Rare procedural exceptions allowed for slanderous grooming allegations

In the trial of preliminary issues in a slander action, the High Court found that words spoken by the defendant to three of the claimant’s close friends had the meaning that the claimant had groomed under-aged girls.[1]  The court ruled that:

• It was equitable to disapply the limitation period to allow the claimant to rely on one of those conversations in his slander claim, which he had not originally pleaded as a result of a failure of his legal advisers.  There would be real prejudice to the claimant if he could not pursue his claim for that occasion of actionable publication.
• On actionability, the claimant brought himself within both exceptions to the rule that a slander claim is not actionable without proof of special damage, because the words imputed a crime for which he could be made to suffer physically by way of punishment, and were calculated to disparage him in his occupation as a teacher and performer of Irish dance.
• On serious harm, the allegations of criminal behaviour and the consequential damage to the claimant’s business caused the claimant serious harm in the eyes of three close friends, and real damage to their friendships.

Comment

The case serves as a reminder of the exceptions to the requirement to prove special damage in a case of slander.  Here, the High Court found that the allegations of serious criminal behaviour and the damage to the claimant’s business satisfied the exceptions to the rule, and so it was actionable per se.

There was also interesting discussion about the point at which the cause of action in defamation claims crystallises, in the light of the court’s analysis of section 1 of the Defamation Act 2013 in Lachaux.  The claimant had argued that the point of publication was the relevant point for the court to consider whether serious harm had been caused, and that is when the court should find the cause of action complete.  Accordingly, he said that the defendant’s argument that the claimant had reassured his friends (and so arguably lessened the harmful sting) was wrong, and that those attempts were irrelevant to the serious-harm test.  The judge said that this was a very difficult question, as Lachaux does not explicitly consider the position.  The judge considered it wrong to disregard Mr Hodges’ attempts to reassure his friends when assessing serious harm.  Yet since he had found serious harm in any event, he did not need to make findings on the practical effect of Lord Sumption’s judgment.

Finally, the judgment demonstrates the importance for a claimant of obtaining sufficient and appropriate vindication for the specific harm suffered.  The judge noted that the claimant might have a putative claim against his former solicitors for their failure to include one of the publications in the claim from the outset. But the judge acknowledged that this would not provide the claimant with the redress that he was seeking, i.e. to stop the individual responsible from defaming him.

To read the full article, click here.  Written for Entertainment Law Review.