HomeInsightsHigh Court disapplies limitation period and considers serious harm in slander claim

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These slander proceedings involved two leading exponents of Irish dance, Jamie Hodges and Christopher Naish, who had worked together for years as friends and colleagues in a business known as Fusion Fighters. The business involved both performing shows and teaching students at workshops all over the world. Their business relationship and friendship broke down in early 2019. Mr Hodges issued proceedings against Mr Naish for slanders allegedly spoken by Mr Naish to three individuals between February and April 2019 in relation to sexual misconduct on the part of Mr Hodges.

Having heard evidence as to the exact words alleged to have been spoken, His Honour Judge Richard Parkes QC, sitting as a Judge of the High Court, found that Mr Naish had spoken the following words:

  1. “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”, in a conversation during a car journey in March 2019 with Conor Kennedy and John McCullough, both freelance Irish dance teachers; and
  2. “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”, in a telephone call to Kevin Goble, another freelance Irish dance teacher, in April 2019.

The publication to Mr Goble was not pleaded originally. Section 4A of the Limitation Act 1980 provides that no action for defamation or malicious falsehood shall be brought after the expiration of one year from the date on which the cause of action accrued. The cause of action therefore expired in April 2020. Mr Hodges applied to the court to disapply s 4A in accordance with its power under s 32A of the 1980 Act.

Section 32A provides that if it appears equitable to the court to allow an action to proceed, considering the degree to which the operation of s 4A might prejudice the claimant and the defendant, the court can disapply s 4A. The court must consider: (i) the length of and reasons for the claimant’s delay; and (ii) where a reason for the delay is that the relevant facts were not known to the claimant until after the end of the limitation period, the date on which the facts became known, the extent to which the claimant then acted promptly and reasonably, and the extent to which relevant evidence might be unavailable or less cogent than if the action had been pursued within the limitation period.

Mr Parkes QC found that Mr Hodges had, in fact, been keen to pursue a claim based on publication to Mr Goble, but that his lawyers at the time (who were not the lawyers on the record in relation to this judgment) had not understood that the words spoken to Mr Goble amounted to a separate cause of action that needed to be pleaded. Mr Parkes QC found that Mr Hodges had done his best to pursue the claim promptly and that he had always had a genuine with to pursue vindication.

As for the balance of prejudice, Mr Parkes QC said that it was highly likely that Mr Naish had spoken to a number of other people in the Irish dancing world about alleged sexual misconduct by Mr Hodges. However, Mr Hodges could not sue on many of these damaging statements because the exact words used were not known. Therefore, in Mr Parkes QC’s view, there would be real prejudice to Mr Hodges if he could not pursue his claim in respect of one of two occasions of actionable publication that he was able to establish.

As for Mr Naish, Mr Parkes noted that he would lose the protection of the limitation bar. However, he had to plead a defence to the Kennedy/McCullough publication, which was in very similar terms, in any event. This greatly reduced the prejudice. Given the similarities between the alleged words spoken, any substantive defence was likely to be identical.

Further, any defence available to Mr Naish was unlikely to be either unavailable because of the delay or to be less cogent, as there was no reason to suppose that the relevant witnesses were not still available or unlikely to recall such serious matters and because the Goble publication did not appear to give rise to a need for any evidence that would not already have been required in relation to the car conversation. Accordingly, Mr Parkes QC allowed the application and disapplied the limitation period for the Goble publication.

Mr Hodges had not pleaded special damage, which is a requirement for an action in slander to be actionable. However, Mr Parkes found that the alleged slanders fell within two applicable exceptions: (i) slanders which impute a crime for which the claimant could be made to suffer physically by way of punishment (i.e. imprisonment); and (ii) 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 (see Gatley 4.2).

Referring to Lachaux v Independent Print Ltd [2019] UKSC 27, in which Lord Sumption explained that s 1(1) of the Defamation Act 2013 “require(d) its application to be determined by reference to the actual facts about its impact and not just to the meaning of the words”, Mr Parkes said that inferences of fact as to the seriousness of the harm done to a claimant’s reputation may be drawn from such considerations as the meaning of the words, the claimant’s situation, the circumstances of publication and the inherent probabilities.

Mr Parkes noted that Lachaux was a libel case but said that the s 1 serious harm test must also apply to slander. He referred to Dhir v Saddler [2017] EWHC 3155 (QB), which was a slander case, in which Nicklin J found that the requirement is to show serious harm caused to the reputation of the claimant in the eyes of the publishees, not people generally, and that a significant factor is whether the allegation “sticks” in the minds of the publishees.

Mr Parkes found that the words spoken were “immensely serious” as they could have ended Mr Hodge’s career as a teacher and performer of Irish dance. They were made more credible to the publishees by the fact that Mr Hodges and Mr Naish had been friends for so long, and by their context, i.e. Mr Naish’s explanation for the demise of a very close personal and professional relationship. All three publishees were very shocked and upset by the allegations. They were also friends of Mr Hodges, as well as of Mr Naish, and had all spoken to Mr Hodges after hearing the allegations, seeking reassurance that they were untrue. All three did indeed feel reassured after speaking to Mr Hodge, but all three remained unsettled and said they would not be completely reassured until Mr Hodges had won this case. All three also said that their relationship with Mr Hodges was affected after hearing the allegations from Mr Naish.

Mr Parkes dismissed Mr Naish’s argument that in the light of Mr Hodges’ reassurance of the three men, they did not believe that what he told them was true, and that therefore his words caused no harm, let alone serious harm. Mr Parkes said that Mr Hodges’ explanation to the three men and their acceptance of it did not neutralise the impact of Mr Naish’s words. They were shocked and troubled by the allegations, especially given that it was Mr Hodges’ former close friend who had made them, and he would know the truth about Mr Hodges’ behaviour, and in that sense the allegations “stuck”. Even though they had all said that having heard Mr Hodges’ explanation, they did not believe Mr Naish, long term damage had been done to their relationships with Mr Hodges. In Mr Parkes’ judgment, the words had caused serious harm to the standing of Mr Hodges in their eyes, and real damage to their friendships with him.

Mr Hodges argued that his attempts to reassure his friends were irrelevant to the question of serious harm because the reputational impact had to be caused at the point of publication otherwise there would be no cause of action. This was a very difficult question Mr Parkes said, as Lachaux does not explicitly consider the position where later developments show that the words were less damaging than might initially have been supposed, e.g., hearing that X has murdered Y and then, either immediately of sometime in the future, seeing Y walking down the street. Some factors relevant to serious harm that occur after publication, such as the percolation of the libel from the publishee to others, can be considered in assessing seriousness. If Mr Hodges’ argument was correct, then Mr Parkes would have to disregard Mr Hodges’ attempts to reassure his friends when assessing serious harm, but this seemed wrong, he said. However, given that he had found serious harm in any event, the issue did not need to be decided. (Jamie Hodges v Christopher Naish [2021] EWHC 1805 (QB) (1 July 2021) — to read the judgment in full, click here).