Flymenow Ltd v Quick Air Jet Charter GmbH

In a libel claim, substantial truth must be assessed against the defamatory imputation actually conveyed. Proof that a company was a persistent defaulter and financially unsafe did not establish the distinct and more serious imputation of insolvency. Partial truth and other disreputable conduct could reduce damages, but could not establish justification where insolvency was materially inaccurate.

Qualified privilege was unavailable for an unsolicited mass communication of insolvency information by a private company to an inadequately defined commercial audience. A genuine belief in the truth of the publication did not itself establish privilege. The claim therefore succeeded on liability, but the claimant’s own conduct and the substantial truth of much of the publication reduced damages to £10.

The claimant, an English aircraft charter broker, sued the defendant German aviation company for libel arising from an email circulated to 26 aviation businesses. The email warned recipients not to deal with the claimant because of alleged pecuniary difficulties and inability to pay outstanding sums.

The claimant alleged an insolvency meaning. The defendant relied on justification, qualified privilege, absence of malice and abuse of process. The principal questions were the natural and ordinary meaning of the email, whether it was substantially true, whether the publication was privileged, and the effect of the claimant’s conduct on liability and damages.

1. Meaning. The Notice conveyed that it was financially unsafe to deal with the claimant because it had defaulted on sums due to the defendant since July 2013 and was insolvent, in the sense of being unable to pay all its debts as they fell due. The insolvency imputation was distinct from the lesser warning meaning.
2. Justification. The defendant established that the claimant was a substantial and persistent defaulter, that dealing with it was financially risky, and that it was perilously close to insolvency. It did not establish insolvency. The claimant had chosen not to pay in accordance with its contractual obligations, principally because of a policy of paying Euro liabilities only from Euro receipts and avoiding currency risk. It had access to other means of payment. The allegation of insolvency was therefore a material inaccuracy and the defence failed.
3. Section 5 of the Defamation Act 1952 was not relied on and did not apply. Partial truth and other disreputable conduct could be taken into account in assessing damages, consistently with Pamplin v Express Newspapers Ltd [1988] 1 WLR 116.
4. Privilege and malice. The defendant genuinely believed the claimant was unable to pay, and the claimant failed to prove a dominant improper motive. Nevertheless, an unsolicited publication of credit information about a private company to a broad and inadequately defined industry mailing list did not attract qualified privilege. The absence of a formal industry role, the risk of spreading false insolvency allegations, and the availability of a mutual protection association were significant.
5. Abuse and damages. The claimant’s action was a proper attempt to vindicate a reputation against a false insolvency allegation. It was not an abuse of process. Liability was established, but the claimant’s repeated dishonesty, the substantial truth of the remaining imputations, its conduct of the litigation, and its contribution to the publication justified an award of only £10. No injunction was granted.