s threesome may sell papers – but they can hardly be described as news.

The media have missed a trick.  There is perhaps one public interest argument which has never been deployed but which would be hugely interesting to see a Court adjudicate upon:

“My Lord, on behalf of the Respondent I submit that if the sort of salacious gossip and scandal stories we wish to publish in this case continue to be thwarted by Article 8 rights, we will all go out of business. You see our public likes to buy this smutty tittle-tattle. We do publish news as well and play an important role in society.  For those reasons, we need to be kept alive, as that really is in the public interest.  It maybe, given the threat we face from online news providers that the only way of ensuring our survival is for us to be able to publish some juicy, scandalous, sexy pictures, texts, social media posts and details of how the Claimant went like a train 6 times that night. For all those reasons I submit, nay plead, that you ignore the Claimant’s Article 8 rights, uphold our Article 10 rights and allow us to publish all of what the Claimant John Jones of Cwmbran did with the barmaid of the White Lion”. 

Of course the Judge might ask if the Defendant wishes to name the Claimant.  I’d be interested to know the answer if it was John Jones of Cwmbran.  “We don’t really care My Lord” might be the likely response.  Ah but hold on…. if it were not John Jones and it was he who is PJS…. not only would we care, but if you don’t allow us to name him we will run a full scale campaign for weeks referring to the law as an ass until we can name him.  So this isn’t about Courts enforcing the law anymore and using statute to determine what should happen.  If enough of a storm brews, generated by silhouette “who is it” stories, claims of a farce, the law being an ass, bloggers willing to face contempt because they believe the Order is wrong, then the Court of Appeal holds its hands up in despair, announces that its previous order, which it presumably must have considered was the correct application of the law, has been thwarted by what has happened outside of the UK and on the internet.

Whatever next.  Will murderers convicted stand up and tell the Judge that they don’t agree with his order so they are not going to prison?  Do Judge’s have no role to play in society now?  If they make what newspapers or others online think is a bad decision do they change their minds because of what can happen abroad or online which means that the children of PJS will find out anyway?  “In my view, whether or not the court grants an injunction, it is inevitable that the two children in due course will learn about these matters,” Jackson LJ

Great.  Translation:  “You had Article 8 rights to a private life but if the court thinks the world will find out about your private life anyway, whether or not that is in the public interest, this court will not protect those rights – even to stop anyone who doesn’t know, from knowing your private information.”

The Supreme Court has not yet determined an appeal against the injunction being lifted. PJS’s  Leading counsel, Desmond Browne, has said that a defeat “may be treated as the death of the celebrity privacy injunction”.  “Hooray” would proclaim the red-tops and Daily Mail.  “Hooray” may say the public salivating to know the gory detail. “Hooray” no doubt by the other party involved in this threesome who wishes the story to out.  We don’t know if he is being paid by anybody for his “story” – but we have a right to know don’t we?  Hey, it’s in the public interest to know if the press pays people to sell private information – just ask Lord Leveson.

Well, nobody ought to be shouting Hooray too loudly here.  What this case has proven beyond all doubt is that future applications for injunctions will now need the following:

  1. Service of the application not only on the media but on the person who wishes to tell the story. The application seeking an order preventing that person from revealing the private information anywhere – be that in the UK, online or anywhere else in the world. The court can impose such order if it considers it appropriate under Article 8. That would prevent that person from giving interviews in America, Scotland or anywhere else failing which he or she would be in breach.
  2. The hearing should be completely in private to ensure that nobody other than the parties and their lawyers can be present. This suggestion may cause outrage – but if media hype, jurisdictional issues, and/or internet abuse can thwart Court orders then the Court should take whatever steps necessary, and however draconian, to ensure its orders are complied with.
  3. A superinjunction will be needed in every case where the Court decided it appropriate to protect a person’s Article 8 rights, as it did in PJS. The applicant will be able to cite PJS and what followed it as a reason why a super injunction is needed.  Without it, the order will be attacked and rendered useless.

These provisions would prevent a situation arising where “everyone knows anyway” and that being a reason to lift an injunction.

There will be a person – probably but not necessarily wealthy – who will in the near future, and in light of what has happened in PJS decide to instruct lawyers to make the above applications.  2 weeks ago such an application would have had no prospect of success at all. Now, thanks to articles abroad, bloggers, the internet and the bombardment of “farce” articles in the national media, there is a girth of evidence to present to the Court to demonstrate that these provisions are critical if the Court is ever to have any credibility ever again in these cases.  The price of naming PJS (if he is named) may
be far greater for the free press than it bargained for.


Mark Manley, Manleys Solicitors

© Mark Manley 2016

Revealed! – Bolton Council ordered to name councillor who failed to pay his council tax

Transparency is all the rage in the wake of the Panama Papers leak, and has now seen the Prime Minister publish a summary of his tax returns for the last 6 years. Other high profile politicians are now making their personal tax affairs available to public scrutiny.

Various media commentators have questioned how far this transparency could go – will it only be expected of Prime Ministers, Chancellors of the Exchequer, the cabinet and shadow cabinet? Or will the expectation spread further to MPs, or even local councillors? Only time will tell.

For many of the country’s 21,060 local councillors[1] the prospect of having to divulge their tax returns may cause them incredulity.

That is not to say councillors should not expect to be held to a higher degree of scrutiny, as has been showcased in DH v (1) Information Commissioner, (2) Bolton Council [2016] UKUT 0139 (AAC), a recent ruling for the Upper Tribunal of the Administrative Appeals Chamber.

The case involved a campaign by the Bolton News to uncover, using the Freedom of Information Act (“FOIA”), information regarding councillors who were late paying their council tax. The council did initially provide them with some details (but no names), confirming that six councillors had been sent reminders for non-payment, which parties the councillors were members of, how much was outstanding and that two had been sent a Court summons. The Bolton News made further requests, specifically in relation to the identities of the councillors that had received the summons – the Council refused to provide their identities and this position was upheld by both the Information Commissioner and the Lower Tribunal. Despite this, one of the councillors went public, leaving the other councillor’s identity a mystery.

Upper Tribunal Judge Kate Markus QC overturned the decision and ordered the Council to reveal the name of the councillor, Ismail Ibrahim, the Labour councillor for Rumworth ward.

The earlier decisions had focused on the exemption in the FOIA s40 (2) which would mean that the information would constitute personal data, as defined by the Data Protection Act 1998 (“DPA”). It was common ground that the councillor’s name was personal data and would not be disclosed unless disclosure was fair, lawful and met one of the conditions of Schedule 2 and 3 of the DPA.

The Information Commissioner took into account mitigating circumstances which impacted on whether disclosing the councillor’s name would be fair, and concluded the councillor would have a legitimate expectation that disclosure would be unfair.

The First Tier Tribunal also considered the mitigating circumstances, noting the councillor had not consented to the information being disclosed and considered the balancing of article 8 and article 10 of the Human Rights Act, judging that disclosing the name could potentially cause unnecessary and unjustified damage and distress to the individual.

Her Honour Judge Markus QC considered this, but was critical of the failure to address the interests of the public in identifying the defaulting councillor.

She made the following statements:

I accept that there is a private element to non-payment of council tax, even in the case of a councillor.  It is a matter of a private debt in respect of which the individual incurs a private liability.  It arises out of a person’s occupation of a private property.  The liability may arise jointly with other persons with whom the individual forms a household.  Persistent non-payment will lead to the individual being summonsed, in a personal capacity, and possibly being subject to a liability order. 

“But, in the case of a councillor, it is not only a private matter. A councillor is a public official with public responsibilities to which non-payment of council tax is directly and significantly relevant.”

The Judge listed the following reasons non-payment could be an issue:

  • Section 106 of the Local Government Finance Act 1992 bars a councillor from voting on the Council’s budget if he or she has an outstanding council tax debt of over two months.
  • If a councillor is present at any meeting at which relevant matters are discussed, he or she must disclose that section 106 applies and may not vote. Failure to comply is a criminal offence.

The Judge stated “council tax default strikes at the heart of the performance of a councillor’s functions” and “recent failure to pay council tax is likely to impact on public perceptions and confidence in a councillor as a public figure. These factors are of critical relevance to expectation”. She continued with a passage that seems extremely pertinent in the new transparency orientated political environment of the last week, “those who have taken public office should expect to be subject to a higher degree of scrutiny and that information which impinges on their public office might be disclosed”.

The clear message to councillors is, if you don’t want to risk public scrutiny and criticism in relation to your council tax payments, your best course of action is to pay up – quickly.

[1] As per the Census of Local Authority Councillors 2013  http://www.local.gov.uk/documents/10180/5854661/National+Census+of+Local+Authority+Councillors+2013+-+full+report.pdf/886cab3b-146b-4160-a548-d40c17bdfbfc and http://www.lgiu.org.uk/local-government-facts-and-figures/#how-many-councillors-are-there


James Roochove | Solicitor

Express Newspapers to pay ‘substantial damages’ to Jimmy White

Snooker player Jimmy White has obtained ‘substantial’ libel damages from Express Newspapers.

Jimmy White brought legal proceedings against Express Newspapers in respect of a story published by the Daily Star Sunday in June 2012 titled “Jimmy’s aide in betting probe”. The story suggested that Mr White had been cheating and also implied that he had dishonestly provided inside information to his friend, John Callaghan so that he could place winning bets.

In 2014 both Mr White and Mr Callaghan applied for a determination pursuant to CPR 53 PD para 4.1 that the words complained of were not capable of bearing the meaning pleaded by the Claimants.

The Court invited the parties to agree that the issue of actual meaning be decided as a preliminary issue. Consent was given by both parties to that course of action. Mr Justice Tugendhat held that the article clearly meant that there were reasonable grounds to suspect that Mr Callaghan had used insider information from Mr White to place winning bets. A reader therefore would have believed that both men may had acted dishonestly. Mr Justice Tugendhat accepted that there were “no words alleging actual guilt” but the reader would have believed that there were “grounds to suspect dishonestly” following the Star’s investigation.

Mr Justice Tugendhat rejected the submission that the words were not defamatory of Mr White. Mr Justice Tugendhat also commented on the fact that the World Professional Billiards and Snooker Association had in August 2012, said that it could not find any evidence of inappropriate betting activity in relation to statements in the article in question or by Mr White. The World Professional Billiards and Snooker Association concluded that no further action would be taken.

Express Newspapers made an offer of amends in respect of the meaning that there were reasonable grounds to suspect that an aide of Mr White had used insider information communicated to him by Mr White to place winning bets and so reasonable grounds to suspect Mr White had acted dishonestly to enable the aide to place winning bets. Mr White accepted the offer of amends and The Daily Star Sunday made an apology in which it accepted that their story was untrue, apologising to Mr White “for any distress and embarrassment the article may have caused him.”

 The Queen’s Bench Division made no order for costs on the basis that no ruling had been made that the words complained of had not been capable of bearing the meaning attributed to them by Mr White and Mr Callaghan. The hearing which began on 7 March 2016 was about determining the amount of compensation that Mr White should receive.

The main issue in the hearing was a determination regarding the snooker players’ special damages claim for the loss of a sponsorship contract with his image rights company and not Mr White as an individual. Express Newspapers relied on the case of Collins Stewart v The Financial Times Ltd and Prudential Assurance v Newman Industries (No 2) and contended that the losses under the contract were not recoverable because they were losses of the company and not the Claimant.

On the first day of the hearing, Mr White, his manager, his accountant and a representative from the sponsor all gave evidence and were cross examined. The claim was settled on the second day of the hearing, 8 March 2016 and the Court did not rule on the special damages issue.

Mr White’s Barrister said that it was now agreed with Express Newspapers that Mr White should receive substantial damages however, the exact figure has not been disclosed. His Barrister stated that the settlement would enable Mr White “to get on and do what he does best”.

Mr Justice Tugendhat stated whilst referring to Mr White: “Having heard him give his evidence, he impressed me as a sportsman of the highest integrity and it is to be regretted that even to the extent that it was; his integrity was called into question by this article”.

 Mr White had told the judge: “The story caused considerable distress to me. I got accused of being a cheat”. Mr White further stated: “One thing I have never done in my life is cheated when playing snooker which I love. I even call my own fouls. I was hurt bad and it caused lots of stress to my family.”

 As reported by leading media law barristers chambers 5RB, the case raised an interesting issue that was perhaps disappointingly not judicially determined, as to the recoverability by a celebrity in a defamation action of losses ostensibly to a separate legal entity, namely his image rights company.

Is Sexting fun?

Sexting has been in the headlines more and more recently and it is clear that it can result in very grave consequences.

Sexting is often spontaneous but its consequences can be long lasting and devastating.  It has been identified as a serious risk for young people and can lead to shame, fear, blackmail or even criminal exploitation.

What is sexting?

Sexting is when someone sends or receives a sexually explicit text, image or video on their mobile phone, usually in a text message.

Why is it so serious?

One tap and it’s gone!

When the message or the image has been sent, control has been lost. Both are very easy to forward and can be copied – without your consent or knowledge.

Before you send anything to anyone a good question to ask is – would you mind your Mum seeing it?

24/7

If you have a smartphone you generally have it with you 24/7 so you can send and receive messages all the time. As with most things this has good and bad points. In terms of sexting, the risk is greater because it’s so easy to send a sext. More worryingly, you are more accessible so you can constantly come under pressure from someone to send a sext – there is no respite.

The law

If a sext has been shared without your consent, you can take action to protect yourself and your reputation. Too often people feel ashamed and would rather pretend it hadn’t happened. Whilst this is understandable, positive action is often the best course of action because the situation can escalate quickly.

Sexting can have criminal and civil consequences (in addition to the psychological damage it can cause) and it is important to understand what these are.

Criminal law

Indecent image or videos

If you have any indecent images or videos of somebody who is under 18 years old you would technically be in possession of an indecent image of a child – even if you are the same age.  Further, if you share images or videos of somebody who is under 18 years old you would be committing an offence of distributing an indecent image of a child. (Protection of Children Act 1978 and the Criminal Justice Act 1988)

Revenge Porn

This offence came into force in April 2015. It is an offence to disclose private sexual photographs and films without the consent of the individual depicted and with the intent to cause distress. A person charged with this offence is not taken to have intended to cause distress if that distress was merely a natural and probable consequence of the disclosure.

If you were found guilty of this you can go to prison for up to two years and receive a fine. (Section 33 of the Criminal Justice and Courts Act 2015)

Grossly offensive communications

It is an offence to send an electronic communication which conveys a message which is grossly offensive to another person, where the message is sent with the purpose of causing distress or anxiety to that person. (Malicious Communications Act 1998)

Civil law

Breach of Privacy and Confidence

Unauthorised disclosure of a sext could be a breach of a person’s privacy and confidence – Mosley v MGN [2008] EWHC 177 and McKennitt v Ash [2008] QB 73. A person would have a clear and reasonable expectation of privacy in relation to sexts. It has long been established that a person’s sex life is private. Consideration should also be given to a person’s Article 8 rights to privacy.

Breach of Copyright

The creator of a photograph automatically becomes the owner of the copyright. If a person shares a sext photograph with others or posts it on a website then the creator’s copyright has been infringed and they could take action.

Conclusion – Still think Sexting is fun?

Think before you sext! The law is slowly catching up with what is a relatively new phenomenon and there is still a lot more that needs to be done.

Should you need advice please do not hesitate to contact Leanne Wheeler (Email: Leanne.wheeler@manleys-law.com or Tel: 01244 230000)


Katie Mickleburgh | Associate Solicitor

Leanne Wheeler | Partner

“Without reputation you have nothing”

Steps

Manleys Solicitor Katie Mickleburgh discusses steps to take to protect your reputation during litigation

Reputation is a valuable asset and sometimes the true value

of a reputation only becomes clear when it has been lost or tarnished.

Fear of publicity can sometimes prevent a party bringing legal proceedings because they are afraid of the spotlight this could bring on the dispute itself, themselves (as an individual or an organisation) and the potential loss of privacy and confidential information. Despite this, there are circumstances when litigation is the best or only course of action to resolve a dispute. In such circumstances you must proactively take steps to protect your reputation.

Be prepared

You must ensure that you have a strategy in place which ensures that there is a managed and co-ordinated response. There is no “one size fits all” strategy and it must be tailored to your situation and constantly be under review. Evolution and flexibility of the strategy is essential to meet any developments.

What sort of issues should you consider when formulating a strategy?

A. Check out your opponent

Does your opponent actively manage the media? Have they been involved in litigation previously and, if so, how did they conduct themselves in the media? The key concern is whether your opponent will actively seek to damage your reputation or whether it could be an indirect consequence.

B. Timetable

Litigation follows a prescribed path and you have to be prepared to deal with each and every stage. A brief overview of the timetable (and example of issues which could arise) is:

  1. Claim form and Particulars of Claim followed by a Defence (these pleadings could name individuals and / or organisations and seek to apportion blame);
  1. Disclosure (could contain sensitive information, for example damaging expert reports which are not protected by legal privilege or unfortunate internal communications);
  1. Witness evidence (supporting each parties version of events and attempting to discredit their opponents); and
  1. Trial (which could potentially receive full press coverage and be attended by journalists).

C. Control

Either a team or an individual must have control of the strategy and this decision must be communicated to all concerned. Information must be controlled and part of this is ensuring that there is a proper clearance and review procedure for all communications being issued. In addition, you must monitor all media coverage throughout and respond appropriately.

D. The media

Your legal team must work in close partnership with your PR team to ensure that you are seen to lead and control the information process and take appropriate legal action where necessary (such as removing false or defamatory statements).

Consider introducing a protocol for employees to follow should they receive a query from the press.

You must engage with the media to ensure that there is balanced and accurate coverage but make sure this is done in the best way.

E. Key groups

Identify key groups who must be considered in your strategy such as employees, investors, customers, business partners etc.

In relation to employees, do you need to ensure they are reminded of your Social Media Policy and is it necessary to provide any refresher training to ensure it has been properly communicated and understood?

F. Communication channels

Consider your existing communication channels and how these can be used to reinforce any key messages both internally (if applicable) and externally. Often those involved in litigation are considered to be the most authoritative source of information and their website and social media platforms are the first port of call.

Conclusion

If you have concerns about engaging in legal proceedings due to press coverage it is worth considering that the same will, in all likelihood, apply to your opponent and you can use this to your advantage.

The risk of damaging your reputation during litigation can be minimised by ensuring you have a bespoke strategy in place. In addition, should you succeed in either winning your claim or defending it this can lead to positive publicity and enhance your reputation.

The team at Manleys specialise in Reputation Management and protect the reputations of both individual and corporate clients in relation to their personal and business reputations and protection of brands.


Katie Mickleburgh | Associate Solicitor

HONEST OPINION OR SERIOUS ALLEGATION OF FACT?

Wasserman v Freilich [2016] EWHC 312 (QB)

A Claimant, Ms Wasserman, during a libel action, made an application under CPR 3.4(2) to strike out parts of the Defendant, Mr Freilich’s defence on the basis that it did not disclose any reasonable grounds for defending the claim.

The Claimant, a flat owner in London resided in a block of flats which was managed by Moreland Estate Management (operated by the Defendant). On 16th February 2015, Holli Hunter, a neighbour in an adjacent flat, discovered a water leak and informed the Defendant. The following day an employee of Moreland told the Claimant that the source of the leak was in her flat. Having been notified, the Claimant arranged for a plumber to attend and also notified her insurance broker and insurer, Aviva Insurance Plc, in compliance with her policy conditions.

Unfortunately, the plumber failed to track the source of the leak and the primary leak was not resolved.

On 24th February, the Defendant insisted that procedures which the Claimant described as “invasive and destructive” (such as breaking tiles in order to gain access) should be carried out. The next day,  a workman employed by the Defendant discovered a burst pipe beneath the concrete screed in the Claimant’s service cupboard. The Claimant had in the meantime instructed another firm who believed they could track the leak without causing damage in the flat. The Claimant therefore made a claim under her insurance for the damage and did not obstruct the workmen employed by the Defendant.

From 25th February to 24th March 2015, the Defendant sent a number of emails which contained defamatory statements complained of by the Claimant including:

  • An email to the Claimant’s broker and insurer

“… this is total rubbish and I am more than happy to testify in a court of law that this is now edging on fraud – and yes I have put this in writing… I believe that it is clear from the attached emails and trail that there is an element of potential exaggeration / attempted fraud and it is my belief that Aviva need to be notified of this and sent a copy of this clear communication …”

  • An email to the Claimant’s loss assessor and insurer

“… Should this matter be brought to court, for fraud charges, my client and the leaseholders at the property will testify that Ms Wasserman’s conduct was simply unacceptable and manipulative …”

  • An email to the Claimant’s loss assessor, broker and insurer

“… It would be interesting to see photographs of the alleged damage in order that we can ascertain whether this is ‘new damage’ caused by this incident or whether this is historic damage / lack of maintenance which (sic) your client is attempting to engineer a claim …”

The Claimant brought proceedings for libel and maintained that the Defendant had set out to deliberately (and maliciously) mis-state the facts.

In his judgment, Sir David Eady concluded the natural and ordinary meanings of such statements are that the Claimant is dishonest.

“… Juries are deciding on every day of the week, as a matter of fact, whether a particular Defendant was, or was not, dishonest … It is not thought to be a matter of opinion: nor can one convert an allegation of dishonesty (or, for that matter, of murder or rape) into a matter of opinion by merely inserting in front of it a formula such as ‘I believe…’ or ‘she thinks…’”

“… In this case the Defendant does not plead a defence under s.2. He does not seek to prove that the Claimant was dishonest – or even that there were reasonable grounds to suspect her of dishonesty …”

“… A further requirement, if honest comment were to be legitimately raised would be for the pleader to set out the facts upon which the opinion was based, or on the basis of which an honest person could have held that opinion … ”

The defence of honest opinion failed and part of the pleading provided by the Defendant was struck out.

This case highlights the importance of bringing sufficient evidence forward to support a defence of honest opinion under s.3 of the Defamation Act 2013. It also demonstrates that much hinges on the context in which statements are made, especially if the allegations are of a serious nature.


Sandy Burrows | Trainee Solicitor