Don’t Defame Your Landlord

By Nick Bano (@nickbano)

 

In 1649 the radical Christian group the Diggers made a public declaration explaining that, in their view, landlords are thieves:

 

“Those that Buy and Sell Land, and are landlords, have got it either by Oppression, or Murther, or Theft; and all landlords lives in the breach of the Seventh and Eighth Commandements, Thous shalt not steal, nor kill”.

 

150 years later the early free market economist Jean-Baptise Say also said that landlordism “has its origin in robbery”, and Adam Smith was similarly scathing about the economic basis of landlordism.

 

In 2022, though, a student tenant who accused her landlord of theft was successfully sued for libel and slander.

 

There’s obviously a big difference between saying landlordism in general is akin to theft and saying that a particular landlord has behaved dishonestly. But it’s worth recognising that there’s a long tradition of criticising the behaviour and economic foundations of landlordism as a trade; of equating it with stealing regardless of the fact that rent-seeking is lawful. 

 

This article looks at the case (Rafique v ACORN [2022] EWHC 414, QB), and what housing activists should learn from it.

 

Background 

 

As far as I know, Rafique is the second time that a private landlord has brought High Court proceedings against ACORN housing activists in England & Wales. 

 

The first, last summer, was Gitto Estates v Persons Unknown [2021] EWHC 1997 (QB), and it was a spectacular damp squib.  The landlord went in hard, making all sorts of allegations about an ACORN demonstration at an estate agents’ office.  However, unfortunately for the landlord, the judge found ‘a clear body of evidence that suggests that protests have been conducted in a lawful manner’.

 

In Gitto Estates the landlord also failed to produce evidence to show that some of the more serious allegations had happened at all.  While the court did grant an injunction, it really only banned ACORN members from doing things that would have been unlawful anyway.  The landlord may well have gone away thinking that the whole thing had been a waste of everyone’s time and money.

 

Rafique v ACORN, though, is a troubling development.  As well as seeking an anti-harassment injunction, the landlord founded her claim on the notoriously oppressive system of English defamation law.  Libel and slander.  We know that billionaire landlord John Christodoulou has threatened to sue campaigning tenants for defamation before, and I’ve been approached by a number of renters’ groups when other landlords have fired off threatening letters, but this is the first actual defamation claim against tenants that I’m aware of (at least since the 1950s).

 

What happened here

 

Zobia Rafique’s tenant was a student in Sheffield, and a member of ACORN.  She had been granted a tenancy agreement and had paid a £300 deposit.  But something seems to have gone wrong and she asked for the deposit back the next day. It wasn’t given to her.  ACORN campaigned over several months to try to get the deposit returned.

 

The campaign apparently included allegations (later conceded by ACORN to be unfounded) that the landlord ran a fraudulent business, had caused the tenant to sign a blank tenancy agreement and charged additional fees, and had ‘stolen’ the £300 deposit.

 

As well as singing outside at Ms Rafique’s home address, being rude to her in a supermarket and a number of other impactful campaigning activities, the case centred on a speech that the tenant had given at a rally at Sheffield Town Hall.

 

There are two important things to note about the High Court judgment.

 

First, I am not a defamation lawyer, and it is an extremely specialised subject.  What’s said about this case here must not be taken as expert commentary.

 

Second, the case wasn’t defended.  ACORN and the tenant had both been sued, but ACORN accepted that there had been “no good foundation” for the fraud & theft allegations and reached a settlement with the landlord before the hearing, so the judgment only deals with the claim against the individual tenant.  The tenant herself didn’t formally defend the claim, so the case concerns a ‘default judgment’, which is a sort-of automatic win which the court can award if the defendant doesn’t participate.  So the key issues in the case weren’t fully aired.  We don’t have the full factual background, nor any of the competing legal and factual arguments and analysis, that we might ordinarily expect to see the court weighing up.

 

The judgment

 

The judgment deals with three legal points:

  • Harassment;
  • Libel;
  • Slander.

 

On the harassment point, because the tenant had not