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Cite as: [2015] EWHC 2980 (QB)

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Neutral Citation Number: [2015] EWHC 2980 (QB)
Case No: HQ14D02081

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
16/10/2015

B e f o r e :

MR JUSTICE JAY
____________________

Between:
BARTHOLOMEW UMEYOR

Claimant
- and -


FELIX NWAKAMMA
Defendant

____________________

Mohammed Bashir (instructed by SLA Solicitors) for the Claimant
Darryl Balroop (instructed by Maus Solicitors) for the Defendant
Hearing dates: 12th-14th October 2015

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    MR JUSTICE JAY:

    Introduction

  1. In this action Mr Bartholomew Umeyor ("the Claimant") claims damages for defamation against Mr Felix Nwakamma ("the Defendant") based on an allegedly libellous publication made on or about 14th March 2014.
  2. The background circumstances to the claim are that at all material times the parties were members of Mbaise Union UK ("the Union"), an unincorporated association of 50-60 members dedicated to the interests and welfare of the Mbaise community in what I take to be the London area (I understand that there are other Mbaise unions in this country). Between 2008 and 27th October 2013 the Claimant was the President of the Union, and since 2010 the Defendant has been its Treasurer. In April 2012 the Claimant travelled to Mbaise State in Eastern Nigeria to support a medical mission run by Mbaise Union USA. He had been given 2,500 by the Union to donate to its American counterpart. A dispute arose when the Claimant allegedly failed to provide adequate documentary proof of the payment of the donation. The Claimant was removed by the Union as its President for reasons ostensibly unrelated to that dispute. He then petitioned the Union against his removal, seeking reinstatement. Some months later, the Defendant replied to that petition, and the alleged defamation arises in that context.
  3. The Defamation Act 2013 applies to these proceedings. In my view, the law governing this case is relatively straightforward and uncontroversial, but there are a number of factual disputes which I need to resolve. Given the level of animosity between the main protagonists to these proceedings, these disputes were bitterly contested but not all of them are directly relevant to the issues I have to resolve.
  4. The first day of the trial was dedicated to resolving a disclosure issue and disputes concerning the content and ambit of the pleadings. The disclosure issue arose extremely late in the day, and required resolution by me, but it is unfortunate that the pleading points were not taken at the pre-trial review which took place before HHJ Moloney QC in July 2015. In advance of that hearing, he had helpfully prepared a detailed list of the issues he believed arose on the parties' respective pleaded cases. However, it is clear from Mr Mohammed Bashir's skeleton argument for this trial that the Claimant's position was that the Defence failed to comply with PD53 and did not properly lay the ground for many of the defences sought to be relied on in Mr Darryl Balroop's skeleton argument.
  5. I ruled against Mr Bashir on this issue. The pleadings in this case are far from ideal, neither party having gone to Counsel to set out their respective positions. Indeed, the Defence was prepared by the Defendant himself, without it seems any formal legal input, and Counsel (including Mr Balroop's predecessor) did not see fit to apply to amend it. Given, however, that the evidence adduced by both parties covers the entirety of the ground, and given too that no objection was taken to HHJ Moloney QC's written characterisation of the issues arising, I decided to follow an approach which was not predicated on overly strict compliance with the terms of the Practice Direction. The defences relied on, namely truth, honest opinion and qualified privilege, emerge with just about sufficient clarity from the Defendant's home-made document. I also permitted the Claimant to allege malice whereas that too has not been averred with crystalline precision.
  6. I should add that after the close of the hearing, I received an Application Notice filed by the Reverend Innocent Ibe, described as a public interest intervener. He asked me to consider certain correspondence, and to hear him orally. I recognise Rev. Ibe from a photograph he has supplied as being one of the individuals sitting behind the Defendant in court. He has no standing in these proceedings, I refuse his application, and I propose to ignore the evidence he has submitted.
  7. Before turning to the issues, and resolving the evidential conflicts which have arisen, I need to set the scene more fully.
  8. Essential Factual Background

  9. At a General Meeting of the Union held in Camden Street on 22nd January 2012, consideration was given to the possibility of giving financial support to a medical mission in Mbaise State, Nigeria, being organised by Mbaise Union USA. The Claimant said that a decision should be deferred to the next meeting.
  10. At the next General Meeting of the Union held on 26th February 2012, the Claimant informed members that it would be difficult to support the medical mission by providing anti-malarial medicines. After some discussion about the amount of the proposed donation and the need properly to account for it, it was unanimously agreed by the Union to give the Claimant the sum of 2,500 for the medical mission. The Claimant had told the meeting that "members should be able to trust the President of the Union and anyone in Mbaise between 16th and 21st April 2012 could check what was happening".
  11. At the next General Meeting of the Union held on 25th March 2012 it was agreed that Mrs Hilda Chinyere Amadi, a trained nurse, would accompany the Claimant. Probably on the next day, the Claimant was given a cheque drawn by the Union in his favour in the sum of 2,500, and this was paid into his personal account at HSBC, Clapham Junction.
  12. The Claimant told me that he withdrew the sum of 2,500 in cash from his bank on 4th April 2012, and went to the premises of Dolphin Global Services Ltd in Tower Bridge Street. Dolphin was his foreign exchange dealer and the staff there knew him well. The clerk who dealt with him on that occasion was a man named Matthew. The Money Transfer document records the following information:
  13. "AMOUNT TRANSFER (): 2420 [i.e. 2,500 less 80 commission and bank charges]
    AMOUNT IN NAIRA: 612,260 [at a rate of exchange of 253 Naira/Sterling]
    BENEFICIARY IDENTIFICATION: Passport
    SENDER FULL NAME: Mbaise Union (UK)
    BENEFICIARY FULL NAME: Barry Grandom [mobile phone number given]
    BENEFICIARY PICKUP POINT: FINBANK
    SENDER'S SIGNATURE: [NONE]
    DATE: 19/4/11"
  14. The claimant told me that the money was being transferred to his own bank account at Finbank, Mbaise State. Although no relevant information is contained on the Money Transfer document, Dolphin had all the details on their computer system. "Barry" is a contraction of Bartholomew, but "Grandom" is not the Claimant's pseudonym. However, the mobile phone number set out on the document is one of the Claimant's Nigerian mobile phones. The date set out on the form was an error, both as to the date in the month, and the year. It is not altogether clear to me why the sender was described as "Mbaise Union (UK)" when, as the Claimant says at paragraph 13 of his witness statement, he was making a personal transaction. The Claimant said that he was on his mobile phone when the transaction was being conducted, and that he did not notice these mistakes. Indeed, in his witness statement the Claimant perpetuated one of these mistakes by asserting that the document was in fact dated 4th April 2012.
  15. According to his witness statement, the Claimant travelled to Nigeria shortly after sending the money, and upon arrival he picked it up from Finbank in cash. The precise chronology is not wholly clear, because the Claimant said in evidence that he had the money on "Friday 15th April 2012". In fact, the mission started on Monday 16th and ended at 4pm on Friday 20th April. Ultimately, though, little turns on this confusion as to the dates. It seems clear (assuming that I come to accept this part of his account) that the Claimant was holding the money in cash for a number of days, because the Americans did not want it at that stage. I was not told where the money was placed for safekeeping, but I was informed about concerns in Nigeria about robbery.
  16. The Claimant told me that a day before the end of the mission the US team, led by Mr Chamberlin, informed him that the donation was needed to help settle the mission's outstanding bill with Bench Mark Hotel. The Claimant was asked to pay the money into the hotel's account at Finbank, and that he should supply the payment slip as proof.
  17. On 20th April 2012 assuming that I can take the document at its face value - the sum of 612,260 Naira was paid to the account of Bench Mark Hotel Ltd at Finbank. It appears that the bank generated two copies of the deposit slip: the yellow copy was retained by the bank; the white copy went to the depositor. A photocopy of the white copy is available. It describes the depositor as the Claimant, specifies the amount of the deposit, and just about legibly identifies it as a cash deposit. A different mobile phone number is given for the Claimant (he told me that he uses at least two mobile phones in Nigeria). The deposit slip also possesses a bank stamp and a teller's signature.
  18. The Claimant told me that he gave the deposit slip to Mr Chamberlin in the presence of Mrs Amadi. He has no direct knowledge of what happened to it subsequently.
  19. On my understanding of his evidence, the Claimant did not return to the UK until July 2012. He said that he gave the original Money Transfer document and a copy of the deposit slip to the Financial Secretary of the Union, Mr Paulinus Ihenakaram. This was on the same occasion that the Claimant gave an oral account of the medical mission to the General Meeting of the Union. There is no dispute about this evidence, although I note that the relevant minutes of the meeting are not available.
  20. It was put to the Defendant that he must have received these two documents from the Financial Secretary shortly after July 2012. The Defendant disputed this, and although his evidence was not ideally clear hereabouts I accept his account that it was not until much later that he came to read, and properly to analyse, the Money Transfer document and the copy of the deposit slip. Mr Ihenakaram's witness statement also suggests that it was not until "a later date" (unspecified) that the Defendant inspected these documents.
  21. On 11th February 2013 the Defendant emailed the Claimant requesting a written breakdown of the sum of 2,500 including any receipt. His email stated that he could not remember if the Claimant had already provided a note. He said that he knew "it was a bulk expenditure so it will just be a receipt or note for that purpose". On 21st February 2013 the Claimant emailed the Defendant stating that on the day he gave his report of the medical mission, he handed the Defendant the two documents to which I have already referred. In fact, it is common ground in these proceedings that the documents were handed to the Financial Secretary. The Claimant did not offer to provide anything else.
  22. On 16th March 2013 there was a meeting of the Executive Committee attended by the Claimant (as President), Mr Ihenakaram (as Financial Secretary), the Defendant (as Treasurer), the Publicity Secretary (unnamed), and (possibly) others. Only extracts of the minutes are available. The Defendant raised a number of issues regarding the Claimant's documentation, and stated that he expected a receipt from the American counterparts. The Defendant also said that the purpose of the donation was not to pay hotel bills. The Claimant said that "he would be happy to get evidence for what happened to the money".
  23. The Claimant was pressed in cross-examination as to what occurred at this meeting. At one stage, he agreed that valid queries were being raised, and that he agreed to obtain more evidence. He also agreed with the proposition that the receipts were not genuine was "fair comment". However, he denied that the receipts were forged. At another stage, the Claimant said that his interlocutors had not made a reasonable request for further information, and that he wanted to see if they had contrary evidence. The Claimant also said that in March 2013 (and, therefore, presumably on the occasion of or shortly after this meeting) he provided a copy of a report of the medical mission written by Mbaise USA Inc and available on its website. He did not specify to whom.
  24. At all events, the Claimant did not provide any further evidence relating to the 2,500 donation. He was in Nigeria between April and November 2013. On 27th October 2013 the General Meeting removed him as President of the Union on account of his extended absence. He was replaced by Mr Gerry O'Nwere.
  25. On 17th November 2013 the Defendant, who was still Treasurer of the Union, emailed the Trustees who were also members of the Executive Committee raising 17 separate concerns about the receipts the Claimant had provided to the Financial Secretary. The Defendant concluded his email with the following comment:
  26. "It is therefore not specified or clear who benefitted from the alleged deposit in an untidy ripped bank teller [sic], no receipts from hotel, nothing about the receipts given were authentic and neither did the President of Mbaise Union make effort to elaborate on these matters. An officer with proper regard would have speedily rendered account even whilst in Nigeria and not wait 3-4 months later. I therefore recommend that this account is rejected and [the Claimant] is mandated to render proper account or refund the Union".

  27. At 13:07 on Sunday 23rd November 2013 the Claimant petitioned all the members of the Union (or, at least, those members on email) seeking his reinstatement as President. He claimed that his removal was unconstitutional, and was motivated by personal animosity on the part of the Defendant. The Petition included a personal attack against the Defendant, claiming that "if not properly contained" his conduct had "a tendency to destroy any good Union". In his evidence in chief, the Claimant asserted that the Petition was emailed solely to the President and the Secretary, but he later had to accept that it was more widely circulated.
  28. At 14.22 on the same day (i.e. some 75 minutes later), the Defendant emailed all members of the Union with the identical concerns about the Claimant's documentation which he had previously only shared with the Trustees.
  29. The timing appears less than coincidental, but I did not understand Mr Bashir to be suggesting that the email to members was only sent in retaliation for the Claimant's removal petition. Furthermore, I do not believe that this was so. The Defendant only sent the email to members after he had run it past the Trustees, and the timing (in the sense of its close temporal juxtaposition with the sending of the Claimant's Petition) was fortuitous.
  30. The Claimant told me that after he received the Defendant's email to the members on 23rd November he telephoned the President. He said that he explained to the President that these issues had been answered to everyone's satisfaction on 16th March 2013; and that had they been dissatisfied, the Executive Committee should have brought the matter to the attention of the General Meeting. The Defendant also said that during the course of this telephone conversation with the President he stated that he had explained to the Executive Committee who "Barry Grandom" was (i.e. it was himself, or an error), and that he was asked by the Union's US counterparts to make a contribution towards the hotel bill.
  31. Mr O'Nwere gave evidence and was not asked about this conversation, nor is it covered in his witness statement. In the circumstances, I am unwilling to make a finding of fact as to whether such a conversation took place on the stated date. However, I do find that, if there was such a conversation, its content is unlikely to have been as stated by the Claimant. At the very least, the extracted minutes of the Executive Committee meeting held on 16th March 2013 do not establish that the Defendant and others were satisfied with the Claimant's explanations, such as they were. On the other hand, the Claimant may well be correct in his assertion that, if the Executive Committee were dissatisfied, the next step in constitutional terms was to involve the "General House", i.e. the General Meeting.
  32. On 26th January 2014 the Executive Committee met. The minutes of the meeting were typed up on headed notepaper giving an address in St Michael's Close, Camden Town. This was the address of a previous General Secretary, and it is accepted by the Defendant that the committee did not in fact meet at St Martin's Close. The Claimant maintained in evidence that the authenticity of these minutes is highly questionable, and he was supported to some extent by Mr Christian Obasi who also doubted the genuineness of the minutes of a later meeting held on 4th July 2014. However, I am satisfied that these meetings took place, albeit not at the stated address, and conclude that the General Secretary appears to have used out-of-date headed paper. The minutes may not be entirely accurate, but I cannot accept that they were forged. If they had been, that would surely have been done in a manner which provided much better support for the Defendant's case than is in fact the position.
  33. The minutes are not altogether easy to interpret. Although the Defendant was robustly maintaining his position that the Claimant had failed to give a proper account, others were saying that the matter was now closed, and that Members had made their decision. It is unclear what decision was reached at the conclusion of the discussion about this agenda item. The minutes conclude with the Defendant's statement that they should continue to press the Claimant for the accounts and receipts, failing the provision of which the issue should go back to the Members. According to the Further Information given by the Defendant in these proceedings, the Claimant's documents were in fact "rejected" by the Executive Committee at this meeting. In my judgment, the minutes do not bear out this claim.
  34. Nothing then happened for two months until March 2014. By that stage, this issue had been simmering for the better part of two years.
  35. The Defendant's evidence was that on 13th March 2014 he emailed a draft response to the Claimant's Petition to all Members of the Executive Committee who held an email account. His evidence in re-examination was that the President replied by email and said it was "excellent". The Financial Secretary telephoned and gave his support. On this basis, the Defendant said that he thought that he would and should send the response to "relevant people". He did so to 15 Members, by email; and to a selected number of elders of the Union, by printed copy.
  36. A copy of the President's email was not disclosed to the Claimant's solicitors until 8th October 2015, and at the outset of the hearing I ruled that the Defendant could not rely on it in evidence. In the event, had the email been admitted in evidence I highly doubt whether it would have made any difference to the outcome of this case.
  37. Mr Gerry O'Nwere was called by the Defendant to give evidence. According to his witness statement, his evidence was "in support of the Defendant's court case", but in the result this proved not to be so. On my understanding of his oral evidence (the issue, like so many other issues in this case, is not mentioned in any witness statement), he had a conversation with the Defendant after seeing the latter's draft reply. Whether this was the only communication which took place, or was in addition to an email, is unclear, but nothing turns on that. I accept Mr O'Nwere's evidence as to what occurred.
  38. The gist of Mr O'Nwere's advice to the Defendant was that he had every right, in his capacity as Member of the Union, to send a reply to the Claimant's Petition, particularly in the circumstances where two pages of it contained a personal attack. The Defendant was responding in his own capacity as "Member and Treasurer", as Mr O'Nwere put it. Mr O'Nwere was well aware that the Defendant would copy Members into his reply, because this was "obvious". At no stage during his cross- and re-examination did Mr O'Nwere contend that the Executive Committee authorised the Defendant to reply to the Petition on their behalf, and there is no evidence to that effect. Even the Defendant's oral evidence did not go that far.
  39. The Defendant's reply, containing the allegedly defamatory statements, was sent to the Claimant and to the other individuals the Defendant told me about in oral evidence, probably on 14th March 2014. There is no direct evidence as to the date, and the Defendant's email to the Claimant (copied into the 15 other Members) has not been disclosed.
  40. The relevant parts of the Defendant's reply are as follows:
  41. "The dodgy receipts and account of 2,500 medical mission expenses is a serious allegation that you should be defending rather than your removal from office (Your [sic] were not paid and you did not lose any benefits although the use of Mbaise platform to further your personal and political ambitions may have suffered setbacks.) [in italics in original]
    I have been compelled to write in response to your petition in which you dedicated about two pages of criticism, twaddle and lies against me. I was hoping that this matter would have gone away but your verbal rhetoric in the last meeting has necessitated my written response. I have highlighted your allegations in bold/italics with my responses underneath.
    10. Mbaise Union UK is too precious to most of us here especially our founding fathers to whom I am making my humble request to advice [sic] Sir Felix Nwakama [sic] to let the Union progress
    Finally: you were given 2,500 by the Union to go on medical mission 2012. Your remittance receipt was a forgery and read 2011; your bank teller for payment of over 612,000 naira was a forgery the Bank Stamp not legible and no hotel bills or receipts were submitted. I challenge you to prove otherwise. The Executive rejected your accounts submission because all receipts were forged. What do you have to say Mr Bartholomew Umeyor (I am not sure why you address yourself as Sir (or me)? Were you knighted by the Queen?
    If you are a true and transparent leader; why did you give us a copy (not original) 2011 receipt for 2012 money transfer? Why did you not obtain acknowledgement receipt from the Hotel in Owerri evidencing that you paid into their account? Why did you use the copy of a teller to pay money into an account stamp was not even visible? Everyone who remits over two thousand pounds must give their name. Mr Umeyor; so who remitted the money you charged Mbaise 80 for with a dude [sic] receipt?"
  42. A General Meeting of the Association took place on 23rd March 2014. Paragraph 4.2 of the minutes reads as follows:
  43. "The Treasurer (TT) said he was answering the allegations against him in the reply he had sent to [the Claimant]. The President said the Executive was not part of the Reply. The Vice-President said it was right to query the use by the Treasurer of the Union's documents; she assured Members that the Executive did not authorise the reply."
  44. These minutes were debated and scrutinised in evidence. In my judgment, they may bear only one sensible interpretation, namely that the Defendant's reply was not authorised by the Executive. As I have pointed out, Mr O'Nwere agreed with that interpretation.
  45. What happened subsequently is of no real relevance to the issues I have to decide. I do note that attempts were made within the Union to settle this litigation.
  46. Synopsis of the Issues Arising

  47. Despite the greater breadth of the Particulars of Claim, in Opening his case to me Mr Bashir confined his client's complaint to that section of the Defendant's reply which asserted that the documents he had provided were forgeries. In my view, Mr Bashir's approach was entirely realistic, because the defence of truth would have succeeded in relation to the assertion that the Claimant had provided "dodgy receipts" (in the context of this being a serious allegation which he should have been defending).
  48. The issues arising in this respect are (i) the defamatory meaning of the words complained of, and (ii) whether the publication caused or was likely to cause serious harm to the Claimant's reputation.
  49. In the event that the Claimant surmounts these hurdles, the various defences arise for consideration. I shall deal with these in what I consider to be their logical and sensible sequence.
  50. The first defence is that of truth. The burden is on the Defendant to prove that the imputation conveyed by the statement complained of is substantially true.
  51. The second defence is that of honest opinion. Under section 3 of the Defamation Act 2013, three conditions must be satisfied, and the burden of proof in relation to each of them resides on the Defendant. Thus, for the defence of honest opinion to succeed, the Defendant must establish that: (i) the statement complained of was a matter of opinion; (ii) the statement complained of indicated, whether in general or in specific terms, the basis of the opinion, and (iii) an honest person could have held the opinion on the basis of any fact which existed at the time of publication. The defence may be defeated if the Claimant shows that the Defendant did not hold the opinion.
  52. The third defence is that of qualified privilege. Here, the principal issues are whether the words were published on an occasion of common law qualified privilege based on the duty of the Defendant as Treasurer to publish them, or pursuant to the Executive Committee's express or implied authorisation. As necessary the Claimant seeks to rebut this defence by alleging malice.
  53. Subject to all of the above, issues arise as to quantification of general damages for damage to reputation and consequent injury to feelings.
  54. Meaning, Imputation and Serious Harm

  55. During the course of the trial, no doubt laying the ground for his extremely helpful closing argument, Mr Balroop drew attention to paragraph 11.13 of Gatley on Libel and Slander, 12th Edition, and the decision of the Court of Appeal in Chase v NGN [2002] EWCA Civ 1772. In that case, three distinct levels of meaning were offered: (i) that the Claimant is guilty of some impugned behaviour; (ii) that there are grounds to suspect that the Claimant is guilty of the impugned behaviour; and (iii) that there are grounds for investigating whether the Claimant is guilty of the impugned behaviour.
  56. Mr Balroop adhered to the submission that the words complained of fall into Chase level 2: in other words, viewing them in context, all that the Defendant was saying was that there are reasonable grounds to suspect that the Claimant forged these two documents, or had submitted them knowing them to have been forged.
  57. I agree that in all the pre-publication communications, if I may formulate the matter in that way, the Defendant did not go so far as to allege that these were forged documents. Indeed, elsewhere in the impugned publication the Defendant adhered to that more restrained level of utterance. Although the words complained of must be read in context, their clear and obvious meaning cannot be diluted or attenuated by the use of more appropriate language deployed elsewhere or, at the very least, it cannot in the circumstances of the present case.
  58. In my judgment, the Defendant was quite clearly stating that the Claimant had submitted documents which he had either forged himself or had procured others to forge. The imputation was that the Claimant had done so dishonestly, with a view to personal gain.
  59. I am also satisfied that the words complained of were likely at the very least to cause the Claimant serious harm to his reputation. An allegation of forgery is almost always serious, and is particularly so in the context of a man who recently held the highest office in the Union. Publishing the allegation to the 15 Members and to the selected elders was bound to lower the Claimant's esteem and reputation in their eyes; and was also bound to do so to an extent which was serious. I cannot accept Mr Balroop's sterling attempts to persuade me to a contrary view. I should add that in a community welfare organisation of this sort, personal reputation and integrity will be regarded by all as a precious commodity.
  60. Truth

  61. The burden is on the Defendant to prove that the impugned documents are forgeries. In my judgment, he could discharge that burden by proving that the documents are not genuine in the sense that they fail to vouch (i) the transfer of 612,260 Naira from the UK to the Claimant's bank in Mbaise State, Nigeria in early April 2012; and/or (ii) the payment by the Claimant of the sum of 612,260 Naira to the account of Bench Mark Hotel Ltd on 20th April 2012. If, having considered all the available evidence, drawing inferences where appropriate, I were to conclude that either or both of these events did not occur (mindful always that the burden is on the Defendant), I would be concluding that one or both of the documents were not genuine.
  62. My assessment of the parties as witnesses is as follows. Both men gave somewhat wordy and argumentative answers to many of Counsel's questions. In the Defendant's case, I felt that this was partly due to the fact that Mr Bashir's cross-examination style does not always eschew an aggressive tenor, although I accept that Counsel was seeking to prove malice. The Claimant's evidence was not always accurate: he was wrong, for example, about the number of Members to whom he sent his Petition, and he was also incorrect as to the content of any conversation he might have had with Mr O'Nwere in March 2013. During the course of his cross-examination, I felt that, at times, he was not giving particularly convincing answers to Mr Balroop's questions about the impugned documentation. On the other hand, at that stage, I was unsure in my mind as to whether my instinctive response to his evidence was based on properly-formulated doubts about its substance, or was a reaction to something else, namely that the Claimant was evincing such outrage about the allegations being made against him, that he was not coming across as wholly reliable. As I shall be making clear, my opinions solidified during the course of my questioning of the Claimant at the close of the parties' examinations.
  63. In my view, the Defendant was generally speaking a sound, if rather dogmatic and opinionated, witness who only became ruffled when he was asked about the circumstances surrounding the publication of the impugned documents. This was because, when confronted with the facts, the Defendant well knew that he had gone too far, and had not been authorised by the Executive Committee to call the Claimant a forger. To the extent that the Defendant sought to persuade me that he acted with the authority of the Executive Committee, I reject his evidence.
  64. Before addressing the core documentation, I need to touch on less critical matters. There was some discussion as to whether the Claimant acted beyond his brief: if that is what indeed occurred, by purporting to settle the American's hotel bill rather than by contributing towards the cost of medication. I have already pointed out that it was not agreed by the General Meeting that the donation was specifically earmarked for medicines, in particular anti-malarial drugs, and there was no reason why it should have been. The Union was supporting their American counterparts who had a global budget for the whole venture. If the Union made a contribution towards medicines, then the hotel bill would have needed to be discharged by other means; and vice-versa. It was unnecessary to be precise as to exactly how the 2,500 would or might be used, as Mr Osundu made clear, and I accept.
  65. The Defendant disputed the genuineness of the Americans' "Mbaise Medical Mission 2012 Report" which the Claimant included in the trial bundle. On the last day of the trial, I ruled that the Claimant had included this document in breach of his disclosure obligations and in default of identifying to the Defendant precisely what it was, or purported to be. Mr Bashir had not referred to this report in opening, and no oral evidence relating to it was given until the second day of the trial, namely the day before my ruling. As I have already said, the Claimant told me that this document was on the website of Mbaise Union USA. Mr Osundu also told me that this had been so, although he doubted that it was still there. The report stated that the Claimant and Mrs Amadi had attended the mission and had made a financial contribution, which was not specified.
  66. The Defendant's solicitor then went online and discovered the existence of a different report on the website of Mbaise USA Inc. There can be no doubt but that this is the correct website because on the home page we may see a photograph of the President, Mr Osundu. The report of the 2012 medical mission is on headed paper, is much shorter, and refers more generally than the version in the trial bundle to donations from Mbaise organisations in the United Kingdom and elsewhere.
  67. Given the circumstances surrounding its inclusion in the trial bundle, I gave the Defendant permission to rely on the report currently available on the website of Mbaise USA Inc. However, this ruling has meant, as I was well aware at the time, that relevant witnesses could not deal with the current version.
  68. I entirely agree that the current report is not the same as the report in the trial bundle. However, there is nothing in either report which contradicts the other. Indeed, both reports are consistent with the Claimant's case, although the version in the trial bundle is more strongly supportive of it. Having reflected carefully on the issue, I cannot conclude on the available evidence that the report in the trial bundle is not genuine. Mr Osundu could not be cross-examined about the version currently available on the website, but he did tell me that the version in the trial bundle was, in effect, a Mbaise Union USA document. Had it been a forgery, it probably would have been a much better one, and it probably would have contained some mistakes, and there appear to be none.
  69. On the other hand, I also cannot place any reliance on the version included in the trial bundle in support of the Claimant's case. I say that for two reasons. First, it was remiss of the Claimant to fail to obtain more cogent evidence from the USA, both documentary and oral, vouching the 2,500 donation. Mr Osundu's evidence on the key issue was all hearsay. The Claimant told the Executive Committee that he would obtain further evidence from the USA, and he failed to do so. Such evidence would have included accounts and receipts evidencing the use of the 2,500 donation. Secondly, knowing that there is another, different report in existence, it would be wrong for me to place any reliance on the version in the trial bundle, which is hearsay evidence in any event. The Claimant is at fault in failing to give proper disclosure of the version in the trial bundle, which failure has had the consequence that it has not been properly tested in cross-examination. Furthermore, my conclusion that this version has not been shown to be a forgery is not tantamount to a conclusion that I am satisfied on the balance of probabilities that its contents are true. This is one of those rare instances where I am entitled to be left in a state of genuine agnosticism.
  70. On a separate but related matter, I cannot accept that the version of the report currently on the website constitutes significant material support of the Claimant's case, beyond observing, as I have already done, that it is consistent with it.
  71. I need to deal with the Claimant's assertion that he provided a copy of the American report to the Union in March 2013. He did not say this in his witness statement, and did not specify to whom (although, if this occurred, it must have been to an officer of the Union). This issue was not properly explored with the Defendant and his witnesses. In my judgment, the Claimant is mistaken about this. If it occurred, someone would have remembered.
  72. I retain significant concerns about the documents the Claimant submitted to the Financial Secretary in July 2012. In my judgment, to borrow the Defendant's terminology, they are "dodgy". Whereas I can accept that Dolphin retained the Claimant's details on their system, the Claimant has never provided any satisfactory explanation for the surname "Grandom". The first name, "Barry", is probably a reference to him, as indeed is the mobile phone number, but "Grandom" remains a mystery. Equally mysterious is the erroneous dating of the document. It is difficult to accept that anyone in this line of work could have got both the day and the year wrong. Two possible inferences, amongst others, are capable of arising: first, that Dolphin habitually uses "Grandom" (presumably with the Claimant's full knowledge) for money-laundering or similar purposes; secondly, that the document was created some time after the transfer was made, but before the General Meeting in July 2012. These possible inferences are fortified by the Claimant's failure to call relevant evidence from Dolphin: instead, the trial bundle contains a letter from the company which is both inconclusive and unsatisfactory.
  73. There are no similar concerns about the deposit slip, notwithstanding that the sole available photocopy is now somewhat ragged. The issue with the deposit slip is that, without further explanation, its relevance cannot be deduced. This document shows that the Claimant, on the last day of the mission, made a cash deposit in the sum of 612,260 Naira to the account of Bench Mark Hotel Ltd. The Claimant and Mrs Amadi could not have run up a bill in anything like that amount, and it was not put to them in cross-examination that they had done so. It follows that the Claimant's version of events that he had made this payment at Mr Chamberlin's request in partial discharge of the mission's liability to the hotel is wholly plausible. It seems highly unlikely that the Claimant was making some sort of gift to the hotel, or that he was paying money into its account pursuant to some sort of unlawful or dishonest arrangement with the hotel. Furthermore, this transfer occurred on the last day of the mission, which tallies with the circumstances surrounding the making of the payment as narrated by the Claimant.
  74. The plausibility of the Claimant's account is fortified by Mrs Amadi's evidence, which I accept. According to paragraph 4 of her witness statement:
  75. "I had wanted to go to the bank with [the Claimant] but I was busy and told him to go on his own. I am aware that he paid in the money into the hotel's bank account, and I was present when he gave the receipt to the mission leaders and they thanked him. They eventually gave him a copy of the payment slip. The original of the payment slip was given to the hotel management as they would not accept a photocopy as evidence of payment."
  76. This, in my judgment, is reliable evidence which (i) Mr Balroop did not seek to impugn in cross-examination (save by pointing out that the witness is a childhood friend of the Claimant), and (ii) could not realistically have been made up by Mrs Amadi. Further, although I have said that Mr Osundu could only give hearsay evidence that the donation was made to Mbaise USA, I am entitled to look at the matter more broadly. He is Mrs Amadi's brother and is not, therefore, entirely impartial. However, regardless of the admissibility and quality of any evidence he can give, he must know whether the Claimant made a donation to Mbaise US, and I am entitled to ask myself whether he is the sort of person who would fly 11 hours from Texas in order to give perjured evidence. In my judgment, he came across as a man of dignity and distinction.
  77. In the light of my clear findings on this issue, it seems to me that the Money Transfer slip needs to be considered in its proper context. There will always be doubts about it, even strong doubts, but it must be relevant that the amount in Naira is exactly the same amount as we see on the deposit slip, being the then Naira equivalent of 2,500 less 80. This is unlikely to be a coincidence, particularly given the Claimant's evidence that no donation had been made in 2011. That said, the erroneous date and the reference to "Grandom" will always remain unexplained.
  78. I return to the Claimant's answers to my questions at the end of his evidence. I posed a series of precise, non-leading questions. I observed the Claimant very closely indeed, and made a careful note of his answers. In my judgment, in this context and outside the more combative zone of cross-examination, aspects of the Claimant's true character emerged. I have concluded that he was an honest witness who would not have defrauded, and did not defraud, the Union of 2,500. What happened to the money, and the related issue of motive, are highly relevant to the issue of forgery.
  79. I said at the outset that this issue needs to be considered in the light of all the available evidence. This includes the inferences which may be drawn from the Claimant's failure to disclose, or adduce, potentially relevant evidence, including in particular (i) better evidence from the USA, and (ii) evidence relating to the Claimant's bank statements both here and in Nigeria. Further, inferences might be drawn from the Claimant's failure to furnish additional evidence to the Financial Secretary and/or the Defendant, despite his undertaking to do so in March 2013. In this last regard I reject Mr Bashir's submission that the onus lay on the Defendant to undertake proper inquiry.
  80. I am not bound to draw adverse inferences from the Claimant's failures; I may do so only if it is right in all the circumstances. I do criticise the Claimant for failing to submit further and better evidence to the Financial Secretary and/or the Defendant in and after March 2013, but I do not accept that this is evidence of shiftiness or prevarication on his part. Rather, it is evidence of a somewhat stubborn, sometimes self-important individual who does not appreciate having his integrity impugned.
  81. It was not properly explored in cross-examination why the Claimant did not adduce evidence from Mr Chamberlin. As for the Claimant's bank statements, they would have supported (or contradicted) his case as to the exact dates of the cash withdrawals, but they would not have taken the matter very much further. It can hardly be doubted that the Claimant made cash withdrawals; the issue is as to what purpose.
  82. In my judgment, the Defendant has failed to prove that the disputed documents were, or are, forgeries, with the imputation that the Claimant has acted dishonestly.
  83. Honest Opinion

  84. It should be sufficiently apparent from what I have already said that the Defendant, in my view, had reasonable grounds for believing that these were forged documents, and that he was honest in that belief. The Claimant has failed to satisfy me that the Defendant did not hold the relevant opinion, assuming that it was an opinion.
  85. In the impugned statement the Defendant did not say that he believed, or suspected, that these were forged documents. On any natural and fair reading of the critical tenth paragraph of his reply to the petition, the Defendant stated that these were forgeries.
  86. For the defence of honest opinion to succeed, the Defendant must show first of all that the statement complained of was a statement of opinion, not a statement of fact. Mr Balroop drew my attention to the discussion of this issue in Collins on Defamation, November 2013 edition. The fact/opinion dichotomy gives rise to difficult issues at the borderline, and I note the terms of Mr Collins' discussion at paragraphs 9.11 and 9.12.
  87. In Joseph v Spiller [2011] 1 AC 852, an authority on the common law rather than on section 3 of the Defamation Act 2013, Lord Phillips PSC said this, at paragraph 114:

  88. "Careful consideration needs to be given to Mr Caldecott's first proposition that the defence of fair comment should extend to inferences of fact. Jurisprudence both in this jurisdiction and at Strasbourg see Nilsen and Johnsen v Norway 30 EHRR 878, para 50 has held that allegations of motive, which is inherently incapable of verification, can constitute comment. Some decisions have gone further and treated allegations of verifiable fact as comment: see for instance the Privy Council in Jeyaretnam v Goh Chok Tong [1989] 1 WLR 1109. It is questionable whether this is satisfactory. Prejudiced commentators can draw honest inferences of fact, such as that a man charged with fraud is guilty of fraud. Should the defence of fair comment apply to such inferences? Allegations of fact can be far more damaging, even if plainly based on inference, than comments on true facts. Eady J has twice held that the defence of fair comment cannot apply where the defamatory sting is a matter of verifiable fact: Hamilton v Clifford [2004] EWHC 1542 (QB) and British Chiropractic Association v Singh [2009] EWHC 1101 (QB) (subsequently reversed by the Court of Appeal [2011] 1 WLR 133)."
  89. Although the Defendant would not choose to use the term, his statement that the impugned documents were forgeries was based on the inferences he drew from his analysis of the materials viewed in their proper context, on what we lawyers used to call "secondary facts". Maybe the terminology deployed is not entirely helpful, but in my judgment it is clear in the instant case that (i) the Defendant could not "know" whether these documents were forged (he said precisely that in the witness box), and (ii) the genuineness of the documents was capable of being verified. The Defendant was not purporting to give expert handwriting evidence about the documents; he was drawing his own deductions about their authenticity, without any special knowledge or expertise. Whatever the exact state of the Defendant's mind, and contrasting the sort of case where an expert expresses an opinion about the authenticity of a painting, for example, I consider that the Defendant was making a statement of fact, not of opinion. My conclusion is naturally fortified by the Defendant's choice of language, which in circumstances such as the present is highly germane. The Defendant did not say words to the effect that he believed the documents to be forgeries, explaining why. He said that they were forgeries.
  90. In my judgment, the Defendant fails to satisfy the first condition of the defence of honest opinion. Although his choice of words was intemperate, I conclude that he would have satisfied the second and third of the conditions, because his opinion (assuming, contrary to my primary finding, that this was an opinion) would have been honestly held and sufficiently grounded on stated facts, viewing the document as a whole.
  91. Qualified Privilege

  92. In his written argument Mr Balroop drew attention to the classic statement of principle by Lord Atkinson in Adam v Ward [1917] AC 309. Qualified privilege in this respect depends on the existence of a common interest, which in turn depends on reciprocity of duty to publish and duty to receive.
  93. To this extent, qualified privilege depends principally on an examination of the relevant circumstances surrounding the publication, not on the terms used. However, a subsidiary issue does arise in this latter context.
  94. The defamatory statements were not published during the course of any meeting of the Union; they were communicated by email. Although Mr Bashir did not advance his objection in precisely this way, it seems to me that I must examine the circumstances in order to ascertain whether they might properly be said to form part of the legitimate business of the Union. If not, the conclusion must be that the Defendant was acting in his personal capacity and/or was indulging in a form of frolic of this own.
  95. If, for example, the Defendant acted with the express authority of the Executive Committee, I could readily conclude that his publication did constitute part of the legitimate business of the Union. A similar conclusion might be drawn if the Defendant's role as Treasurer expressly or impliedly mandated such a publication. Whereas proof of these matters may not be sufficient for the defence to be made out, they certainly are necessary.
  96. In my judgment, it is plain that the Defendant did not act under the auspices, or with the authority, of the Executive Committee when he published the impugned document on or about 14th March 2014. The evidence of Mr O'Nwere, and the minutes of the General Meeting held on 23rd March 2014, prove otherwise. Mr Balroop did not press this point in his closing submissions.
  97. Instead, Mr Balroop argued that the publication fell within the ambit of the Defendant's duties as Treasurer. In the absence of any substantive response by the Claimant to the 17 questions posed, or indeed any proper engagement by the Claimant with the concerns which had been raised in March 2013, the Defendant was quite entitled to express himself as he did.
  98. The difficulty with this submission is that the Defendant was clearly acting in his personal capacity: see the opening paragraph of the impugned publication. The Claimant's Petition did not touch on the events of April 2012. Further, upon closer examination of the Treasurer's duties under the Constitution, whereas it is clear that the Defendant was entitled to raise concerns and pursue the Claimant for an explanation, it was no part of his responsibilities to call him a forger. The Defendant clearly acted under the misapprehension that it was his duty to reach a conclusion on the issue. It was not; this was for the General Meeting of the Union. In any event, I consider that there has to be some relationship of proportionality between the Defendant's duties, the common interest in play, and the nature of the publication made. Put another way, according to Gatley paragraph 14.1, the Defendant has to prove that the statement was "fairly warranted by the occasion". In my judgment, it plainly was not. By asserting that the Claimant was guilty of forgery, the Defendant exceeded the bounds of what was fairly warranted. The Defendant may have been entitled to inform Members that the Claimant had been given every opportunity to explain himself, and provide further evidence, but he had failed to avail himself of it; yet the Defendant went considerably further than that.
  99. In his written argument, but not orally, Mr Balroop relied on that limb or sub-set of qualified privilege which is "reply to attack" (see Gatley, paragraph 14.51). However, this line of defence fails because, as I have already observed, the Defendant's publication did not relate in any material respect to the terms of the Claimant's Petition. I do note that the Claimant accused the Defendant of wasting 400 of Union money, but this had nothing to do with the 2,500 donation. I would characterise the Defendant's publication as retaliation rather than as reply properly so called.
  100. Accordingly, all the defences fail, and I must now consider the issue of damages.
  101. Damages

  102. Mr Bashir submitted that this was a serious case of defamation and that the Claimant's reputation had been significantly harmed. Although the publication may have been confined to members of the Union, there had been a percolating effect, which was clearly foreseeable. The Claimant had lost a contract, there had been no proper investigation by the Defendant, and no retraction or apology.
  103. The Claimant falls to be compensated for damage to his reputation and any accompanying distress. There is no pleaded case in support of a claim for financial loss. That rumours have abounded, and that the Defendant's defamatory remarks have become more widely known, cannot be laid at the Defendant's door. The Defendant has given no apology, and has not retracted his defamatory statement. In my judgment, he was not under any investigatory obligation (contrary to Mr Bashir's submission that he was), and the Claimant himself was remiss in failing to provide a proper explanation, with evidence in support of it, at all material times in and after March 2013. Moreover, these were suspicious documents, even if they were not forgeries. The Claimant's failure to explain "Grandom" gives rise to the strong suspicion that he may have been involved in money-laundering activities, or something similar.
  104. The defamatory statement was extremely unwisely worded, and I am sure that the Defendant now regrets that. It would have taken little adjustment to it to keep the Defendant the correct side of the line.
  105. Mr Balroop submitted that I should consider an award of only nominal damages. In my view, that would not reflect the overall justice of the case, because the attribution of forgery to the Claimant's is not something which may lightly be disregarded. On the other hand, I entirely reject Mr Bashir's submission that his client is entitled to a five-figure sum.
  106. My award of general damages in this case is in the amount of 2,000.
  107. There must be judgment for the Claimant accordingly.


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