KB-2024-003652 - [2025] EWHC 1900 (KB)

In the present case, malice is relevant in two contexts. First, as a potential answer to a defence of common law qualified privilege to the claim for defamation. Second, because it is one of the elements of the tort of malicious falsehood. In the latter regard, the authors of Gatley state at 22-001:

“At common law the claimant may maintain an action for malicious falsehood if he can show that: (1) the defendant published to third parties words which are false; (2) that they refer to the claimant or his property or his business; (3) that they were published maliciously; and (4) that special damage has followed as a direct and natural result of their publication, except when Defamation Act 1952 s.3(1) applies, and in essence it will suffice to show that special damage was likely to have been caused.”

Malice was considered by the Court of Appeal in the context of a claim to (statutory) qualified privilege in Iqbal v Geo TV Ltd [2025] 2 WLR 663, when allowing the defendant’s appeal against the refusal of the judge at first instance to find that the claimant had no realistic prospect of succeeding at trial in establishing that the publications complained of had been made with malice. Warby LJ summarised the authorities as follows at [91]-[93]:

“91.

In the present context malice does not bear its ordinary meaning of spite, ill-will or animosity. So far as common law privilege based on interest and duty is concerned, the classic exposition of malice is that of Lord Diplock in Horrocks v Lowe [1975] AC 135, 149–150. The key points are these. Malice consists in abusing the privileged occasion for some dominant improper motive. Proof that the defendant lacked an honest belief in the truth of what was published – that it was published in the knowledge that it was untrue or with reckless indifference to whether it was true or not – will generally be conclusive evidence of such a state of mind. But recklessness is not the same as carelessness, impulsivity or even irrationality. And there are “exceptional cases” where a person may be under a duty to pass on defamatory reports made by another even if he believes them to be untrue.

92.

In two first-instance decisions mentioned by the judge, the court has noted that there have been few if any findings of “dominant improper motive” malice, describing it as an “endangered species”, and casting doubt on whether the Horrocks v Lowe analysis can even apply to reporting privileges: see Lillie [2002] EWHC 1600 (QB) at [1093] (Eady J) and Huda v Wells [2018] EMLR 7, paras 70–71 (Nicklin J). These were, however, obiter observations and neither case ruled out the possibility that a reporting privilege may be defeated by proof that the publisher knew the underlying statement to be true or was recklessly indifferent to its truth or falsity.

93.

The law takes a particularly strict approach to the pleading and proof of allegations of malice, treating them as akin to fraud. The principles have been established for over 150 years and repeatedly reaffirmed. Eady J summarised them in Seray-Wurie v Charity Commission for England and Wales [2008] EWHC 870 (QB) at [33]–[35]:

“the facts relied upon by a claimant, whether in a pleading or in a witness statement, must be capable of giving rise to the probability of malice, as opposed to a mere possibility … In order to survive, allegations of malice must go beyond that which is equivocal or merely neutral. There must be something from which a jury, ultimately, could rationally infer malice … Mere assertion will not do. A claimant may not proceed simply in the hope that something will turn up if the defendant chooses to go into the witness box …”

An allegation of malice must be pleaded with “scrupulous care and specificity”: Henderson v Hackney London Borough Council [2010] EWHC 1651 (QB) at [40], also a decision of Eady J.”

In my judgment, for the reasons given in [43] above, the Claimant’s pleaded case contained in the Particulars of Claim incontrovertibly falls far short of meeting these exacting criteria.

That leads on to consideration of whether the evidence improves the Claimant’s position.

Unsurprisingly, the evidence of the Defendant does not. At [74] of his 1^st witness statement, he states “I believed that what I wrote in the Email was true and I was not motivated by any intention to injure [the Claimant]. I believed that the Proposed Consent Order was wholly inappropriate as a next step in the proceedings, and that neither the Order itself nor [the Claimant’s] involvement in the litigation was in the interests of the shareholders”. He goes on to say, in summary, that he believed that the Claimant attempted to make a nuisance of himself in disputes in which he has no proper role in order to improve his position, that the Claimant’s motivation was opportunistic and selfish, that the Claimant’s conduct was likely to waste time and costs, and that the Claimant is a vexatious and abusive litigant. This evidence is, of course, verified by a statement of truth at the end of that witness statement.

In his 1^st witness statement, the Claimant states at [64] that the Defendant “knew that the statements [contained in the Email] were not true, and he was reckless regarding the truth of the statements”, and at [66] that the Defendant “used the opportunity to launch an attack on me personally” and that “His response was a vicious and malicious attack on my character”. The first of these statements is formulaic. The others consist of mere assertion. None of them, in my opinion, evidences a case on malice which is suitable to go to trial.

In his 2^nd witness statement, the Defendant returns to the topic of malice at [16]-[20]. Once again, much of this text consists of argument and forensic points. For example: “Opposing [the Claimant’s] position, or refusing to work with him, as he now attempts to characterise my conduct, cannot amount to a campaign or acting “maliciously” towards him. In order to succeed with a plea of malice, [the Claimant] would have to satisfy the Court, either that I used the occasion for some dominant improper purpose, or, more likely, that I did not honestly believe what I wrote. [The Claimant] has not even attempted to put forward a platform of facts from which such a conclusion could theoretically be reached, much less any positive proof of it”. Among other things, the Defendant states (at [19]) that “the public judgments regarding the [Company] litigation show reason on their face for me to have honestly held the view that I expressed in [the Email]”; and (at [20]) the Defendant makes reference to the judgment of Peter Smith QC and says “I can only go by what I have seen”.

In response to that, the Claimant includes text under the heading “Malice” at [17]-[23] of his 2^nd witness statement. At [18], the Claimant states (again, in terms that are formulaic and consist of pure assertion) “[The Claimant’s] communication was used for a dominant, improper purpose and the statements made by him were untrue and he knew that to be the case. His comments were knowingly untrue attacks on my reputation which caused and are likely to cause serious harm to me.” At [19], the Claimant says that he would like the opportunity to cross-examine the Defendant in relation to each of the “dozens of judgments” that the Defendant says are in the public domain concerning the Claimant and “what [the Defendant’s] state of knowledge of the judgment is and what steps he took to satisfy himself of the circumstances and truth of the outcomes”. However, I am unable to see how that expressed intention can support a properly triable case on malice in respect of the Email. At [20]-[21], the Claimant says that the judgment of Peter Smith QC is “under challenge”, that the Defendant knew this from meetings that he had with the Defendant, and that he believes that the Defendant has introduced this case (as I understand it, in the Defendant’s evidence in reply in the present proceedings) “maliciously and with a malevolent intent of discrediting me”. However, once again, I am unable to see how this assists to make out or support a properly triable case on malice in respect of the Email. Finally, in [25], by reference to [5] of the Particulars of Claim, the Defendant states “At the time of publication, [the Defendant] intended to damage my reputation in the eyes of the other shareholders” and “He knew or ought to have known the statements were untrue” - thereby alleging dominant improper purpose and knowledge of falsity in formulaic terms.

Mr de Wilde submits: (1) there is no factual basis whatsoever for the Claimant’s allegations of malice, which the onus is on him to establish either for the purpose of defeating a defence of qualified privilege, or for establishing a cause of action in malicious falsehood, and (2) this means that the Claimant can neither defeat the defence nor succeed on the claim. The Claimant submits (1) there is substance in the case on malice as set out in the Particulars of Claim and the witness statements, and (2) this is summarised in [5.7] of his Skeleton Argument (which sets out a series of propositions about the law on malice, such as “Malice is therefore defined as the absence of an honest belief in the truth of the statement or the presence of some improper motive for the publication going beyond the scope of the occasion’s purpose”, but does not contain any submissions on the contents of the evidence).

I have no hesitation in preferring the Defendant’s case on this issue. In my judgment, the Claimant has not shown that he has any real prospect that he will succeed in establishing malice on the part of the Defendant in connection with the publication of the Email. Nor, for completeness, is there any compelling reason why the determination of that issue should be disposed of at a trial. On the contrary, there is every reason to dispose of that issue now.