Wasserman v Freilich

Under Defamation Act 2013, honest opinion is unavailable where the defamatory allegation is one of fact. Allegations of dishonesty, fraud, attempted fraud, or reasonable grounds to suspect dishonesty will ordinarily be factual because they are capable of proof. Introducing words such as “I believe” does not convert a factual allegation into opinion. A defendant relying on honest opinion must also identify the defamatory meaning defended and plead the facts on which the opinion is based. A qualified privilege defence must identify the facts said to create the relevant duty or common interest.

The claimant brought a libel action concerning emails in which the defendant alleged, among other things, dishonesty, fraud, attempted fraud and manipulation in connection with an insurance claim and a water leak. The defendant sought to plead honest opinion under section 3 of the Defamation Act 2013, but did not plead truth under section 2. The claimant applied under CPR 3.4(2) to strike out parts of the defence. The issues were whether the allegations were statements of fact or opinion, whether the proposed honest-opinion pleading was adequately particularised, and what details were required for the proposed qualified privilege defence.

1. The application succeeded in part. The proposed honest-opinion plea concerning allegations that the claimant was dishonest or making a fraudulent insurance claim was struck out under CPR 3.4(2). The defendant was required to provide further details supporting the qualified privilege plea.

2. An allegation of dishonesty is ordinarily an allegation of fact. A person’s state of mind is a fact, and dishonesty can be determined as a matter of fact. The same approach applies to allegations of fraud, attempted fraud and reasonable grounds to suspect dishonesty. The language does not become opinion merely because it is introduced by words such as “I believe”.

3. The first condition for the statutory honest-opinion defence under section 3(2) of the Defamation Act 2013 is that the statement must be one of opinion. The defence may sometimes apply to an inference where the context makes clear that the writer is speculating and cannot establish the inference definitively. That exception did not assist the defendant because the pleaded allegations were straightforward factual allegations.

4. The pleading was also defective because it did not specify the defamatory meaning said to be defended as honest opinion. The relevant facts on which any opinion was based had not been pleaded, although that defect was immaterial once the plea failed at the first hurdle.

5. The proposed qualified privilege defence was potentially viable. However, in relation to each recipient of the emails, the defendant was required under CPR 53PD 17 to identify the facts said to give rise to the relevant duty or common interest.