Theedom v Nourish Trading Ltd (t/a CSP Recruitment) & Anor

For a defence of truth under section 2 of the Defamation Act 2013, the defendant must prove the substantial truth of each material element of the defamatory imputation. Where an imputation alleges reasonable grounds to suspect criminality, the defendant must identify a specific offence and establish reasonable grounds to suspect every element of it. The issue is assessed at the date of publication. Post-publication misconduct will not ordinarily prove the truth of the publication or mitigate damages unless it has a proper logical connection with the damage caused.

The claimant sued his former employer and manager over emails sent to actual and potential customers. The emails alleged that he had disclosed confidential business information to competitors, had been dismissed for gross misconduct, and that there were reasonable grounds to suspect criminal conduct. A preliminary judgment had determined the meanings conveyed and that the serious-harm threshold under section 1 of the Defamation Act 2013 was satisfied.

At trial, the defendants relied on the statutory defence of truth. The central questions were whether the claimant had disclosed confidential information, whether he had been rightly dismissed, and whether the criminality allegation was substantially true.

1. Truth defence. The defendants established on the balance of probabilities that the claimant had disclosed confidential information to former employees working for competitors, in breach of his contractual obligations. Those findings proved the first element of the imputation.
2. The claimant had been dismissed for gross misconduct on 27 June 2014, rather than having resigned on the previous day. The dismissal was justified by documentary evidence of disloyalty and disclosure of confidential information. The second element was therefore substantially true.
3. The criminality allegation required separate consideration. It was insufficient merely to prove the underlying misconduct. The defendants had to identify a specific offence and show reasonable grounds to suspect every element of it. The relevant offence was fraud by abuse of position under sections 1 and 4 of the Fraud Act 2006.
4. The claimant occupied a position in which he was expected to safeguard, and not act against, CSP's financial interests. His conduct could reasonably be regarded as a dishonest abuse of that position, intended to secure gains for others or cause loss, or expose CSP to a risk of loss. Reasonable grounds for suspicion existed at the time of publication.
5. The court rejected the argument that proof of the first two elements necessarily proved the criminality allegation. Each element coloured the others, but the criminality allegation was the most serious and damaging. The imputation was substantially true in all three elements, and the claim was dismissed.
6. The court did not need to decide the alternative case under section 55 of the Data Protection Act 1998. It observed that the alleged disclosure of a mobile number might engage that provision, whereas information that a company sought welders would not obviously constitute personal data.
7. Post-publication dealings with former clients were incapable in themselves of proving the truth of the imputation. The court also rejected their relevance to mitigation of damages. The observations in Warren v The Random House Group concerning background material did not justify admitting specific, different misconduct occurring after publication.