In a number of recent libel cases, the court has encouraged parties to apply prior to the service of a defence for a preliminary issue trial where the meaning of the words complained of is in dispute.
Often, as part of such a hearing, parties will also seek the determination of other issues, such as whether an inference of serious harm can be drawn from the gravity of the assessed meaning and/or whether the statements complained of are fact or opinion.
Allegations of dishonesty, expressed in varying shades, have featured prominently in such hearings in recent times, particularly in relation to whether they should be considered as statements of fact or opinion. This article reviews some of these recent decisions and concludes by setting out what appears to be the court’s current approach.
In Wasserman v Freilich  EWHC 312 (QB), Sir David Eady remarked at the end of his judgment that “an allegation of dishonesty, fraud or attempted fraud will usually fall fairly and squarely on the side of fact rather than opinion.” The judge also added that:-
“[an allegation of dishonesty] is not thought to be a matter of opinion: nor can one convert an allegation of dishonesty (or, for that matter, of murder or rape) into a matter of opinion by merely inserting in front of it a formula such as “I believe …” or “she thinks …””
With these observations in mind, one would perhaps expect decisions treating dishonesty allegations as statements of fact to be few and far between. Indeed, claimant lawyers have often relied specifically on Sir David Eady’s comments to explain why defendants in cases concerning allegations of dishonesty could not possibly avail themselves of an honest opinion defence under section 3 of the Defamation Act 2013. Only exceptional circumstances could justify a departure from the general rule that an allegation of dishonesty falls squarely on the side of fact, or at least so it was contended.
Examples of allegations of dishonesty as expression of opinion
In the last year alone, however, there have been at least two libel cases where an allegation of dishonesty has been held to be a statement of opinion (although it is to be noted that there are also decisions within the same period that have gone the other way).
The first relevant judgment in this regard is that of His Honour Judge Richard Parkes QC in Burki v Seventy Thirty Ltd & Ors  EWHC 2151 (QB), an usual case involving a dating agency and claims for libel, malicious falsehood, deceit and misrepresentation, in which he stated:-
“In my judgment, the allegations that the [the dating agency] appears to be solely focussed on obtaining its fees, without giving anything in return, and to be operating in a fraudulent way, are plainly to be seen as the expression of opinion.”
More recently, in Greenstein v Campaign Against Antisemitism EWHC 281 (QB) based on a very different set of facts, Mr Justice Nicklin found that the following allegations were expressions of opinion:-
- The claimant had lied when he claimed in The Guardian newspaper that the International Definition of Anti-Semitism prevents criticism of Israel; and
- The claimant had lied to the Charity Commission when he claimed that the Campaign Against Antisemitism was a right-wing political Zionist organisation that is not concerned with fascist groups who were anti-Semitic Holocaust deniers.
Following these two decisions, which contain clear imputations of dishonesty, the question arises as to whether there has been a change in the court’s approach since Sir David Eady made his comments in 2016. This question, in turn, can only be answered through a proper understanding of what Sir David Eady meant by his comments. In Zarb-Cousin -v- Association of British Bookmakers  EWHC 2240 (QB), Mr Justice Nicklin sought to bring some clarity to the issue:-
“ …some caution must be applied before overly prescriptive rules are adopted as to the assessment of fact or opinion. The pitfalls of doing so are perhaps demonstrated by Singh [British Chiropractic Association v Singh  EWCA Civ 350]. In my judgment, what Eady J is saying in those passages [in Wasserman]is that context is likely to play a critical role in this assessment.
There is no fixed rule that a statement that someone has been dishonest must be treated as an allegation of fact. The real question is whether, in context, the allegation of dishonesty would be understood to be the deduction or inference of the speaker. In most cases, it will be the context in which the words appear or are spoken that will provide the answer to whether the words are (or would be understood to be) opinion or whether the statement is ‘bare comment’ and therefore potentially liable to be treated as an allegation of fact. Asking a question of whether the statement is ‘verifiable’ is perhaps a dangerous gloss on this approach.”
The same approach has been followed by Mr Justice Nicklin in Morgan v Associated Newspapers Ltd  EWHC 1850 (QB) and Greenstein, confirming that it is very much the way in which he believes this issue should be resolved.
Insofar as Sir David Eady’s comments in Wasserman encouraged practitioners to adopt an overly prescriptive method when determining allegations of dishonesty as fact/opinion, it is now clear that this is not the correct approach. Instead, the parties must continue to consider the same issues that are relevant to the determination of any defamatory allegation as fact or opinion, with the ultimate consideration being how the words would strike the ordinary reasonable reader (Grech -v- Odhams Press  2 QB 75).
While this clarity is to be welcomed, it is unlikely to result in a diminution in the number of cases where the courts are asked to determine whether an allegation of dishonesty is a statement of fact or an expression of opinion. The main reason for this is that the honest opinion defence under section 3 of the Defamation Act 2013 affords defendants considerable latitude and it is generally easier for them to obtain the necessary evidence to satisfy the second and third conditions of this defence rather than succeed with a truth defence under section 2 of the Defamation Act 2013. The second condition under section 3 only requires a defendant to indicate – even in general terms – the basis of the opinion. The third condition stipulates an honest person could have held the opinion based on any relevant fact or anything asserted to be a fact in a privileged statement which existed at the time the statement complained of was made (although Burki makes clear that the former (i.e. under s.3(4)(a) must be a true fact). There is therefore no requirement to prove the substantial truth of the defamatory imputation, which is essential to succeed with a defence under section 2 of the Defamation Act 2013.
In view of the above, an early application to determine whether the words complained of are opinion at a preliminary issue trial is still likely to remain an attractive option for defendants, as it will help them to know whether this defence is available which, in turn, will help to determine how they defend the claim more generally.
This post originally appeared on the Brett Wilson Media Law Blog and is reproduced with permission and thanks