Wasserman v Freilich

Factual and Procedural Background

This opinion concerns an application by the Plaintiff in a libel action to strike out certain parts of the Defendant's defence under CPR 3.4(2) on the grounds that they do not disclose any reasonable grounds for defending the claim, amount to an abuse of process or are likely to obstruct the just disposal of the proceedings, and/or constitute a failure to comply with court rules. The Plaintiff also initially sought summary judgment, but the Defendant introduced a plea of qualified privilege which was considered potentially viable as a pleading.

The dispute arises from a series of emails sent by the Defendant concerning a water leak affecting flats managed by a company operated by the Defendant. The Plaintiff owns one of the flats and alleges that the Defendant published defamatory statements accusing the Plaintiff of dishonesty and fraudulent conduct related to insurance claims for the leak.

Procedurally, the Defendant's most recent defence dated 29 January 2016 was under scrutiny. There is no dispute about the publication of the complained words by the Defendant. The core legal issue concerns whether the Defendant can rely on a defence of honest opinion under section 3 of the Defamation Act 2013; no plea of truth under section 2 was advanced.

Factually, the Plaintiff's narrative describes efforts to locate and repair a leak originating in her flat, including interactions with workmen, insurance brokers, and management. The Defendant sent emails alleging the Plaintiff was dishonest, making fraudulent claims, and obstructive, which the Plaintiff denies. The Plaintiff contends she cooperated fully with qualified workmen and that the Defendant's allegations were false and malicious.

Legal Issues Presented

1. Whether certain parts of the Defendant's defence disclose reasonable grounds for defending the libel claim.
2. Whether the Defendant's plea of honest opinion under section 3 of the Defamation Act 2013 is valid in relation to allegations of dishonesty.
3. Whether the Defendant's plea of qualified privilege is sustainable in the circumstances.
4. Whether the Defendant has complied with procedural requirements under the Civil Procedure Rules and Practice Directions.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff seeks to strike out parts of the defence that do not disclose reasonable grounds and amount to abuse of process or procedural non-compliance.
• The Plaintiff disputes the Defendant’s claim of qualified privilege and challenges the validity of the honest opinion defence.
• The Plaintiff contends that the Defendant’s emails were defamatory, malicious, and falsely alleged dishonesty and fraud.

Defendant's Arguments

• The Defendant initially sought summary judgment but later introduced a plea of qualified privilege, which was accepted as potentially viable.
• The Defendant relies on a defence of honest opinion under section 3 of the Defamation Act 2013, particularly concerning allegations of dishonesty.
• The Defendant does not plead a defence under section 2 (truth) and does not seek to prove the Plaintiff was dishonest or that there were reasonable grounds to suspect dishonesty.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Edgington v Fitzmaurice (1885) 29 Ch D 459	Establishes that the state of a person's mind is a factual matter, relevant to allegations of dishonesty.	The court confirmed that allegations of dishonesty are factual and not opinion, thus not suitable for honest opinion defence.
Hamilton v Clifford [2004] EWHC 1542	Clarifies that allegations of dishonesty cannot be converted into opinion by prefacing them with phrases like "I believe".	The court rejected the Defendant's attempt to frame allegations of dishonesty as opinion.
Chase v News Group Newspapers [2002] EWCA Civ 1772	Discusses the "Chase level two defence" relating to pleas of truth and reasonable grounds to suspect dishonesty.	The court noted the Defendant did not plead a Chase level two defence (truth or reasonable suspicion) but sought to rely on honest opinion instead.
Control Risks v New English Library [1990] 1 WLR 183	Requirement to identify defamatory meanings clearly when pleading.	The court found only one defamatory meaning alleged (dishonesty) and none others identified.
Branson v Bower [2002] QB 737	Allows a defence of honest opinion for inferences where the author is not in a position to establish the truth definitively.	The court acknowledged that honest opinion can apply to inferences but found the Defendant’s pleaded opinion insufficient.

Court's Reasoning and Analysis

The court analysed the Defendant's defence under CPR 3.4(2), focusing on whether the pleaded defence disclosed reasonable grounds. The Defendant's attempt to rely on a plea of honest opinion under section 3 of the Defamation Act 2013 was critically examined. The court emphasised that allegations of dishonesty are factual in nature, not opinion, citing established case law. The Defendant did not plead truth under section 2, nor did the Defendant seek to prove reasonable grounds to suspect dishonesty, which would amount to a Chase level two defence.

The court found the Defendant's formulation of the honest opinion defence, which effectively sought to convert an allegation of dishonesty into opinion, unacceptable. It held that the pleaded defence failed at the first hurdle because the statements complained of were factual allegations of dishonesty and fraud, not expressions of opinion.

Further, the court noted that even if the honest opinion defence were otherwise available, the Defendant had failed to specify the facts upon which the opinion was based, as required by Practice Direction 53PD. The plea of qualified privilege was noted as potentially unrealistic but was not finally determined in this ruling. The court also underscored the Defendant's obligation to provide facts supporting qualified privilege for each recipient under CPR 53PD 17.

Holding and Implications

The court STRUCK OUT paragraph 19A of the defence, which attempted to plead honest opinion in relation to allegations of dishonesty and fraud. The defence failed to disclose reasonable grounds and was not a proper basis for defending the claim.

The direct effect is that the Defendant cannot rely on the pleaded honest opinion defence in its current form, and must comply with procedural requirements regarding qualified privilege if it intends to pursue that defence. No new legal precedent was established; the decision reaffirmed existing principles distinguishing fact from opinion in defamation law.