Davies v WM Morrison Supermarkets plc
Reference:  EWCA Civ 594
Court: Court of Appeal
Judge: Auld, Sedley,and Leveson LJJ
Date of judgment: 25 Apr 2007
Defamation - Qualified privilege - Malice - Evidence of malice - Strike out - Fresh evidence - Adjournment - Appropriateness of striking out
Instructing Solicitors: RJ Hawksley & Co for the Appellant; Gordons for the Respondent
The Claimant was a delivery driver for TDG plc. On 17 December 2003 he was delivering goods to the Defendant’s distribution depot in Wakefield. He had unloaded the goods and was awaiting their being checked. An argument developed between the Claimant and the employees of the Defendant. In the result, the delivery note was taken into the Defendant’s office and in due course returned with the words "goods unchecked" but with the additional words "driver banned from any Morrisons site" written upon it. The Claimant passed the delivery note on to TDG as he was obliged to do. He brought proceedings for libel. The Defendant applied to HHJ Previte QC to strike out the claim on the basis that the publication was clearly protected by qualified privilege and the Claimant’s plea of malice was hopeless. The Judge acceded to the application and struck out the claim. The Claimant appealed.
whether the claim should have been struck out
Allowing the appeal:
(1) the Judge should have been slow to strike out the claim on the basis of evidence relevant to the malice plea that had been delivered at the hearing and to which the Claimant had had no opportunity to respond. If the Claimant could demonstrate – in accordance with his pleaded case – that the words had been written by an employee of the Defendant out of spite following the argument, then that disclosed a proper case of malice for which the Defendant could be vicariously liable (see Egger v Viscount Chelmsford  1 QB 248).
(2) it was essential that the case was sent for mediation and, failing that, the Court was minded to transfer the case to "an appropriate county court" for further hearing.
The Court thought that the matter had developed into "a storm in a teacup" and indicated that mediation should be explored. In any even, the Court of Appeal transferred the action to Leeds County Court. Whether transferring libel claims involving claims of vicarious liability for malice to a County Court is a prudent suggestion was not explored in the judgment and it would appear, perhaps, to conflict with the provisions of Part 30 of the CPR, regarding the desirability of transferring cases to courts where there are specialist judges available. No County Court has a designated judge who specialises in defamation. Few even have facilities for jury trial.