Libel and Malicious Falsehood Claim Dismissed over Insufficient Evidence Linking Defendant to Defamatory Google Reviews

Samuels t/a Samuels & Co Solicitors v Henry [2024] EWHC 2898 (KB)

A “litigant may not sit on their hands”: Deputy Master Marzec rejected a belated request to stay proceedings and dismissed a libel and malicious falsehood claim, finding insufficient evidence to link the defendant to defamatory reviews posted on the claimant’s Google Business Profile. Lack of evidence and the failure to determine the author of the defamatory statements ultimately led to the dismissal of the claim.

The Claim

Jacqueline Samuels, a sole practitioner trading as Samuels & Co Solicitors, claimed her former client, Christopher John Henry, posted three malicious and defamatory reviews on her Google Business Profile using Gmail accounts named "Chris H", "John H" and "P.R.". The defendant denied authorship on oath and sought to have the claims struck out. The court was required to determine, as a preliminary issue, whether the defendant was responsible for publishing the material.

The Claimant’s Failure to Take Decisive Action

The claimant sought to link the defendant to the reviews on two primary bases: 

(a) the similarity of the names “Chris H” and “John H” to the defendant’s full name; and 

(b) the fact that none of her other clients had names that could be shortened similarly. 

The Judge acknowledged these factors, noting that it was reasonable for the claimant to suspect that the defendant authored the reviews. However, there was no further substantial evidence that advanced the claimant’s case beyond these circumstantial points.

The Judge also pointed out that the claimant failed to take decisive action to definitively identify the author of the reviews, such as applying for a Norwich Pharmacal order, including at the CMC or any time between then and the preliminary issue trial. The claimant belatedly submitted at the preliminary issue trial that, if the Judge was not with her on publication, there should be a stay of proceedings to allow her to pursue a Norwich Pharmacal application. However, the Judge deprecated such an approach, emphasising that “[a] litigant may not sit on their hands and wait to see how the evidence comes out at trial before deciding whether or not to seek new and further evidence”.

Insufficient Evidence to Conclude Falsehood

Deputy Master Marzec also considered that, in order to find the defendant posted any of the relevant reviews, she also needed to conclude that the defendant had lied to the court on oath. However, there was no sufficient basis to make such a determination, especially considering the claimant had conceded that:

(i) the defendant was one of many clients who left negative reviews; and, more critically

(ii) there were at least two other people called Christopher who published, in the claimant’s view, sufficiently defamatory and/or damaging reviews about the claimant for her to bring legal actions against them.

This context also significantly weakened the claimant’s case on authorship, suggesting that the reviews could have been written by another dissatisfied client of the claimant.

The Allegation of Malice

Although the issue of malice was not set to be determined at the preliminary issue trial, during the hearing, the claimant made an allegation of malice in support of her case, asserting that the defendant’s intent was to harm her business. Given its introduction in open court, Deputy Master Marzec addressed the allegation of malice, finding that the allegation lacked any foundation based on the submitted evidence and was based solely on the claimant’s assumption that the defendant authored the reviews, which amounted to “circular reasoning”; malice could not be considered without first establishing authorship or providing evidence of a motive to damage the claimant’s business. The Judge concluded that, even if the defendant had authored the reviews, the reviews themselves did not prove malice but were instead negative opinions likely aimed at informing members of the public, albeit ones expressed in “trenchant terms”.

Decision

Ultimately, the Judge ruled in favour of the defendant and found that the claimant had not proven her case that the defendant was liable for the publication of the three relevant posts. The claimant’s claims in both malicious falsehood and defamation were dismissed, and the Judge indicated that, in light of her conclusions on malice, the malicious falsehood claim would have been struck out even if he had published the reviews.

Takeaways

This case involved a number of unusual choices by the claimant, perhaps all the more surprising where the claimant was a solicitor, albeit not one specialising in defamation or malicious falsehood. 

Quite aside from the questionable decision to sue a disgruntled customer over an online review (particularly after having had a similar claim against another customer struck out), Ms Samuels did not take appropriate steps to ensure she was even suing the correct defendant. It was open to her to seek Norwich Pharmacal relief, to narrow down which of her clients was criticising her, but she failed to do so. 

She raised the issue of malice at the preliminary issues trial on the authorship of the statements, without proper evidence. She also made bare assertions about serious harm in her Particulars of Claim, which were subsequently unsupported by any witness evidence. Deputy Master Marzec indicated that this alone was a sufficient basis for the defamation claim to be struck out.  

Ultimately, when considering as a claimant whether to sue anonymous critics online in the hopes of vindicating your reputation, it is important that you pick your battles.  

With thanks to Kaya Sapanoglu for his assistance in drafting this article.