Where an employee alleges unlawful conduct by his employer to his employer's own solicitor (in his unfair dismissal case) this is not defamatory.

The employee's refusal to relate to questions by his employer's solicitor about having disseminated the allegation was in no sense an admission of guilt

Wallis & Anor v Meredith [2011] EWHC 75 (QB)

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The employer's lawyers Mishcon de Reya acted for their client who believed he had been the subject of libel and slander. In seeking to find that elusive third party to whom the defendant had 'published' a possibly defamatory allegation the lawyers appear to have left no stone unturned. The investigation itself spread the allegation that so upset the employer and was apparently heretofore unknown to anyone other than the employer and his lawyer.

In your tribunal case be wary of answering requests for further information ('fishing' expeditions) by your employer's lawyer. Unless the information requested is the subject of an order such as disclosure there is usually no need to respond. If the employer is determined to get the information he can apply to the tribunal for an order, thus making him explain the necessity of receiving the information. You will find that questions you put to your employer's representative are as a matter of course refused when not the subject of an order.

• Defamatory statements made to the employer's lawyer are not considered actionable as they are covered by the defence of qualified/absolute privilege.
• Lawyers themselves engage in defamation during the normal course of business and would not think any less of a client for hearing allegations about him.
• In a claim for slander the Claim Form must normally contain the words complained of, to whom they were spoken and when, "otherwise the claim is merely speculative"
• Be wary of answering requests for further information ('fishing' expeditions) by your employer's lawyer. You most likely don't need to respond.
• Court of Appeal case of Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 applied (defamation proceedings are stopped as abuse of process when not serving the purpose of protecting the claimant's reputation.
• A Norwich Pharmacal order was sought (A respondent although not party to the proceedings but is some way involved will be recquired to disclose information/documents to the applicant).
• This was an application (to proceed to a hearing) after Jameel v Dow Jones & Co Inc [2005] QB 946.
• Sanders v Percy and the Ministry of Justice [2009] EWHC 1870 (QB) distinguished (the case there continued despite the allegation being made to a lawyer)

In this case heard before Mr Justice Christopher Clarke Justin Meredith a chartered surveyor was made redundant (his employment terminated with immediate effect) by Mr Phillip wallis owner of GHP Group and Securities.

Mr Meredith claimed money he believed owed to him regarding the notice period and redundancy in a telephone call to his employer which resulted in a letter from his solicitor regarding, "various breaches of obligations of confidence and fidelity" owed. There followed a chain of correspondence with the worker Mr Meredith replying that after a heated telephone conversation he was threatened by "two burly men with East European accents" and assumed that someone at GHP instigated the visit. He asked GHP to assure him they had nothing to do with the incident and asked for a settlement of his wrongful and unfair dismissal claims.

Solicitors Mishcon de Reya for the employer said that a serious and false allegation had been made and demanded to know which third parties Mr Meredith had repeated the allegation to as well as to provide an undertaking not to repeat the allegation elsewhere. An additional claim of malicious falsehood was made against the Mr Meredith. The Office of Fair Trading was also asked to begin an investigation against Mr Meredith regarding 'misleading advertising' in breach of the 2008 Regulations.

The request for information as to the third parties to whom Mr Meredith had repeated the allegation assumed that he had done so even though in his letter to the employer there was no indication that Mr Meredith had repeated the allegation other than to the police.

Mr Meredith continued to refuse to be interrogated as to the publication elsewhere of the allegation, but said he wished to 'forget' the incident and was therefore 'happy to give the undertaking' not to repeat the allegation. This was however relied on by the claimants as evidence of this repetition having happened.

In response to the Claim Form and an Application for pre-action disclosure of documents Mr Meredith confirmed there were no discloseable documents. The claim for damages and aggravated damages followed as the Defendant had supposedly deliberately hampered the Claimants' attempts to mitigate any damage caused and that the Claimants had suffered a "real and substantial tort".

DPSA applied to strike out the claim on the grounds of abuse of process and argued that the publication complained of was covered by absolute privilege and/or that it was contrary to the public interest to allow the claimants to bring a claim regarding it.

On request from MDR Mr Meredith undertook not to allege that the Claimant 'use sinister methods to get their way...' Mr Meredith refused a request to repeat the undertaking signed on the employer's headed notepaper. The Claimant Mr Wallis in his witness statement said that after the allegation was made people had stopped talking to him and that he could think of no other reason other than the allegation as to why this had happened.

Tugendhat J. said there were no grounds for believing that the allegation had been made to third parties,that the application was not in the existing action but in respect of a possible future action. The judge criticised the process of reasoning of Mr Wallis that, "having accused Mr Meredith of making further publications and not having got what he regarded as an adequate denial, then "to use his own words "we will make the inferences set out above", that the inference was 'entirely baseless with no reason whatever for it'.

Tugendhat J. compared the inferences taken by the claimant from the refusal to answer questions as to whom the allegation had been repeated as comparable to that of being asked "four times when I stopped beating my wife and I refused to answer the inference is that I am continuing, and have always, beaten her". and concluded was that the application for disclosure was a fishing exercise as per Gatley 11th edition para 33.2 where, "It should not be thought that rule 31.16 gives carte blanche to libel litigants to fish for a case… by obtaining disclosure of documents thought to contain defamatory words…"; that letters exchanged between parties in the circumstances of the present parties are likely to contain defamatory statements about each other and that if disclosure was ordered, "other litigants (would) make similar applications in respect of almost any letter written by a party in the circumstances of the defendant to the claimants' solicitors."

As to an intended action regarding a letter to Mr Morallee Tugendhat J replied that, "It is practically impossible in litigation to write a letter which is not defamatory of the opposing party" and rejected MDR's position that because the letter containing the allegation had been read by partners and workers this could be considered as repetion for the purposes of an action.

MDR wrote to a car park surveyor saying that Mr Meredith had repeated the allegation to him and asking him to allow a representative of MDR to take a witness statement, failing which they would issue a Part 34 summons.

The Court of Appeal case of Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 was applied in this case in support of defamation proceedings being stopped for abuse of process when not serving the purpose of protecting the claimant's reputation.

From Jameel each separate publication gives rise to a separate cause of action (Jameel para 32) so in a claim for slander the Claim Form must normally contain the words complained of, to whom they were spoken and when, otherwise "the claim is merely speculative". The only exception being where despite the publishees being unknown the comments have been repeated elsewhere and there exists a good cause of action in defamation (Sharp J in Freer v Zeb & Ors [2008] EWHC 212 (QB) at 31). Belief in further publication are not evidence for it.

Sanders v Percy and the Ministry of Justice [2009] EWHC 1870 (QB) was distinguished ( There the application to strike out a claim also where the only publishee was the claimant's solicitor was refused. But that was considered appropriate because the slander that the solicitor's client was a benefit fraudster was made by a court officer ostensibly acting on court business but intended to get the solicitor to act against his client's interest).

The judge ruled that even were the case to succeed damages would be "very modest indeed", that a case can't be allowed to continue on the grounds of receiving final injunctive relief but for real grounds to fear repetition (Jameel [74 – 76]; Hays Plc v Hartley [2010] EWHC 1068 [57]) which did not exist here as an undertaking not to repeat had been given and that in any case the only repetition seemed to come from the claimant's supporters.

Although the defendant was not to be protected like a journalist as a purveyor of information and public watchdog (Prager and Oberschlick v Austria [1995] 21 EHRR [34]), freedom of expression meant that the defendant was entitled to voice his concerns in the measured way that he had done.

There had been no real and substantial tort to justify the expense or use court resources. Schellenberg v BBC [2000] EMLR 296 was cited in declaring it an abuse of process for the case to be allowed to continue. The case was struck out.

Mardas v New York Times Company [2009] EMLR 8 (a real and substantial tort doesn't depend upon a numbers game"but is determined on the facts

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