Reference:  EWHC 1342 (QB)
Court: Queen's Bench Division
Judge: Gray J
Date of judgment: 18 May 2006
Summary: Libel - Internet publication - Qualified privilege - Common interest - Whether Defendant in existing relationship with members of closed website or an officious bystander - Whether Defendant could rely on fair comment defence solely in mitigation of damages
Instructing Solicitors: Pinsent Mason for the Claimant; Mace and Jones for the Defendant
C was General Secretary of the Trade Union for sub-postmasters. D had given up his sub-post office and ceased Union membership, but was allowed to have continued access to a closed website forum used by Union members to exchange views. D caused to be published on the site a defamatory email which contained a mix of allegation and critical comment, all pertaining to C.
(1) Was an ex-union member protected by qualified privilege on a common interest basis for publication of defamatory words to union members on a closed website (accessible only to union members and ex-members with special permission from the moderator of the site)?
(2) Could a defendant raise a partial defence of fair comment in mitigation of damages – partial in sense that fair comment defence could not, even if made out, be a complete defence to the words complained of as a whole?
(1) As D was no longer a Union member he did not share a common interest in Union affairs with current members: Kearns v Bar Council . He had no legitimate interest to be protected: Watt v Longsdon  1 KB 130.
(2) D could advance a partial defence of fair comment, provided it was clear that this was what he was doing and it was only being relied on to mitigate the damages. There are dicta in Control Risks v New English Library  I WLR 183 CA which indicate that a partial defence of fair comment is permissible for this purpose.
As it was not an “off the peg” common interest case (there being no existing relationship) the Court could look at the surrounding facts to see if QP was merited. It was not, since D had jumped the gun on an ongoing inquiry which he had initiated before leaving the Union.
It is not permissible to advance a partial plea of justification in mitigation of damages, so arguably Control Risks is per incuriam in suggesting that a partial defence of fair comment is permissible for this purpose.