KB-2024-003652 - [2025] EWHC 1900 (KB)

The evidence before the Court consists of (1) the 1^st witness statement of the Defendant, dated 25 April 2025, made in support of the application, (2) the 1^st witness statement of the Claimant in response, dated 19 May 2025, (3) the 2^nd witness statement of the Defendant, dated 6 June 2025, made in reply (all of which were made and served in accordance with the Order of Collins Rice J dated 2 May 2025), and (4) the 2^nd witness statement of the Claimant, dated 10 June 2025 (made and served outside the parameters of that Order).

Serious harm is addressed by the Defendant in [75]-[80] of his 1^st witness statement. Much of that material takes the form of argument or making forensic points. The statements that consist of evidence or at least partly of evidence comprise the following with regard to the addressees of the Email: (1) the four minority shareholders had been united in their opposition to the Claimant throughout and “cannot be expected to give evidence” to support his case, (2) the same applies to the two majority shareholders, who had fallen out with the Claimant long before the Email was sent, (3) there is “no prospect” of the two individual liquidators “supporting any case on serious harm arising from the words complained of”.

The Defendant also makes the points that these conclusions are supported by the following facts: (1) none of the addressees engaged with the Claimant after the Email was received by them, and (2) by 22 August 2024, all of the shareholder addressees were united in asking the Claimant to desist from further communications with them.

The Defendant also points out that the Email cannot be viewed in isolation, but instead formed part of a long history of interactions relating to the Claimant’s conduct in relation to the affairs of the Company, including litigation which had caused “huge loss and inconvenience” to all of the addressees “over an extended period”. Accordingly, it is said, the Email “cannot realistically have caused further damage to [the Claimant] in their eyes”, and he faces “insuperable causation issues” in seeking to demonstrate that the Email, rather than other factors, caused damage to his reputation in their perception.

The Defendant concludes this part of his evidence by asserting that: “there are no reasonable grounds for believing that any fuller investigation or disclosure would alter the picture in relation to serious harm to reputation at trial”.

The Claimant’s 1^st witness statement contains a section at [54]-[59] entitled “How have I (and Hat & Mitre) been damaged”. The thrust of his case (based on a detailed account of his involvement with the affairs of Company, as he sees matters, contained in earlier parts of that witness statement) is that: (1) the Company could and should have been operated differently, (2) losses were caused by the administration and the liquidation which the Claimant would have liked to be able to recover for the benefit of the Company and for his own benefit, (3) the Defendant, and others, have an interest in thwarting the Claimant’s intervention as there has been wrongdoing in connection with the running of the Company and Maxwell Stamp that the Claimant will otherwise expose, and (4) he (and his family) have lost the opportunity to profit by realising the value that he would have able to unlock.

This part of the Claimant’s 1^st witness statement is all about alleged damage to his economic interests. Moreover, the complaints made here make no mention of the Email, but instead relate to the conduct of the Defendant and the conduct of others over, it seems, many years.

The witness statement moves on to address the consequences of the Email in a section at [60]-[66] entitled “Summary”. At [62] it is stated: “These statements have lowered me in the eyes of right-thinking members of society and have affected the attitude of other people towards me.” That is, on the face of it, a purely formulaic assertion, and, moreover, not one that sits readily with the facts of this case, which does not concern publication to the world at large but instead to the handful of persons to whom the Email was sent. At [63] it is stated: “The publication of the statement (sic) has caused and is likely to cause serious harm to my reputation”. That, again, is a purely formulaic assertion. Nor is it made good by what follows, which consists of statements that “The content and context of the statements meant that [the Defendant] intended to and did influence the views held about [the Claimant]” and that “the protection of my reputation (especially in the eyes of the Court) is vital to me”.

The Defendant returns to the topic of serious harm to reputation in [10]-[14] of his 2^nd witness statement. Again, much of this material is argumentative in nature. It is said that the harm to the Claimant’s economic interests is entirely speculative, and in any event is not attributable to any reputational harm that can be argued to have been caused by the Email. The main point made is that, in the teeth of a challenge to his ability to establish serious harm to reputation, the Claimant has produced no evidence, whether from the recipients of the Email or otherwise, nor attempted to point to any real-world consequences for his reputation as a result of the publication of the Email, nor even suggested “a platform of facts” from which serious harm to his reputation “could theoretically be inferred”.

By way of riposte, at [11]-[14] of his 2^nd witness statement, under the heading of “Serious harm to reputation”, the Claimant states: (1) that “it is my case that [the Defendant] attempted to, and did, damage my economic interests”, (2) that the Email “was a malicious attack on my character, and being the spokesperson for the minority shareholders, I have no doubt that [the Defendant] influenced their views”, (3) that “the resulting consequences for me were serious [as is] evident from the judgment of Sir Anthony Mann”, (4) that his claim that he has suffered serious harm “is set out”, and that he believes that with the benefit of a full hearing he will be able to show “that I have suffered the type of serious harm as identified and explained in … George v Cannell”, and (5) that “The real-world consequences of [the Defendant’s] actions are that he influenced shareholders against me which resulted in the adverse findings of Sir Anthony Mann … [who] concluded that I was not in a position to increase my shareholding to 54% of the Company”.

During the course of the hearing, the Claimant confirmed that he had made no attempt to contact any of the addressees of the Email to ask what effect the Email had on their view of the Claimant and his reputation, and nor, as far as I could tell, did he suggest that he intended to try and contact them between now and the time of trial, or that they would respond to him if he did. Mr Young has sadly died, and so cannot be contacted in any event.

In my judgment, it is clear that the Claimant has no evidence that the publication of the Email caused serious harm to his reputation, or for that matter is likely to do so. This is unsurprising, both in light of the general and unsubstantiated manner in which the Particulars of Claim is pleaded, and having regard to the history and context in which the Email was written and sent. As a result of those matters, it is fanciful to suggest that those addressees who took the trouble to read and digest its contents (which may not include the administrators of the Defendant’s SIPP) would not already have formed settled views about the Claimant and his conduct, which would not be affected by the contents of the Email. In the case of the liquidators, they would also have known of the judgment of Peter Smith QC. The prospect that, even if they did think any the worse of the Claimant as a result of the Email, any of them would give evidence to support his present claim is also non-existent: not only because they fell out with him long ago, for reasons entirely independent of the Email, but also because it is clear that if the present claim proceeds it will involve revisiting the rights and wrongs of the previous disputes, which they cannot have any wish to do.

For much the same reasons, I do not consider that there is any real prospect that the Claimant could or would obtain evidence between the present time and the date of a trial that the publication of the Email caused (or is likely to cause) serious harm to his reputation.

The Claimant does not make any serious attempt in his evidence to grapple with the difficulties in this part of his case. Instead, in part he resorts to formulaic assertions. In other respects, his evidence makes clear that his real grievance is not harm to his reputation but the supposed adverse economic consequences for him of being unable to intervene in the affairs of the Company as he would have liked to do. That is the wrong type of harm for the purposes of s1 of the Defamation Act 2013. Further, that grievance is founded on the other shareholders being influenced against him by the Email, although (1) there is no evidence of that, and (2) even if it is properly arguable that this can be inferred, it does not follow that it was a result of the other shareholders thinking less of the Claimant than they would otherwise have done (as opposed to simply agreeing that for commercial reasons they wanted no truck with the Proposed Consent Order or the Claimant’s plans in general).

There are in any event insuperable problems with the suggestion that the Email caused adverse economic consequences for the Claimant. Resistance to his stance began well before the Email was sent, and resulted in the Order of ICCJ Jones. If the Claimant was to have fared better before Sir Anthony Mann, or by avoiding an appeal through the agreement of the Proposed Consent Order, that would have required a sea change on the part of those opposed to his stance, and there is no evidence at all that this was ever a realistic prospect. On the contrary, all the evidence points to the opposition to his stance being settled, both long before and long after the Email was sent. The Claimant’s reference to the importance to him of protecting his reputation “especially in the eyes of the Court” is telling, and betrays the confusion between the case that he is required to make on serious harm to reputation to have a real prospect of success on his claim for defamation and his true grievance, which is that he failed in his attempts to insert himself into the affairs of the Company and make financial gains: the Email was not published widely (and, in particular, there is no suggestion in the evidence or the pleaded case of “percolation”), or to the Court.

I have reached these conclusions without the need to consider the authorities to which I was referred by Mr de Wilde, but these conclusions are entirely consonant with the decided cases. It is sufficient to refer to the following passages from the judgment of Nicklin J in Amersi v Leslie [2023] EWHC 1368 (KB):

“[140] Of particular relevance and importance is Collins Rice J’s decision in Sivananthan v Vasikaran [2023] EMLR 7 …

“[53] I start with some general observations about how [the Claimant] seeks to establish his case on serious harm. The first is that a purely inferential case, while in principle available, is not an alternative to an evidential process for establishing serious harm – it must be an evidential process for establishing serious harm. There is a difference between inference and speculation. The components of an inferential case must themselves be sufficiently evidenced and/or inherently probable to be capable of adding up to something which discharges a claimant’s burden.

[54] The second is that, given [the Claimant] accepts the class of direct publishees is a small one, the absence of evidence from any direct publishee is not inconsequential. The concern [the Claimant] expresses about inflaming an already partisan context by seeking evidence from direct publishees may or may not be understandable (it is asserted rather than demonstrated). But deciding not to do so places him at an evidential disadvantage. The authorities on establishing serious harm by inference alone tend to feature mass-circulation publications so that evidence of individual impact may be both genuinely unreachable and inherently probable at the same time. Publication to a closed and small WhatsApp group where there is little or no evidence of adverse impact in the chat itself or from any member or reader is a different matter. These facts alone do not easily facilitate an inference of serious harm.

…

[57] The fifth point is related, but distinct. If publication is not only in the context of a well-known dispute between the parties, but to an audience already either partisan or resolutely neutral as between them, then again a claimant may have to work harder to make their case on causation. In a polarised context, it may be less probable that anyone’s mind will have been changed either way by the publication. If no-one’s mind is changed, then establishing the causation of reputational harm is a problem.”

[158] But where a claimant complains of publication of a defamatory statement to either a single publishee or a limited number of publishees, the scope for reliance on inference is likely to be very much reduced, both in relation to the direct harm caused to the claimant’s reputation in the eyes of the immediate publishee(s) and any ‘percolation’ effect. The impact of Lachaux is that such reputational harm must be proved. Where the publishees can be identified, that means that an absence of evidence of the actual impact on the individual publishees may mean that a claimant cannot discharge the evidential burden placed on him/her by s1. Drawing inferences is not a process of optimistic guesswork; it is a process whereby the court concludes that the evidence adduced enables a further inference of fact to be drawn.”