Bray v Deutsche Bank AG (No 2)
Reference:  EWHC 1356 (QB);  EMLR 12
Court: Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 18 Jun 2009
Summary: Libel - Part 24 - Publication - Successive Part 24 applications - Malice - qualified privilege - preliminary issues
Instructing Solicitors: Lewis Silkin LLP for C; Clifford Chance for D
After C had left a tax role at D, D published a press release which C claimed bore a meaning that he had been responsible for allowing illegal tax related transactions which had led to lower earnings for the bank. D originally made a summary judgment application in June 2008 arguing that X & Y, two managers said to have been responsible for the press release, did not cause or authorise publication, which was dismissed on the basis that mere denial of involvement was not enough. The bank made a second application on the same issue in February 2009 substantiating its case on publication by X & Y with disclosure, along with an application to strike out an amended malice plea.
(1) Summary judgment should be entered for the Defendant on the issue of publication;
(2) The amended case on malice, that A, a senior banker, contributed to the drafting of the words complained of should be struck out;
(1) The contemporaneous documents disclosed by D, which purported to reveal a lack of involvement of X & Y, did not show C had no real prospect of proving malice and did not contradict that case.
(2) The plea of malice directed at A, a senior banker, had no real prospect of success as it could not be demonstrated that A knew or intended a particular meaning be conveyed.
This case remains notable for the anonymity granted to witnesses in a libel action and for the Judge’s comments regarding interlocutory applications representing “second bites of the cherry”. There was no abuse of process, on the evidence before the court, but the successive nature of the application would have been taken into account on costs had the application been allowed.