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HONEST OPINION OR SERIOUS ALLEGATION OF FACT?

March 8th, 2016

Wasserman v Freilich [2016] EWHC 312 (QB)

A Claimant, Ms Wasserman, during a libel action, made an application under CPR 3.4(2) to strike out parts of the Defendant, Mr Freilich’s defence on the basis that it did not disclose any reasonable grounds for defending the claim.

The Claimant, a flat owner in London resided in a block of flats which was managed by Moreland Estate Management (operated by the Defendant). On 16th February 2015, Holli Hunter, a neighbour in an adjacent flat, discovered a water leak and informed the Defendant. The following day an employee of Moreland told the Claimant that the source of the leak was in her flat. Having been notified, the Claimant arranged for a plumber to attend and also notified her insurance broker and insurer, Aviva Insurance Plc, in compliance with her policy conditions.

Unfortunately, the plumber failed to track the source of the leak and the primary leak was not resolved.

On 24th February, the Defendant insisted that procedures which the Claimant described as “invasive and destructive” (such as breaking tiles in order to gain access) should be carried out. The next day,  a workman employed by the Defendant discovered a burst pipe beneath the concrete screed in the Claimant’s service cupboard. The Claimant had in the meantime instructed another firm who believed they could track the leak without causing damage in the flat. The Claimant therefore made a claim under her insurance for the damage and did not obstruct the workmen employed by the Defendant.

From 25th February to 24th March 2015, the Defendant sent a number of emails which contained defamatory statements complained of by the Claimant including:

  • An email to the Claimant’s broker and insurer

“… this is total rubbish and I am more than happy to testify in a court of law that this is now edging on fraud – and yes I have put this in writing… I believe that it is clear from the attached emails and trail that there is an element of potential exaggeration / attempted fraud and it is my belief that Aviva need to be notified of this and sent a copy of this clear communication …”

  • An email to the Claimant’s loss assessor and insurer

“… Should this matter be brought to court, for fraud charges, my client and the leaseholders at the property will testify that Ms Wasserman’s conduct was simply unacceptable and manipulative …”

  • An email to the Claimant’s loss assessor, broker and insurer

“… It would be interesting to see photographs of the alleged damage in order that we can ascertain whether this is ‘new damage’ caused by this incident or whether this is historic damage / lack of maintenance which (sic) your client is attempting to engineer a claim …”

The Claimant brought proceedings for libel and maintained that the Defendant had set out to deliberately (and maliciously) mis-state the facts.

In his judgment, Sir David Eady concluded the natural and ordinary meanings of such statements are that the Claimant is dishonest.

“… Juries are deciding on every day of the week, as a matter of fact, whether a particular Defendant was, or was not, dishonest … It is not thought to be a matter of opinion: nor can one convert an allegation of dishonesty (or, for that matter, of murder or rape) into a matter of opinion by merely inserting in front of it a formula such as ‘I believe…’ or ‘she thinks…’”

“… In this case the Defendant does not plead a defence under s.2. He does not seek to prove that the Claimant was dishonest – or even that there were reasonable grounds to suspect her of dishonesty …”

“… A further requirement, if honest comment were to be legitimately raised would be for the pleader to set out the facts upon which the opinion was based, or on the basis of which an honest person could have held that opinion … ”

The defence of honest opinion failed and part of the pleading provided by the Defendant was struck out.

This case highlights the importance of bringing sufficient evidence forward to support a defence of honest opinion under s.3 of the Defamation Act 2013. It also demonstrates that much hinges on the context in which statements are made, especially if the allegations are of a serious nature.


Sandy Burrows | Trainee Solicitor