King's / Queen's Bench Division of the High Court

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

Fecha: 21-Mar-2024

Discussion

The first question is whether the publications Mr Sinton can prove were all made on occasions of qualified privilege. In my judgment, the answer is “Yes”: there is no real prospect that the defendants will be unable to establish their qualified privilege defence in relation to the publication of the letter or the republication of the same or similar words.

The letter was sent on a confidential basis to a small number of individuals with whom the defendants were in a pre-existing business relationship. The claimant’s pleaded meaning of the letter was that “there were strong grounds to suspect the Claimant of such serious misconduct in the performance of his duties that it was urgently necessary to bar his access to multiple MHL sites for the protection of those staff working at those sites” (see Particulars of Claim, para. 12). The defendants dispute this meaning and plead that the letter meant “that there were grounds to investigate whether the Claimant had engaged in improper conduct in connection with his work which justified suspending the Claimant's access to various sites whilst an investigation was carried out” (Defence, para. 22). The choice between these meanings is not among the issues for determination today, but the difference seems to me to be relatively slight; and I am prepared to assume for the purposes of the application that Mr Sinton’s pleaded meaning is the true meaning.

If the letter meant what Mr Sinton says it meant, that can only be because any decision to suspend his access to the site pending an investigation necessarily implied that there were serious grounds to suspect him of serious misconduct. If so, there was no way of communicating the fact of his suspension without also communicating that there were serious grounds to suspect him of serious misconduct. It must follow that the communication of these or equivalent words was necessary to inform those who needed to know of the decision that Mr Sinton’s access to the sites had been withdrawn. There is no serious dispute that the letter was sent only to a small group of individuals whose positions made it necessary to know about the decision to suspend his access.

Assuming for the moment that that decision was taken in good faith (an assumption which I shall have to consider when assessing the claimant’s case on malice), there was no point in taking the decision if it could not be communicated. It needed to be communicated, at least, to those responsible for managing access to the relevant sites and to those who had been working with Mr Sinton on a daily basis up until that point. Those who received the communication had a corresponding interest in receiving the information communicated.

Ms Page’s complaint that there is no plea of qualified privilege in relation to the republications of the content of the letter is, in my judgment, based on a misconception as to the law. As Gatley confirms at §7-058, the protection of the defence of qualified privilege extends to republication of a privileged communication, even if the republication takes place on an occasion which does not attract privilege, unless the original publisher directs or intends the statement to be republished in a manner which exceeds the protection of the privilege. Here, the terms in which the claimant pleads the case on republication seem to me to show that no such intention is alleged or can properly be inferred. At para. 14 of the Particulars of Claim, the claimant pleads as follows:

“As a matter of course, management at the sites would have had to republish the words or words to the same effect to various other staff to enable staff to make all the arrangements necessary to enforce and police the ban and to replace the Claimant and Mr Delany on site. The Claimant is aware that Jim Byrne, an independent consultant representing HSMC at the Maybourne Riviera site, communicated information (in a manner unknown to the Claimant) as to the Claimant being banned from the Maybourne Riviera site to about 30 to 40 employees on site, many of them British” (emphasis added).

In other words, republishing the content of the letter was, on the claimant’s case, something the site management were obliged to do in order to enforce and police the ban; and those to whom the content was published had a corresponding interest in receiving the information conveyed. This is confirmed by para. 24(b) of the Particulars of Claim, where the claimant explains that he himself was obliged to inform a number of sub-contractors at the sites where he had worked. The obligation pleaded arose, presumably, because those who had been working with the claimant needed to know that (and in broad terms why) he would no longer be working on site with them. See also paras 7(a) and (b) of the claimant’s response to the defendant’s request for further information, where the claimant says that he felt “obligated” to tell people in part out of “a sense of professional duty”. This is also consistent with the claimant’s evidence for this application. At para. 36 of his witness statement, Mr Sinton says: “I had to tell certain people connected with the Riviera site about the ban, but I made sure to keep it as high level as possible”. Mr Byrne’s evidence at paras 10-17 of his witness statement is materially to the same effect.

As to malice, the evidence now before the court includes the witness statement of Mr Socker, who has explained that, by the time when the Board decided to suspend Mr Sinton’s access, he had had two meetings with Eleanora Bressi, who had told him directly that: (i) Messrs Sinton, McKillen and Delany frequently shouted and screamed at employees and contractors; (ii) Messrs Sinton and Delany had subjected Ms Bressi to verbal abuse and bullying; (iii) Messrs Sinton, McKillen and Delany referred to her as a “Spanish cunt”; and (iv) Messrs Sinton and Delany were rushing to complete the Emory Hotel project and were instructing the teams working under them to cut corners, not to test certain items as required and to do things which were contrary to health and safety best practices and planning permissions. (These allegations are all denied by Mr Sinton.)

The fact that Mr Socker did not make a record of what Ms Bressi said at these meetings is, in my judgment, of less significance than Ms Page suggests. There is no evidence to contradict what Mr Socker says; and the findings of Ms Balcolmbe provide independent evidence that Ms Bressi had said similar things to other people. This is not a case where there is a conflict of evidence. All the evidence points one way. Unless there is something to show that the evidence is fabricated, the claimant has no real prospect of gainsaying it.

The basis for Mr Sinton’s case that the evidence is fabricated is set out in particulars of malice in para. 27 of the Particulars of Claim. I have considered these particulars in turn:

(a)

Para. 27(a) is a general assertion that the second to fifth defendants knew that the imputations were false, or did not care whether they were true or false. The general assertion is based on the particulars in the following sub-paragraphs.

(b)

Para. 27(b) relies on a letter sent by the defendants’ solicitors on 31 August 2022, which is said to acknowledge that the claimant was innocent and therefore to show that the defendants knew him to be so when they sent the letter. I have read the letter of 31 August 2022 carefully and can find nothing in it which could reasonably bear that meaning.

(c)

Para. 27(c) relies on the fact that at no point either before or after the decision to suspend Messrs Sinton and Delany’s access to the sites did the defendants inform Mr Sinton of any alleged misconduct against him. This is very far from the kind of matter which is “more consistent with the existence (of malice) than with its non-existence”. Mr Sinton was not an employee of the defendants. There is nothing on the face of the claimant’s pleadings to suggest that the defendants had any contractual obligation to inform Mr Sinton of the allegations, or seek representations from him, before suspending his access. But even if they did, the failure to do so would show nothing more than a breach of contract. Even in the employment context, procedurally unfair terminations are by no means unusual. Such unfairness would come nowhere close to establishing that the statements are more likely than not to have been made knowing of their falsity, indifferent as to their truth or with the dominant intention of injuring Mr Sinton.

(d)

Para. 27(d) complains that the letter of 31 August 2022 shows that the defendants did not carry out an investigation into Mr Sinton’s conduct prior to publication of the letter. The difficulty with this is that the defendants did not say that they had carried out an investigation into Mr Sinton’s conduct before publishing the letter on 13 April 2022. It said that they were suspending his access to the site while they carried out such an investigation. The planned investigation was something that was to happen in the future. Mr Sinton’s access to the site was to be suspended pending the conclusion of that investigation. The meetings with Ms Bressi prior to the decision to suspend Mr Sinton’s access were not themselves an “investigation”. The fact that there is no note of those meetings may be evidence of poor practice on Mr Socker’s part; it does not provide a basis for doubting that the meetings took place, or that Ms Bressi said what Mr Socker says she said. In any event, the defendant’s evidence, and Ms Balcombe’s report, shows that the planned investigation did take place and that report provides independent evidence that Ms Bressi had made to others the allegations Mr Socker says she made to him. Although the report was not in existence at the time of the decision to suspend Mr Sinton’s access, that does not make it evidentially irrelevant. It is relevant because it casts light on what Ms Bressi had been saying to others prior to the decision.

(e)

Para. 27(e) seeks to draw inferences from differences in wording between things said by the London solicitors instructed by the first and second defendants (who said that the investigation had been into a number of allegations of misconduct on the part of, amongst others, Mr Sinton) and the Irish solicitors (who on 16 December 2022 denied that the investigation had been “into” Mr Sinton). A small difference in emphasis between the way in which points are put by solicitors after the event does not begin to establish a proper basis for alleging malice. In any event, the best evidence of how the investigation came to be commissioned comes from Ms Balcombe herself, who has worked as a human resources professional, in-house and as a consultant, for over thirty years. She confirms that she was contacted on 22 April 2022 and asked to conduct an investigation “into allegations about Maybourne’s culture, the conduct of individuals working for the company and how it had been run in recent years”. There is no basis whatsoever for doubting the honesty or reliability of her evidence.

(f)

Para. 27(f) relies again on the alleged inconsistency between what was said by the London and Irish solicitors as a basis for inferring that the investigation referred to in the letter was “a made-up event”. It is unclear what this means. Ms Balcombe’s evidence establishes that the investigation was commissioned on 22 April 2022. Ms Balcombe’s report shows that the investigation was not a “made-up event”. It took place, according to the procedure outlined in the report; and (rightly or wrongly) Ms Balcombe reached the conclusions she sets out.

(g)

Paras 27(f) and (g) rely on the unlikeliness of the coincidence that the defendants received allegations against both Mr Sinton and Mr Delany at precisely the same time. It is said to be more probable that the allegations were “cooked up” in order to justify Mr Sinton’s and Mr Delany’s removal from the site. To my mind, it is not at all surprising that the defendants decided at one point in time to investigate allegations of a “toxic culture” involving misconduct on the part of more than one individual. Inappropriate behaviour is often enabled by a poor workplace culture. The fact that allegations against Mr Sinton and Mr Delany emerged at roughly the same time provides nothing close to an adequate basis for a pleaded allegation that the investigation was “cooked up”. In any event, there is now very good evidence in the form of Ms Balcombe’s report that the allegations were not “cooked up”. For example, Ms Balcombe recorded evidence from one interviewee that the build team (which included Mr Sinton) referred to Ms Bressi as “the Spanish cunt” (para. 3.1.7). Separately, an external consultant, Inge Theron, said that Mr Sinton and Mr Delany had been “effing and blinding and telling her what to do” and that Ms Bressi had broken down in tears and told her that she was constantly screamed and shouted at and told to “go back to Mummy” when she challenged them (para. 3.4.1). If the allegations had been “cooked up”, that presumably would have involved a wide-ranging conspiracy to which Ms Theron and Ms Bressi were party. But there was no allegation of dishonesty against either of them; and no evidential basis for one.

(h)

Para. 27(h) invites the inference that, by the time of publication, either (i) the defendants had not been made aware of any allegations that could potentially justify the decision to suspend Mr Sinton’s access to the sites or (ii) they were aware of such allegations but chose not to ask Mr Sinton about them, or investigate them, because they did not care if such allegations were true or false. There is no proper evidential basis for either inference. The defendant’s evidence is that Mr Socker spoke directly to Ms Bressi. This is consistent with what is said in Ms Balcombe’s report (albeit reported second hand via Ms Theron). The matters set out in Ms Balcombe’s report provide strong evidence that there was at least a basis for thinking that Mr Sinton had referred to Ms Bressi in a highly derogatory and unpleasant way (causing her significant distress) and had shouted and sworn at Ms Theron.

(i)

Para. 27(i) a general assertion that the letter and other publications were made with the dominant improper motive or motives. The particulars are set out in the following sub-paragraphs.

(j)

Para. 27(j) pleads the existence of a commercial dispute between the Al Thanis and Mr McKillen. As Ms Page noted, the defendants have chosen not to plead to this. I have therefore proceeded on the basis that it is true. But, if the existence of allegations of improper conduct is established, the fact that there was at the same time a commercial dispute between the Al Thanis and Mr McKillen does not establish that the decision to suspend Mr Sinton’s access to the sites was taken for a dominant improper motive. Mr Cunningham’s evidence takes matters little further. It establishes that the decision to suspend Messrs McKillen, Sinton and Delany’s access to the sites was close in time to the removal of Mr McKillen from MHL’s Board. But the defendants do not say that the deterioration of the business relationship and the development of a toxic working culture were wholly independent. Indeed, Mr Socker positively avers that they were related. If the allegations Mr Socker says were made to him were in fact made, they justified an investigation; and the fact that the investigation took place against the background of a deteriorating business relationship between Mr McKillen and MHL would not assist in establishing a dominant improper purpose.

(k)

Para. 27(k) invites the inference that “the decision to ban the Claimant and Mr Delany from the sites was part and parcel of a strategy to remove Mr McKillen’s people from the Maybourne sites, to shore up the Al Thanis’ negotiating position and as a marker that the business relationship had gone sour”. For the reasons set out under sub-paragraph (j) above, I do not consider that there is any adequate evidential foundation for this inference.

(l)

Para. 28(l) points out that the defendants have not sought to respond to the improper motive case “except for a bare denial made by the first and second defendants”. But, if the case is false, it is difficult to see what more they could say about it, beyond a “bare denial”.

For these reasons, this is a case in which Mr Sinton has no proper evidential basis, and therefore no real prospect, of establishing that the publications, all of which were clearly made (if they were made at all) on occasions of qualified privilege, were made (i) knowing that they were false; (ii) reckless as to whether they were false; or (iii) with the dominant motive of injuring Mr Sinton.

This means that the claims for defamation have no real prospect of success.