The libel case of Joseph v Spiller has been remarkable in a number of ways.  It arose out of a publication on the defendants’ website for 6 weeks in April and May 2007 and, again on a limited basis in 2008.  The claim was issued in May 2008 and, after a trip to the Supreme Court, was eventually tried by Mr Justice Tugendhat on 15 to 18 October 2012. 

He gave judgment on 26 October 2012 ([2012] EWHC 2958 (QB)), finding in the claimants’ favour on liability but awarding them nominal damages on the basis that the first claimant, Craig Joseph, had abused the process of the court by deliberately pursuing a false claim for special damages.  Costs will be determined shortly.

Background

The claimants are members of the musical group The Gillettes (also known as Saturday Night at the Movies).  The first defendant is a director of the second defendant, 1311 Events Ltd, which provides entertainment booking services.

The words which were published were as follows

“1311 Events is no longer able to accept bookings for this artist as The Gillettes c/o Craig Joseph are not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract. …

What we say:

The show is an enjoyable soul and Motown experience which is popular for many events throughout the UK. However, following a breach of contract, Craig Joseph who runs The Gillettes and Saturday Night At The Movies has advised 1311 Events that the terms and conditions of ‘… contracts hold no water in legal terms’ (27.03.07). For this reason, it may follow that the artists’ obligations for your booking may also not be met. In essence, Craig Joseph who performs with/arranges bookings for The Gillettes and Saturday Night At The Movies may sign a contract for your booking but will not necessarily adhere to it. We would recommend that you take legal advice before booking this artist to avoid any possible difficulties.

Instead, we recommend any of the following professional bands and artists … “

The meaning relied upon in the original and amended Particulars of Claim was that:

“… the Claimants are grossly unprofessional and untrustworthy and will not, and/or are unlikely to, honour any bookings made for them to perform either as The Gillettes or as Saturday Night at the Movies.”

The defendants relied on defences of justification and (what was then known as), fair comment and qualified.  The trial was listed for 8 June 2009.

However in May 2009, the claimants applied to strike out all three defences.  Mr Justice Eady struck out the defences of qualified privilege and fair comment but allowed the defence of justification to stand, in part ([2009] EWHC 1152 (QB)).

The defendants appealed.  The appeal  the issue of fair comment was dismissed by the Court of Appeal on 22 October 2009 ([2009] EWCA Civ 1075).  The defendants appealed to the Supreme Court which allowed the appeal, reinstating the defence but renaming it “honest comment” ([2011] 1 AC 852).

The claimants subsequently re-amended their Particulars of Claim to plead the following defamatory meaning

                “… [Mr Joseph] has stated in writing, on behalf of the Claimants, that as far as they are concerned the terms of and conditions of contracts do not hold water in legal terms. Thus it is highly likely that, even after entering into a contract to perform, they will not bother turning up to honour such a commitment”.

The matter was again listed for trial by judge and jury but, in June 2012, the mode of trial was changed to judge alone and it was tried by Mr Justice Tugendhat over a period of 4 days with judgment being given an impressive 8 days later.

The Judgment

The Judge began by considering the issue of meaning.  He held that the words bore the following defamatory meanings

“1. Mr Joseph on behalf of the claimants has :-

(a)  Conducted himself in such a manner so as to entitle the defendants to conclude that ‘The Gillettes’ were not sufficiently professional to feature in the second defendant’s portfolio.

(b)  Breached the terms of agreements with the second defendant.

(c)  Demonstrated a contemptuous, cavalier and unprofessional attitude to the contractual obligations as evidenced by his email of 27 March 2007.

(d) Behaved in an unprofessional and untrustworthy manner

2.  In the circumstances, the claimants may not necessarily adhere to the terms of booking agreements signed by Mr Joseph.

3.  There is a risk (amounting to a real possibility) that the Claimants may not abide by all the terms of any contract with a client setting out the artists’ obligations

There were two issues for the judge to decide (1) whether the words identified as being the basis of the opinion were true and (2) whether Mr Spiller actually believed the opinion that he expressed [52].

In April 2006 Mr Joseph, on behalf of the claimants, signed a booking contract with Bibis restaurant which, at the trial, the claimants accepted was a breach of their contract with 1311 Events.

The Judge then analysed the various emails passing between the parties and concluded that the Claimants had not demonstrated a contemptuous, cavalier attitude to contractual obligations but that they had acted unprofessionally.  He also found that nothing the claimants had done had given rise to a risk to clients.  What they had done was in response to specific and unusual facts which, in any event, had nothing to do with any problem that might be likely to arise as between the claimants and a client (see [53] to [94]).

The judge then considered the first defendant’s state of mind.  His conclusion was that

throughout the period when the posting was accessible on the website, I find that Mr Spiller did not believe that there was any real risk that, if the Claimants signed the contract with a client, they would not adhere to it. [121]

In their Re-Amended Defence of 27 February 2012, the defendants raised a number of points about the claimants’ conduct of the litigation.   Most importantly, they alleged that the claimants had advanced a false claim for special damages based on a cancellation of a booking in November 2008.  This occupied much of the trial.  The Judge disbelieved the entirety of the explanation put forward by the first claimant in relation to this part of the claim. [156]  He concluded that

“The Defendants have proved that from the time when Mr Joseph first advanced the claim for damages in respect of the cancellation of the November 2008 booking, he was acting in a dishonest and untrustworthy manner, and he throughout intended to, and at the trial he did, lie to the court and produced a fabricated document in support of that part of his claim for damages” [166].

The Judge’s findings of fact on justification and honest comment are set out at [161] to [165].

The result of the Judge’s findings was that the defendants had proved that the general allegation that the claimants were not sufficiently professional to feature in the portfolio of 1311 Events was true and they had also proved that the claimants were in breach of contract in relation to the performance at Bibis [168].

However, the defendants had not proved more serious allegations were true and, in respect of the second which is an opinion, they proved that the second defendant did not believe it.

These two allegations are (1) that Mr Joseph demonstrated a contemptuous or cavalier attitude to contractual relations, and (2) that there was a risk (amounting to a real possibility) that the Claimants might not abide by all the terms of any contract with a client setting out the artists’ obligations.[169]

As a result, leaving aside the first claimant’s conduct of the litigation, the claim would succeed.  The judge then accepted the claimants’ submission that the conduct of the litigation was irrelevant to the issue of truth.  As a result, there was judgment for the claimants [170] to [173].

On the question of damages, the court was entitled to have regard to all the evidence properly before the court on any issue [174].   He held that the first claimant had abused the process of the court by deliberately pursuing a false claim for special damages and, as a result, he could not be awarded any damages for libel.  The Judge noted that

“massive as it was, this attempt to deceive the court does not affect the whole claim. But in my judgment there would no injustice to Mr Joseph if he is awarded only nominal damages. The vindication of his reputation to which he is entitled has been given in the reasons for this judgment set out above. He requires no further vindication of his rights”.[178]

Although the second and third claimants were not involved in the abuse of the process, the first claimant was their agent and, as a result, they too were awarded only nominal damages [183].

The Judge’s conclusion was as follows:

The Gillettes have succeeded in this action on the merits. They did act unprofessionally by taking a booking direct from the client in breach of their contract with 1311 Events. But, wrong as it was, this action was not cavalier or contemptuous. It was an ill advised response to the fact that 1311 Events had fallen out with the client, who was no longer willing to deal them. There was no risk that The Gillettes might not abide by the terms of any contract between themselves and any client, and Mr Spiller did not believe that there was any such risk. However, because Mr Craig Joseph attempted to deceive the court by fabricating a part of their claim for special damages, The Gillettes will receive only nominal damages. [184]

Comment

This is the kind of action which gives libel a bad name.  After several hearings at first instance, two appeals and hundreds of thousands of pounds in legal costs the court has concluded that two allegations made on a website were false and awarded nominal damages (not stated but presumably £1 or perhaps 1p).   Neither the claimants nor the defendants have come out of the case unscathed and the judge was clearly unimpressed with important parts of the evidence from both sides of the case.

But the most interesting aspect of the case is the judge’s decision to award nominal damages as a result of the attempt by the first claimant to deceive the court.

This is a novel way of dealing with the abuse of the Court’s process.  In his recent lecture “Lies, damned lies: Abuse of process and the dishonest litigant” [pdf] Lord Reed noted a number of possible approaches to the dishonest litigant.  A number of these involve dismissal of the claim on the basis that the dishonest litigant had forfeited his right to have the case heard or because the dishonest conduct has made fair trial impossible.  But his concern was how to deal with findings of dishonesty made before the conclusion of the trial.  As he points out

A finding at [the conclusion of the trial] … that a document was forged or suppressed, or that a party told lies in his evidence, is part of the court’s ordinary adjudicative function. The judge may decide to punish the party for contempt, or refer the case to the prosecuting authorities, but he or she will nevertheless have adjudicated on the dispute”.

The consequences of presenting a false and dishonest claim were recently considered by the Supreme Court in Summers v Fairclough Homes ([2012] 1 WLR 2004): a case in which the claimant had dishonestly exaggerated his claim for personal injury damages.  The Supreme Court held that there was jurisdiction to strike out such a claim, even after trial, but that this power should only be exercised in exceptional circumstances.  It went on to say that, in the ordinary way a judge would be expected to penalise such a claimant in costs; and that proceedings for contempt of court were an effective sanction.

The Supreme Court held that, in the circumstances of the case, the claimant should receive the award of general and special damages which had been assessed by the judge.  In short, the claimant’s dishonesty did not lead to a reduction in damages.  Although personal injury damages (like libel damages) are conventional sums to compensate for non-pecuniary loss they sums awarded to compensate for “real damage”.  It is well established that a claimant’s misconduct cannot reduce the “real damage” suffered by him (see Lane v Holloway [1968] 1 QB 379). The fact that the claimant had deceived the court did not mean that he should not be compensated for the damage he suffered.

Why was a different approach taken here?  The reason given by the Judge was that the court should have regard to all the evidence properly before the court on any issue is well founded in relation to the assessment of damages (see Gatley on Libel and Slander, paras 35.29(3) and 35.47)[174] and Mr Craig Joseph had abused the process of the court.  It is, however, difficult to see how these propositions justify an award of “nominal damages”.

As already indicated, “abuse of the process” can have all kinds of adverse consequences but there is no authority to support the contention that a reduction in damages is one of them.  An award of nominal damages is made where a claimant’s rights have been infringed but he has failed to established any real damage.  In a libel case small awards of damages are sometimes referred to as “contemptuous” or “derisory” – to distinguish them from damages awarded purely to vindicate a right.  As Lord Esher MR said in Whittaker v Scarborough Post ([1896] 2 QB 148, 149)

“if a libel were a trivial or ridiculous one, in respect of which the jury thought that an action ought not to have been brought, they would only give contemptuous damages“

A well known example of such an award was the sum of £1 awarded by the House of Lords in the case of Grobbelaar v News Group Newspapers ([2002] 1 WLR 3024) on the basis that he had no reputation deserving of legal protection, as his conduct had destroyed the value of his reputation.

However, in these cases the award of nominal damages was made because there was no actual damage to reputation: either because the libel was trivial or because the claimant had no reputation of value to damage.  This was not the position in Joseph v Spiller. The judge accepted that the libels were not trivial and it was not suggested that the reputations of the claimants were “no longer deserving of legal protection”.  In short, the claimants did indeed suffer “real damage” for which they were entitled to compensation.

There is a strong argument that, given that the action was not struck out as an abuse and the damage was not trivial, the court has no jurisdiction to deprive a claimant of an award of substantial damages – to compensate him for his distress and damage to reputation.  Just as the Supreme Court in Fairclough did not reduce the dishonest claimant’s award of general damages for pain suffering and loss of amenity, so a libel court cannot reduce a dishonest claimant’s award of general damages for libel.  As the Supreme Court made clear, the Court’s disapproval of the claimant’s conduct can be registered in a variety of other ways which should, take together, provide a strong disincentive to dishonest claims.