Todary v W1 Cars Ltd (t/a Westone Cars Ltd) & Anor

Where a defamation defendant pleads truth, disclosure must address documents capable of proving the factual substance of the imputation. The scope of disclosure must reflect the pleaded case, including any change from a Chase level 2 case to a Chase level 1 case. A claimant may be required to provide a detailed witness statement explaining discrepancies in disclosure, the efforts made to obtain documents, and the availability of documents held by an administrator. Documents concerning a separate compensation payment are not generally disclosable merely because double recovery is alleged; disclosure is justified only where the payment may cover loss relevant to the defamation claim. Costs relating to an abandoned claim may be reflected in a payment on account, assessed conservatively where allocation between claims remains uncertain.

The claimant brought defamation proceedings concerning communications imputing that he had operated a minicab company without the necessary licence under the Private Hire Vehicles (London) Act 1998. The defendants relied, among other matters, on the defence of truth under section 2 of the Defamation Act 2013.

The defendants applied for specific disclosure. They relied on discrepancies between the extensive disclosure originally anticipated and the limited documents initially disclosed, later supplemented by further documents. The application concerned the company’s trading activities, its relationship with Embassy Cars, the reasons for its failure, and an investigation and settlement involving Transport for London. The court also determined consequential issues concerning costs and payment on account.

1. Specific disclosure. The defendants were entitled to a detailed witness statement from the claimant addressing the disclosure discrepancies and explaining what searches had been undertaken. The fact that documents had passed to the company’s administrators did not establish that they were unobtainable.
2. The statement had to address documents concerning the company’s activities between June and September 2014, when it was common ground that the relevant licence had not been granted until 19 September. The defendants had amended their truth case from reasonable grounds to suspect unlicensed operation to an allegation that the claimant had in fact operated illegally. That represented the distinction between a Chase level 2 and level 1 case: Chase v News Group Newspapers [2002] EWCA Civ 1772.
3. The claimant also had to address the relationship with Embassy Cars and documents concerning the company’s failure, including material relevant to alleged lost revenue and communications concerning the £225,000 debt to Bibby.
4. Documents concerning the Transport for London investigation were disclosable insofar as they explained the company’s activities or otherwise illuminated the truth issue. Documents concerning the £5,000 settlement were generally not required, because the alleged breach of confidence or data protection obligations and the alleged defamatory publications involved different communications. Disclosure could, however, be required if part of the payment related to onward republication or embarrassment, so as to bear on possible double recovery.
5. Costs. The court ordered payment on account of £2,500 for costs attributable to the discontinued company claim, adopting a conservative approach pending detailed assessment. The claimant could not recover the costs of his witness statement explaining amendments to the pleadings.