The difference between defamation and malicious falsehood

If someone makes a false statement about an individual or company then that statement could either be defamatory or a malicious falsehood either of which could lead to a claim for damages and/or an injunction against the wrongdoer.  But what is the difference between defamation and malicious falsehood?

Defamation

A statement is defamatory if it tends to lower a person in the estimation of right-thinking members of society generally.  If the statement is in a permanent form such as written words, pictures, a television or radio broadcast or on the internet then it is libel.  If it is spoken then it is slander.

For a claim to arise the defamatory statement must be published to a third party, contain defamatory words and must reasonably be understood to refer directly or indirectly to the claimant.  The claimant does not have to prove that the statement is false but he does have to prove that the words are defamatory of him.   If a statement is defamatory, it is assumed that it is false until proved otherwise.  The claimant does not have to prove intent so he can sue even if the publication was a mistake.

There are a number of defences to any claim for defamation.  These include:

  • Truth – if the maker of the statement can prove that the statement was true then this is an absolute defence to any claim.
  • Honest Opinion – it is a defence to a defamation claim if the defendant is able to show that the words complained of were opinion based on true facts.
  • Privilege – there are instances where public interest requires an ability to speak fully and freely about matters without raising the risk of a claim for defamation; in those situations the statements are treated as being privileged.

Malicious Falsehood

Although both malicious falsehood and defamation claims deal with the publication of false statements the main differences between the two are that a claimant in a malicious falsehood claim is not required to prove damage to reputation and the false statement does not need to have a defamatory meaning.

A claim for malicious falsehood may be brought against a defendant who maliciously publishes a false statement which identifies the claimant, his business, property or economic interests and which can be shown to have caused the claimant financial loss.  A typical situation in which a claim for malicious falsehood arises is where one competitor makes an untrue statement about another’s goods or services.

A claimant needs to demonstrate that the defendant intended to publish the statements complained of and did so with improper motive or malice.  Unlike in defamation claims, it is up to the claimant to prove that the statements complained of were untrue.  The claimant must also demonstrate that the statement has caused actual financial loss.

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Luke Patel

Luke Patel
Partner
Commercial Dispute Resolution Team
LPatel@LawBlacks.com
0113 227 9316
@LukeLawBlacks

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Child Maintenance Clampdown – will it pay off?

Recovering unpaid money

One of the ways the Child Maintenance Service (CMS) can recover money from a parent who has fallen into arrears with child maintenance payments is by taking money from their bank or building society account. However, money can only be recovered from an account held in that parent’s sole name, so joint accounts are effectively off-limits.

This created a loop-hole so that a non-paying parent who only had a single joint account, for example with a new partner, could not have any money taken from that account towards the amounts due. Not for much longer though, as powers which will enable the CMS to recover money from joint accounts will be introduced in early 2018.

The government says that only a small minority of parents hold money jointly with a partner in order to avoid paying their child maintenance but predict that a figure of £390,000 could be recovered by collecting money from joint accounts.

This is good news for the c.1.2 million parents who are owed maintenance from their ex partners. On the other hand, this news may cause concern for many who hold joint bank accounts with partners who are in arrears with their child maintenance payments as it means that their money is potential now at risk of being taken to pay that debt. This could potentially cause some strain on relationships with new partners.

Safeguards

The government says that safeguards will be implemented to alleviate some concerns. The CMS will only be able to deduct from joint accounts when the owing person doesn’t have a bank account in their sole name or, where there isn’t enough money in their own account.

Data and bank statements from the joint bank account will be examined prior to any deductions being made to try and establish what money belongs to the owing parent. Both account holders will be able to make their case before any deductions are made.

These safeguards may be difficult to implement, as the nature of joint accounts means that the money in them is the joint property of both account holders. Only time will tell as to how this new government clampdown will work in practice.

Paul Lancaster

Paul Lancaster
Partner
Family Law Team
PLancaster@LawBlacks.com
0113 227 9215

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Five Alternatives to a standard burial

Around the world over 150,000 die every day and as space for traditional burials becomes sparse (it is estimated that half of the UK’s cemeteries will be full by 2020) cremation has been the growing alternative; seen as potentially more eco-friendly, practical, and inexpensive alternative. Yet the first of these may not actually be true, as a typical cremation emits harmful chemicals into the atmosphere during the burning process.

What, then, are your alternatives? Here is a helpful list of viable end-of-life options.

Natural burial

A natural burial is all about allowing a simple and fast decomposition. A biodegradable coffin or shroud is used to cover the body, which is then buried in a shallower grave where conditions for a speedy decomposition exist.  Often a tree or shrub will be planted nearby to mark the grave instead of a headstone. This option particularly appeals to environmentally conscious people and those who want to be at one with nature.

Resomation

Formally called alkaline hydrolysis, this is one of the newest end-of-life options and therefore very few know about it. Most easily understood as cremation with water (really a highly alkaline solution), the body tissue is dissolved to leave just the bones, which are then crushed to create ‘ashes’ that can be given to a loved one. Whilst it may sound a bit dystopian, it is actually a much cleaner option than cremation or burial, and marketing it as such is how crematoriums have persuaded some to choose it. Calling this ‘available’ may yet be a bit presumptive, as there is currently only one site in the UK that offers this service. However, with the practise now legalised in 14 US states and 3 provinces in Canada it could very well be the future of green burial.

Burial at sea

Although only a dozen or so people choose this option in the UK every year, perhaps because of its obscure nature or the fact that there are only three available burial sites in UK waters, burial at sea is something open to anyone regardless of your nautical connection. However, if the trend towards more eco-friendly burials continues this may become an increasingly popular option, as the strict regulations surrounding it and minimal waste make its environmental impact very low.

Donate your body

While organ donations are fairly well-known, an alternative charitable option could be to donate your whole body for educational purposes. The body will normally be studied by medical students to show them the anatomical structure of the body, although a donated corpse may also be used to train surgeons.  It may also be the case that once a body has been used to its full extent, cremation may follow anyway, but this may offer some benefit before then.

Creative cremation

Realistically many will find these options a bit suspicious, and may choose cremation as a more familiar option. But there are now a range of services available on how you can handle your loved one’s ashes that might better suit their memory. For the avid music fans you can now incorporate ashes into a vinyl record, which either plays their favourite music or has a recording of their voice. If this sounds a bit scary, perhaps a more elegant reminder of their life could be to have their ashes turned into a diamond or beautiful glass sculpture, which can then be placed into a variety of pieces of jewellery. A quick internet search will also reveal choices ranging from fireworks to having a tree grow from the urn when planted. All of these offer a more individual way to be remembered.

Whatever you want to happen to yourself or someone you know the most important thing is to make sure you’ve planned for it.

Annie Beaumont

Annie Beaumont

 

Annie Beaumont
Paralegal
Private Client Team
ABeaumont@LawBlacks.com
0113 227 9269

Posted in Wills and Probate | Leave a comment

It Is Not Necessarily Where you Live

In a surprising decision to some, the High Court has ruled that a Russian businessman living and working in Russia is domiciled in England and therefore subject to the jurisdiction of the English courts.

In the case of Bestolov v Povarenkin, Mr Bestolov brought proceedings against Mr Povarenkin in England seeking repayment of a debt which arose under a joint venture between them in relation to various mining projects in Russia.  Mr Povarenkin argued that the English courts did not have jurisdiction and that the dispute should be determined in Russia.  This was on the basis that both parties were Russian citizens who lived in Russia; their business interests were in Russia with neither having any business interests in England; the contract (the subject of the dispute) was concluded in Russia with performance to be affected in Russia; the witnesses were in Russia and all documents would be in Russian.  Further, Mr Povarenkin submitted that the parties had not agreed that the English court would have jurisdiction to determine the dispute or that English law would be applied to the contract.

That argument might seem persuasive but the court found that Mr Povarenkin was in fact domiciled in England for the following reasons:-

  • His wife and children had, since 2013, resided in London for the majority of the year.
  • His children were educated in England and spent the whole of the school year in England.
  • The London property was effectively the family home.
  • Mr Povarenkin was in England for substantial periods of time to be with his wife and children.
  • Mrs Povarenkin had spent a substantial amount of money to satisfy UK visa requirements resulting in her being granted temporary residence with the potential to apply for permanent residence.

Taking all of the above into account it decided that, because of his family connections, Mr Povarenkin was resident in England and as such the English court had jurisdiction to deal with the claim.

It is questionable whether the Russian courts will enforce any judgment that Mr Bestolov may obtain against Mr Povarenkin.  Despite that, even if there are difficulties in enforcing a judgment overseas, being able to sue in England is attractive to many because of the powers that the English courts have to freeze assets.

This decision demonstrates that individuals cannot avoid being treated as domiciled in England, and therefore subject to its jurisdiction, by limiting the amount of assets which they own and the time that they spend here.  The courts will look at their connection to England when determining residency and jurisdiction.  If a party wishes to avoid this then it should ensure that an appropriate jurisdiction clause is included in the contract.

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Luke Patel

Luke Patel
Partner
Commercial Dispute Resolution Team
LPatel@LawBlacks.com
0113 227 9316
@LukeLawBlacks

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How to Suspend an Employee Lawfully

Often seen as a protective measure, suspension is primarily used by employers to carry out investigations into allegations of misconduct in instances where the employee’s continued presence may impede those investigations or pose a risk to the interests of the business, its customers or other employees.  Suspension can also give the employer “breathing space” to decide how to deal with perceived misconduct.

Suspension has traditionally been considered as a “neutral step” that gives the employer the ability to remove an employee from the workplace whilst not affecting the employee’s rights under their contract of employment.  However, a recent High Court decision suggests that this view is fraught with danger.

The New Risks Associated with Suspension

In Agoreyo v Lambeth London Borough Council [2017] EWHC 2019 (QB), the Court confirmed that suspension is not a “neutral act” (especially in the case of a professional vocation) as it changes the status quo from work to no work and it inevitably casts a shadow over an employee’s competence.

In this case, Miss Agoreyo, a teacher with 15 years’ experience was suspended after serious allegations were made that she had used physical force against two children that exhibited challenging behaviour in her class.  Without consulting Miss Agoreyo, the school suspended her, informing her of its decision and handing her a standard suspension letter.  The suspension letter was couched in terms generally adopted by most employers i.e. that she was to receive normal pay, the suspension was a precautionary act pending a full investigation into the allegations and that the suspension would not constitute or form part of any disciplinary proceedings.

In response, Miss Agoreyo resigned on the same day and later issued a claim for breach of contract, arguing that suspension was not reasonable or necessary in order for any investigation into the allegations to take place.

Despite the claim failing at the first instance, the High Court allowed the appeal holding the Council to be in breach of contract as alternatives to suspension were open to the school and it failed to take into account Miss Agoreyo’s version of events.  As a teacher, simply being suspended amidst allegations of abuse could have serious ramifications for her career yet the Council had made no initial enquiry into the veracity of the allegations before opting to remove her from her post (albeit temporarily).

As a result of this decision, the use of immediate suspension as a “knee-jerk” reaction to allegations of misconduct (no matter how well meaning) may now in itself be sufficient to breach the implied contractual term of trust and confidence between employer and employee.  This term exists in every employment contract and essentially prevents the employer from enforcing contractual provisions on unreasonable grounds.

Even if an employer has an express contractual right to suspend an employee, the employer must only exercise that right on reasonable grounds and for no longer than is necessary.

Tips on Suspending Lawfully

In light of Agoreyo employers need to remain vigilant and carefully consider the purpose of a suspension (and whether any alternatives exisit) before “pulling the trigger” on suspension.  The following steps will limit the potential for claims arising from a suspension and employers should:

  • ensure that there is a contractual right to suspend the employee;
  • ensure a consistent approach is adopted concerning suspension;
  • conduct preliminary investigations – establish if there is evidence to substantiate the allegations and justify the suspension (including allowing the employee to provide a preliminary response to the allegations raised);
  • ensuring any individuals who have the capacity to carry out a suspension have received proper training to do so;
  • minimise the distress to the employee;
  • meet with the employee to inform them of their suspension and explain details of the suspension and the procedure to be followed including possible outcomes;
  • follow up the meeting with a formal letter of suspension confirming the above information;
  • ensure suspension is always made with full pay;
  • keep the length of suspension as brief as possible and under review;
  • keep details of the suspension strictly confidential and on a “need to know” basis; and
  • keep accurate written records of the reason for suspension, its duration and outcome.

Consequently, all employers are advised to review and update their suspension policy and make sure that their procedures for suspending employees under disciplinary investigation are fit for purpose.

Paul Kelly

Paul Kelly
Partner
Employment Team
0113 227 9249
PKelly@LawBlacks.com

 

 

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What does the Autumn Budget 2017 mean for my business?

In the UK’s current landscape of austerity and uncertainty, with Brexit looming, small businesses across the UK were hoping for a ray of light from Chancellor Phillip Hammond, dubbed ‘Spreadsheet Phil’. Carl D’Ammassa, Managing Director of Business Finance at Aldermore, said:

“[The] Budget provides the perfect platform for the Government to highlight its backing and support for the small business community in the UK. SMEs are the backbone of the economy and it is vital they are given all the help possible given the current political and economic uncertainty.”

However the ‘sneak peaks’ we did receive in the run up to the budget focused very much on individuals, with items such as construction, housing, stamp duty and railcards taking front and centre stage.

The Chancellor began by announcing that the Office for Budget Responsibility (“OBR”) had cut its forecasts of economic growth from 2%, as stated in March, to 1.5%. This downward trajectory is forecast to last until 2020, when growth is projected to be 1.3%. On the brighter side, he announced that UK borrowing was down by £8.4bn from the Spring Budget forecast.

The effect on businesses

Corporation Tax rates have been frozen at 19% until January 2018, however the corporate indexation allowance, which provides relief for inflation, will not be available thereafter.

The chancellor reported that the VAT threshold would remain at £85,000 for the next two years and further stated that he would review the current threshold to see if alteration could ‘better incentivise growth’.

Business rates are set to decrease in line with the lower Consumer Prices Index, as opposed to the Retail Prices Index. The move could bring £2.3bn to businesses over the next five years. However Adam Marshall of the British Chamber of Commerce has said ‘more remains to be done’.

Hammond also announced plans to boost productivity by increasing the current National Productivity Investment Fund from £23bn to £31bn, and extending it for another year. The areas which are set to benefit from this increased spending include:

  • housing, in particular affordable housing, housing infrastructure and accelerated construction;
  • transport, in particular roads and local transport, next generation vehicles (the apparent focus being on driverless cars), and digital railway enhancements;
  • digital communications, in particular advancements in fibre and 5G; and
  • research and development (R&D).

The Chancellor also reported that there would over £20bn of investment in UK scale-up businesses in an attempt to increase the investment in, and productivity of, UK companies. This figure is to be sourced from numerous avenues, including:

  • through a new fund in the British Business Bank, seeded with £2.5 billion of public money which, with co-investment from the private sector, could reach £7.5bn; and
  • by doubling the allowance for investment in knowledge-intensive companies through the Enterprise Investment Scheme (EIS), which means that eligible investors can get 30% income tax relief on investments up to £2m. This move will unlock an additional £7bn for companies.

So despite some concerns, it appears that Hammond has, in fact, unveiled some positive plans for the business community. Whilst our small businesses breathe a sigh of relief over the revelations of Wednesday’s Budget, with the UK currently embroiled in Brexit negotiations, the future is far from clear.

David Paterson

David Paterson
Partner
Corporate and Commercial Team
DPaterson@LawBlacks.Com
0113 227 9341

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Fake News: How can the government ensure that the truth wins out?

The concept of “fake news” came to the forefront of public consciousness during the 2016 US Presidential Election campaign and in particular the rise of Donald Trump. Its profile has risen exponentially to the extent that the term “fake news” was awarded Word of the Year 2017 by Collins English Dictionary, and barely a day goes past without the phrase being used in new coverage.

A key question for the UK government is whether more should be done to tackle this very 21st century issue due to the clear shift in how users are consuming media and news in general, moving to online platforms and social media.  It is apparent that the government is sufficiently concerned with this phenomenon to set up a Select Committee (Digital, Culture, Media and Sport) to explore the concept of “fake news” and the potential impact it is having on the public understanding of the world.

The UK already has specific legislation governing defamatory, offensive and malicious statements and communication.  The Defamation Act 2013 provides an avenue to pursue a claim if it can be shown that a false statement has been made and that its publication would cause “serious harm”.  However, it is clear that not all fake news stories would be covered by current legislation, as fake news is found in many different forms including with the aim of advertising and may not fit in the narrow definitions covered by legislation.

There is currently a lack of regulatory governance over the internet as there is no equivalent body to, say, OFCOM which regulates broadcast media including television and it may be time for the regulators to move with the times and regulate online media platforms.  Other regulators such as IPSO (Independent Press Standards Organisation) require the industry to sign up to become members, so it is highly unlikely that the creators of “fake news” stories will voluntarily sign up to these industry standards, including the obligations to clearly differentiate facts and opinion within their publications. However, if the government does decide to increase regulation, serious issues may arise as to how this would be balanced with the right to Freedom of Expression under the European Convention on Human Rights (ECHR). Human rights proponents will undoubtedly question whether stricter rules including the removal of content may be a step too fair in censorship.

The Article 10 right to Freedom of Expression is a qualified right, meaning that in exercising this freedom “it carries with it duties and responsibilities”. Therefore if it is in the interests of national security of public safety there can be limitations to this right, however again there is a delicate balance in the state overusing this ability to restrict the freedom of citizens, which may inexplicitly create a “censorship culture”; stirring the proponents in the “freedom of expression” Lobby.

We await the recommendations of the Committee but it is a clear that there is a fine line that needs to be drawn between the right to Freedom of Expression under Article 10 of the ECHR and the creation of regulatory or statutory protection to ensure that there are effective deterrents in place to stop the influx of inaccurate news stories that are invading our news feeds.

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Luke Patel

Luke Patel
Partner
Commercial Dispute Resolution Team
LPatel@LawBlacks.com
0113 227 9316
@LukeLawBlacks

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