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Ed Turner
Ed Turner,
Category: Law
Satisfied Customers: 1910
Experience:  Director and Consultant Solicitor (Self-Employed) at Ed Turner LLB Limited
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I’m a volunteer on a Board of Directors. Recently I

Customer Question

Hello. I’m a volunteer on a Board of Directors. Recently I discovered evidence of the CEO misrepresenting the company on funding application forms for public money. I brought this to the Board’s attention, but they want to bury it. So I submitted a report with all my findings and listing the legal ramifications of a coverup. We had a meeting about the report, and one Director threatened to sue me if the contents of the report were ever made known outside the Board room.• Is the only case they could bring against me defamation of character?
• Am I correct this can’t be brought unless she can prove what an said in my report was false and that there was damages as a result?
Thanks.
Submitted: 14 days ago.
Category: Law
Expert:  Ed Turner replied 14 days ago.

Hello.   I am Ed, a Solicitor qualified in England & Wales with over a decade’s experience in the legal profession advising clients.

I specialise in Commercial Contracts, Business Transactions, Employment, Dispute Resolution, Personal Injury and Road Traffic Law and shall be reviewing your legal problem today.

Regarding the site’s automatic offer of a Premium Service Phone Call, I shall be delighted to talk with you by phone to discuss your issue in greater detail if you accept the offer.

However, if you do not want a phone call, please cancel the offer for a Premium Service Phone Call and you will not be charged extra.

Expert:  Ed Turner replied 14 days ago.

I am considering my reply which I will post shortly.

Expert:  Ed Turner replied 14 days ago.

The other party (i.e., the company itself as a distinct legal entity, and its human directors, shareholders, employees, and other personnel) who you have accused of fraud may have a cause of action in Defamation against you as the author/publisher of the statement(s).

The claimants must issue court proceedings within one year of the statement first being published.

For a claimant to succeed in a Defamation Claim, the following conditions must be met:

1.  The statement in question must be a false statement of fact;

2.  The statement must be negative and derogatory to the extent that it is capable of lowering the claimant’s standing in the opinion of right-thinking members of society;

3.  The statement in question identifies or refers to the claimant;

4.  The statement in question was published to a third party;

5.  The statement must be capable of causing the subject “serious harm” if allowed to stand.

If your reports to the Board were not published outside the company to any third parties, it is arguable that your statements have not met the publication test.

The Defamation Act 2013 introduced the “Serious Harm” test in Court Proceedings for Libel and Defamation Claims.   Part of the rationale behind the reform in the law was to stop the High Court in London being the “Libel Tourism Capital of the World” and to prevent costly Court Claims for trivial and petty insults.

If the Claimant is an individual, the Court will consider whether the words complained of are likely to cause a “right thinking member of society” to lower their opinion substantially of the Claimant following sight of the statement.  Therefore, a statement alleging that the Claimant was a murderer, a thief or a child abuser would meet the “Serious Harm” test as an outsider reading or hearing these words would almost certainly think less of the Claimant after reading them.

If the Claimant is a business, the Court will consider whether words complained of would be capable of persuading the Claimant’s existing clients and customers to withdraw their business and seek the goods or services elsewhere, while dissuading prospective clients and customers from doing business with the Claimant.   A statement that alleged that the Claimant was incompetent or dishonest would probably meet the “Serious Harm” test.

In view of the context that you published the statements, I believe that you may have a good Defence to any Claim on the grounds of “Qualified Privilege” and/or “Honest Opinion”.

The Defence of Honest Opinion is that statement in question was a statement of opinion (as opposed to a statement of fact), they indicate the basis of the opinion and that an honest person could have held the opinion based on any fact which existed at the time the statement complained of was published, or anything asserted to be a fact in a privileged statement published before publication of the statement in question.

A Defence of Honest Opinion can succeed even if the statement was negative, derogatory, and capable of causing serious harm to the Claimant’s personal reputation and/or business interests, but the Defendant still had a good reason for authoring and publishing them and their motives were not malicious.   In your case, you will argue that your opinions over fraud and other irregularities in the running of the company were based in fact and other good reasons.

The Defence of Qualified Privilege covers information passed under a public or private legal, social, or moral duty from one individual to another individual who has a reciprocal duty to receive the information.  It will defeat any claim for Defamation even if the statement is untrue unless the Claimant can prove that the statement was made maliciously.

I suggest that you read this blog post by a leading firm of Media, Reputation Management and Defamation lawyers based in London for a full discussion of the dangers of Employees suing ex-Employers for Defamation after they have lost out on a new job due to their old Employer giving a poor reference to the new Employer on the Employee’s work performance:

https://www.brettwilson.co.uk/blog/defamation-and-the-employers-reference-a-warning-to-claimants/.

In summary, while your reports to the board may risk them bringing an action in Defamation against you, I believe that such a claim would fail to satisfy the publication test if they have not been seen by anyone else outside the company, and you have the Defences of Honest Opinion and Qualified Privilege available to you.

Expert:  Ed Turner replied 14 days ago.

I hope this resolves your enquiry.   Please revert to me if you require any clarification of my answer to your question and I shall be delighted to assist.

Kind regards

LawyerEd

Customer: replied 14 days ago.
Thank you very much.I do not plan on sending the report to a third party, but if I did, I’m assuming I would be on safe ground as long as my report was not a false statement of fact?Also, does law enforcement count as a “third party”?
Expert:  Ed Turner replied 14 days ago.

Yes, that should be fine.

Publication to a law enforcement authority will be covered by the qualifierd privilege defence.

Customer: replied 14 days ago.
If they did try to sue me, would the burden of proof be on them to evidence that my statements were false?
Expert:  Ed Turner replied 14 days ago.

In Defamation claims, the normal burden of proof for the claimant to prove their claim is reversed.  There is a presumption that the statement is false and the burden of proof is switched to the defendant to show that the statement is true or substantially true.

Expert:  Ed Turner replied 14 days ago.

I have answered your questions as far as I am able to on the Portal.   Obviously, there is a limited amount of advice I can give based on a few lines of text on the Just Answer instant messaging Portal.  Very often the best I can do is “point you in the right direction” for the sake of seeking more detailed advice.

If you want further bespoke advice, I need to review all relevant correspondence and documents and advise in a telephone call.

I will place an offer of a Premium Service Phone Call Request through on the Portal.  If you do not want this additional service, I wish you all the very best in resolving this matter and of course for safely navigating the current “choppy waters” in which we all find ourselves.

Kind regards

LawyerEd

Customer: replied 14 days ago.
When would there be a presumption that the statement is false?
Expert:  Ed Turner replied 14 days ago.

When the claimants commence the claim by sending you a letter of claim for defamation.

Customer: replied 14 days ago.
For clarification, are you saying that under most circumstances the burden of brood would lie with the claimant, but in Defamation cases the burden of proof lies with the defendant? I.e. that the defendant would have to prove their statements are true?
Expert:  Ed Turner replied 14 days ago.

Correct.   Defamation claims are an exception to the rule.

The claimant simply has to deny the truth of the statement; the defendant must prove it!

Customer: replied 14 days ago.
If the individual Director wanted to personally due me, does this mean they would only have a case if the report identified them as an individual and the apparent false statement referred to them?Context: The report identifies the misconduct of the CEO, but no other individuals are mentioned. However, the report states that if the Board choose to “bury” the misconduct of the CEO, they could also become personally liable for the fraud.
Expert:  Ed Turner replied 14 days ago.

I have answered your questions as far as I am able to on the Portal.   Obviously, there is a limited amount of advice I can give based on a few lines of text on the Just Answer instant messaging Portal.  Very often the best I can do is “point you in the right direction” for the sake of seeking more detailed advice.

If you want further bespoke advice, I need to review all relevant correspondence and documents and advise in a telephone call.

I will place an offer of a Premium Service Phone Call Request through on the Portal.  If you do not want this additional service, I wish you all the very best in resolving this matter and of course for safely navigating the current “choppy waters” in which we all find ourselves.

Kind regards

LawyerEd