Downtex v Flatley

Reference: [2003] EWCA Civ 1282

Court: Court of Appeal

Judge: Potter & Chadwick LJJ and Cresswell J

Date of judgment: 2 Oct 2003

Summary: Defamation - Civil procedure - Summary disposal - Summary judgment - s8 Defamation Act 1996- Qualified Privilege - injunction

Instructing Solicitors: Halliwell Landau for the Claimant. The Defendant appeared in person.


The Defendant company wrote letters to the Claimant company’s suppliers suggesting the Claimant was in financial difficulties and that it was appropriate to call a creditors’ meeting. The Claimant applied for summary disposal of the claim and an injunction against repetition under s.8 Defamation Act 1996. Elias J dismissed the application, holding that it was premature to rule on the defence of qualified privilege raised by the Defendant or to summarily dispose of the claim. The Claimant appealed.


Whether the defence of qualified privilege had any realistic prospect of succeeding.


The Defendant’s concerns over the Claimant’s financial position were not objectively justified. There was no reciprocity of interest sufficient to support the existence of a privileged occasion. The Defendant’s defence of qualified privilege was bad in law. The Claimant was entitled to judgment for damages.


In appropriate cases – i.e. ones in which the indisputable or agreed facts are clear – the Court can engage on a detailed analysis to ascertain whether a defence of qualified privilege has any prospect of success.