Full case report

Hayter v Fahie

Reference [2008] EWCA Civ 1336
Court Court of Appeal (Civil Division)

Judge Sir Anthony May (President QB), Wilson and Rimer LJJ

Date of Judgment 28 Oct 2008


Defamation – Libel – Qualified privilege – Malice – Summary judgment


H and F were former business partners. Following a dispute, F had written to the Department for Constitutional Affairs complaining that H was misusing his status as a magistrate and that H had been arrested and bailed for paying a fraudulent cheque into his private account. F relied on qualified privilege and H alleged malice. H was granted summary judgment. F appealed.


Whether a contested issue of malice in a defamation action could properly be determined against a defendant at a summary judgment hearing.


Allowing the Appeal, the Judge should not have found malice on H’s part at the summary judgment hearing. The court formally reserved the question whether the issue of malice could be decided against a defendant in summary judgment proceedings. Sir Anthony May observed: “In theory it might be possible, but scarcely I think, where a real issue turns on the defendant’s state of mind and a credibility judgment is required.”


Although the Court of Appeal did not totally rule out the possibility of a Claimant obtaining summary judgment on the issue of malice, the case makes it clear that where state of mind is in issue – as it will be in most instances where malice is pleaded – the matter should be left to the jury.

Instructing Solicitors

David Price for F; the Respondent H in person.


Judgment of Keene LJ granting permission to appeal