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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Prospect v Evans [2025] EWHC 499 (KB) (10 March 2025) URL: https://www.bailii.org/ew/cases/EWHC/KB/2025/499.html Cite as: [2025] EWHC 499 (KB) |
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KING'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
PROSPECT |
Claimant |
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- and – |
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ANDREW EVANS |
Defendant |
____________________
Andrew Evans, the Defendant, in person
Hearing date: 20 February 2025
____________________
Crown Copyright ©
Mrs Justice Jennifer Eady DBE:
Introduction
Background
The statement
"This is to pay a lawyer to prosecute those responsible for filling in the union's annual returns.
15 offences have been identified for the last 3 returns.
The lawyer has advised there is a case.
I have been advised that the cost is capped at £3k because criminal prosecutions are paid for by government central funds. This is just to pay for initial steps."
At this point, the fundraising page provided a hyperlink as follows: https://www.gov.uk/government/publications/prospect-annual-returns. Clicking on the hyperlink takes the reader to a government webpage on which further links are available to the claimant's annual returns.
The text on the fundraising page then continued:
"If you want to be anonymous please follow this step when donating:
Choose the "Don't display name publicly on the campaign" option underneath the donation amount and name fields."
Issue (1) – whether a member of a trade union can defame that union as a matter of law
Introduction
The Steyn judgment
"49. ... Parliament has conferred on trade unions the right to enter into contracts in its own name (s.10(1)(a)). It is capable of suing in its own name in any cause of action (s.10(1)(b)). It can also be sued in its own name in any cause of action (subject to ss.20-22) or be prosecuted in its own name (s.10(1)(b)-(c)). Plainly, the attributes of a trade union are such that it has a separate reputation, distinct from its members. Although s.10(1) provides expressly that a trade union is not a body corporate, by that provision Parliament has given a trade union sufficient personality to be entitled to bring an action in libel to protect its reputation."
"52. ... It is consonant with the fact that a trade union has a distinct reputation, separate from its members; and it avoids the surprising imbalance to which the defendant's interpretation would lead of an employers' association being able to sue in libel, but not a trade union, and of a union being capable of being sued in libel, while having no right to bring such an action. It is therefore consistent with the interpretative presumption that Parliament is "a rational, reasonable and informed legislature pursuing a clear purpose in a coherent and principled manner": Bennion §11.3."
"58. Given that a trade union (like a partnership) in fact has a reputation distinct from its members, and for decades it had been recognised that it could bring libel proceedings in its own name, I am of the view that the conclusion reached in the EETPU case that Parliament had deprived trade unions of the right to bring such an action was erroneous."
The parties' submissions
The claimant's case
The defendant's position
Issue (1) – discussion; decision
"In law a trade union is typically an unincorporated association. It is, in theory, simply a number of individual trade unionists described by a convenient label: the union is 'they', not 'it'."
" ... but –
(a) it is capable of making contracts;
(b) it is capable of suing and being sued in its own name, whether in proceedings relating to property or founded on contract or tort or any other cause of action; and
(c) proceedings for an offence alleged to have been committed by or on its behalf may be brought against it in its own name."
And by section 10(2) it is provided:
"A trade union shall not be treated as if it were a body corporate except to the extent authorised by the provisions of this Part."
Issues (2)-(6)
The legal framework
Approach
Natural and ordinary meaning (issue (2))
Reference (issue (3))
Defamatory at common law (issue (4))
"9. ... The first, known as "the consensus requirement", is that the meaning must be one that "tends to lower the claimant in the estimation of right-thinking people generally." The Judge has to determine "whether the behaviour or views that the o?ending statement attributes to a claimant are contrary to common, shared values of our society...." The second requirement is known as the "threshold of seriousness". To be defamatory, the imputation must be one that would tend to have a "substantially adverse e?ect" on the way that people would treat the claimant...."
"19. ... All Chase levels (and all intermediate levels between Chase 1 and Chase 3) may be defamatory of the claimant, but the potency of the defamatory sting decreases from level 1 to level 2 to level 3."
Fact or opinion (issue (5))
"i) The statement must be recognisable as comment, as distinct from an imputation of fact.
ii) Opinion is something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc.
iii) The ultimate question is how the word would strike the ordinary reasonable reader. The subject matter and context of the words may be an important indicator of whether they are fact or opinion.
iv) Some statements which are, by their nature and appearance opinion, are nevertheless treated as statements of fact where, for instance, the opinion implies that a claimant has done something but does not indicate what that something is, i.e. the statement is a bare comment.
v) Whether an allegation that someone has acted "dishonestly" or "criminally" is an allegation of fact or expression of opinion will very much depend upon context. There is no fixed rule that a statement that someone has been dishonest must be treated as an allegation of fact."
Indication of basis (issue (6))
"17.... Although an inference may amount to a statement of opinion, the bare statement of an inference, without reference to the facts on which it is based, may well appear as a statement of fact ..., not every inference counts as an opinion; context is all. Put simply, the more clearly a statement indicates that it is based on some extraneous material, the more likely it is to strike the reader as an expression of opinion."
The parties' positions
The claimant's case
"The Claimant had, through its officers, commissioned at least 15 criminal offences in the preparation and filing of annual returns which were deliberately false. The Claimant was responsible for permitting those officers to commission those offences. The Claimant's criminal activity was longstanding and systemic." (paragraph 5 Particulars of Claim)
This, the claimant submits, is a Chase level 1 meaning.
The defendant's position
"That an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict those people responsible for filling in the Claimant's annual returns for up to 15 offences and that prosecuting those people would be in the public interest.
That these offences relate to the annual returns from the last 3 years.
That the Defendant contacted a lawyer who advised there is a case and that the costs of any prosecution would be capped at £3000 because they are recoverable from central funds."
Issues (2)-(6) – discussion; decisions
Issue (2): the natural and ordinary meaning of the statement is as follows:
There are reasonable grounds for thinking that the claimant trade union is guilty of criminal offences relating to the contents of its annual returns over the past three years.
A lawyer has advised that there is a case to answer.
The funds raised (from this fundraiser) will be used to take the initial steps necessary for a prosecution.
Issues (3) and (4): the statement referred to the claimant and conveyed a defamatory meaning about the claimant; the statement was defamatory of the claimant at common law.
Issues (5) and (6): to the extent underlined, the statement was an expression of opinion; otherwise it was a statement of fact. The basis for the opinion was indicated in general terms to be the content of the defendant's annual returns together with the legal advice received.
Issue (7)
The legal framework
"29. ... for the purposes of the tort of malicious falsehood; a claimant will be entitled to succeed if he can show that a substantial number of people would have reasonably read the Announcement in a way that accords with his preferred meaning. In other words, a claimant can seek to show that any reasonably available meaning of the statement in question was false and made maliciously."
The parties' positions
Issue (7) – discussion; decision
"16. ... Ascertaining whether the pleaded meaning is an available meaning will be academic if it is not the meaning that the publishee understood the words complained of to bear. It is that meaning which a claimant must demonstrate to be false, published maliciously, and either to have caused special damage or, where the claimant can and does rely on s. 3 Defamation Act 1952, that it was likely to do so."
Disposal
Issue (1): as already determined by the Steyn judgment, as a matter of law, a member of a trade union can defame that union.
Issue (2): the natural and ordinary meaning of the statement is as follows:
There are reasonable grounds for thinking that the claimant trade union is guilty of criminal offences relating to the contents of its annual returns over the past three years.
A lawyer has advised that there is a case to answer.
The funds raised (from this fundraiser) will be used to take the initial steps necessary for a prosecution.
Issues (3) and (4): the statement referred to the claimant and conveyed a defamatory meaning about the claimant; the statement was defamatory of the claimant at common law.
Issues (5) and (6): to the extent underlined, the statement was an expression of opinion; otherwise it was a statement of fact. The basis for the opinion was indicated in general terms to be the content of the defendant's annual returns together with the legal advice received.
Issue (7): in respect of the claimant's claim of malicious falsehood, at this stage it is not appropriate to deal with the question whether the meaning for the statement contended by the claimant was one that was reasonably available to any publishee.