Never Say 'Never' for the Truth Can Hurt: Defamatory but True Statements in the Tort of Simple Conspiracy

Article excerpt

[This article examines the remedies arising from the publication of defamatory but true statements under the tort of simple conspiracy. The English Court of Appeal in Lonrho plc v Fayed [No 5] held that, in such a case, loss of reputation is not recoverable in the tort of simple conspiracy, but only in a defamation action. However, pecuniary losses may be recovered if proved. This raises questions as to the determination of the proper limits for the losses recoverable from the publication of defamatory but true statements in the tort of conspiracy. It is argued that the categorical denial of recovery for loss of reputation in Lonrho should be re-examined. It should be possible to allow recovery, albeit in restricted circumstances, for loss of reputation in simple conspiracy.]

CONTENTS

I     Introduction
II    Loss of Reputation Denied: Lonrho
III   The Truth Can Hurt
          A The Meaning of Truth and Reputation
          B Injunction Granted in Gulf Oil (Great Britain) Ltd
            v Page
          C The Case of Breach of Confidence/Privacy
IV    Loss of Reputation Should Not Be the Exclusive Domain of
      the Tort of
      Defamation
V     Alleviating the Floodgates Problem: Balancing Interests and
      the Controlling
      Functions of the Tort of Simple Conspiracy
VI    Alleviating the Uncertainty of Loss Problem: Proof of Loss
      of Reputation
VII   Towards Restricted Recovery for Loss of Reputation:
      Tentative Suggestions
      and Concluding Remarks
          A The Statement Must Be Defamatory
          B There Must Not Be Any Undue Circumvention of the Law of
            Defamation
          C Recovery for Loss of Reputation in Simple Conspiracy
            Must Be Subject to Proof.

I INTRODUCTION

Suppose that a group of persons conspire to publish defamatory statements concerning an individual. Assume that this individual is unlikely to succeed in a defamation action due to the fact that the statements are true. In such a scenario, can the defamed person nevertheless recover under the tort of simple conspiracy for loss of reputation arising from the defamatory but true statements published by the defendants? Or is the publication of the defamatory but true statements justifiable in the circumstances? To sustain an action in simple conspiracy, the plaintiff must show that (1) there is an agreement between two or more persons to do acts with the intention to injure the plaintiff; and (2) the plaintiff suffers injury. Now, for the purposes of this article, assume that the defamed person can establish the above elements of simple conspiracy.

The question then arises--can the defamed person recover loss of reputation under the tort of simple conspiracy? In Lonrho plc v Fayed [No 5] ('Lonrho'), (1) the English Court of Appeal answered the question with an emphatic 'never', holding that such loss of reputation is: (1) only recoverable in the tort of defamation; and (2) not recoverable in conspiracy actions.

This article questions the validity and appropriateness of the current blanket prohibition in Lonrho on recovery for loss of reputation in simple conspiracy. It is suggested that the underlying reasons in Lonrho for the blanket prohibition are not persuasive. In addition, it is submitted that allowing claims for loss of reputation in such instances will not lead to the opening of the proverbial floodgates by exposing potential defendants to indeterminate liability. This article does not attempt to argue that a defamed person should be free to recover loss of reputation under the tort of conspiracy should they fail in a defamation action. Rather, it is suggested that any recovery for loss of reputation in simple conspiracy should be restricted to specific and exceptional circumstances.

II LOSS OF REPUTATION DENIED: LONRHO

In Lonrho, the plaintiffs (two individuals and a company) sued the defendants in the tort of simple conspiracy for damages and an injunction. …