Maria Joao De Azavedo Camacho v OCS Group UK Limited

The defence of consent in defamation depends on whether the claimant expressly or impliedly consented to the particular publication complained of. Consent must be clear and unequivocal. Agreement to an employment disciplinary procedure may imply consent to necessary republication during that procedure, but the scope remains limited and fact-sensitive. Agreement to a grievance procedure does not generally imply consent to defamatory statements made during investigations of grievances brought by others. Policy concerns about employer liability cannot establish consent. On the agreed facts, the claimant had no unanswerable consent defence to statements made by colleagues during an investigation of grievances against her.

The claimant appealed against Deputy Master Fine’s order summarily dismissing claims in defamation, harassment and unlawful means conspiracy. The defamation claim concerned oral statements made by two colleagues during interviews conducted as part of investigations into grievances brought by other employees concerning the claimant’s conduct.

The Deputy Master held that the employer had an unanswerable defence of consent, applying Friend v Civil Aviation Authority [1998] IRLR 253 by analogy with disciplinary proceedings. The appeal concerned whether that principle extended to publications made during a grievance investigation.

1. Appeal allowed in relation to the summary dismissal of the defamation claim. The Deputy Master was wrong to hold that the employer had an unanswerable defence of consent. The claimant’s defamation claim could in principle proceed on the basis of the oral statements made by the two colleagues.
2. The decision in Friend v Civil Aviation Authority [1998] IRLR 253 did not create a free-standing rule confined to, or automatically extending from, particular employment procedures. It applied general principles of consent. The question was whether the claimant expressly or impliedly consented to the particular publications complained of.
3. Consent to publication must be clear and unequivocal. Its scope is fact-sensitive and limited. Even agreement to a disciplinary procedure does not necessarily authorise gratuitous or irrelevant defamatory statements. Consent to necessary republication during a fair disciplinary adjudication does not extend automatically to original publications or all evidence given during the process.
4. A grievance procedure differs from a disciplinary procedure. It ordinarily gives an employee an opportunity to raise and have a grievance investigated. It does not generally concern the enforcement of standards of conduct against the employee who is the subject of criticism. Agreement to such a procedure therefore does not, without more, imply consent to defamatory allegations made during an investigation of a grievance brought by another employee.
5. On the proper interpretation of the contract and Grievance Policy, the claimant had agreed that she could raise a grievance and that it would be investigated. There was no clear evidence that she had consented to publications arising from hypothetical grievances brought by others, still less to unknown statements which might be made during their investigation. The policy’s provision that employees should not make false or malicious grievances reinforced the equivocal nature of any alleged consent.
6. Policy arguments concerning the burden on employers did not establish actual consent. Other safeguards, including qualified privilege and the requirement to prove serious harm, might limit liability, but they did not justify summary dismissal of the defamation claim. The unlawful means conspiracy claim was not pursued, and consequential matters, including the application to amend, were left for written submissions.

• High Court (King’s Bench Division): The appeal from Deputy Master Fine’s order dated 11 May 2022 was allowed in relation to the summary dismissal of the defamation claim. The claimant’s application for permission to amend and consequential matters were left for further determination.
• Deputy Master Fine: The claims were summarily dismissed and the claimant was ordered to pay costs of £35,000. The defamation claim was dismissed on the basis of consent, applying Friend v Civil Aviation Authority [1998] IRLR 253.