Hughes v Risbridger & British Airways Plc
Reference:  EWHC 3244 (QB)
Court: Queen's Bench Division
Judge: Mr Justice Eady
Date of judgment: 9 Dec 2009
Summary: Libel - Qualified privilege - Malice - Summary judgment - Amendments
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Instructing Solicitors: Sahota Solicitors for the Claimant; Addleshaw Goddard for the Defendant
C, who was employed by British Airways in a senior cabin crew position, was found to be in possession of 12 miniature bottles of whisky by a customs officer. C admitted taking the minatures but did not admit theft offering the explanation that he had forgotten to pay.
C sued in respect of a number of internal emails which asserted that C had admitted to theft. D1, a former police detective sergeant, admitted that he was mistaken about the admission of theft. It was not disputed that the emails were subject to a defence of qualified privilege, but C pleaded malice and sought to prove that the attribution to him of theft was dishonest. Additionally C sought to amend his particulars of claim to include further unspecified publishees who might read the words complained of, and to contend that qualified privilege would not extend to publication to them. The Ds sought summary judgment on the basis that the malice plea had no real prospect of success.
(1) Whether the plea of malice had any real prospect of success;
(2) If it did, whether the late amendments should be allowed.
Refusing the applications
(1) Although it may be that D1 was merely careless rather than malicious, a fact finding tribunal would not be perverse to come to the conclusion that D1 made an allegation about the C which he knew to be false, namely that he had admitted dishonesty.
(2) C’s proposed amendment was too vague to justify amendment at such a late stage of the proceedings. Where there is an intention to add publishees, the appropriate course is to plead individuals and, where necessary, to add the circumstances from which it is to be inferred that the additional publication took place.
Malice is very difficult to establish, but as this judgment illustrates, it will not be struck out (or summary judgment granted) where there is a proper basis for alleging that the defendant published something which he must have known to be untrue. Here the First Defendant had imputed to the Claimant a statement (the admission of theft) that he must have known the Claimant had not made and accordingly the court found there was at least a proper basis for alleging dishonesty and malice on his part.