In the case of Prospect v Evans [2025] EWHC 499 (KB), the Defendant, a former member of the Claimant trade union which represents professionals and specialist workers across a range of sectors sought to hold to account the Claimant's officers for alleged wrongdoing. More specifically, in a post on the crowdfunding website, www.gofundme.com, the Defendant sought to solicit funds "to pay a lawyer to prosecute those responsible for filling in the union's annual returns" for what he claimed to have identified as "15 offences" allegedly committed within three of the Claimant's annual returns for which he said he had been advised by a lawyer there was "a case [to answer] ". The fundraising page contained a hyperlink which took a reader to a government webpage which included links to the Claimant's annual returns.
The Claimant brought claims for libel and malicious falsehood in respect of the Defendant's statements on the crowdfunding platform.
At a hearing on 20 February 2025, Mrs Justice Jennifer Eady DBE was required to determine the following issues as part of a preliminary issue trial: (1) whether a member of a trade union can defame that union as a matter of law (2) the natural and ordinary meaning of the statement; (3) whether the statement referred to the claimant; (4) whether the statement was defamatory of the Claimant at common law; (5) whether the statement was a statement of fact or opinion; (6) if a statement of opinion, whether the statement indicated, in general or specific terms, the basis of the opinion; and (7) for the purposes of the malicious falsehood claim, (if deemed appropriate to address this issue at this stage) whether the Claimant's meaning was one that reasonably available to any publishee.
In an applaudably compendious penultimate paragraph, Eady J set out her findings on issues (1) – (7) as follows:-
"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."
Issues (2), (4), (5) – (7) were determined with reference to incontrovertible principles derived from earlier cases, including the oft-cited Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB), which contains a succinct summary of the tenets to be applied when determining a natural and ordinary meaning, and whether words complained of are statements of opinion or fact.
Issues (1) and (3) are more interesting insofar as they raise slightly novel and/or complex points of law. Mrs Justice Steyn had confirmed in an earlier judgment in these proceedings (Prospect v Evans [2024] EWHC 1533 (KB)) that a trade union had sufficient legal personality to bring a claim for libel and Eady J considered that this provided a "complete answer" to issue (1) (i.e. a member of a trade union can defame the union itself). Whilst it had previously been an open question as to whether a union had standing to bring a defamation claim, the judgments by Eady J and Steyn J appear to put the position beyond doubt.
Issue (3) turned on whether the reasonable reader would understand the words complained of to refer to the Claimant or to its officials and employees. It was common ground between the parties that the position was analogous to companies and their officers, whereby an organisation cannot maintain an action for defamation in respect of words which reflect solely upon its individual members and not upon the organisation itself. Where the statements in question "reflect primarily upon human beings", the Court will need to consider carefully any submission that they are damaging to the union's reputation. Nevertheless, Eady J recognised that there will be situations where allegations about union officials will often reflect on the trade union, whether that is because the allegations involve, by necessary inference, imputations against those responsible for its direction and control, or for some other reason.
Whilst acknowledging that the words complained of were directed at "those responsible for filling in the union's annual returns", Eady J held the overall impression conveyed to the ordinary reasonable reader was that the Claimant trade union would be responsible for the alleged criminal conduct. The statements complained of were therefore found to refer to the Claimant.
In addition to providing a clear exposition of the relevant law, this judgment should remind those involved in litigation of the need to exercise due care when making statements on crowdfunding platforms. Even where a claimant does not sue over such statements, if they are made during the course of litigation, they may be taken into account by a trial judge when considering factors which are said to aggravate the damage caused to the claimant (see, for instance, Ware v French [2022] EWHC 3030).
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