Rayner v Seabourne-Hawkins

In a slander claim, the claimant must prove, on the balance of probabilities, the precise words spoken by the defendant and their publication to a third party. Proof of the gist or substance is insufficient. These requirements are substantive because meaning, defamatory character, defences and damages depend on the words actually used. A court may draw reasonable inferences from surrounding evidence, but speculation cannot replace evidence from witnesses who heard the alleged publication. Where publication is not proved, questions of meaning, serious harm and causation do not arise for determination.

The claimant brought an action in slander concerning two alleged statements made by the defendant during a dispute at a shopping centre. The claimant abandoned the second alleged slander during the trial. The remaining issue was whether the defendant had told security officers that the claimant had sexually assaulted a member of the defendant’s staff.

The claimant relied principally on his own evidence, documents and CCTV footage. The defendant denied making the alleged statement and said that he had referred only to an alleged assault involving a watch. The central issue was whether publication of the precise words pleaded had been proved.

1. The claim was dismissed. The claimant failed to prove, on the balance of probabilities, that the defendant spoke the words pleaded as the First Slander.
2. In a slander action where publication is not admitted, the claimant must prove the precise words spoken and the identity of the persons to whom they were spoken. Proof of the gist, substance or impression of the words is insufficient. The requirement is not a mere technicality, since meaning, defamatory character, defences and damages all depend on the actual words used. The court applied the principles stated in Bode v Mundell [2016] EWHC 2533 (QB), with the related authorities discussed there.
3. The CCTV footage had no sound and could not establish what was said. The claimant’s reconstruction of events from the footage was speculative. The absence of evidence from the security officers and other potentially corroborative witnesses materially weakened the claimant’s case.
4. The contemporaneous incident report did not record an allegation of sexual assault. The court considered it inherently unlikely that the defendant would have made such an allegation, and accepted the defendant’s account that he had referred to the watch incident instead.
5. The claimant’s inconsistent accounts, delayed attempts to obtain supporting evidence, and evidence concerning the alleged loss of employment were found to undermine his credibility. The court concluded that the allegation of sexual assault had been manufactured.
6. Since publication was not proved, it was unnecessary to determine meaning, serious harm or causation. The court observed that the factual findings would likely also have resolved the serious-harm and causation issues in the defendant’s favour.

First-instance trial judgment. The judgment does not state any prior appellate decision.