Peck Williams Trade Supplies Ltd & Ors

In determining meaning in a defamation claim, the court must identify the underlying conduct, condition or attribute said to be defamatory, rather than merely repeat what others allegedly said or did. An email may convey both opinion and fact. A conclusion such as reservations about a person’s suitability may be opinion where its basis is indicated, while an implied allegation of seriously inadequate past performance may be factual. Serious and repeated failures in performing a professional role can be defamatory at common law. For honest opinion under Defamation Act 2013, section 3 requires an opinion and an indicated basis; the court found both conditions satisfied. In malicious falsehood involving a single publishee, the relevant meaning is the meaning actually understood by that person, not a hypothetical reasonable meaning. The issue was therefore unsuitable for determination without evidence from the publishee.

The claimant brought claims in libel, malicious falsehood, negligent misstatement and alleged breach of the Data Protection Act 1998 after the second defendant emailed a prospective employer, following the claimant’s acceptance of a job offer. The email expressed reservations about the claimant’s suitability and referred to his reception at the defendants’ branches and his past performance.

By consent, preliminary issues were ordered concerning the email’s meaning, whether that meaning was defamatory, whether it comprised fact or opinion, whether the basis of any opinion was indicated, and the meaning relevant to the malicious falsehood claim. The issues were decided on written submissions without evidence from the sole publishee.

1. Disposition. The court determined the defamation preliminary issues in the claimant’s favour in part. The email conveyed that the claimant was unfit or unable satisfactorily to perform the role of sales representative for Grant because, in his past dealings with the defendants’ sales team, he had consistently fallen seriously below the standards expected of a competent and diligent representative.
2. Repetition rule. A pleaded defamatory meaning must identify the claimant’s underlying act, condition or attribute. It must not merely plead that the claimant had been criticised, named or subjected to action by others. The email’s references to being named the worst representative and to a request that he no longer visit branches had to be understood as evidence of serious underlying performance failures.
3. Fact and opinion. The words up to “because” conveyed an opinion. The expression of “huge reservations” was a clear indication that a value judgment was being offered. The balance conveyed an underlying factual allegation that the claimant’s performance had seriously fallen below the relevant professional standard.
4. Defamatory meaning. The meaning was defamatory at common law because it imputed serious, rather than trivial, failures in the discharge of the claimant’s professional role and had a tendency substantially to affect adversely the attitude of others towards him.
5. Honest opinion. The email indicated the basis of the opinion by referring to the claimant’s past performance in dealings with the defendants’ staff. The first two conditions in section 3 of the Defamation Act 2013 were therefore satisfied.
6. Malicious falsehood. For a publication to a single person, the relevant meaning is the meaning actually understood by the publishee. Without evidence from that person, it was neither necessary nor appropriate to determine whether the claimant’s pleaded meaning was reasonably available or would reasonably have been understood. Issue (v) was declined as a preliminary issue.

First-instance decision. No appellate history is stated in the judgment.