Hodges v Naish [2021] EWHC 1805 (QB)
Case summary
In the recent case of Hodges v Naish, Mr Hodges brought a claim in respect of several accusations made against him by the Defendant regarding him having relationships with a number of students and in respect of him grooming them until they reached the age of consent.
The Judge was particularly unhappy in this case as a result of the state of the pleadings. It is fair to say that the Claimant’s legal team made a mess of pleading the case from the outset and the issues were then compounded by the Defendant’s legal representatives not highlighting the issues with the pleading of the case. There was a considerable amount of time and no doubt cost wasted in terms of the Court trying to bring the case back on track and this alone highlights why specialist lawyers must be used in disputes such as this.
Once the pleadings were back on track, the Judge summarised and determined the publications at a preliminary trial as follows:
“(1) A telephone call by the defendant on or around 24 February 2019 to one Elaine Walker, in Germany. She ran an Irish dance business in Boblingen. It was alleged that the defendant spoke to Ms Walker these words about the claimant: “Jamie Hodges has been grooming young girls from our workshops to stay friendly with them until they reach the age of consent”.
(2) A conversation during a car journey on 2 March 2019 with a Mr Conor Kennedy and a Mr John McCullough, both freelance Irish dance teachers, during which the defendant was alleged to have spoken these words about the claimant: “Jamie has been grooming a lot of young girls on the Fusion social media accounts so he could try and meet up with them for sex when they are legal … Jamie has been with hundreds of girls and because of that he’s got loads of STDs and I am going to have to get in contact with them all to tell them to get tested”.
(3) A telephone call on or around 4 April 2019 to Mr Kevin Goble, another freelance Irish dance teacher, during which the defendant was alleged to have spoken the following words about the claimant: “Jamie has been grooming kids through social media, so you know who you are involved with”.
23. I heard evidence about the words alleged to have been spoken. So that the parties knew at the resumed hearing what words they were arguing about, I stated my conclusions on publication very shortly, in writing, on 10 March 2021. My conclusions were as follows:
(1) I heard evidence and submissions on 24 and 25 February 2021 about the issue of publication of the words complained of. It was agreed to be preferable that I should first state my conclusions about the issue of publication, and that the parties should then make further submissions on meaning, whether the words were defamatory at common law, actionability without proof of special damage, serious harm, and whether the words were statements of fact or expressions of opinion.
(2) For the benefit of the parties, these are my findings on the issue of publication. My findings, and the reasons for them, will be incorporated in my judgment after I have heard further argument.
(3) On 2 March 2019, the defendant spoke the following words about the claimant to Conor Kennedy and John McCullough during a car journey to Bristol. The words were not spoken in one continuous sequence but in the course of a wider conversation about the claimant.
“Jamie has been grooming young girls on social media so he can stay friendly with them and meet up with them for sex when they reach the age of consent … Several dance teachers have told me that parents have complained that his behaviour has been inappropriate … He has STDs and has been sleeping with hundreds of girls. I shall probably have to tell them.”
(4) On 4 April 2019, the defendant spoke these words about the claimant to Kevin Goble in the course of a telephone conversation:
“Jamie has been grooming kids through social media, so you know who you are getting involved with. Elaine Walker has complained about the Fusion Fighters workshop because Jamie has been closely involved with three girls from the camp. I received a statement that he had been inappropriate with some of her dancers.”
(5) It is also alleged that the defendant spoke defamatory words about the claimant to Elaine Walker during a telephone conversation on 24 February 2019. I am unable to find, whether by inference or otherwise, that the defendant spoke the words complained of to Ms Walker. This limb of the claim therefore fails.”
One issue that presented itself was whether the Claimant should be able to pursue accusations that the Defendant made defamatory comments to Mr Goble, notwithstanding the accusation being included in the case over the primary period allowed to bring such claims being a year pursuant to the Court’s discretion under s.32A Limitation Act 1980. The Court’s discretion in this regard can be exercised where ‘all or any of the facts relevant to that cause of action did not become known to him until after the expiration of [the primary limitation period]’. The Judge found that the claim should be permitted to proceed out of time and his reasons are set out below:
“110. The claimant’s position, therefore, is that he took action when he learned of the alleged publication to Mr Goble, by arranging for Mr Goble to provide the gist of his statement to his then solicitors and counsel, that he kept asking his lawyers to make use of Mr Goble’s evidence, but that they took no action beyond making references to it in the Reply. As a legally untrained layman, it seems to me that he was in no position to understand what his lawyers ought to have done (i.e. seek leave to amend to rely on the Goble publication), and it was not until Mr de Wilde was instructed (in early September 2020) that he appreciated the position. That delay, for the full twelve months of the limitation period and some five months beyond it, appears on the face of it (although I emphasise that I have not heard from them) to have been the result of the failure of his legal advisers to take the necessary action to plead the Goble publication.
111. It must be a relevant consideration that the claimant has a putative claim against his legal advisers (see eg Steedman at [24]ff). However, in my judgment that is not a route which could offer effective vindication, and it would not assist the claimant in obtaining an injunction against the person who he alleges is responsible for a campaign of vilification against him. At best, it would result in a small award of damages for a lost chance of an award of damages in slander. That would be of very little use to him.
112. As soon as the claimant learned the true position, he immediately informed the defendant that he wished to make a further claim in reliance on the words allegedly spoken by the defendant to Mr Goble, and thereafter served his draft APOC, pleading that publication, in accordance with my order of 11 November 2020. The issue was then argued at the trial of preliminary issues on 24 February 2021. It could not have been dealt with any sooner than it was, because of listing constraints. In that context, it seems to me immaterial that the formal application was not issued until 12 February 2021…
117. But it is not just a matter of repairing his standing in the eyes of Mr Goble. This is a case which (actionable publication being very limited) must be primarily about injunction rather than damages. (I should say that the defendant gave an undertaking through his solicitors on 26 April 2019, without any admission of liability.) It seems to me that against a background in which damaging statements were plainly made about him by the defendant to many people that cannot be sued upon, because the words used are not known, there would be real prejudice to the claimant if he could not pursue his claim in respect of one of two occasions of actionable publication which he is able to establish.
118. As far as the defendant is concerned, he would lose the protection of the limitation bar. However, he must in any event plead a defence to the Kennedy/McCullough publication, which is in very similar terms. That greatly reduces the prejudice which he will suffer by disapplication of the limitation period…
119. Moreover, if there is to be a defence of truth, or privilege, it is unlikely to be either unavailable because of the delay in pleading the Goble publication, or to be less cogent than it would have been otherwise, both because there is no reason to suppose that the relevant witnesses are not still available or unlikely to recall such serious matters, and because the Goble publication does not appear to give rise to a need for any evidence which would not already have been required in respect of the car conversation.”
The Judge further found that the following meanings should be attributed to the comments made:
“128. My conclusion is that the words spoken to Messrs Kennedy and McCullough, in their context, meant that
(1) the claimant had groomed under-age girls by social media with a view to having sex with them once they reached the age of consent;
(2) he had behaved improperly with his girl pupils, as their parents’ complaints showed; and
(3) he had slept with hundreds of girls without telling them that he had sexually transmitted diseases.
133. My conclusion is that the first sentence of the words which I have found to have been spoken to Mr Goble, which is the extent of the claimant’s pleaded complaint, meant that:
Mr Goble should be careful of getting involved with the claimant, because he had been grooming children through social media.”
The Judge then moved on to whether the claims brought were actionable in their own right and whether serious harm had occurred. The Judge’s comments are below:
“137. As a general rule, slander is not actionable without proof of special damage. No special damage is alleged by the claimant in this case. There have been a number of exceptions to that rule, of which (in the light of s14, Defamation Act 2013) only two remain. The claimant must bring himself within one or other of those exceptions. In my judgment he has brought himself within both.
138. The two remaining exceptions to the general rule are (1) slanders which impute a crime for which the claimant could be made to suffer physically by way of punishment, and (2) slanders which are calculated to disparage the claimant in any office, profession, calling, trade or business held or carried on by him at the time of publication…”
The Judge found that the case would be allowed to proceed without special damage based on the above-referred exceptions. In terms of whether serious harm was caused to the Claimant, which is a requirement pursuant to Section 1 Defamation Act 2013 for an action to be successful, the Judge found:
“Even if I take into account the claimant’s explanation to the three men and their acceptance of it, it seems to me that those matters did not neutralise the impact of what the defendant said. The evidence shows that they were shocked and troubled by the allegations, especially given that it was the claimant’s former close friend who had made them, a man who would have known the truth about the claimant’s behaviour, and in that sense the allegations ‘stuck’ (to use Nicklin J’s term). In my view, even though the men each said that having heard the claimant’s response, they did not believe the defendant, long term damage has been done to their relationships with the claimant. Their view of him, which was previously one of respect and admiration, is now tainted by uncertainty and awkwardness. An embarrassment has crept in to friendships which had earlier been relaxed and untroubled…In the small world of Irish dance, that is bound to be a seriously problematic development.”
The case now proceeds on various consequential matters, such as to what extent the Claimant should be allowed to rely upon the content of the amended Particulars of Claim, whether an amended defence should be permitted and costs.
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Kevin Modiri is a Partner in our expert Dispute Resolution team.
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