Cammish v Hughes [2012] EWCA Civ 1655
This case was an appeal against a Judge’s refusal to order dismissal of defamation proceedings brought by the Respondent without a trial.The Appellant owned companies that were seeking planning permission for the construction of two biomass power plants in south Wales. The Respondent was the owner and director of the Pugh Group Limited.
In April 2010 a twelve page bundle of documents was sent anonymously to a number of recipients. The letter referred to the fact that the Respondent was the leader of resident’s action group opposing the granting of planning permission for 2 power stations. The letter read:
“Dear All
Please see Companies House on your Mr Cammish Coed Bach Action Team Ltd — between him and [his] girlfriend they have dissolved over 20 companies not able to sell anyone of them and coming to Swansea to tell you how to do it”
The Respondent complained about the first page as detailed above but also a hand-written message which read:
“Coedbach Action Team Ltd
See statement that on 31 March public inquiry cancelled and to have the appeal dismissed, when Mr Hughes was asked — he knows nothing about it. See Mr Cammish dissolved 15 companies = not able to run them
Supporter of the power plants @ for jobs in area”
The Appeal court agreed that it would be unreasonable to infer that the dissolution of companies would mean that you are unfit to run them. There could be numerous reasons why a company was dissolved.
It was unclear as to how many people had seen the bundle. It was known to have been sent to 6 recipients. It was discovered that it had been passed on to a limited number of people. The circulation, however, was very limited.
Initially the Appellant denied authorship. However, he subsequently admitted it in his defence. In his defence he denied that the words were defamatory.
An application was made to determine the meaning of the words complained of. The Respondent argued for a wider meaning that the words complained of meant that he was a serious incompetent business person. The Appellant argued that the words only related to his fitness to chair the action group. He also argued that proceedings should be dismissed in accordance with Jameel.
The Judge concluded that the words did mean that the Respondent was seriously incompetent in business.
The Judge, however, wasn’t asked to decide whether those words were “fact or comment”. If he had been and it was found that the words were “comment”, then that would have been the end of the matter, unless the Respondent could seriously argue that the Appellant was guilty of malice.
Because the Judge was not asked to consider the question of “comment”, the Appellant sought to have the case struck out on the grounds that the words were defamatory and that they didn’t meet the standard of seriousness as set out in Thornton v Telegraph Media Group Limited (2011)1WLR 1985.
The Judge rejected the arguments to try and strike out the claim and rejected the Appellant’s application to dismiss the proceedings without a trial.
On appeal, the Judge applied the guidance in Jeynes v News Magazines Limited [2008][EWCA CIV 130].
“The governing principles relevant to meaning … may be summarised in this way:
(1) The governing principle is reasonableness.
(2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.
(3) Over-elaborate analysis is best avoided.
(4) The intention of the publisher is irrelevant.
(5) The article must be read as a whole, and any ‘bane and antidote’ taken together.
(6) The hypothetical reader is taken to be representative of those who would read the publication in question.
(7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, ‘can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation … ’.
(8) It follows that ‘it is not enough to say that by some person or another the words might be understood in a defamatory sense’.”
The Judge agreed with the courts below assessment of the meaning. The court considered whether the meaning was defamatory. It was agreed that it was. However, for different reasons the court below had thought that the words were defamatory as they cast doubt on the Claimants’ credit worthiness. In fact, the Appeal Court considered that the imputation was that the Respondent was a seriously incompetent business person.
It then went on to consider the threshold of seriousness. The court considered it was, as the words complained of could have affected his livelihood. Reputation is very important to business persons.
The Appeal Court then went on to consider whether the words complained of were fact or comment.
The court considered that if the Judge is going to determine meaning, he should at the same time, deal with comment. The court considered that the words were clearly comment. It didn’t matter that the Appellant’s view was unsustainable. The law is clear in its terms. If the words complained of are comment, the defence of honest comment is available whether the comment was right or wrong.
As a consequence, the court considered it would have an affect on the whole matter. The Respondent would have to amend that the claim to plead that the Appellant had been malicious. He would then be able to defeat the defence of comment. The Judge felt that it was highly unlikely that a defence of malice would succeed.
The court then went on to consider whether the proceedings should continue. In an earlier case, Justice Eady J had stated when considering whether a case should be struck out as an abuse of the process of the court, the relevant question was:
“whether the game was worth the candle.”
There needed to be a real and substantial tort within the jurisdiction.
The court decided that the Respondent would be no better off if the case continued, and he incurred the cost of trial because:
“(1) The number of recipients of the bundle was small. In reality the number of recipients is now known by default. It is possible that on disclosure further publication will come to light but it is unlikely that any significant further publication will now come to light.
(2) The wrong done to the respondent’s reputation has been vindicated by paragraphs 12 and 13 of this judgment as to the unreasonableness of the appellant’s view.
(3) No better vindication could be obtained at trial. If the appellant were to amend his defence to plead honest comment in relation to the meaning found by the judge, the focus at trial would be solely on the question whether malice could be shown, and not on whether the comment was in fact fallacious. For the reasons already given, malice would be difficult to prove in the circumstances of this case.
(4) But if the appellant were not to amend, the respondent would still not achieve at trial any vindication of more value to him than that given to him in this judgment. Any damages awarded for so limited a publication would be small in relation to the costs, and any pursuit of the claim for damages only would be uneconomic. The wide publicity that would be given at trial to the documents from Companies House could also lead to further misunderstanding amongst some members of the public to the detriment of the respondent.
(5) The loss of the opportunity to obtain a permanent injunction at trial would not prejudice the respondent to any material extent. A permanent injunction would not be available in any event unless he proves malice and (as just stated) it would be difficult for him to prove this. Furthermore, there is no great need for an injunction. It is true that the appellant has neither offered an apology nor an undertaking not to repeat the statement made in the bundle. He has, however, said that he will not repeat it. If he were to do so, anonymity is unlikely to help him and it would be difficult for him to resist a claim of malice in light of what we have said about the unsoundness of the view he has expressed.
(6) The respondent has been able to soothe the apprehension of those who received the bundle, and time has passed since the events in issue. The wounds are in our judgment likely to heal more quickly and more completely if sleeping dogs continue to lie than if they are stirred up by the publicity that may result from a trial.
(7) The dismissal would be on certain minimum terms as to costs explained in paragraph 64 below.”
The court made the unusual decision of ordering that the Appellant paid the costs up until the service of the defence. The Judge directed the summary dismissal of the proceedings and allowed the appeal.
The case is noteworthy because it now established that when a judge is considering the meaning of the words complained of, he should at the same time rule on whether those words are fact or comment.