Can I sue over smelly feet slur?

By Jonathan Goldberg, October 22, 2010

This week I thought I would answer the three funniest questions I have received recently.

Hava from Hendon writes: I was trying on shoes recently at a crowded and expensive shoe shop in the West End. I could hardly believe my ears when the girl assistant, who could not have been more than 17, said to me: "If you don't mind my saying so, you do have rather smelly feet". I complained to the manageress, who was embarrassed and mumbled some apology, then I walked out. I am sure other shoppers heard this comment. Can I sue the store for libel?

Hava, the first point to make is that this is technically a slander and not a libel, the difference being that a slander is spoken, whereas a libel is permanently recorded, as in a film or in writing.

The distinction is important because you cannot bring an action here for slander unless you can first prove actual damage - for example, that someone who heard the comment had cancelled a contract with you, as a result of thinking worse of you because of your feet. That sounds impossible to prove.

Next, one of the defences the store might raise is called "justification", which means that the comment was true. The burden of proof would be upon them on a balance of probabilities, but it is, I suppose, not impossible that they might indeed be able to discharge it with evidence.

Defamation actions are among the most costly of all to bring, which makes them pretty much the exclusive preserve of the super-rich and the newspapers. I think the best advice I can give you is simply to wash your hands of it, or indeed your hands and feet, and to buy your shoes elsewhere in future.

Joe from Hove writes: I am a 69-year-old widower and I live in a ground-floor maisonette. My bedroom overlooks the bin area of my next-door neighbour, whom I do not know as she recently moved in. She is a middle-aged Asian woman. Four times in the past few weeks I was undressing for bed when I spotted my neighbour peering at me through a chink in my curtains. When I banged on the glass, she pretended to be using the dustbins and made herself scarce. I have read there is a new "Peeping Tom" criminal offence, and am wondering whether to report her to the police.

Joe, you are quite right - section 67 of the Sexual Offences Act 2003 created a new offence of voyeurism. Essentially, it can carry up to two years' prison if, for the purpose of obtaining sexual gratification thereby, a defendant observes another person doing any private act, such as undressing or making love for example, knowing that the other person would not consent to being observed in that way.

It is also a criminal offence to operate recording equipment for the same purpose, such as a video camera, or to adapt a structure, for example by drilling a peephole through your wall.

So that is the legal theory, but Joe, I can foresee certain practical difficulties in successfully prosecuting your neighbour. Firstly, she might argue that she was not trying to obtain sexual gratification, but was just being nosey about your decor, for example.

She might say that she did not know you would not consent - indeed that at your age, she rather assumed you would be pleased by her interest.

Lastly, and most significantly, I doubt that your hard-pressed local police are going to pay much attention to this investigation, however upset you may be. Have you thought instead of inviting her round for a cup of tea? Who knows where it may lead?

Leila from Prestwich writes: My son is very left wing, and is about to become engaged to a girl of similar outlook. Instead of an engagement ring, he wants to give her an antique clock which he inherited from my father. Can he demand the clock back if his engagement fails?

Leila, since 1970, even an engagement ring is treated as an absolute gift, which is non-refundable if the marriage does not take place, unless a specific condition of refundability is attached before or at the time the gift is made. So yes, he can get his clock back, provided he attaches that condition. But tell me - can this possibly be a Jewish girl?

The above is not formal legal advice and is given without liability. Jonathan Goldberg QC, of Ely Place Chambers, is a leading London barrister.

Last updated: 11:06am, October 22 2010