Henderson v The London Borough of Hackney & The Learning Trust
Reference:  EWHC 1651 (QB)
Judge: Eady J
Date of judgment: 8 Jul 2010
Summary: Libel - Qualified privilege - Meaning - Malice - Summary judgment - Strike out - Abuse of process - Section 5, Defamation Act 1952
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Victoria Jolliffe (Defendant)
Instructing Solicitors: The Learning Trust for the Second Defendant
The Claimant (H), brought a libel claim against D1 and D2 in respect of a referral letter notifying a third party authority of C’s dismissal from her employment. C had been employed as an Inclusion Manager at a School and had been dismissed for gross misconduct following a finding by the school’s internal disciplinary panel that she had accessed and viewed emails with explicit pornographic content during school hours, and on one occasion used the school’s computer system to forward a pornographic email attachment to a colleague. In a letter referring the matter to the relevant authority, as required by statute, an employee of D2 had written that C had been “dismissed… for gross misconduct in employment involving sexual harassment through the possession and display of explicit pornographic works at school” . C did not deny the conduct involving the emails but brought the action based on the allegation of sexual harassment. C’s case against D1 was discontinued. D2 relied on justification and qualified privilege. After service of a Reply alleging malice, C issued an application for rulings on meaning and consequential orders for strike out /summary judgment on the justification defence. D2 applied for a ruling on qualified privilege (conceded by C at the hearing), and summary judgment on the issue of malice.
(1) Whether the words were capable of bearing D2’s Lucas-Box meaning, and if so, whether D2 had a real prospect of justifying that meaning;
(2) Whether C had a real prospect of establishing malice.
(1) Dismissing C’s application: D2 should not be deprived of the opportunity of arguing a s.5 defence at trial on the basis that the reference to “sexual harassment” could be said to add a separate and distinct sting to the allegations.
(2) The action should be struck out. As a matter of pleading practice, allegations of malice must go beyond that which is equivocal or merely neutral. Mere assertion will not do. A claimant may not proceed simply in the hope that something will turn up if the defendant chooses to go into the witness box, or that he will make an admission in cross-examination. It was not right that a judge should presume that formulaic assertions would be provable at trial. Where malice is alleged against a corporate entity, the individual person or persons acting on its behalf and who are said to have been malicious as individuals must be clearly identified. Publication was plainly on an occasion of qualified privilege. On the facts it was quite unrealistic to suggest that the facts were more consistent with malice than with its absence and there was no solid basis for pleading that D2’s employee had a dominant motive to give vent to her personal spite and ill will towards C.
The case demonstrates the high burden placed on a claimant who wishes to plead malice. Eady J observed, that in light of the very limited publication and the uncontested facts this was a case where an abuse of process application might have been expected. The judge’s comment suggests that even where a defendant appears to have a strong alternative basis for striking out the claim, the court encourages double-barreled applications.