Robin Cammish (Respondent) v Clive Hughes (Appellant) [2012] EWCA Civ 1655

Case date: 12/12/2012
Court: Court of Appeal
Area/s of law: Libel
Barrister/s: Timothy Atkinson 

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Robin Cammish (Respondent) v Clive Hughes (Appellant) [2012] EWCA Civ 1655

Background
At the material time, the appellant owned and ran a number of companies that were seeking planning permission for the construction of two biomass power plants in South Wales. The respondent, a businessman who had run a company of some substance and who was still engaged in business through another company in his group, was also the chairman and a director of an action group of local residents who were opposing the construction of those plants.

In April 2010, a bundle of documents was sent anonymously to a number of recipients. The respondent brought a claim in relation to typewritten words contained in the bundle which referred to the dissolution of a number of companies of which he had been a director. He also complained of a handwritten message, which included the words: “See Mr Cammish dissolved 15 companies = not able to run them”. The appellant lied about his authorship of the words until service of the Defence. In his Defence, the defence of honest comment was pleaded.

By agreement of the parties (the mode of trial being judge alone) the actual meaning of the words was determined by the judge below. The appellant also sought to strike out the action on Thornton and Jameel grounds. The judge at first instance was not asked to and did not decide whether the words were fact or comment, but held that the meaning of the words complained of included the allegation that the respondent was a seriously incompetent businessperson. The pleaded defence of honest comment was only in relation to the appellant’s meaning which was held to be wrong. The judge declined to strike out the action, either on Jameel grounds, or on the basis that the statements in question did not meet the standard of seriousness set out in Thornton v Telegraph Media Group [2011] 1 WLR 1985.

The grounds of appeal related to the judge’s approach to meaning and the question whether or not the words complained of constituted fact or comment. The appellant contended as follows: (1) that the judge should not have determined meaning without determining whether the words were fact or comment; (2) that the words could only amount to comment; and (3) that the comment was clearly based on accurate facts ie the dissolution of a number of companies as set out in Companies House material. Other issues on appeal were whether the judge had arrived at the right decision in relation to meaning and the Thornton threshold of seriousness and Jameel abuse.

Decision (Arden LJ, Lloyd Jones LJ, Tugendhat J)

Meaning

  • As to the standard of appellate review, the Court held that they should not depart from the judge’s meaning unless it was clear that some other meaning applied (para 31). In relation to the Thornton threshold of seriousness, that was stated to be a “multi-factorial” question, to which a low level of appellate review applied (para 40).
  • The Court agreed with the judge’s meaning (para 34).
  • It was held that the words were defamatory and that the threshold of seriousness from Thornton was met. The inference to be drawn from the words was held to be capable of affecting the respondent’s livelihood. The Court noted: “Reputation is important to a businessperson as he needs to persuade others to trust that he will completely perform commitments entered into in the course of business” (para 41).

Fact or comment

  • It was held that where a judge is going to make a definitive determination of meaning, “he should normally deal with comment at the same time”.
  • The Court concluded that the words were comment as opposed to fact and noted that this had an “important effect on the future conduct of the case”. Specifically, if the appellant amended his defence to plead honest comment with respect to the objective meaning found by the judge, the respondent would have to show that the appellant did not believe the opinions that he expressed (para 47).

Honest comment

  • The Court addressed the issue of whether a defendant can rely on honest comment if he did not intend to convey the objective meaning found by the judge. It was said to be at least arguable that the defence is available: “if (a) the author of a statement did not intend or believe his words to convey the meaning given to them by the court, and (b) on the meaning which he intended and believed the words to convey he believed the statement to be true” (para 49).
  • It was noted that the Court had been shown no “direct evidence” of malice (para 50) and an inferential case was difficult to prove.

Jameel abuse

Because the question whether the words complained of were comment or fact had been determined, the Court considered itself to be in a better position than the judge below to determine whether ‘the game was worth the candle’ (para 59).

  • The Court concluded that the respondent would be no better off if the case continued to trial. This was in light of the following factors:
    – the small number of recipients of the bundle;
    – the vindication achieved by paras 12-13 of the judgment. In that part of the judgment, the Court noted that it had been undoubtedly unreasonable for the appellant to infer from the fact that the respondent was the former director of dissolved companies, that he was unfit to run them. The respondent had simply formed companies under names related to the name of his company in order to prevent anyone else from doing so and trying to pass off their services as those of his company. That was a normal reason for incorporating a company. The dissolution of such a company had nothing to do with the respondent’s business abilities;
    – the fact that no better vindication could be obtained at trial than that given to him by virtue of the Court’s judgment (whether the appellant amended so as to plead honest comment to the meaning found by the judge, or not);
    – the small amount of damages which would, if the respondent were successful, be awarded, given the limited publication;
    – the lack of “any great need” for an injunction, since the appellant had said he would not repeat the words, and the fact that the judgment itself would mean that it would be difficult for the appellant to resist a claim of malice as regards any re-publication in light of the vindication given in the judgment ; and
    – the Court’s perception that a “the wounds” would heal more quickly and completely “if sleeping dogs continue to lie” than if a trial were to stir up publicity(para 60).
  • Ultimately, it was held that the need to have a trial had now been eliminated and that there was, now, no ‘real and substantial tort’ to be tried (para 61).
  • However, the Court stated that an order for dismissal on its own would not reflect the seriousness of what had happened. The respondent had to soothe the fears of recipients and the publication caused him anxiety and grief. The impact was not diminished by the fact that the principal recipients were fellow members of the action group. The Court was also concerned that wrong conclusions might be drawn in the community as to why the action had not been allowed to proceed to trial (paras 62-63).
  • The Court proposed to make an order for the payment of costs as a condition of summary dismissal and as: “a further protection and vindication to the respondent” (para 64).
  • It was clear that the respondent was fully justified in bringing the proceedings and the Court referred in this connection to the appellant’s lie about authorship (para 64).
  • By a subsequent order, the Court made no order for costs of below or of the appeal, save for the costs already ordered by the Court in favour of the respondent, Mr Cammish.

Comment

This case is of wider significance and interest in light of the respondent achieving vindication through the very judgment dismissing the claim, in circumstances where the respondent was stated to have been fully justified in bringing the proceedings. The court’s proposal to make an order on certain minimum terms as to costs in favour of the respondent, by way of further vindication as a condition of summary dismissal, is also of note. Finally, it would now seem that where a judge is tasked with deciding definitively what meaning the words complained of actually conveyed, the general rule will be that he should at the same time rule on whether those words are fact or comment.

Timothy Atkinson, instructed by Morgan LaRoche, appeared for the respondent.

The judgment is available here.