In Singh v Weayou  EWHC 2102 (QB), the Claimant Keith Singh, a Night Services Coordinator at the Priory Hospital in Roehampton, sued the Defendant Joseph Weayou, a Health Care Assistant at the same hospital, for libel and malicious falsehood in respect of an email Mr Weayou had sent on 24 August 2015 to the HR Manager and a senior manager at the hospital.
In the email, Mr Weayou made a number of allegations, including, most seriously, that Mr Singh had sexually assaulted him.
The accepted meaning of the words complained of was that Mr Singh who was in a position of trust and authority was guilty of inappropriate sexual harassment of Mr Weayou lasting two years – including sexually assaulting him – and when his advances were spurned Mr Singh sought to unlawfully seek the removal of Mr Weayou from him job, which amounted to victimisation.
Mr Singh denied Mr Weayou’s allegations and brought claims in both libel and malicious falsehood. Mr Weayou raised three defences: (1) truth; (2) honest opinion; and (3) qualified privilege. The three main issues in the action were:
- whether the allegations contained in Mr Weayou’s email were true;
- whether Mr Weayou had acted maliciously in publishing the allegations; and
- whether the allegations caused, or were likely to cause, serious harm to Mr Singh’s reputation.
The three day trial, before Mrs Justice Nicola Davies, focused predominantly on whether Mr Weayou had acted maliciously (although this was intertwined with the issue of truth/falsity). There was little dispute between the parties that the email complained of was published in circumstances that normally created a qualified privilege. Qualified privilege arises where the person making the statement has a moral or legal duty to disclose the information in question and the recipient has a corresponding interest in receiving it.
The qualified privilege defence can be defeated, however, if the Claimant shows that the Defendant has acted with a dominant improper motive in making the statement complained of. This is often established by proof that the Defendant knew the statement to be untrue, or was recklessly indifferent as to its truth. Malice can also be established where the Defendant believes the statement to be true, but his sole or dominant purpose is to harm the Claimant.
At trial, Mr Singh’s case was that most of Mr Weayou’s allegations against him were outright fabrications. Mr Weayou had waited two and a half years after the last alleged incident of sexual harassment which, on his own case, took place in April 2013, before reporting it to Senior Management at the hospital. During that time Mr Weayou had made another complaint about Mr Singh, in which he failed to mention any sexual misconduct.
On Saturday 22 August 2015, Mr Weayou requested to swap an evening shift on Sunday 23 August 2015 with another member of staff on the basis that this member of staff required emergency cover. Mr Singh refused the request on the basis that he believed that Mr Weayou, who was then a part-time student, would not have been sufficiently rested if it was granted. Mr Singh was aware that Mr Weayou had already worked a number of shifts earlier that week and was due to attend university on the Monday morning, before returning to work on Monday evening. When Mr Singh explained the reasons for his decision Mr Weayou began raising his voice in a threatening manner. He was standing at or near the door of the Mr Singh’s office, his hands on his hips, chest puffed out, speaking in an angry and aggressive tone. Mr Weayou refused to accept Mr Singh’s decision.
At 7.36am on Monday 24 August 2015, less than 36 hours after this incident, Mr Weayou sent the email which formed the subject of the claim. Mr Singh’s case – which the Judge accepted – was that Mr Weayou sent this email maliciously in retaliation for Mr Singh’s decision to refuse the shift swap.
In addition, there were inconsistencies in Mr Weayou’s account as between his original complaint, defence, amended defence and witness statement. During cross-examination it became clear that Mr Weayou was changing and embellishing his evidence to suit his own purposes. Indeed, the Judge noted that Mr Weayou “altered his evidence in Court to suit the times and dates of documentation” and, on one occasion, after being tripped up on times and dates, Mr Weayou was forced to admit, contrary to what he had stated in his witness statement, that a telephone call with the HR Manager at the hospital which he had claimed took place before sending his email simply did not happen. In summary, the Judge found that Mr Weayou was “not a credible historian”.
Mr Singh also adduced similar fact evidence to show that Mr Weayou had fabricated allegations against other colleagues. A pattern emerged showing that when colleagues dared to cross Mr Weayou’s path, he responded by making serious and unfounded allegations against them.
Relying on Mr Justice Dingemans’ comments at paragraph 47 of Sobrinho v Impresa Publishing SA  EWHC 66 (QB), it was submitted on behalf of Mr Singh that an allegation of sexual assault to senior management against a clinical member of staff at a hospital dealing with highly vulnerable patients is so obviously serious, that evidence is not even necessary, notwithstanding that publication was made only to two people. In the event, however, Mr Singh did have evidence of serious harm. This included how Mr Weayou’s allegations had caused colleagues to shun Mr Singh and how Mr Singh felt that the hospital had rejected his requests to attend management and mentorship programmes because of the serious allegations that had been made against him.
Further, Mr Weayou’s email caused, as he intended, an investigation into the allegations which necessarily involved them being conveyed to Mr Singh’s colleagues and subordinates. As evidence of this, Mr Singh also called as a witness one of his colleagues who confirmed how his subordinates had acted differently towards Mr Singh following publication of Mr Weayou’s email. The Judge accepted that the hospital was a small and close-knit working environment where gossip was likely.
Mr Singh succeeded with both of his claims and was awarded £15,000 in general damages, £5,000 in aggravated damages for Mr Weayou’s persistence in taking the matter to trial on defences he would have known were not true, and special damages in the sum of £5,531.10 to largely compensate Mr Singh for overtime shifts that he missed in order to avoid working with Mr Weayou following publication of the allegations.
Mr Weayou was ordered to pay an additional amount of 10% on the damages having rejected a Part 36 Offer in the sum of £4,950 made by Mr Singh earlier in proceedings. On the same basis, indemnity costs were awarded against Mr Weayou from 21 days after the date of the offer (the end of the ‘relevant period’) and interest on damages and costs was awarded at a rate of 10.25%. The Court ordered that Mr Weayou make a payment on account of costs in the sum of £70,000 within 14 days.
The Court also imposed an injunction prohibiting Mr Singh from repeating the allegations for a period of five years.
It is sometimes wrongly assumed employee/employer communications are virtually immune from suit because of the considerable protection afforded by qualified privilege. While malice can be difficult to prove, there are certain cases where the facts are such that it can be shown that the Defendant knew that the statements were false, or was reckless as to their truth. Tellingly, in this case Mr Weayou stated in his original complaint that most of his colleagues knew about Mr Singh’s purported sexual interest in him yet not one witness, at the time of the hospital’s investigation, or subsequently, confirmed that this was true. Such silence proved to be deafening.
The case also provides a good example of the benefit of a claimant making an early ‘generous’ Part 36 offer, particularly in circumstances where a Defendant is determined to take a case to trial. In addition to the extra 10% payment on damages and 10.25% interest on costs and damages (not to be sniffed at), the Claimant now has an indemnity costs order. When an indemnity costs order is made the benefit of the doubt over the reasonableness of any item of cost incurred goes to the receiving party (as opposed to the reverse for the ‘standard basis’ of assessment). Perhaps more significantly, the receiving party cannot suffer a global reduction on the grounds of proportionality, and furthermore, can argue that they are not constrained by their costs budget.
Brett Wilson LLP acted for the Claimant Mr Singh in this claim and instructed Greg Callus of 5RB.
This post originally appeared on the Brett Wilson LLP Media Law Blog and is reproduced with permission and thanks.