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England and Wales High Court (King's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Unity Plus Healthcare Ltd v Clay & Ors (Re Preliminary Issues) [2024] EWHC 1278 (KB) (24 May 2024) URL: http://www.bailii.org/ew/cases/EWHC/KB/2024/1278.html Cite as: [2024] EWHC 1278 (KB) |
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KING'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Strand, London, WC2A 2LL |
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B e f o r e :
(sitting as a Judge of the High Court)
____________________
UNITY PLUS HEALTHCARE LIMITED |
Claimant |
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- and - |
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PETER GARETH CLAY JAMES MATTHEW PATTON ADAM CHARLES LYLE TAO STAFFING SOLUTIONS LIMITED CLAY BUSINESS SERVICES LIMITED |
Defendants |
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Chloe Strong (instructed by Rinew Legal Limited) for the first and fourth defendants
Hearing date: 1 March 2024
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Crown Copyright ©
This judgment was handed down remotely at 14:00 on 24 May 2024 by circulation to the parties or their representatives by e-mail and release to the National Archives
HIS HONOUR JUDGE LEWIS
a. the natural and ordinary meaning of the statement complained of;
b. whether the statement complained of was a statement of fact or opinion; and
c. whether the statement is, in any meaning found, defamatory of the claimant at common law.
The positions of the parties
a. "The claimant was run by a disqualified director guilty of VAT evasion and its directors were a front for him.
b. The claimant was guilty of furlough fraud on a big scale, over £500,000.
c. The claimant was laundering money from external sources.
d. The claimant had improperly siphoned Bounce Back and Funding Circle loans to alternative bank accounts.
e. The claimant took advantage of its staff by forcing them into limited companies without their consent, knowledge or understanding."
"There were grounds to investigate the Claimant for suspected involvement in furlough fraud, money laundering, misuse of "Bounce Back" and "Funding Circle" loans and for taking advantage of temporary staff by forcing them into arrangements involving the use and establishment of limited companies without their knowledge or consent."
The law
"The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. . The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words." per Lord Morris at 1370-1371.
"(i) The governing principle is reasonableness.
(ii) The intention of the publisher is irrelevant.
(iii) The hypothetical reasonable reader is not naοve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. A reader who always adopts a bad meaning where a less serious or non-defamatory meaning is available is not reasonable: s/he is avid for scandal. But always to adopt the less derogatory meaning would also be unreasonable: it would be naοve.
(iv) Over-elaborate analysis should be avoided and the court should certainly not take a too literal approach to the task.
(v) Consequently, a judge providing written reasons for conclusions on meaning should not fall into the trap of conducting too detailed an analysis of the various passages relied on by the respective parties.
(vi) Any meaning that emerges as the produce of some strained, or forced, or utterly unreasonable interpretation should be rejected.
(vii) It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense.
(viii) The publication must be read as a whole, and any "bane and antidote" taken together. Sometimes, the context will clothe the words in a more serious defamatory meaning (for example the classic "rogues' gallery" case). In other cases, the context will weaken (even extinguish altogether) the defamatory meaning that the words would bear if they were read in isolation (eg bane and antidote cases).
(ix) In order to determine the natural and ordinary meaning of the statement of which the claimant complains, it is necessary to take into account the context in which it appeared and the mode of publication.
(x) No evidence, beyond publication complained of, is admissible in determining the natural and ordinary meaning.
(xi) The hypothetical reader is taken to be representative of those who would read the publication in question. The court can take judicial notice of facts which are common knowledge, but should beware of reliance on impressionistic assessments of the characteristics of a publication's readership.
(xii) Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader.
(xiii) In determining the single meaning, the court is free to choose the correct meaning; it is not bound by the meanings advanced by the parties (save that it cannot find a meaning that is more injurious than the claimant's pleaded meaning)."
Context
"[16] the following material can be taken into account when assessing the natural and ordinary meaning of a publication:
i) matters of common knowledge: facts so well known that, for practical purposes, everybody knows them;
ii) matters that are to be treated as part of the publication: although not set out in the publication itself, material that the ordinary reasonable reader would have read (for example, a second article in a newspaper to which express reference is made in the first or hyperlinks); and
iii) matters of directly available context to a publication: this has a particular application where the statement complained of appears as part of a series of publications e.g. postings on social media, which may appear alongside other postings, principally in the context of discussions.
[17] The fundamental principle is that it is impermissible to seek to rely on material, as "context", which could not reasonably be expected to be known (or read) by all the publishees. To do so is to "erode the rather important and principled distinction between natural and ordinary meanings and innuendos": Monroe -v- Hopkins [40]. When I considered this principle very recently, I explained that the distinction was between "material that would have been known (or read) by all readers and material that would have been known (or read) by only some of them. The former is legitimately admissible as context in determining the natural and ordinary meaning; the latter is relevant only to an innuendo meaning (if relied upon)" (emphasis in original): Hijazi -v- Yaxley-Lennon [2020] EWHC 934 (QB) [14]."
"It is perhaps unrealistic to proceed on the basis that every reader will follow all the hyperlinks, but everything depends upon its context. For example, if in a single tweet there is a single statement that says, "X is a liar" and then a hyperlink is given, it is almost an irresistible inference to conclude that the ordinary reasonable reader would have to follow the hyperlink in order to make sense of what was being said. At the other end of the spectrum, a very long article could contain a very large number of hyperlinks. Only the most tenacious or diligent reader could be expected to follow every single one of those hyperlinks. Such a reader could hardly be described as the ordinary reasonable reader. How many links any individual reader would follow would depend on an individual's interest in or knowledge of the subject matter or perhaps other particular reasons for investigating each of the hyperlinks in question."
27. In oral submissions, Ms Strong for the first and fourth defendants says these were attachments on the face of the Email. She says that it is fundamentally wrong in law to say that simply because the attachments are lengthy, they would not have been considered by the ordinary, reasonable reader. Ms Strong points out that when assessing meaning, that reader is taken to have read (or viewed) the whole of the publication complained of, even where the publication is a lengthy book. She relies upon the observations of Tugendhat J in Cruddas v Calvert [2013] EWHC 1427 (QB) at [93] when it was noted that the assumption that the reasonable reader had read the article as a whole was "as unrealistic an assumption as any that is required to be made albeit that that assumption is necessary to do justice to a defendant". In this case, Ms Strong says that the attachments form part of the Email, and so I should treat them in the same way as I would treat parts of any publication complained of.
Levels of meaning
" I need to refer to what are called the Chase levels of meaning. They come from the decision of Brooke LJ in Chase v- News Group Newspapers Ltd [2003] EMLR 11 [45] in which he identified three types of defamatory allegation: broadly, (1) the claimant is guilty of the act; (2) reasonable grounds to suspect that the claimant is guilty of the act; and (3) grounds to investigate whether the claimant has committed the act. In the lexicon of defamation, these have come to be known as the Chase levels. Reflecting the almost infinite capacity for subtle differences in meaning, they are not a straitjacket forcing the court to select one of these prescribed levels of meaning, but they are a helpful shorthand."
Fact or opinion
" when determining whether the words complained of contain allegations of fact or opinion, the court will be guided by the following points:
(i) The statement must be recognisable as comment, as distinct from an imputation of fact.
(ii) Opinion is something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc.
(iii) The ultimate question is how the word would strike the ordinary reasonable reader. The subject matter and context of the words may be an important indicator of whether they are fact or opinion.
(iv) Some statements which are, by their nature and appearance opinion, are nevertheless treated as statements of fact where, for instance, the opinion implies that a claimant has done something but does not indicate what that something is, i e the statement is a bare comment.
(v) Whether an allegation that someone has acted 'dishonestly' or 'criminally' is an allegation of fact or expression of opinion will very much depend upon context. There is no fixed rule that a statement that someone has been dishonest must be treated as an allegation of fact."
"Although an inference may amount to a statement of opinion, the bare statement of an inference, without reference to the facts on which it is based, may well appear as a statement of fact: see Kemsley v Foot [1952] AC 345. As Sharp LJ, DBE, pointed out in Butt at [37], not every inference counts as an opinion; context is all. Put simply, the more clearly a statement indicates that it is based on some extraneous material, the more likely it is to strike the reader as an expression of opinion."
39. The first and fourth defendants say this was a relatively informal email, rather than a formal publication disseminating information that might be presumed to be factual in character. It was written in the first defendant's own words. The context namely where it was being sent and the words used - would be recognised by the hypothetical reader to be one of opinion. By way of example, Ms Strong draws my attention to the wording of the eleventh paragraph where the first defendant says "I do believe this is their way of cleaning the money and I believe that the bank accounts all lead back to Mr Shafiq Rehman" (emphasis added). It is also pointed out that in respect of each concern raised, the first defendant stated the basis as to why he had such concerns and/or attached relevant evidence, which would be more likely to strike the reader as an expression of opinion.
Decision
"There were strong grounds to suspect that the claimant
a) was run by a disqualified director guilty of VAT evasion and its directors were a front for him;
b) was involved in furlough fraud, money laundering and misuse of "Bounce Back" and "Funding Circle" loans; and
c) took advantage of staff by forcing them into arrangements involving the use and establishment of limited companies without their consent, knowledge or understanding."
SCHEDULE THE EMAIL
From: Peter Clay
Sent: Friday, July 2, 2021 5:23:27 PM
To:
Subject: As discussed - Unity Plus Healthcare Groups (Parent Company - Sugra Ltd)
Good Afternoon Simon,
Thanks for responding on Linked In I genuinely had no idea where to turn.
I feel the best way to deliver this information is by listing the area of concern and attaching some form of evidence. However, I know that HMRC do their own internal checks.
Background
Mr Shafiq Rehman, A disqualified Director in 2018 (VAT Evasion) runs a company called Sugra Ltd. Although not a director, fronts the business through family members.
Mr Shafiq Rehman is an intelligent man. He has placed his Nephews and Son in charge of Sugra Ltd however holds overall control as the 'Boss'. I know this in itself is a criminal offence however only a small part of the problem.
Attached 1 Disqualification Record for Shafiq Rehman
Attached 2 Details of Sugra Limited
Directors: -
Attached 3 Details of Unity Plus Healthcare Group Limited
Directors: -
L Voina (Lidia) Shafiq Islamic Wife
My name is Peter Clay, I worked with the above in question for 2 years in the capacity of Business Development Manager. I never came in contact with internal Financial Matters of the Business so for a long while never knew what was going on. I did however share a bottle of wine with the once Finance Manager Mr Matthew Patton.
He shared quite a lot with me: -
Attachment 4 Email from an Ex member of Temporary staff (Unity), called Cornel who was placed onto a Limited company without consent, knowledge or understanding. Also had a Business Bank account opened in his name too. He is poor of English and taken advantage of.
I have evidence of over 10 people with whom were opened Business Limited Companies and I have found out it was utilizing a company called Rapid Formations. I believe the overall numbers will be reaching over 50 members of staff.
If you need more here I can provide them for you?
Furlough fraud on a big scale over £500,000
Attachment 5 Details of those who were Furloughed from Unity Plus Healthcare Group, this was held by the ex Finance Manager Matthew Patton.
Breakdown of staff within this document who Furlough was claimed and notes. The period in question was between Apr/May 2020 to Date
I have submitted pieces of evidence for the below specified this is not all I have but trying to keep the email attachment size down.
[The email included a table, with three columns showing (i) Name of individual furloughed; (ii) NI number; (iii) per month/per person claimed. For this judgment, the names have been anonymised and the NI numbers removed].
Person A Full time hours, working on call (proof attached), 1172.33
Person B Full time Hours, working throughout on payroll (Proof attached), 1172.33
Person C At Manchester University studying Pharmacy and never works, 2505.43
Person D Shafiq Islamic Wife and never worked 1 minute with the company, you will never find a single email from her (she doesn't have an email address), 542.14
Person E Director of Sugra but acts as Transport Manager. Works every single day , 2505.43
Person F Director of Sugra, works as Operations Manager and in work every day , 2505.43
Person G Director of Sugra, Works as office manager and in every single day (Proof Attached), 2505.43
Person H Daughter of Shafiq and never worked a day with the company, 2505.43
Person I Shafiq other Islamic wife and never seen or worked 1 second in the company, 2505.43
Person J Works every single day Mon to Sun within the company (Proof Attached), 2505.43
Person K The Wife of Shafiqs brother, never worked 1 second within the company, 2505.43
Person L Highly Autistic, unable to work for the company and doesn't work for the company, 2505.43
Person M Never heard of this member of the family but most certainly never worked 1 second within the business, 2505.43
Person N Compliance Manager within the business and works there every day (Proof attached), 1477.55
Person O Account Manager within the Business, Works everyday (proof attached), 1833.33
Person P Account Manager within the Business, Works everyday (proof attached), 1152
The below 3 are Temporary staff of the company !!
Person Q - This person is one of the temporary Staff, works on a zero hour contract and not where near the office , 2505.43
Person R - This person is one of the temporary Staff, works on a zero hour contract and not where near the office, 2505.43
Person S - This person is one of the temporary Staff, works on a zero hour contract and not where near the office, 2505.43
Money Laundering
Unity Plus Healthcare Group use a Payroll company called Eden Group. I have seen, but do not have payroll reports for the company and witnessed over 10 people being paid what would appear upwards of £50k per annum however have nothing to do with the business. I do believe this is their way of cleaning the money which I heard came into the business through external sources. I also believe that the banks accounts all lead back to Mr Shafiq Rehman.
Bounce Back Loan and Funding Circle Loan
It is very evident from the financials on Companies House that Sugra Limited has over £1.2 million in the bank account. They utilized a bounce back loan and then later a funding circle loan where the money was filtered into other Bank Accounts.
My mobile is [redacted] and happy to help in any way I can
Best Wishes
Peter Clay