Jaqueline Samuels (t/a Samuels & Co Solicitors) v Christopher John Henry

Liability for publication of online reviews must be proved on the balance of probabilities. A prima facie inference from a reviewer’s initials or apparent connection with a defendant may be insufficient where the material is generic and other potential publishers exist.

An allegation that publication was malicious cannot ordinarily strengthen the proof of authorship where the alleged motive is inferred only from the fact of publication. Negative reviews do not, without something unusual in their wording, establish an improper intention to injure the subject of the review.

The claimant, a sole-practitioner solicitor, brought two claims against a former client. The first alleged malicious falsehood in relation to two Google reviews. The second alleged libel in relation to a third review. The defendant denied publishing any of the reviews.

The claims were consolidated. Following an earlier strike-out application, the court directed a preliminary trial of whether the defendant had published, or was legally responsible for publishing, the reviews, and, if so, the extent of publication. Both parties represented themselves and gave evidence.

The central issue was whether the circumstantial evidence established, on the balance of probabilities, that the defendant was responsible for any of the three publications.

1. Claims dismissed. The claimant failed to prove that the defendant published, or was otherwise responsible for publishing, any of the three online reviews.
2. The initials or names used for the First and Second Posts created a reasonably strong prima facie case, but did not establish liability. The timing of the First Post was not sufficiently close to the SRA correspondence to be probative. The defendant denied receiving the letter of claim, so the alleged timing of the Second Post provided no relevant coincidence. Changes to the reviewer’s name showed only possible dissatisfaction with the displayed name or a wish to conceal identity.
3. The Third Post, published under the initials “P R”, had very little evidence linking it to the defendant. The existence of other dissatisfied clients and other possible reviewers weakened the inference sought by the claimant.
4. The court distinguished Applause Store Productions v Raphael [2008] EWHC 1781 (QB). That case involved detailed evidence, including the timing of publication, the IP address, the defendant’s movements and material known specifically to him. Here the reviews were generic, could have been written by any unhappy client, and there was no comparable technical or circumstantial evidence.
5. The allegation of malice did not assist the claimant’s case on publication. It was circular to infer authorship from an intention to injure when that intention was itself inferred from authorship. In any event, the wording of the reviews indicated only negative experiences and an apparent wish to inform others, not an improper motive.
6. The claimant could not stay the trial to seek fresh evidence through a Norwich Pharmacal application after closing her case. A litigant may not wait to see how the evidence develops before seeking evidence that could have been obtained earlier.
7. Had the publication issue been resolved in the claimant’s favour, the malicious falsehood claim would have been struck out or summarily dismissed for lack of a properly pleaded and evidenced case of malice. The libel claim would likewise have been struck out or summarily dismissed for lack of properly pleaded and evidenced serious harm.