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Guise v Shah: first appeal on s.2(3) Defamation Act 2013

I have been instructed with David Hirst of 5RB by Rajeev Shah in his application to the Court of Appeal for permission to appeal the judgment of Dingemans J of 6 July.

The proposed appeal concerns an important element of the new statutory truth defence in section 2 of the Defamation Act 2013. Section 2(3) provides: “If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant’s reputation”.

Mr Shah set up a website about Dr Guise following a business dispute.

The Judge found that Dr Guise had sent unwarranted bills to Mr Shah for sums to which he had plainly no entitlement and when Mr Shah reasonably objected to paying, Dr Guise sought to damage him by widespread disclosure of his confidential information and publishing outrageously false statements about him. The Judge found that this reflected “very badly” on Dr Guise and showed him to be “someone who cannot be trusted with confidential information”.

Despite this the Judge held that the truth defence failed primarily because the website contained the word “scam” which he found to be the “most serious” imputation and was not proved to be true.

Mr Shah contends that the Judge fell into error by not asking himself what effect the proved imputations would have had on Dr Guise’s reputation by reference to the facts on which the Judge had relied to find that the website had caused serious harm to it.

In this context, the Judge relied heavily on the evidence of one of the Claimant’s witnesses who said that the “drug companies” with whom Dr Guise did business were “risk averse” and will be “very careful to select a pair of hands that doesn’t have even the slightest whiff or blemish”. Mr Shah contends that the true imputations would plainly have had the same tendency to lead the “risk averse” drug companies (or any other reputable business) to shun Dr Guise.

Mr Shah also appeals the finding that the publication of the website was part of a course of conduct that amounted harassment. The Judge held that the publication of the website, on its own, would not have amounted to harassment, but nevertheless combined it with one other act to find that it was part of a “course of conduct” amounting to harassment.

This element of the proposed appeal raises interesting issues in relation to the use of the tort of harassment in relation to websites and its encroachment into the protection given by Article 10 of the European Convention on Human Rights. The Defamation Act 2013 has made it more difficult to sue for defamation and led to an increase in harassment claims being included as an alternative.

Grounds of appeal here

26 July 2017

Update 9 January 2018: Sharp LJ has refused permission to appeal on the basis that none of the grounds have a real prospect of success. Order refusing permission here: 180109 Sharp LJ