Full case report

Howe & Co v Burden

Reference [2004] EWHC 196 (QB)
Court Queen's Bench Division

Judge Eady J

Date of Judgment 11 Feb 2004


Summary

Defamation- Slander- Summary judgment – Abuse of process -Qualified privilege -Malice- Consent


Facts

The Defendant had been employed by the Claimant law firm. The Claimant complained of allegations made by the Defendant in recorded telephone conversations with a fellow employee that the Claimant (and one of its partners in particular) had regularly conducted itself in respect of public funding in ways that were professionally improper and tantamount to criminal offences. The conversations had been initiated by the other employee, allegedly with the partner’s consent, with a view to getting the Defendant to repeat on tape allegations that she had previously made to the employee. The Defendant relied on qualified privilege and consent. The Claimant pleaded malice. The Defendant applied for summary judgment.


Issue

Whether summary judgment should be granted in favour of the Defendant, on the grounds either of abuse of process, or that the defences of qualified privilege and consent were bound to succeed.


Held

There were reasons to believe that the Claimant had used the Court’s process in an oppressive manner, but there had been no abuse of process. The Defendant had a strongly arguable defence of qualified privilege, but it was not appropriate to grant summary judgment, particularly when the case on malice had not yet properly been set out. Nor was it appropriate to grant summary judgment on the issue of consent, given that it would not be perverse for a jury to find that the other employee had not been acting with the partner’s authority, and that it was generally not appropriate to do so when the relevant law was uncertain or in a state of development.


Comment

“The game is not worth the candle” was Eady J’s basis for dismissing the claim in Schellenberg v BBC [2000] EMLR 296. However, the Judge has clarified that those remarks were particular to that unusual case and that “it would not be right to elevate that phrase into a general principle of some kind to be applied in other libel actions.”


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Instructing Solicitors

Howe & Co for the Claimant. David Price & Co for the Defendant.