Ghuman v Ghuman

In an action for slander, the claimant must prove the actual words spoken. Where the evidence does not establish what words were published, the court cannot determine their natural and ordinary or innuendo meaning, whether they were defamatory, or whether they were calculated to disparage the claimant in business. The claim must then fail on the merits. Procedural sanctions should be proportionate. A failure by a witness to attend for cross-examination may justify refusing reliance on that witness’s statement, without requiring the claim to be struck out. Restrictions on reporting spent convictions require the statutory conditions and the applicable open-justice and Convention balancing principles.

The claimant brought a slander action against his brother. He alleged that, in a telephone call to two brothers in Arizona in late November 2013, the defendant had called him a professional crook, thief, con artist and other defamatory terms, and had made allegations about his company and tax affairs.

The defendant denied making the call. Issues also arose concerning the absence of one alleged recipient from trial, the reliability and signatures of witness statements, reporting of spent convictions, and proposed justification and abuse-of-process arguments. The central issue was whether the pleaded publication and words had been proved.

1. Reporting restrictions. The court refused an application to restrict reporting of the parties’ spent convictions. Under section 7(3) of the Rehabilitation of Offenders Act 1974, it was common ground that justice could not be done without admitting evidence of the convictions because they were part of the alleged telephone conversation. The court then applied the open-justice and Convention balancing principles, concluding that the article 8 interests were relatively weak and did not justify restricting reporting.
2. Failure to attend for cross-examination. The appropriate and proportionate consequence of the absence of one alleged recipient was to refuse permission to rely on his witness statement. Strike-out was refused because the cogency of the defence was a matter for trial and no wider satellite inquiry was required.
3. Proof of publication. A claimant in slander must prove the actual words spoken. The changes in the pleaded case, inconsistencies between witness statements, unexplained differences concerning the alleged telephone call, and absence of contemporaneous supporting material meant that the evidence did not reliably establish any particular words spoken by the defendant.
4. Consequences. Because the words could not be identified, the court could not determine their pleaded natural and ordinary or innuendo meanings, whether they were defamatory, or whether they were calculated to disparage the claimant in his business. The claim was dismissed on the merits. It was unnecessary and inappropriate to determine justification, abuse of process, or the factual issues concerning alleged Facebook edits and hacked emails.