The Court of Appeal has dismissed EBS Limited’s appeal against a High Court decision refusing to strike out a defamation claim brought by a man identified as HH over maintenance payments that were deducted from his bank account but never credited to the intended recipient’s account.
The ruling does not decide whether HH was defamed or whether EBS is liable. It leaves the claim to proceed, with the alleged meaning of the bank statements and the circumstances surrounding them to be assessed at trial.
HH had been ordered by the District Court in 2000 to pay £35 (€44.44) a week in maintenance to AA, the mother of his son. He set up a standing order through Ulster Bank. The payments were deducted from his account from June 2000 and transferred to an EBS holding account maintained with Ulster Bank, but were not credited to AA’s account. The judgment said the cause of that failure had not been firmly established.
HH says he believed the payments were reaching AA. He claims he learned otherwise during a phone call in September 2012, after AA told him she had never received maintenance. He alleges that EBS’s bank statements to AA, which did not show the payments, conveyed that he had failed to support his son. EBS denied publishing a defamatory statement to AA or anyone else.
EBS asked the High Court to strike out the defamation part of HH’s claim. In March 2017, the High Court refused. EBS appealed, arguing that the claim was bound to fail because the statements did not contain an actionable publication, that an omission could not amount to a statement, and that HH had not sufficiently particularised the alleged defamatory meaning.
The Court of Appeal said the procedural rules relied on by EBS could not support striking out only the defamation part of the claim in the circumstances. It then considered whether the High Court had reasonably refused to use its inherent power to dismiss a claim that was bound to fail.
The appeal court said it had not seen the bank statements and AA had not been cross-examined about her response to them. Whether the statements or EBS’s conduct could amount to a statement, and what meaning AA might have taken from them, depended on evidence and context that should be considered at a full hearing. The court also said EBS’s qualified-privilege argument could not be considered on appeal because it had not been raised in the High Court application.
The judgment said any shortcomings in pleading an innuendo claim should have been addressed by clarifying the basis of HH’s case and giving him an opportunity to amend. It concluded that the claim was not clearly bound to fail and dismissed EBS’s appeal. The underlying defamation claim remains unresolved.