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

Ms Page submits that it is not possible for the court to determine on a summary basis whether the defence of qualified privilege will succeed without knowing, in respect of each publication, to whom and in what circumstances the words were published. Whether any occasion of publication is privileged depends on a fact-sensitive assessment of the relationship between publisher and publishee and the surrounding circumstances. Here, the defendants only plead qualified privilege in relation to the publication to HSMC (including Messrs McKillen and Cunningham and Ms Ryan). Even on the defendants’ own evidence, the letter was published to four additional individuals. And that is before one considers the wider republications for which Mr Sinton pleads the defendants were responsible.

In any event, Ms Page submits that there is a triable, pleaded allegation of malice, which cannot be said to have no real prospect of success. As to that, it is important to take account of the factual background to the decision to bar Mr Sinton. The evidence of Mr Cunningham shows that there are at least four commercial disputes between Mr McKillen and his company HSMC on one side and entities owned by the Al Thani family on the other. All of these were connected with the ownership, management and/or construction of the Maybourne hotels. These disputes are potentially worth billions. At least two of these disputes began in late March/early April 2022. Although the claimant is not himself a party to these disputes, the defendants are. One of these disputes is pleaded in the particulars of malice (see Particulars of Claim, para. 27(j)), but the defendants have declined to plead to it in their defence (see Defence, para. 40(k)(i)). The defendants have also declined to provide answers to requests for further information, including as to the information said to have been received by the defendants about the claimant in March 2022.

Following Mr McKillen’s and Mr Cunningham’s removal from the Board of MHL on 1 April 2022, Mr Socker acknowledged to Mr Cunningham that the relationship between Mr McKillen and the Al Thanis had deteriorated. Accordingly, by late April 2022, the defendants knew very well that Mr McKillen had fallen out of favour with their ultimate bosses and that they were seeking to replace him and his people. Against this background, it is not surprising that Mr Socker and/or the Board of MHL decided to ban two of Mr McKillen’s key project managers.

As to the case that there was a dominant improper motive in publishing the allegations (namely, to shore up their principals’ position in the dispute between the Al Thanis and Mr McKillen), it is to be noted that Mr Socker in his witness statements has not addressed his position and role within Dilmon or how this interacted with his role as director and joint CEO of MHL, the circumstances of and reasons for the removal of Messrs McKillen and Cunningham from the Board of MHL, the circumstances of and reasons for his and Mr Muzzi’s appointment as joint CEOs of MHL or the decision-making process leading to the decision to bar Messrs Sinton, Delany and McKillen from the sites and publish the allegations against them.

There is a complete absence of contemporaneous documents supporting the making of allegations against Mr Sinton so serious that he needed to be barred from the sites with immediate effect. There is no written record of the “preliminary investigations” pleaded at para. 12 of the Defence. All that has been produced are three email communications between the main players, all of which may be shown to be self-serving.

The email dated 21 March 2022 from Mr Bouquay to Mr Socker refers to “bullying behaviours from Paddy McKillen”, but says nothing about any allegations about Mr Sinton. Although Messrs Socker and Bouquay say that the latter became aware of allegations against Mr Sinton through attendance at the Maybourne site, there is no written record of these supposedly troubling communications between January and April 2022 and no details are given of who they came from. Mr Bouquay’s evidence to Sue Balcombe was confined to things said to him by Sally Lloyd, but none of this was substantiated by her in her evidence to Ms Balcombe. Only one individual from the Riviera site was mentioned in Ms Balcombe’s report as having given evidence to her, Boris Messmer, and he had no complaints about Mr Sinton.

On 22 March 2022, Mr Socker forwarded an email sent by Mr Bouquay to him. But this looks suspect, because there is no disclosed notes of Mr Bouquay’s conversations with Sally Lloyd and the Balcombe Report does not record her saying any of the things now attributed to her. Mr Socker was not interviewed by Ms Balcombe. In his third witness statement, for the first time, he says that he was made aware by a number of Maybourne employees and external consultants that there was a pattern of bullying behaviour and intimidation at the company. But the names of those who made him aware of this have not been produced.

The third email dated 6 April 2022 is from Mr Socker to Mr Muzzi (his joint CEO). This is the first document in which Mr Sinton is named, but again it refers to allegations by unidentified individuals. There are no notes of any conversation between Mr Socker and the one complainant he claims to have spoken to (Eleanora Bressi), nor does he appear to have asked her to put down her allegations in an email. This is troubling, given that she is the only source of the allegations against Mr Sinton.

Thus, Ms Page submits:

“It defies belief that Socker, if he had been acting in good faith, could have come to the conclusion that urgent action needed to be taken to safeguard employees against Sinton at all Maybourne sites and offices on the basis of his un-minuted conversations with one person Sinton had worked with, without even asking Sinton about her complaint or any of the hundreds of other people working with him at the Maybourne Riviera and Emory sites.”

Ms Page also makes reference to a WhatsApp exchange between Messrs Socker and Bouquay on 13 April 2022, when the letters complained of were sent out, in these terms:

“Socker: “Letters gone out by the way … Wait for the fireworks

Bouquay: Thanks. Have locked my door. Maybe I should also sneak in another room or sleep in bathtub

Socker: Ha ha”