Full case report

Bowker v RSPB

Reference [2011] EWHC 737 (QB)
Court Queen's Bench Division

Judge Sharp J

Date of Judgment 25 Mar 2011


Summary

Defamation – Libel – Defamatory meaning – Mode of trial – Summary judgment – Qualified privilege – Malice – Scientific issues


Facts

The C were specialists in grouse fieldwork and research, and were retained by D to carry out grouse fieldwork in Wales between 1997 and 1999.  They carried out further studies into grouse predation for Severn Trent Water at Lake Vyrnwy between 2000 and 2003.  The Cs, along with a scientist from the Game Conservancy Trust, wrote a paper setting out their conclusions on grouse predation at Lake Vyrnwy in a paper which was published in 2007 in the journal Wildlife Biology.

A scientist employed by D wrote an email critical of the Cs’ work and sent it, along with a critique of the Cs’ paper written by another scientist , to a number of individuals within D. This email and critique were also published to at least two persons outside of D, reaching the Cs via the Game Conservancy Trust. A Director of D wrote a letter to two individuals at Severn Trent Water making similar criticisms.

The Cs sued for libel in respect of the publication of the email, the critique and the letter.

D applied for summary judgment, alternatively a ruling that any trial should be by judge alone and a declaration as to the meaning of the the words complained of.


Issue

(1) Whether the words were capable of bearing the meanings complained of or any meanings defamatory of the Cs;

(2) Whether, if the matter were to proceed to trial, it should be tried by judge or jury;

(3) Whether D should have summary judgment on the issue of qualified privilege;

(4) Whether D should have summary judgment on the issue of malice;

(5) Whether there was any other reason why the case should be tried


Held

Granting D summary judgment upon the claim:

(1) The words were not capable of bearing the meanings complained of. They were an attack on the Cs’ methods but did not impute incompetence, negligence, recklessness or dishonesty to them. The words in the email and letter were however arguably defamatory of the Cs: Drummond-Jackson v British Medical Journal [1970] 1 WLR 688 considered.

(2) Applying s.69 (1) of the Senior Courts Act 1981 the case involved a scientific investigation which could not conveniently be made with a jury. It should be tried by judge alone. The application for summary judgment could therefore be considered using the lower threshold applicable to claims to be tried without a jury: Bray v Deutsche Bank.

(3) There was no realistic prospect that the Cs would defeat the defence of qualified privilege. The court could assess the case on publication on the evidence as it currently stood. It is plainly for the common convenience and welfare of society (subject of course to the issue of motive or honesty) that persons within D should be free to communicate their concerns internally about the merits or otherwise of a study which had been published in a peer-reviewed scientific journal relevant to the work of the organisation itself. C1’s evidence as to the lack of interest in certain of the publishees in the content of the words did not create a material factual issue for determination. Those few individuals outside D who had been shown to have received the words also had a legitimate interest in receiving it.

(4) The plea of malice did not pass the high threshold required even on an application for summary judgment. It contained a number of serious allegations against the authors of the words which, even if made good, were not more consistent with dishonesty than with its absence. In particular, even if the Cs were able to prove that the authors had previously endorsed the Cs’ methods, this could not lead to a rational conclusion that they were dishonest in expressing a different, or contradictory view about those techniques many years later.

(5) There was no other compelling reason for a trial of the claim.


Comment

A robust judgment in which the Court’s approach to the issues of meaning, privilege and malice was informed by the principle that courts should be slow to permit parties to seek to settle disagreements about scientific matters through litigation: see British Chiropractic Association v Singh.


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Instructing Solicitors

Cs by public access; Bird & Bird for the D