KB-2023-000257 - [2024] EWHC 647 (KB)

Mr Vassall-Adams notes that, in most situations in which qualified privilege applies, the interests protected are business interests: Gatley on Libel and Slander (13^th ed, 2022), §15-011. He relies on the analysis of Sharp J (as she then was) in Bowker (t/a Lagopus Services) v Royal Society for the Protection of Birds [2011] EWHC 737, [123]-[127]. The question is whether the communication is of such a nature that it could fairly be said that the maker had an interest in making such a communication, and those to whom it was made had a corresponding interest in receiving it: ibid, [126], citing Lord Esher MR in Hunt v Great Northern Railway Co. [1891] 2 QB 189, 191. The privilege attaches more readily where the publisher and publishee are in an existing and established relationship: ibid., [127], citing Kearns v General Council of the Bar [2003] EWCA Civ 331, [2003] 1 WLR 1357, [30] & [39]. Where a publication is made on a privileged occasion, the privilege extends to others whose participation is reasonably necessary to carry the privileged purpose into effect (such as secretaries or administrators): David v Hosany [2017] EWHC 2787, [4].

Mr Vassall-Adams submits that it is plain that the publication of the letter took place on an occasion of qualified privilege. The letter was sent on a confidential basis only to those with whom the defendants were in a pre-existing relationship. The defendants intended that the content would be republished only to those involved in the management of the sites and responsible for the safety and welfare of staff, who had an obvious interest in receiving the information. In any event, it is not necessary for each instance of republication to be privileged for the defence of qualified privilege to succeed: see Gatley, §7-058.

Malice has the same meaning whether it is considered as part of the response to the qualified privilege defence in libel, or as an element of the tort of malicious falsehood. An assertion of malice is tantamount to fraud or dishonesty and must be pleaded with scrupulous care and specificity: Henderson v London Borough of Hackney [2010] EWHC 1651 (QB), [40]; see also Sube v News Group Newspapers [2018] EWHC 1234, [75] (“Speculative accusations of corporate dishonesty based on fuzzy generalities are not more acceptable in this context than they would be in a criminal court”). Thus, “[e]ach of the particulars relied upon by the Claimant is required to be indicative of this dishonest state of mind” and each must be “more consistent with the existence (of malice) than with its non-existence”: Huda v Wells [2017] EWHC 2553 (QB), [73]. The state of mind required is knowledge that the statement was false or recklessness as to whether it was false or publication with the dominant intention of injuring the claimant, though there is no known recent case of “dominant intention” malice: ibid, [71].

Where several defendants are alleged to have acted with malice, the claimant must establish malice against each of them individually: Egger v Chelmsford [1965] 1 QB 248, 265. Since the test for malice is subjective, knowledge of falsity must be assessed by reference to the meaning the defendant intended to convey: Cruddas v Culvert [2015] EWCA Civ 171, [2015] EMLR 16, [111] (Hirst LJ). The court should not allow the defence of qualified privilege to be circumvented by “inflating the words complained of into something far beyond their obvious meaning and then saying that the defendant cannot have believed this to be true”: Halford v Chief Constable of Hampshire Constabulary [2003] EWCA Civ 102, [64] (Sedley LJ).

The pleading of the claimant’s case on malice is inadequate. The pleading is based solely on the claimant’s own pleaded meanings. In any event, the matters relied on as supporting the inference of malice are not “more consistent with the existence of malice than with its non-existence” (see Huda). The “dominant improper motive” plea is not directed at the claimant. Moreover, the evidence fails to meet the required standard for the claim to go forward to trial.