Article 5 2.
||National ID|| EWHC 3129 (QB)|
|Country||United Kingdom||Decision date||16/12/2008|
|Common name||Tiscali UK Ltd v. British Telecommunications Plc||Decision type||Court decision, first degree|
|Court||High Court of Justice Queens Bench Division||Plaintiff(s)||Tiscali UK Ltd|
|Court translation||High Court of Justice Queens Bench Division||Defendant(s)||British Telecommunications Plc|
|Keywords||false impression, misleading commercial practices, misleading statements, professional diligence|
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The concept of "honest market practice" and the general principle of good faith, as interpreted in relation to the requirement of professional diligence, require there to have been "objective" dishonesty. Applied to offending statements, this means that it is not necessary for the plaintiff to show that, at the time the offending statement was made, the defendant knew it to be false or had no honest belief in its truth.
The defendant, telecom operator BT, had written to Tiscali's customers with a view to encouraging them to change from Tiscali's broadband service to its own. Tiscali claimed that the letter contained false information to the effect that Tiscali's broadband service was about to be put in jeopardy by the prospect of a takeover, and so it began action against BT.
Tiscali sought to rely on interference with its business by unlawful means, relying on already pleaded allegations of malicious falsehood and introducing alleged breaches of the Consumer Protection from Unfair Trading Regulations 2008 and the Business Protection from Misleading Marketing Regulations 2008.
Tiscali argued that there were no grounds for suggesting that the broadband service would no longer be available to customers. While the letter did not say as much, it sowed the seeds of doubt.
BT submitted that the letter did not contain any false statement and that it was necessary to show that it had been dishonest or indifferent to the truth of the letter's contents at the time of publication.
Do the concept of "honest market practice" and the general principle of good faith (both relevant to the concept of "professional diligence"), when applied to offending statements, require the plaintiff to show that, at the time the offending statement was made, its maker knew it to be false or had no honest belief in its truth?
According to the court, the concepts of "honest market practice" and the "general principle of good faith" are to be construed in such a way that a breach could be found, even in the absence of dishonesty (as it was traditionally understood).
It was a relatively new concept in English law that there was an "objective" test of dishonesty, in that it was not necessary to demonstrate that at the time of the offending statement was made, its maker knew it to be false or had no honest belief in its truth. Though BT argued that it had made no false statements, the court could not conclude that there was no realistic prospect of establishing either that the letter conveyed the notion that there was a risk that Tiscali's broadband service would shortly cease, or that such a notion was false. Moreover, its argument that actual dishonestly had to be shown was not sound in law.
|URL Decision||Decision full text|
The application was granted.
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