Siobhain Crosbie v Caroline Ley

A claimant alleging passing off must prove goodwill, an actionable misrepresentation for which the defendant is responsible, and actual or probable damage. A mistaken or automatically generated online business listing does not amount to a misrepresentation by the defendant without evidence of agency, authorisation, consent or other responsibility. Mere confusion is insufficient without deception and damage.

For defamation, serious harm is assessed by reference to the meaning, circumstances and actual or probable impact of each publication. A sustained, targeted and oppressive online campaign, including repeated false allegations and threats, may also constitute harassment. Truth and public-interest defences fail where the allegations are materially false and the publications are not objectively justified.

Siobhain Crosbie, who operated APS Psychotherapy and Counselling, brought a passing-off claim against Caroline Ley. The claim concerned an online listing which combined APS’s address and website with Ley’s trading name and telephone number. Ley maintained that the combination resulted from an automated Google error and that she had not created or knowingly maintained it.

Ley brought Part 20 claims alleging that Crosbie had defamed and harassed her through repeated social-media publications accusing her of criminal fraud and presenting her as a danger to clients. Crosbie relied principally on truth and, in closing submissions, attempted to rely on the public-interest defence. The issues were whether Ley was responsible for an actionable misrepresentation and damage, whether Crosbie’s publications were defamatory and caused serious harm, and whether the publications amounted to harassment.

1. Passing off. Crosbie was entitled to assume that APS had goodwill. However, the claim failed on misrepresentation. The evidence showed that Ley had created an accurate listing for Buckhurst Hill Counselling and Psychotherapy, verified at the shared premises, while the disputed combination of business details arose from Google’s software merging listings. Ley was unaware of the problem until March 2016 and was blameless. There was no evidence that she created, authorised or consented to the misleading listing. The principles in National Guild of Removers and Storers Ltd v Bee Moved Ltd were applicable: responsibility requires agency, authorisation, procuration, or implied consent.
2. The claim also failed for want of damage. There was no reliable evidence of customers confusing the businesses or of calls intended for APS reaching Ley. Mere confusion or a risk of confusion was insufficient. The pleaded losses were substantially exaggerated and mathematically erroneous. The claim was therefore totally without merit within the meaning explained in Sartipy v Tigris Industries Inc.
3. Defamation. Each of the four publications bore the pleaded defamatory meanings, including that Ley was guilty of criminal fraud and was dangerous to clients. The publications caused or were likely to cause serious harm under Defamation Act 2013, s 1. The court considered the gravity of the allegations, their publication to therapists and members of the public, the evidence of readers’ reactions and the likely percolation of the allegations through the professional community.
4. The defence of truth under Defamation Act 2013, s 2 failed because Ley had committed no fraud, had made no admission, and was not a danger to clients. The public-interest defence under s 4 was not properly available after it had been abandoned by amendment. It failed on its merits in any event because the publications were part of a targeted vendetta, lacked objective public-interest justification, and contained assertions Crosbie knew or ought to have known were untrue.
5. Harassment. Crosbie’s publications formed a persistent and deliberate course of targeted oppression. The campaign lasted over four years, identified Ley by jigsaw inference and later by name, published her personal data, repeated false allegations, encouraged hostility, and included threats of violence. The conduct crossed the threshold from unpleasant or unreasonable behaviour into oppressive and unacceptable conduct. The defence in Protection from Harassment Act 1997, s 1(3), did not apply: the conduct was neither undertaken to prevent or detect crime nor reasonable.
6. The Part 20 claims for defamation and harassment succeeded. The court awarded £75,000 in global damages, including aggravated damages, granted an injunction against further publications, and ordered publication of a summary under Defamation Act 2013, s 12. The GDPR claim was not determined.