Reference:  EWHC 1263 (QB);  EMLR 12
Court: Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 12 Jun 2008
Summary: Defamation - Libel - Qualified privilege - Malice - Anonymity of witnesses
Download: Download this judgment
Andrew Caldecott QC - Leading Counsel (Defendant)
Jane Phillips (Defendant)
Instructing Solicitors: Lewis Silkin for C, Clifford Chance for D.
Following a take-over by D of the bank that employed C, C was employed by D between 1999 and 2001 in a private client tax role. After C had left this role, 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. C advanced a case of malice against the management board of D and 2 managers said to have been responsible for the parts of the press release that gave rise to the claim. D pleaded common law qualified privilege, based on publication in line with financial regulation. D brought a wide-ranging application for summary judgment.
(1) there was any real prospect of defeating qualified privilege;
(2) there was any real prospect of demonstrating that the two managers had published the statements complained of;
(3) the malice plea advanced against members of D’s board was fit to go to a jury.
Dismissing two of the applications and allowing the claim to go forward to trial,
(1) Duty/interest qualified privilege did not expire with the passage of time between the relevant period for the press release’s publication and later, fresh publications of it on databases. The law would be rendered unworkable by such a principle.
(2) Mere denials of the two managers’ involvement was insufficient. No explanation for how the publication had come about was given by D and C’s case on their involvement was not incredible but probable and C’s case on this point could proceed to trial.
(3) There was no sustainable case on malice on the part of D’s board members.
Besides the novel discussion regarding the effect of the passage of time on the protection afforded to a publication by common law qualified privilege, this summary judgment application is notable as a further example of anonymity being granted to witnesses in defamation proceedings—on this occasion because the allegations put forward in the Particulars of Claim were judged to be of career-threatening seriousness for those they were made against.