Malicious falsehood

A separate claim from defamation, and available in situations where a libel or slander claim is not. It is frequently overlooked, including by lawyers.

What it covers

An untrue statement, published maliciously, which causes you financial loss.

The essential difference from defamation: the statement does not have to damage your reputation. It has to be false, made maliciously, and cause you loss. That opens a category of cases defamation cannot reach.

Examples of what it catches: a competitor telling your customers you have ceased trading, or that a product has been withdrawn; someone falsely stating that a property is not for sale, or that a business has closed; a false statement that you no longer hold a qualification or licence; false claims about ownership of a business or an asset.

None of those necessarily lowers your reputation. All of them can cost you money.

The three elements

Falsity. Unlike defamation, you must prove the statement is false — the burden is on you rather than on the publisher. This is the main disadvantage of the claim.

Malice. The publisher must have known the statement was false, or been reckless as to whether it was, or been actuated by an improper motive. This is the element that defeats most claims, and it requires evidence rather than inference from the fact that the statement was wrong.

Loss. Financial loss caused by the statement. There are situations in which loss does not have to be specifically proved, including where the words were published in writing and calculated to cause pecuniary damage.

When it is the better claim

Where the statement is not defamatory but still damaging — the “we have ceased trading” category.

Where the claimant is a company that cannot show serious financial loss for a defamation claim but can show loss for malicious falsehood. The tests are different and one can be met where the other is not.

Where there is a limitation problem with defamation. The clock in malicious falsehood generally runs from when loss was suffered, which may be later than publication.

Where the claim is really about business interference rather than reputation, in which case related claims — passing off, unlawful interference, breach of contract — may run alongside.

The two claims are frequently pleaded together where the facts support both, so that whichever succeeds delivers the remedy.

What we do

Work out which claim, or which combination, actually fits the facts — which is the whole value of the first conversation on this subject. Assess whether malice can be evidenced, which is the realistic question. Preserve evidence of what was said, to whom, and what it cost you. Then negotiate or litigate.

What it costs

An initial assessment is a fixed fee. Proceedings are hourly at £400 plus VAT with a stage estimate, and costs generally follow the event.

We will tell you honestly whether malice is provable. It is the element on which these claims turn, it usually requires documents rather than inference, and a claim without it will not succeed however untrue the statement was.

Questions

Questions people ask us

What is the difference from defamation?

Defamation requires damage to reputation; malicious falsehood does not. But malicious falsehood requires you to prove the statement is false and that it was made maliciously — both of which are on you. Different burdens, different situations.

A competitor told my customers I had gone out of business. Is that defamation?

Possibly not — it does not necessarily lower your reputation. But it is a classic malicious falsehood: false, damaging, and if they knew it was untrue, malicious.

How do I prove malice?

Usually from documents and context — what they knew, when, what they had been told, whether they had a motive, whether they checked. Rarely from the statement alone. It is the hardest element and the one to assess before committing.

Can a company bring this claim?

Yes, and it is sometimes easier than defamation for a company, because the serious financial loss test under section 1(2) of the Defamation Act does not apply in the same way.

How long do I have?

One year, but the clock generally runs from when you suffered loss rather than from publication — which can be later than in libel.

The hub

Defamation & reputation →

Also in this area

Libel claims →

Also in this area

Slander claims →

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