Birchwood Homes Ltd & Ors v Robertson

An allegation appearing in the words complained of may be justified only if it is truly severable and distinct from the meaning complained of. Context determines both severability and whether an apparently neutral word is defamatory.

Summary judgment against qualified privilege requires proof that the defence is bound to fail. The occasion, purpose and common interest are assessed objectively, without analysing isolated phrases.

Facts concerning the circumstances of publication and conduct affecting injury may remain relevant to mitigation of damages, subject to case management.

The claimants brought proceedings for slander arising from words spoken by the defendant, a local councillor, during a meeting with a resident about property development. The words referred to the claimants’ business methods as fraudulent and aggressive.

The defendant sought permission to amend his defence to plead justification in relation to the first and second claimants. The claimants sought summary judgment on qualified privilege under Part 24 and challenged allegations relied upon for mitigation of damages.

The central issues were whether aggression was severable from fraud, whether the proposed particulars could support justification at the pleading stage, whether qualified privilege was bound to fail, and whether the mitigation allegations were relevant.

1. Justification. The allegation that the second claimant conducted his affairs in a dishonest and aggressive manner, and that the company was not to be trusted by reason of that dishonesty, was capable in principle of being justified. Aggression was not severable and distinct from fraud in context. Permission to amend was granted, subject to adequate particularisation before trial.
2. Qualified privilege. The Part 24 application was refused. The claimant had to show that the defence was bound to fail, with factual assumptions made in the defendant’s favour. The occasion, purpose and common interest were assessed objectively. The defendant’s statement that he came as a friend did not remove privilege, and it was immaterial who spoke first.
3. Mitigation. Allegations concerning the circumstances of publication, including the alleged set-up and the claimants’ motives, were arguably relevant to damages. The jury should not assess damages in blinkers, but the developing approach had to remain consistent with the legislature’s rejection of abolition of the rule in Scott v. Sampson. The allegations could remain, subject to later case management.