An important element of any malicious falsehood or defamation claim is being able to prove that the defendant is the person who published the material complained of. This can be difficult particularly when pursuing a claim in relation to a Google Review. This was the issue in the recent case of Samuels (trading as Samuels and Co Solicitors) v Henry [2024] EWHC 28989 (KB).
Samuels (trading as Samuels and Co Solicitors) v Henry [2024] EWHC 28989 (KB)
Background
The Claimant, Jacqueline Samuels was a property solicitor and a sole practitioner trading under the name of Samuels & Co Solicitors. The Defendant, Christopher John Henry was a former client of the Claimant.
The Defendant was unhappy with the Claimant’s services and made a complaint to the SRA and to the Legal Ombudsman. Both complaints were not upheld. Three reviews were published on the Claimant’s Google Business Profile:
- The First Post – 1 April 2022 -“Awful law firm- the principle, Jackie Samuels was awful to deal with. An unfriendly and unhelpful individual – AVOID AVOID AVOID.” The author of this was listed as “Chris H”;
2. The Second Post – 1 March 2023 –
“Used this firm last year for a matter – whilst cheaper than other quoted I had, I suppose it’s true what they say – you pay what you get for! Never resolved my case communication and service was poor.” The author was “John H”;
3. The Third Post – 3 March 2023 – “I used this solicitor last year and agree with the other reviewers. Pretending to be a big firm with two offices this is a one woman operation – Jacquline [sic] Samuels. She is horrible to deal with, rude abrasive, unhelpful and bitter. Do not use this firm.” The author was “P R”.
The Claimant pursued a claim against the Defendant in two separate actions, one in malicious falsehood in relation to the first two posts and the other in libel in relation to the third post.
The Defendant denied publishing any of the posts and applied to strike out both claims on the basis that there was insufficient evidence to prove that he had published the posts. The judge directed that there should be a preliminary trial to determine whether the Defendant published the posts and if so, the extent of the publication.
Preliminary issue trial
The Claimant acknowledged that she did not have any direct evidence that the Defendant had published any of the posts. She instead relied on circumstantial evidence such as the fact that the author of the first post identified as “Chris H” and that she had no other clients with this name. In relation to the second post, she argued that the author “John H” was close to the Defendant’s name. In relation to the third post, she confirmed that she believed that “P R” was Ms Presangi Ranaweera who had jointly instructed her with the Defendant in relation to a purchase. The Claimant explained that she had emailed Ms Ranaweera who confirmed that she was not responsible for the review. She therefore concluded that the Defendant must have used her initials to disguise his identity. She relied on a further review posted by “P R” of a cycle shop. The cycle shop had replied to the review and said “Hello Chris”.
The Defendant denied on oath that he had made any of the posts. The Defendant also highlighted to the judge that the Claimant had pursued similar proceedings against two previous clients who had posted negative reviews, both individuals were called “Christopher”.
The Decision
The judge confirmed that he had no reason to conclude that the Defendant had lied to the Court on oath and therefore there was no basis upon which to determine that he had posted the reviews.
The judge was very critical of the approach taken by the Claimant. He confirmed that she had sufficient notice of the preliminary issue trial and should have tried to establish conclusively who the poster was and that she could have done so by making a Norwich Pharmacal Application. The Claimant submitted that, if the judge was not satisfied that the Defendant posted the reviews, there should be a stay to allow her to make a Norwich Pharmacal Application. The judge explained that, as this was the trial of the issue, it was too late for a stay of the proceedings.
The claims were dismissed.
Comment
This case highlights the importance of being able to show with evidence that the Defendant is the one who published a negative review. If this is not possible, a Claimant should consider applying for a Norwich Pharmacal order to determine the identity of the poster.
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