Passing Off Allegations Give Rise To A Defamation Claim

Siobhain Crosbie v Caroline Ley [2023] EWHC 2626 (KB)

Background

The Claimant was a therapist and ran her own business. The Defendant decided to retrain as a therapist and did part of her training with the Claimant and worked from the Claimant’s premises. The Defendant later set up her own therapy practice. The Claimant alleged that the Defendant passed off her new practice as the Claimant’s business by creating a listing on Google using the Claimant’s web address and postcode but with the Defendant’s telephone number. The Claimant argued that this had caused harm to her business as potential clients were searching for her business online and being diverted to the Defendant’s practice.

The Defendant pursued a counterclaim in relation to four posts that the Claimant had made on social media from 2016 onwards. One of the posts was made on a public Facebook Group for counsellors. Within the posts, the Claimant alleged that the Defendant had committed fraud by passing off the Claimant’s business as her own. The Claimant also alleged that the Defendant was dishonest and a risk to the public. Following a full investigation, the police confirmed in September 2016 that they would be taking no further action due to insufficient evidence. Within the posts, there were also threats of violence with the Claimant posting things such as “it’s other avenues like a hitman lol” and “the temptation to punch her in the face was def there”.

The Defendant claimed that the posts were defamatory and amounted to harassment in contravention of the Protection from Harassment Act 1997 (PFHA). The Defendant also pleaded that by publishing the statements, the Claimant had processed inaccurate data about the Defendant in contravention of the GDPR. The Defendant accepted that if the judge found in her favour in relation to the defamation and/or harassment claim, there would be no need to make a determination in relation to the GDPR claim.

In relation to the defamation claim, the Claimant sought to rely on the defence of the truth alleging that the Defendant had admitted during an interview with the police that she had created the listing in the Google directory and therefore the posts complained of were substantially true. In respect of the harassment claim, the Claimant sought to rely on Section 1(3) of the PFHA arguing that she had made the posts with the purpose of preventing the Defendant from committing any potential offences. In relation to the data protection claim, the Claimant argued that the processing was exempt as it was for the purpose of preventing and detecting crime.

This blog focuses on the Defendant’s counterclaim only. However, to understand the decision made in the counterclaim it is necessary to know what conclusion the judge reached in the Claimant’s claim. The judge found that based on the evidence, the merged listing had come about as a result of Google’s software having merged together the Defendant’s initial listing and the Claimant’s listing. The judge fully accepted the Defendant’s position and found that she was blameless and unaware of any issues with the listing until she was contacted by the Claimant in March 2016. The Claimant was therefore unsuccessful, and the claim was found to be totally without merit. The judge was particularly troubled by the financial loss pleaded in the Claimant’s Particulars of Claim. He commented:

Defamation claim

The judge agreed with the meaning of the four statements as put forward by the Defendant’s barrister. Whilst each statement was deemed to have a slightly different meaning, the common theme between all of the posts was that the Defendant was guilty of fraud. This of course was found to be untrue by the judge who had considered the Defendant entirely blameless in relation to the Google listing. By virtue of this, the judge found that the posts were defamatory in nature and that the Claimant could not rely upon the defence of truth.

When considering whether the posts had met the serious harm test, the judge looked at the extent of the publication and the fact that most of the posts were aimed at other therapists. The judge was satisfied on this basis that the Defendant had met the serious harm test. The Defendant was therefore successful in her defamation claim. The judge confirmed that the following factors would be relevant when quantifying the level of damages to be awarded:

Harassment claim

The judge found that the posts did amount to harassment in contravention of the PFHA and commented that anyone would have been alarmed reading the Claimant’s threats. The judge did not accept that the posts were done for the purposes of the prevention or detection of crime as the police had already closed their investigation due to a lack of evidence when the posts were made. The Defendant was therefore successful in her harassment claim. The judge confirmed that in addition to the above, the following additional matters were also relevant to the quantification of damages:

Damages

In addition to the above, when deciding on the level of damages to be awarded, the judge looked at the Claimant’s conduct, he also considered the fact that the Claimant’s claim was totally without merit and that she had exaggerated her losses. As a result, he considered it appropriate to award aggravated damages to the Defendant. The Claimant was ordered to pay £75,000.