BW Legal Services Limited v Trustpilot A/S

For a body trading for profit, each publication sued upon must be shown, on the balance of probabilities, to have caused or be likely to cause serious financial loss consequent upon reputational harm. Serious harm cannot be established by aggregating the effects of separate publications, including other publications not sued upon. An inferential case remains an evidential case and cannot rest on speculation or general assertions. On a summary judgment application, the court may evaluate the evidence and draw a line where the claimant has not identified reasonably available further evidence capable of materially changing the position.

The claimant, a debt-recovery law firm, sued over twenty reviews published on the defendant’s Trustpilot website. It claimed damages, an injunction and relief under section 12 of the Defamation Act 2013. The defendant applied for summary judgment on the ground that the claimant had no real prospect of proving serious harm or serious financial loss under section 1, alternatively seeking strike-out for abuse arising from delay.

The claimant relied principally on an alleged loss of a business opportunity with Three and an inferential case based on the seriousness, reach and perceived reliability of the reviews.

1. Summary judgment. The court applied CPR rule 24.2. The question was whether the claimant had a realistic prospect of success, assessed without conducting a mini-trial but with regard to evidence reasonably expected to be available at trial. A party relying on future evidence had to identify its nature, source and relevance and provide reasonable grounds for believing that it might materially add to or alter the evidence.
2. Section 1 threshold. Under section 1(1) of the Defamation Act 2013, the claimant had to prove serious reputational harm caused or likely to be caused by each publication. As a body trading for profit, it also had to prove serious financial loss under section 1(2), consequent on the reputational harm. An inferential case was permissible, but inference required an evidential foundation and was distinct from speculation.
3. Causation. The claimant had to establish a causal link between each of the twenty reviews and serious financial loss. It could not aggregate harm from other reviews or publications not sued upon. The evidence concerning Three showed that its initial concern was general feedback on Trustpilot, the tender process was subsequently restored, and the final decision was attributed to retaining the incumbent supplier. There was no evidence that Three had seen the three specific reviews relied upon or that any of them caused the lost opportunity.
4. Inferential case. The seriousness and number of reviews, and the possibility that prospective clients might consult Trustpilot, did not overcome the causation problem. In the context of the large volume of other negative material, there was no realistic basis for attributing actual or likely serious financial loss to each specific review sued upon.
5. Disposition. The claimant had no real prospect of proving that any of the twenty reviews caused or was likely to cause serious financial loss. Summary judgment was granted to the defendant. The strike-out application was not determined; the judge observed that delay alone would not have established abuse.