KB-2023-000257 - [2024] EWHC 647 (KB)

A defendant may be liable as primary tortfeasor for republication of a statement by a third party if he (a) intends or (b) authorises its republication: Gubarev v Orbis Business Intelligence Ltd [2021] EMLR 5, [105]-[106]. Reasonable foreseeability that the statement will be republished is not enough; there must be “knowing or deliberate action” by the defendant: ibid, [108]. Separately, a defendant may be liable for “Slipper damages” if republication is the “natural and probable consequence” of primary publication: Slipper v BBC [1991] 1 QB 283.

On this issue, it is important to be clear about the case pleaded by the claimant. The publication to Mr McKillen, Mr Cunningham and Ms Ryan was of the letter dated 13 April 2022. Publication to the “unknown others” was of the same words or words to similar effect. The question of whether these publications were authorised by the defendants is, in my view, one which could only be decided at trial. For present purposes I accept Ms Page’s submission that there is a real prospect of Mr Sinton establishing that, in publishing the letter to HSMC, the defendants authorised republication to others who needed to know of Mr Sinton’s suspension. If so, he will have made out a case for primary liability and will not need to rely on Slipper damage.

The publications to Mr de Boissieu and Mr Bouquay, however, are in a different category. As to the former, the only evidence of publication by the defendants is a letter from Mr de Boissieu to the claimant dated 21 April 2022 written in French in these terms:

« Nous avons été contraints de prendre cette décision a votre encontre après que plusieurs personnes nous ont fait remonter des comportements repréhensibles particulièrement graves de votre part.

Au regard de la gravité des faits allégués, et de la nécessite de protéger l'ensemble des personnes présentes sur le site, nous n'avons d'autre choix que de suspendre l'accès de Monsieur Frank Sinton au chantier le temps de procéder aux mesures d'investigations nécessaires. »

There is a dispute about the correct translation of this letter, but it can be taken that the “comportements repréhensibles particulièrement graves” attributed to Mr Sinton means something along the lines of “particularly serious misconduct”. However, what is clear is that the letter was not saying that Mr Sinton was guilty of such misconduct. The letter says only that “several people have reported to us” (“plusieurs personnes nous ont fait remonter”) particularly serious reprehensible behaviour. The words could not have meant that Mr Sinton was guilty of such behaviour, because if his guilt had already been established, there would be no need for an investigation. A meaning that Mr Sinton’s guilt had already been established would also be inconsistent with the use of the phrase “the seriousness of the alleged facts” (“la gravité des faits allégués”).

Mr Sinton is not suing in respect of the letter (which was sent to Mr Sinton himself). The significance of the letter is that it is said to be evidence of a publication made by or on behalf of the defendants to Mr de Boissieu. Mr Sinton is not able to plead in what form this publication took place. The difficulty with Mr Sinton’s case is that it is for him to prove that the alleged publication took place, in the face of clear evidence from the second to fifth defendants that it did not.

There is no evidence that there was any written publication by the defendants of these words – or indeed of any words, beyond those in the letter of 13 April 2022. On this issue, disclosure was ordered by Master Brown, and has been provided by the defendants. So, it is difficult to see how Mr Sinton would be able to establish any written publication by the defendants at trial.

It is possible in theory that the publication alleged was made orally, but again Mr Sinton bears the burden of proving both that it was made and in what terms. If the only plausible way Mr de Boissieu could have learned of the information contained in his letter of 21 April 2022 was from the defendants, the contents of that letter might supply an inferential basis for concluding that the defendants had made the publication alleged. But by the time Mr de Boissieu sent his letter news of the decision to suspend access for Messrs McKillen, Delany and Sinton had been circulating at the sites for some time.

In the circumstances, the letter from Mr de Boissieu provides no secure basis for the inference that the publication was made, contrary to the clear evidence of the defendants. The fact that Mr de Boissieu’s statement does not say in terms how he came by the information in the letter of 21 April 2022 does not assist Mr Sinton, given that he bears the burden of proof. On the evidence before me (and following disclosure on this issue), Mr Sinton has no real prospect of showing that the publication alleged at para. 15 of the Particulars of Claim to Mr de Boissieu took place.

The position in relation to the alleged publication to Mr Bouquay is similar. It is denied by the second to fifth defendants. After disclosure, there is no documentary evidence of any written publication. The only basis for the averment that there was a publication to Mr Bouquay comes from the witness statement of Mr Byrne, who describes a conversation with Mr Bouquay on 22 April 2022. There is a dispute on the evidence about whether Mr Bouquay said what he is alleged to have said. It is not possible to resolve this dispute on the papers. But, even assuming for present purposes that Mr Byrne is right about this, it would not assist in establishing that the information he conveyed came from the defendants. Mr Bouquay’s evidence is that Mr Socker told him about Ms Bressi’s allegations, so he would have been able to form his own view about their seriousness. Mr Byrne’s own evidence is that, before the date of the alleged conversation with Mr Bouquay, “[w]ord spread fast about Frank [Sinton] on site”. In short, there is no secure evidential basis for the allegation, and therefore no real prospect that Mr Sinton will establish, that the alleged publication to Mr Bouquay took place.