Summary

It was not appropriate to grant summary judgment in favour of a public relations company in defamation and malicious falsehood proceedings in circumstances where there was a sufficient argument that the company was a joint tortfeasor as claimed and there was insufficient evidence to enable the court to determine responsibility summarily. In addition, the covert nature of the alleged joint tortfeasors was such that the court could not be confident of the company's role in the publication and circulation of a defamatory website and email.

Facts

The applicant public relations and media company (F) applied for summary judgment in relation to the allegations made by the respondents (D) that it had worked secretly with the first to third respondents (M, K and R) to damage D's reputation and business by publishing criticisms on a website and in an email.

M had been the Chief Executive Officer and Managing Director of D. D alleged that having been dismissed, M engaged the services of K, R and F and waged a campaign against D with the intention of injuring them, their reputations and their business interests. D claimed that F became involved in one stage of the campaign involving the development of a website to publish allegations defamatory to D, malicious falsehoods about them, and to make public information that was confidential to D. F's case was that it had been engaged by M, K and R to provide public relations advice and other media-related services, and during the period of engagement website development had been theoretically discussed. F stated that the material M planned to make public was not disclosed to it. A website template using a fictitious company was provided to F who stated that it did not want to be involved with the development of such a website. F claimed that the subsequent launch of the website relating to D was a surprise but its dealings with M, K and R were in respect of providing public relations advice such as attracting media interest to key points of the website and releasing press statements. An email was also circulated within the financial industry that D alleged was defamatory and constituted a malicious falsehood. F produced copies of email exchanges with M, K and R at the relevant time, arguing that they supported its case that it had not been involved in the development or publication of the website.

D submitted that F were joint tortfeasors with M, K and R in respect of the material on the website and the associated malicious falsehoods and that F's involvement went further than it had acknowledged.

Held

It was improbable that F had engaged in an elaborate charade involving the creation of the emails to protect itself, particularly because K and R had not sought to deny their own involvement with the website and the impact of their defences was that F was not involved with the website or the finance industry email. However, the emails exchanged could not all be accepted at face value because: R, contrary to his emails, admitted in his defence that he, M and K had together launched the website; F never claimed to have been told by M or R that they had nothing to do with it, yet he must have seen the template website, understood its structure and read a considerable part of its contents to advise on it, and would have been expected to have recognised its similarities to the published website. F never asked who might have been behind the website and never said whether it recognised similarities with the template. Even accepting F's account, D had a sufficient argument for the purpose of the instant application that F was a joint tortfeasor in respect of the defamatory material on the website. F's argument that it was not party to a common design to publish the specific words complained of and that it did nothing to further that design to publish those words was not sufficient to enable the court to determine summarily the question of F's responsibility for the publication on the website. In addition, given the apparently covert nature of M, K and R's activities, it could not be confidently said, before disclosure, that there was a proper understanding of F's role in the publication of the website and the email to determine summarily that it was not responsible for either publication, Fish & Fish Ltd v Sea Shepherd UK [2013] EWCA Civ 544 applied. There was no evidence of F discussing at any time an email of the kind published to promote or publicise the website, but it was not in the interests of justice to deal with that issue discretely and it was better to determine it at trial. The claim in malicious falsehood raised a separate question as to whether F had the requisite state of mind to be liable on that basis. It would be sufficient if F had been activated by an improper dominant purpose and it was D's allegation that F had acted with an improper dominant motive. Having rejected the application to determine summarily the issue of responsibility for the publication of the website and email, it was appropriate to decline to determine the malicious falsehood claim summarily (see paras 23-24, 27-30, 32-34, 36-38 of judgment).

Application refused