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

Mr de Wilde began his submissions under this head by referring to some general and uncontroversial statements of the law, beginning with Gatley at 15-005 (citations omitted):

“The occasions [of qualified] privilege can never be catalogued and rendered exact, but the tendency of the courts has been to regard most privileged occasions under the common law as very broadly classifiable into two categories: first, where the maker of the statement has a duty (whether legal, social or moral) to make the statement and the recipient has a corresponding interest to receive it; or, secondly, where the maker of the statement is acting in pursuance of an interest of his and the recipient has such a corresponding interest or duty in relation to the statement, or where he is acting in a matter in which he has a common interest with the recipient.”

In the same passage, the authors of Gatley refer, as did Mr de Wilde, to two formulations which have become “almost canonical” in this area of the law:

Mr de Wilde developed his submissions on qualified privilege under three heads: (i) protection of interests, (ii) answers to enquiries, and (iii) communication sent in the course of proceedings. However, I consider that it is sufficient to refer to the first of these alone.

In this regard, two authorities are cited in Gatley, at 15-011:

At 15-046, under the heading “Other common interests”, the authors of Gatley state (omitting citations): “Any other legitimate common interest will also be protected.Any continuing transaction is likely to give rise to such an interest in the parties concerned.”

Mr de Wilde cited further authorities, but I do not consider it necessary to refer to them.

Mr de Wilde submitted, and I agree, that: “It is difficult to conceive of a more obviously privileged occasion than, in the course of proceedings, the publication of views concerning contentious proposals for resolution of the dispute, where those views are sent both to the opposing side and those on the same side of that dispute”. Mr de Wilde emphasised that, as the Defendant’s evidence explains, and as is self-evident from the undisputed circumstances in which the Email was sent: (1) in publishing the Email, the Defendant was protecting his business or commercial interests in the ongoing dispute concerning the liquidation of the Company, and his interests relating to litigation in which he was involved (or at least his interests were involved), and (2) the recipients had a reciprocal business or commercial interest, and one further arising from the litigation itself, in the subject matter of the Email, which included protecting the Defendant and the publishees from the Claimant’s ongoing involvement in the dispute, and resisting the Claimant’s proposals relating to the litigation in respect of the judgment of ICCJ Jones and his prospective appeal.

Mr de Wilde further submitted, with some force in my view, that, although the Claimant only complains about three distinct defamatory imputations, and although it was unnecessary for the Court to grapple with issues of determination of meaning for the purposes of the present application, the Email, when read as a whole: (1) is primarily a response to the Proposed Consent Order and contains the Defendant’s opinion about the merits of the Claimant’s proposal in the context of the litigation, all of which is indicative of its status as opinion, (2) conveys to the recipients that the Proposed Consent Order should not be agreed, contending among other things that the Claimant’s involvement in the disputes concerning the Company is not in the interests of shareholders and is so universally objectionable that a previously divided group has become united against him, and (3) only bears any meaning(s) along the lines contended for by the Claimant against the background of its wider content, namely that it was responding to the Proposed Consent Order.

The Claimant’s evidence contained in his 1^st witness statement was such that in [15] of his 2^nd witness statement the Defendant observed that “[the Claimant] does not appear to dispute my contention that [the Email] was sent on an occasion of qualified privilege, including my detailed account of the circumstances surrounding its sending, and of its content”. In response to that evidence, the Claimant said at [15] of his 2^nd witness statement: “I do not accept that [the Defendant’s] communication was sent on an occasion of qualified privilege. Neither [he] nor the other shareholders were parties to the litigation”. Neither this evidence nor the written and oral submissions that the Claimant addressed to me on the subject of privilege persuaded me that there is any answer to Mr de Wilde’s submissions.

In my judgment, the issue of whether the Email was published on an occasion that was protected by qualified privilege is properly susceptible to summary judgment in accordance with CPR 24.2. The necessary reciprocity of interest was manifestly in existence. The Email was plainly published on such an occasion. The Claimant has no real prospect of succeeding on the issue. There is no other compelling reason why the issue should be tried.