Reference:  EWCA Civ 85
Court: Court of Appeal (Civil Division)
Judge: Hughes, Black and Tomlinson LJJ
Date of judgment: 9 Feb 2012
Summary: Defamation - libel - qualified privilege - malice
David Hirst (Appellant)
Instructing Solicitors: Kirwans LLP for Cambridge, Messrs Collyer Bristow LLP for Makin
The Appellant had been found liable in defamation at trial and ordered to pay £30,000 in damages for publishing an email to approximately 900 people which the parties agreed bore the meaning that: ‘the Claimant abused her position as a director of NRPSI [National Register of Public Service Interpreters] by acting on a conflict of interest, namely overseeing the sale of NRPSI members data to a commercial agency, CINTRA, in which she was privately interested and from which she stood to and did personally benefit.’ The email was sent as part of a campaign by the Appellant to encourage support for a motion of no confidence proposed by him against the Respondent in her performance as a non-executive director of NRPSI.
A defence of justification failed at trial and this finding was not appealed.
It was conceded by the Respondent that publication to those who could vote on the motion of no confidence was made on occasion of privilege. However, this was defeated by the malice of the Appellant. Communication to two other categories of recipient, who could not vote on the motion of no confidence but who worked as interpreters in the public sector, as did both parties, was held not to be privileged on the grounds that the Appellant had not verified the information which was not the finding of an authoritative investigation nor given the Claimant opportunity to comment. The Appellant appealed against this finding and the trial judge’s finding that he had published the emails without any honest belief in their truth i.e. maliciously.
(1) Was the judge right to find that the communication to those two categories of recipient who could not vote on the motion of no confidence was not on an occasion of qualified privilege?
(2) Was the judge right to find that the Appellant had acted with malice?
(1) The judge was right to find that no privilege attached to the communication to those who could not vote on the motion of no confidence:
(a) Where common law qualified privilege is claimed and no pre-existing relationship exists between the parties in question, the court must look at all the circumstances to establish whether a duty or interest giving rise to qualified privilege is established.
(b) One of the factors which may be relevant is whether steps have been taken to verify the information being communicated. This does not just apply in the circumstances where publication is to the world at large and Reynolds privilege is claimed. This will not be a decisive factor but one amongst all the relevant circumstances — verification and opportunity to comment may be relevant to common law qualified privilege where there is no pre-existing relationship.
(c) On the facts the judge was right to find that there was no privilege for the allegations complained of. Publishees could not be interested by virtue of working as interpreters in the public sector.
(2) The judge could and was right to find malice in the sense set out by Lord Diplock in Horrocks v Lowe  AC 135. The Appellant did not honestly believe the information to be true. He could not have believed the allegation on the evidence before him.
This judgment confirms the finding in Kearns v General Council of the Bar  EWCA Civ 331 that it may be easier to consider the distinction between communication where there is existing relationship and where there is no existing relationship, than that between duty-interest and common interest.
The Court of Appeal gives guidance on how to approach cases where common law qualified privilege is claimed where there is no existing relationship: all the relevant circumstances should be considered, including whether any attempt has been made to verify the information being communicated. This was appropriate in cases on the spectrum between communications within existing relationships and those to the world through the media. The decision would seem to have implications for volunteered statements outside established relationships and whistleblowers.
The Court of Appeal upheld the finding of malice; that the Appellant did not believe the information to be true. As noted when the case was reported at first instance, such a finding is rare.