|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Flymenow Ltd v Quick Air Jet Charter GmbH  EWHC 3197 (QB) (15 December 2016)
Cite as:  EWHC 3197 (QB)
[New search] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| FlyMeNow Limited
|- and -
|Quick Air Jet Charter GmbH
William Bennett (instructed by Fladgate LLP) for the Defendant
Hearing dates: 6 & 7 December 2016
Crown Copyright ©
Mr Justice Warby:
(1) What was the natural and ordinary meaning of the Notice? (Meaning).The claimant's case is that the Notice bore a meaning suggesting that the company was insolvent ("the Insolvency Meaning"). The defendant's case is that the Notice bore a lesser defamatory meaning ("the Warning Meaning"): it warned fellow companies in the aviation business against dealing with the claimant, on the basis that it had pecuniary difficulties, but did not go as far as to suggest insolvency.
(2) Was the Notice substantially true? (Justification).The defendant's case is that the Notice was true in the Warning Meaning; alternatively that if it bore the Insolvency Meaning it was also true. An important issue in relation to justification is whether, as the defendant maintains, the claimant's contractual obligation was to pay the charter fees before the flights. The contract documentation indicates that this was the payment obligation, subject to contrary agreement. The claimant's case is that there was a contrary agreement, made orally by telephone before either of the July and August charters were entered into, which entitled the claimant to time to pay. The defendant's case is that there was no such agreement, and that the claimant has invented this as an excuse for its payment defaults.
(3) Did all or any of the publications take place on an occasion protected by qualified privilege? (Privilege).The issue is twofold: did the defendant have a social or moral duty to communicate on the subject-matter, and the publishees a corresponding legitimate interest in receiving it? Alternatively, was the publication privileged on the basis of common and corresponding interests?
(4) If any publications were privileged, did the defendant have a dominant improper motive for publishing the Notice? (Malice).The claimant's pleaded case is that the defendant's dominant motive was "to improperly force the claimant to make payments contrary to the contractual terms it considered were agreed."
(1) There is no claim for special damage. A claim for aggravated damages which was pleaded at the outset is not pursued, on Counsel's advice. The claim is therefore for general damages, to compensate for the probable financial impact of any reputational harm, and to vindicate.
(2) The defendant's case is that if, contrary to all of its primary arguments, the Notice was libellous any damages should be minimal on the grounds that (a) there is partial justification; and/or (b) damages should be reduced because of the claimant's conduct in leading the defendant to believe that the claimant could not pay its bills as they fell due; and/or (c) in all the circumstances no real or substantial vindication is required or warranted.
The March Flight
The July Contract
"Cologne the 09-07-2013 11:53:53"
Ref: Natascha Rode
In accordance to pleasant telephone conversation we hereby send you quotation on following flight with our LEAR 35
Departure: Destination: Flight
COLOGNE/BONN SKOPJE/ALEXANDE 02:15
SKOPJE/ALEXANDE BRISTOL 03:05
BRISTOL COLOGNE/BONN 01:15
Price: Euro 15.600,00"
Payment prior flight (or according to agreement). Quick Air Jet Charter GmbH cannot be held responsible for delays or diversions due to slots, bad weather or technical problems."
The August Contract
"Our accounting department informed us about your outstanding bills with the amount of 15,400 and 13,500 . Please find attached the invoices No. 4002009 and No. 4002074 with the explanation of the outstanding balance to be paid immediately."
There was no response.
"one month ago I have already sent this payment reminder to your account and contacted you twice via phone with our urgent request to follow the agreement of payment."
Court action will be the consequence of your ignoring this mail."
"I have spoken to our client and they have confirmed funds will be in our bank account by the end of the week so I will transfer payment of your outstanding invoices over the weekend which I trust you find acceptable."
"Much of the email exchange was dealt with by Mr Franks; former finance Director of FlyMeNow Limited. Mr Franks left FlyMeNow Limited following discoveries being made about his activities which I considered unacceptable and which necessitated his dismissal. I am therefore not able to produce any evidence from him in this matter due to those subsequent discoveries."
"referring to our todays telephone conversation we are going to mandate a british debt-collecting agency/lawyer, if you do not show your willingness to pay within the next 24 hours."
We are no longer willing to accept your intolerable manner to put ourselves as your creditors off. One month ago Adam told me that he is going to transfer the money to our account, last week he told me that he is going to transfer the money during the weekend. Today I contacted him again and now he told me that you are still waiting for the money of your client.
As I told you, we are no longer willing to accept your delaying tactics.
Kindly note that we are awaiting your reply by email no later than 02:00pm (British time) tomorrow! Court action will be the consequence of your ignoring this mail!"
"Please find attached our first payment of 6,400 which we received from our client this morning and I have transferred it to you immediately as promised. Further payments will follow as soon as we receive them."
"we received your partial payments on 17th and 18th of October. Unfortunately you did not inform us about your intention how to proceed.
Please notice that we are still waiting for the final payment in the amount of 15.500. The due date for this outstanding balance is tomorrow!
Unpleasantly we have to inform you that we are going to instigate the enforcement irrevocable on next Monday the 4th of November 2013, 12 noon."
"I am expecting the balance of 15,500 to be paid in full by the end of next week, 8th November once our client has paid the balance. I greatly appreciate your support and patience."
"we are doing everything we can to clear your outstanding balance. We were unfortunate that our client has taken time to pay which we are very grateful for your understanding and support. Of course we will continue to pay the remaining balance as soon as we receive more funds from our client."
"Calm down Philipp!
Adam is doing his very best to get you all monies owed.
We could throw our hands up in the air as many Brokers do and say, we haven't been paid, so you are not going to get paid, but no, we are transferring all available monies to you, irrelevant of the situation with our Government client.
If you send out an email/letter/threat, you only cause more financial difficulty and worse, you threaten yourself with never getting paid, ever. Or, perhaps a legal case for slander because the July flight has been paid in full!
Adam should have advised that we performed a mission last week which we Invoiced 13,990.00 with payment terms set at immediately. My instructions to Adam are to transfer the 13,500.00 owed to you the moment that money arrives into our account.
You must appreciate that we do not want to be in this situation, and we very much appreciate you being as patient as you have been, however threatening us, or wanting to damage our reputation will only make matters worse.
Of course, we are still directing flight requests in your direction and fully appreciate that monies will need to be paid in advance however, your insistence on receiving all monies means that you are currently missing out."
In this and another quotation below I have highlighted in bold some passages which are clearly of some real importance to the central issues in this case.
"We are not using any delaying tactics, this (attached) is the Invoice that is due for immediate payment. The very moment these funds arrive, they will be transferred to you.
Adam has spoken with the HSE in Ireland on Thursday, who assured that payment is imminent, I will ask Adam to check with them again on Monday.
As I said in my email, you do whatever you feel that you need to however, understand the consequences for not being patient.
July payment paid in full."
(1) "please urgently advise if you were able to transfer the outstanding amount or otherwise when you intend to transfer at the latest."
(2) "I wanted to let you know as soon as I have heard some news regarding payment. I have received confirmation today from our client HSE in Ireland that we will receive payment in our bank on December 23rd. They assure me there will be no further delay. I will of course forward you payment as soon as we receive it. Again I apologise for the delay and thank you for your patience."
"To Whom It May Concern
WARNING: Company you should not deal with!
We consider that it is our duty to warn you against doing business with the following company as they are not able to pay outstanding amounts dated from July 2013.
The White House
York YO31 9LD
The FlyMeNow Limited is obviously incapable to pay their outstanding amounts in total. In this particular case for two ambulance flights they booked with our airline company in July and August 2013.
Of course and unrequested we are going to inform you as soon as we receive the outstanding amount by the defaulting debtor.
Please feel free to contact me for further information regarding this unpleasant issue.
Quick Air Jet Charter GmbH"
The Three Emails
(1) An email from Adam Minks, the Financial Controller at Blink Ltd, a private airline charter company operating from Blackbushe airport in Surrey. Mr Minks said "I sympathise with you entirely, this outfit cannot trusted". He said that Blink had pursued the claimant through the UK court system for unpaid debts and "We are very cautious about accepting any bookings from them now and categorically insist on payment via credit card before any positioning of crews or aircraft."
(2) An email from Flex Flight, a Danish airline charter company operating from Roskilde. This said "We have recently done business with them and also we had problems getting our money. However I blocked the amount on their American Express for security."
(3) An email in German from Bernhard Wallner, Sales Director of Air X Charter Ltd, an airline charter company operating from offices in Malta and Salzburg. Mr Schneider's translation, which was uncontradicted, is that "Mr Bernhard informed me that they had also used FlyMeNow for a charter in May 2013 and had had to wait two weeks until they were paid". Mr Schneider says that since payment in advance is usual in the private charter sector a two week delay is unusual.
The Letter of Claim
(1) For the purposes of defamation law, the natural and ordinary meaning of words is the meaning they would convey to the ordinary reasonable reader.
(2) The defence of justification is available to a defendant who proves that the natural and ordinary meaning of the words complained of is substantially true.
(3) The defence of qualified privilege is available where it is for the common convenience and welfare of society that a communication of the kind in question should be given (qualified) protection from liability in defamation. Two categories of situation where the defence is available are:(a) where the defendant had a social or moral duty to communicate information on that subject, to someone who had a corresponding legitimate interest in receiving such information; and(b) where the publisher and publishee had a common and corresponding legitimate interest in the subject-matter of the communication.
(4) The defence of qualified privilege is defeated if the claimant proves that the defendant was actuated by a dominant improper motive.
"(1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naοve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any "bane and antidote" taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, "can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation " "
"that the Claimant was in financial difficulties and/or insolvent being unable to pay its debts as they fell due; that the Claimant's financial position was such that it was not safe for any industry party to deal with the Claimant and would be unlikely to be paid by the Claimant in a later deal and was in default of invoices outstanding for payment for a period of many months."
"You should avoid supplying services to the Claimant because it has failed to pay money owed by it to the Defendant. This is because it is having pecuniary difficulties."
(1) Is the defendant right to say that there were sums outstanding throughout? Or was there an agreement giving the claimant time to pay, with the result that it was only in default to a limited extent and late in the day?
(2) If (and to the extent that) the defendant is right, why did the claimant fail to pay? In particular, was the reason that it was unable to pay all its debts as they fell due?
Was there any agreement for time to pay?
"In respect of the flight performed on 14 July 2013 the Claimant settled the total sum due to the Defendant by three payments made upon 17 October, 18 October and 11 November."
In respect of the flight performed in August 2013 this was a flight performed on behalf of a Government Department and accordingly payment terms were agreed to reflect the 90 day payment terms upon which the Claimant would be paid by its client. Payment terms were accordingly agreed specifically such that the Defendant would be paid the sums due for the performance of this flight upon the Claimant receiving payment from its client.
The above terms were specifically agreed verbally by Mr Whitney, Director on behalf of the Claimant and Mr Philip Schneider on behalf of the Defendant."
"I can recall very specifically that during the conversation I made it plain to Mr Schneider the fact that the flight being booked was for a Government department the NHS; that payment was agreed at 90 days for us and specifically I agreed payment terms in that respect. That is how I deal with all bookings; I am straightforward and always aim to agree terms of payment to reflect those that we are being paid upon; not withstanding that there may be differences in the currency."
This is a further different version of what was "specifically" agreed. It suffers from the same difficulties as the pleaded case: it is vague and unclear; and an agreement for "payment at 90 days" would not amount to "terms of payment to reflect those that we are being paid upon".
Why did the claimant fail to pay on time?
(1) Mr Franks lied in his email of 9 October 2013. He must have intended Mr Schneider to take the words "our client" to mean the client for whom the July and August Flights were performed. He must have intended Mr Schneider to take the "funds" he mentioned to be the funds for both flights. If Mr Franks had any conversation with the Heart of England NHS Trust at this time it cannot have involved the confirmation that he described. The Trust had already paid for the July Flight. No payment was made over the following weekend. It seems likely that there had been no such promise as Mr Franks alleged, nor anything resembling such a promise.
(2) Mr Franks also lied in his email of 15 October 2013. It was not true that the 6,400 paid to the defendant that day had been paid to the claimant by "our client" that morning. Mr Franks must have known that was not true.
(3) The assertion in Mr Franks' email of 31 October 2013 that the payments of October 2013 had been made "as soon as we had the cleared funds in our Euro account" was false and misleading to his knowledge. I strongly suspect that the same is true of his further claim that he was expecting the balance of 15,500 due to the defendant to be paid in full by 8 November "once our client has paid the balance". The claimant has not disclosed when the NHS Trust paid for the August Flight, nor any details of any promises to pay.
(4) It was not true that the claimant was "doing everything we can to clear your outstanding balance", as Mr Franks asserted on 6 November 2013. He was well aware that this was not true. It was false and misleading to his knowledge to say that the claimant would "continue to pay ... as soon as we receive more funds from our client". That was not the claimant's intention. Contrary to the clear implication of his email, the 2,000 paid by the claimant on 6 November 2013 did not come from funds received from "our client".
"I also confirm that beyond its cash position, the Claimant was approved for and holds an American Express credit card facility with a £40,000 credit limit; whilst I have the use of another business American Express credit card with a further £40,000 credit limit. This is a separate account to that of the Claimant for my use in connection with the Claimant's business. These reflect the view taken of the Claimant by lenders / creditors as does the up to date credit report (see Exhibit AW4) but also the available sources of funding."
Conclusions on justification
"There may be cases, however, where a defendant who puts forward a defence of justification will be unable to prove sufficient facts to establish the defence . . . Nevertheless, the defendant may be able to rely on such facts as he has proved to reduce damages, perhaps almost to vanishing point. Thus a defence of partial justification, though it may not prevent the plaintiff from succeeding on the issue of liability, may be of great importance on the issue of damages."
Privilege and Malice
Abuse of process
"Alternatively, if in fact the reason for non-payment was that the claimant could pay the money but chose not to, the defamation claim ought to fail by reason of the fact that the defendant could not be blamed for reaching the conclusion set out in the words complained of .
The claimant ought not to be able to achieve vindication in regard to an allegation (inability to pay debts) which it had in fact published to the defendant in order to manufacture an excuse for late payment of a debt. The defendant ought not to be penalised for accepting at face value what it was being told by the claimant."
(1) The words complained of bore the Insolvency Meaning, but they also bore elements of the Warning Meaning. Their natural and ordinary meaning was that it would be financially unsafe to do business with the claimant because (a) the claimant was a defaulter which had failed to pay the defendant sums that had been due and outstanding since July, and (b) the reason for that was that the claimant was insolvent, being unable to pay all its debts as they fell due.
(2) A substantial part of the defence of justification has been made out. It was true that it would be financially unsafe for others in the industry to deal with the company; and it was true that the claimant was a defaulter which had failed to pay the defendant sums that had been due for many months. In addition, it has been proved that the claimant was perilously close to being insolvent. By concession, it was "operating on a knife edge".
(3) But it has not been established that the claimant was insolvent, and that this was the reason the company was failing to pay. It chose not to pay on time for reasons of policy when, if pushed far enough, it probably could have done so. Section 5 of the Defamation Act 1952 is not relied on. The facts that have been proved do not prove the full truth of the defamatory imputations published by the defendant. The allegation of insolvency is a material inaccuracy. To that extent, therefore, the defence of justification is not made out.
(4) The claimant's statements and behaviour gave Mr Schneider every reason to believe that the company was insolvent and he did believe it. He acted in the belief that he had a duty to warn others, even if that was not his only motive. So the plea of malice fails. But so does the defence of qualified privilege. The alternative defence of abuse of process is not established. Accordingly, the claimant is entitled to judgment on liability.
(5) However, the claimant is not entitled to any substantial damages. The Notice was very largely true. The claimant lied repeatedly to the defendant about the reasons for non-payment of the defendant's invoices. The claimant thereby behaved disgracefully at the time. It has behaved disreputably and disgracefully since. In addition, its own conduct played a significant part in causing the defendant to publish the untrue allegation of insolvency. My award by way of compensation and vindication is £10.
(6) The defendant denies any intention to repeat the words complained of. There is nothing that could support the claim for an injunction.
Amounts owed by FlyMeNow to Quick Air
|Date||Pmt due date||Pmts by C||Balance owed|
|22 July||July Flight (15,400)||15,400|
|16 August||August Flight (13,500)||28,900|
|20 Oct 90 days since 22 July||20 Oct 90 days since 22 July||20 Oct 90 days since 22 July||20 Oct 90 days since 22 July|
|14 Nov 90 days since 16 August||14 Nov 90 days since 16 August||14 Nov 90 days since 16 August||14 Nov 90 days since 16 August|
|5 Dec Email complained of published||5 Dec Email complained of published||5 Dec Email complained of published||5 Dec Email complained of published|
In the five month period from 22 July to 23 December the C never owed less that 13,500 to the D.
Note 1 110 days after 22 July [Back] Note 2 131 days after 16 August [Back]
Note 1 110 days after 22 July [Back]
Note 2 131 days after 16 August [Back]