Otuo v Morley & Anor

Summary disposal of a defamation claim is inappropriate where meaning, publication, reputational harm, privilege or malice depends on contested facts that require proper investigation. Very limited publication does not, by itself, establish that no damage was possible or that proceedings are abusive. An allegation capable of conveying dishonesty, such as fraud, may be sufficiently serious to justify a claim proceeding to trial. Publication occurs when words are communicated to anyone within earshot, although qualified privilege remains a separate issue. A claimant is entitled to proceed on the presumption that defamatory allegations are false unless and until justification is proved.

The claimant brought a slander claim concerning words spoken at a meeting convened to consider his reinstatement after he had been disfellowshipped from the Jehovah’s Witnesses. He alleged that the words conveyed that he had committed fraud, including criminal fraud. The defendants denied that the words were defamatory, disputed publication and damage, and relied on qualified privilege. They also challenged the sufficiency of the anticipated plea of malice.

Master Leslie refused the defendants’ application for summary judgment on 24 November 2014. Permission to appeal was granted by William Davis J on 20 February 2015. The central issue was whether the claim could fairly be terminated summarily before the pleadings, disclosure and evidence had been developed.

1. Appeal dismissed. The claim was not suitable for summary disposal. The pleadings were incomplete and a significant number of the real issues were fact-sensitive.
2. Whether the words conveyed a defamatory meaning depended on context, including who was present, their function and their background knowledge. The defendants bore the burden of showing that a reasonable listener would have understood the words in a non-defamatory sense. At this stage, the court could not rule that the words were obviously incapable of bearing a defamatory meaning.
3. The court rejected the contention that there had been no publication. Words spoken to the committee members were published to those within earshot. Whether the communication attracted qualified privilege was a separate question.
4. Although publication was very limited, an allegation of fraud was capable of causing serious reputational damage. The approach in Haji-Ioannou v Dixon [2009] EWHC 178 (QB) was treated as an important principle: assessment of abuse and damage may be fact-sensitive and should not be based on contested facts properly left to the tribunal of fact.
5. The claimant was presumed innocent of fraud unless and until the defendants proved the contrary by a properly advanced plea of justification. The anticipated plea of malice required more than bare assertion, but the claimant’s evidence provided material from which malice might be found. The issues required full pleadings, disclosure and witness statements.

• High Court (Queen’s Bench Division): Master Leslie refused summary judgment on 24 November 2014.
• High Court (Queen’s Bench Division): Permission to appeal was granted by William Davis J on 20 February 2015.
• High Court (Queen’s Bench Division), on appeal: Sir David Eady dismissed the appeal.