Reference:  EWHC 3252 (QB)
Court: High Court, Queen's Bench Division, Media & Communications List
Judge: Jay J
Date of judgment: 2 Dec 2021
Summary: Libel - Publication of reasons for exclusion of individuals from mosque - Qualified privilege - Duty/interest - Reply to attack - Malice - Summary judgment
Download: Download this judgment
Appearances: Richard Munden (Defendant)
Instructing Solicitors: BLM for Ds; Patron Law for Cs.
Cs were 2 brothers and their father, who attended Exeter Mosque. Ds were the Trustees of the Mosque. The Trustees, along with the Mosque’s Executive Committee, proposed to exclude Cs from the Mosque and wrote to them setting out 24 paragraphs of reasons. They invited Cs to a meeting to discuss the proposal. Prior to the date of the meeting, Cs handed out leaflets critical of the Trustees and their proposed exclusion, contending that it was really merely because Cs were asking questions about the Trustees managment of the Mosque. C1 also made critical comments in an interview on BBC Radio Devon, and on social media. The meeting did not go ahead as planned as Cs refused to attend without a group of non-Muslim guests, and the Trustees and Executive Committee refused to allow these 3rd parties to attend. The Trustees and Executive Committee resolved to exclude the Cs. A member of the Executive Committee drew up an explanation of the reasons for the exclusion, which was published on the Mosque noticeboard, Facebook page and in leaflets handed out after Friday prayers.
Cs sued for libel. Ds served a Defence pleading qualified privilege (duty/interest and reply to attack), truth and honest opinion. Cs served a Reply taking issue with each of the defences and alleging malice (as lack of honest belief and/or dominant improper motive).
Ds applied to strike out the claim and/or for summary judgment in respect of the qualified privilege defence. Cs cross-applied to amend their Reply in respect of qualified privilege and malice.
Whether Cs had any real prospect of:
(1) defeating the defence of qualified privilege in its duty/interest form:
(2) defeating the defence of qualified privilege in its reply to attack form; or
(3) establishing malice.
Granting Ds summary judgment:
(1) Cs had no real prospect of resisting the application of duty/interest qualified privilege. Ds were under a duty to publish the reasons for excluding the Cs from the Mosque. The great mass of right-minded or right-thinking people would believe that those responsible for running this Mosque were under a duty to explain to the congregation why they were taking this somewhat draconian action. There was reciprocity of interest in relation to the proper running of the Mosque and the exclusion decision. The congregation had an interest in knowing why the decision was being made, and the Trustees had a corresponding duty to explain it. It was plain from the minutes of the relevant meetings that the publications complained of were made in the context of the expulsion decision, and no other.
(2) Reply to attack privilege was also bound to succeed. Ds clearly believed that answers needed to be given to Cs’ public defamatory attacks upon them, and the publications complained of were made in that context. Part of Cs’ attack was that Ds had no legitimate basis for excluding them, so the explanation of their reasons for exclusion was within the scope of the reply to that attack. Cs were not genuinely acting in anticipation of any public attack on them (and even if they had been this would not have removed the privilege from Ds replies to the public attacks upon them).
(3) Cs did not have a real prospect of establishing malice. The case in respect of knowledge of falsity was limited. 2 of the 3 particulars related to an earlier letter rather than the publications complained of, and the contention that Ds must have known that these allegations were baseless was bare assertion which was very difficult to sustain. The remaining point, that particular matters were not raised at 2 particular meetings, did not support the necessary inference of dishonesty.
As to dominant improper motive, this species of malice was close to extinction; the contemporaneous documents indicate that the Ds believed that they had a solid basis for expelling the Cs, and Cs had not put in evidence to dispute that; the tone of Ds’ publications’ were measured and balanced (in contrast to the vituperative tone of the Cs’ public statements); Cs had no documentary evidence at all to support their alleged improper motive; and ultimately there was no basis for asserting that Ds’ explanation of their reasons for the exclusion were a smokescreen for any others.
Cs contention that Ward v Associated Newspapers Ltd (No 2)  EWHC 641 (QB) changed the legal landscape or meant that summary judgment should not be granted in respect of malice was rejected.
Cs arguments as to ‘reply to attack’ privilege included what the Judge considered an ‘ingenious’ submission that Cs’ own public attacks on Ds had been in anticipation of attacks upon them by Ds, and that therefore it was their own publications that were a ‘reply to attack’, and that Ds publications, in answer to that ‘reply’, should not be protected. This submission combined two uncertain propositions: (1) that a reply to an anticipated attack is privileged; and (2) that a rejoinder or ‘reply to retort’ is not privileged. The first proposition was held by Sir Maurice Drake in Bhatt v Chelsea and Westminster NHS Trust (unreported, 16th October 1997) but doubted by Bean J in Bento v Chief Constable of Bedfordshire Police. The second has only been held at first instance in Victoria, Australia (Kennet v Farmer  VR 991), although even in the Australian courts it has been noted that its scope remains uncertain: see Echo Publications Pty. Ltd. v. Tucker  NSWCA 73 at . Even if one accepts each proposition in isolation to have some merit, the combination of the two would seem particularly unfair, leading to the privilege of B replying to an attack by A being dependent upon A’s state of mind (whether A had anticipated an attack by B); and contrary to policy in that it would positively encourage pre-emptive strikes, while depriving the audience of A’s attack from hearing B’s reply. The Judge ruled that on the facts Cs had not been anticipating an imminent attack, but indicated that he would if necessary have gone further than Bean J in rejecting ‘reply to anticipated attack’.