Richard Parsons v Douglas Atkinson

In claims for defamation and misuse of private information, the claimant bears the burden of proving publication on the balance of probabilities. There is one civil standard of proof: the seriousness or inherent improbability of an allegation affects the evidence required, but does not create a heightened standard. Where publication is not proved, a defamation claim fails without determining serious harm, and a misuse of private information claim dependent on the same publication also fails. The possible percolation or grapevine effect of a publication is fact-sensitive, but it is unnecessary to decide that issue where publication itself has not been established.

The claimant sued a fellow resident for damages and injunctive relief, alleging that the defendant read aloud a defamatory poison-pen letter at a fire station. The defendant denied publication and denied that the letter contained private information or that its publication constituted actionable misuse.

The trial focused principally on conflicting evidence from the defendant, the claimant’s witnesses and two makers of hearsay statements who were not called for cross-examination. The central issue was whether the defendant had published the letter as alleged.

1. Publication. The claimant bore the burden of proving that the defendant read the letter aloud to other firefighters. The applicable standard was the balance of probabilities.
2. There is a single civil standard of proof. The approach described in In re H (Minors) (Sexual Abuse: Standard of Proof) was treated as no more than guidance on applying that standard. The inherent probability or improbability of an event is a factor to be taken into account, as explained in In re B (Children).
3. The court preferred the tested evidence of the defendant and Ms Armistead to the untested evidence of the Jardine brothers. The claimant had adduced their statements, knew that their evidence was controversial, and could have sought witness summonses. The risks associated with the untested evidence therefore lay with the claimant.
4. The claimant failed to prove that the defendant read the letter aloud. The libel claim consequently failed.
5. The court declined to determine serious harm. The possible percolation or grapevine effect of a small publication was fact-sensitive, and resolving it would have required extensive findings on a hypothetical publication: Riley v Murray (No. 2) was considered in that context.
6. The misuse of private information claim depended on the defendant’s publication of the letter. Since publication was not proved, that claim also failed. The court declined to determine the remaining issues.