The £25,000 Defamatory Online Review

17 February 2021

Author: Hannah Stewart
Practice Area: Media and Entertainment

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The High Court of England and Wales recently handed down judgment in the case of Summerfield Browne Ltd v James Waymouth [2021] EWHC 85, and ordered the Defendant to pay £25,000 in libel damages following a negative review he left on the Trustpilot review website.

Background

The Claimant, Summerfield Browne, is a London law firm that the Defendant, Mr Waymouth, had previously instructed in relation to a dispute concerning the enforcement of a court order. Unhappy with the service he received and, rather than first raise his discontent with the law firm itself, the Defendant took to online review website, Trustpilot, stating:

“A total waste of money another scam solicitor…”

He went on to name the particular solicitor he had engaged with, and alleged that he had paid upfront for a legal assessment but only received a reworded version of the information he had provided. He stated, “You will learn more from forums, YouTube and the Citizens Advice website about your case, for free”.

Proceedings

The Claimant issued proceedings for libel on the basis that it had been described as “a total waste of money” and “another scam solicitor”. In their evidence, they submitted that the number of weekly enquiries fell for a period of 5 weeks from approximately 50 – 60 per week to 30 – 40 per week as a result of the defamatory review.

The Defendant offered to withdraw his opinion should they refund his legal fees of £200 plus VAT. However, the Claimant proceeded to claim for general damages of £25,000, special damages of £300 per day, injunctive relief and an order to remove the defamatory words from the Trustpilot website.

Defence 1: Honest Opinion

While the Defendant argued the defence of honest opinion, the Claimant submitted that the words used conveyed an allegation of fraud and quoted the case of Wasserman v Freilich [2016] EWHC 312 (QB) at paragraph 22:

“An allegation of dishonesty, fraud or attempted fraud will usually fall fairly and squarely on the side of fact rather than opinion.”

The Claimant argued that the allegation that it is “a scam solicitor” has the plain meaning that the Claimant is dishonest and fraudulent. The Court accepted the Claimant’s submission and struck out the defence of honest opinion.

Defence 2: Public Interest

The Defendant relied on s4 of the Defamation Act 2013 (England and Wales), which requires a defendant to show that the statement was a matter of public interest, or that the defendant reasonably believed that publishing the statement complained of was in the public interest.

Referring to the established law set in Economou v de Freitas [2018] EWCA Civ 2591, the Court rejected the Defendant’s submission. The Court stated that the Defendant “would clearly have been aware of the seriousness of the allegation,” and that he made no attempt to engage in the Claimant’s dispute resolution process.

Master Cook commented, “A complaint should always be the first stage in resolving any issues of customer satisfaction.” He accepted the Claimant’s submission that the Defendant’s conduct wholly undermined the defence of public interest.

Defence 3: Truth

The Claimant sought summary judgement in relation to the defence of truth on the basis that there was no credible basis for asserting the truth of the Defendant’s belief and therefore no real prospect of making it out. The Claimant submitted a witness statement from a solicitor within the law firm with evidence that it is a responsible firm of solicitors with no regulatory decisions against it. The Court stated it was “inconceivable” that the Claimant could be a scam firm or trading fraudulently and have such an unblemished record.

The Court held that the defence was “fanciful” and granted summary judgement in respect of the defences of public interest and truth.

Court’s Decision

Master Cook held that, “it is beyond any dispute that the words complained of had a clear tendency to put people off dealing with the Claimant firm,” and commented that it was difficult to conclude that the Defendant had any other purpose in mind when posting his review. He stated that, “It is a serious matter to accuse a solicitors firm of dishonesty” and accepted the Claimant’s evidence that the review had a financially damaging impact as they had received a significant decrease in inquiries since it was posted.

While the Court did not award special damages due to a lack of detailed financial evidence, it did award £25,000 in general damages to reflect the seriousness of the defamation.

In relation to the claim for injunctive relief, the Court held that it was not in the public interest for misleading and inaccurate information to be published on a customer review website. The Court issued a permanent injunction restraining the Defendant from re-publishing his review and, pursuant to s13(1)(a) of the Defamation Act 2013, ordered Trustpilot to remove the defamatory review on the basis that the Defendant was unlikely to take it down himself.

Trustpilot’s Response

Trustpilot has since commented that the judgement raised “significant concerns” around freedom of speech. In a statement Trustpilot said:

“While the circumstances of this case are highly unusual, the outcome will ultimately not lead to a positive position for anyone – consumers or businesses – and it is much better for businesses to engage, respond and improve upon the feedback they receive, rather than using legal action to silence consumers.”

As the review site was not a party to the proceedings, the Court order contained a provision that it may apply for the order to be varied or discharged. Given their concerns about the judgement, we shall wait and see if Trustpilot brings the matter back before the Court.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.

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