Maccaba v Lichtenstein

Under section 2 of the Defamation Act 1952, words are actionable in slander without proof of special damage where they are objectively likely to disparage the claimant in any office, profession, calling, trade or business held at publication. The reference to “any office” includes offices of honour as well as offices of profit. The provision does not require the office to be public, nor does it preserve the former common-law distinction between honorary and profit-making offices. On an application to withdraw the issue from the jury, the question is whether a properly directed jury could reasonably find the words capable of having the requisite effect, considering the claimant’s attributes, activities, business relationships and the possible ripple effect of repetition.

The claimant brought claims in slander concerning allegations that he had committed adultery with young married Jewish women. He was chief executive and acting chairman of a worldwide information technology company and also held offices as a director and trustee of religious and charitable organisations. The defendant applied for judgment on the basis that no special damage was alleged and section 2 of the Defamation Act 1952 did not apply. The central issues were whether the words were capable of disparaging the claimant in his business or offices and whether honorary or non-public offices fell within section 2.

1. Business. The court applied the Galbraith approach. The issue was whether a properly directed jury could reasonably find that the assumed words were capable of being likely to disparage this claimant in his business. The assessment had to take account of his attributes, the nature of his business, his business activities and the people with whom he dealt. The claimant’s membership of the orthodox Jewish community could not be ignored. The possible repetition of the slanders and resulting ripple effect were also relevant. The issue was therefore fit to be left to the jury.
2. Offices of honour. Section 2 refers to “any office”. Its clear wording did not permit a distinction between offices of profit and offices of honour. The court accordingly declined to follow Robinson v Ward, insofar as it preserved the common-law distinction after the enactment of section 2. The Human Rights Act did not require the narrower construction advanced by the defendant.
3. Public office. It was not a requirement that the office be public. The use of the word “public” in Booth v Arnold did not establish such a condition.
4. Removal exception. The court noted the common-law exception recognised in Alexander v Jenkins, under which an imputation enabling removal from an honorary office may be actionable without proof of actual damage. It was unnecessary to decide the point because section 2 applied directly. Nevertheless, a properly directed jury could find that the alleged conduct was such that powers of removal from the claimant’s offices existed.
5. The application for judgment for the defendant was refused. The slander claims were left to the jury.