Wasserman v Freilich [2016]

In Wasserman v Freilich [2016] EWHC 312 (QB) (19 February 2016) the Claimant made an application before Sir David Eady in a libel action for certain parts of the Defence to be struck out in accordance with CPR 3.4(2) that:

“they do not disclose any reasonable grounds for defending the claim;or that they are an abuse of process or otherwise likely to obstruct the just disposal of the proceedings; and/or that there has been a failure to comply with rules of the court.”

Sir David Eady observed there was no dispute that the Defendant published the words complained of within emails which referred to the Claimant. The main issue was whether the Defendant could rely upon Honest Opinion under s.3. of the Defamation Act 2013.

The Claimant owned a flat in North London managed by the Defendant’s company. One of the other flats experienced a water leak, the Claimant was informed by a Management Company employee the next day. Within an hour of being told she arranged for a plumber to inspect and met the Management Company employee at her flat and notified her insurance broker.

On the 17th February the plumber repaired one leak which did not stop the main leak. The workman who attended the next day wanted to break her tiles and, concerned about the costs involved, she checked if he was qualified but he was not. The Plumbing firm sent a qualified plumber the next day. In the meantime the owner of the leaking flat believed that the Claimant was not cooperating and sent an email out to the other flats on the 18th February saying that the Claimant would not let the Management Company deal with the urgent problem.

The following day the Management Company’s Solicitors sent a letter threatening legal action. The owner of the leaking flat sent another email on the 19th February correcting his earlier ones, once he became aware of the Claimant’s situation, that between the 17th February and 4 March 2015 she had allowed the Defendant’s workmen access to her flat to carry out works provided they were qualified or under supervision.

On the 24th February the Defendant’s workmen insisted on carrying out works which the Claimant described as “invasive and destructive”. She brought her own firm in who believed they could find the leak with causing damage, she did not bar access to the Defendant’s workmen. Her plumber sent a video of the source of the leak to the Defendant some time on the 25th February.

Sir David Eady noted

“It was on 25 February that the Defendant’s offending chain of emails began” He sent an email to his plumber copying in the insurance brokers and residents/owners of the block of flats stating that he believed the problem had been the Claimant’s water tank.

On the 23rd March the Defendant sent the email to the Claimant’s loss assessor and copied in her insurers, even though he knew what the facts were on the 25th February. Sir David Eady noted the Claimant’s case was that “he set out deliberately (and maliciously) to mis-state the facts”.

On the 11th March, the Defendant sent an email to the Claimant’s broker, which he also sent to the insurers, attaching the whole thread of emails where he had stated “… this is total rubbish and I am more than happy to testify in a court of law that this is now edging on fraud – and yes I have put this in writing … I believe that it is clear from the attached emails and trail that there is an element of potential exaggeration/attempted fraud and it is my belief that Aviva need to be notified of this and sent a copy of this clear communication”.

On the 23rd March the Defendant sent an email to the Claimant’s loss assessor copying in to the brokers where he said the Claimant was 100% liable for excess which the Claimant said was false and malicious.

On the 24th March at 15.15 the Defendant sent an email to the loss assessor and the insurers with a copy sent to the brokers “… the leak was caused solely from the water tank serving Ms Wasserman’s flat exclusively and therefore in accordance with the terms of the lease, Ms Wasserman is lawfully responsible for the damage caused and excess …”

The Defendant wrote a later email to the same people and another person

“… your client refused to provide access unless a retraction was made [i.e. by Mr Ebrahimoff] – this was simply made under duress”.

The email also contained another passage which is separately pleaded as including a defamatory allegation

“Should this matter be brought to court, for fraud charges, my client and the leaseholders at the property will testify that Ms Wasserman’s conduct was simply unacceptable and manipulative and the residents within the block live in fear of Ms Wasserman and the antics she has caused within the block”.

The fourth communication that the Claimant complained of was the later email on 11th March to the insurers and brokers which had originally been sent to the loss assessor and contained the wording “… an element of potential exaggeration/ attempted fraud”.

The fifth publication dated 24th March at 17.47 was addressed to the loss assessor and copied to the insurers and brokers which included the wording

“It would be interesting to see photographs of the alleged damage in order that we can ascertain whether this is ‘new damage’ caused by this incident or whether this is historic damage/lack of maintenance which (sic) your client is attempting to engineer a claim”.

Sir David Eady stated that

The common sting in the various natural and ordinary meanings, pleaded in paragraph 27 of the particulars of claim, is that the Claimant was dishonest. That has generally been regarded as a factual allegation”.

He further noted that the Defendant did not plead a defence under s.2, he was not seeking to prove the Claimant was dishonest or there were reasonable ground to suspect her of being dishonest referred to as “a Chase level two defence”. He observed that the Defendant had sought to add a plea of honest opinion under s.3 of the Act specifically in respect of dishonestly.

He referred to Practice Direction 53PD where a Defendant must specify the defamatory meaning he is defending when pleading honest opinion. Sir David Eady did not understand what the defamatory opinion or comment was that he wished to defend as honest opinion.

He referred to the draft before him and quoted paragraph 19A “… the Defendant avers that, if and insofar as it is held that the words bear the alleged meaning that the Claimant was dishonest and/or making a fraudulent claim upon an insurance company, they were statements of opinion” which Sir David Eady noted was unacceptable.

He referred to s.3 (2) where the first condition is that the statement must be one of opinion, if it is of fact then that defence is not applicable whereas if the statement can be proved to be mostly true, the Defendant will have available the defence in s.2.

He referred to this case and he considered it was fairly straightforward to resolve

“An allegation of dishonesty, fraud or attempted fraud will usually fall fairly and squarely on the side of fact rather than opinion. The same is true also, as I have already mentioned, where the allegation is of “reasonable grounds to suspect”. Accordingly, I cannot allow a pleading to go forward in the form of paragraph 19A. It must be struck out.”

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