In the case of Flymenow Ltd v Quick Air Jet Charter GmbH  EWHC 3197 (QB) an aircraft charter company was awarded nominal damages of £10 in a libel action after it was found that it had acted “disgracefully” before and during the litigation.
The Defendant Quick Air Jet Charter GmbH, a German provider of private jets, entered into multiple contracts with the Claimant FlyMeNow Limited for the provision of flights between July and August 2013. Despite multiple attempts by the Defendant to obtain payment from the Claimant in respect of those flights, there were still sums outstanding on 5 December 2013 when the Defendant circulated an email which stated the following: “WARNING. Company you should not deal with! Pecuniary difficulties!”. It said that the Claimant was “not able to pay” outstanding amounts due to them. The email was sent to 26 companies in the aviation industry.
The Defendant admitted that it had published the email and that it referred to the Claimant and was defamatory.
For the purposes of defamation law, the natural and ordinary meaning of words is the meaning they would convey to the ordinary reasonable reader. Mr Justice Warby found that the meaning of the email was that it would be financially unsafe to do business with the Claimant because the Claimant was a defaulter, having failed to pay the Defendant sums that had been due and outstanding since July, and the reason for that was that they were insolvent.
The Defendant sought to rely on the defence of ‘justification’ available to a defendant who proves that the natural and ordinary meaning of the words complained of is substantially true (and broadly equivalent to the defence of ‘truth’ under section 2 of the Defamation Act 2013). This defence ultimately failed as the Defendant was unable to prove that the Claimant was insolvent at the time the email was sent. However, the Defendant did prove that the Claimant was ‘perilously close’ to being insolvent. It was therefore true that it would be financially unsafe for others to deal with the company, and it was true that the Claimant was a defaulter which had failed to pay the Defendant sums that had been due for many months.
The publication was not protected by the common law defence of ‘qualified privilege’ as the Defendant was under no moral or social duty to send the email. They had no formal role within the aviation industry which placed it under any implied obligation to warn others.
Despite ruling in the Claimant’s favour on liability, Warby J ruled that the Claimant was not entitled to any substantial damages. Having decided that the email was “very largely true”, the judge then considered the Claimant’s conduct both before and during the litigation. He ruled that the Claimant had acted “disgracefully at the time” in “fobbing [the Defendant] off with a series of dishonest excuses” and had “behaved disreputably and disgracefully since”.
The Claimant’s own conduct had played a significant role in causing the Defendant to publish the untrue allegation of insolvency. Indeed, the Claimant had caused the Defendant to believe it was insolvent. In the circumstances, Warby J concluded the appropriate damages award was one of £10.
This decision should serve as a warning to those claimants who might assume that it is solely the conduct of the defendant which falls to be scrutinised on the question of damages. Warby J’s judgment demonstrates that a claimant’s misconduct has the potential to significantly reduce the level of general damages awarded, particularly where a claimant has acted dishonestly.
This post originally appeared on the Brett Wilson Media Law Blog and is reproduced with permission and thanks