Full case report
Jan Cambridge v Guillermo Makin
Reference  EWHC 12(QB)
Judge Mr Justice Tugendhat
Date of Judgment 12 Jan 2011
Libel – trial – judge alone – justification – qualified privilege – malice – joint tortfeasors – damages
The Claimant worked as a Public Services Interpreter (PSI). She was a non-executive director of the National Register of Public Service Interpreters Ltd (NRPSI). The Defendant was also a PSI. He opposed the policies supported by the Claimant in her position as a director of the NRPSI. He sought to have her removed from that position by means of a motion of no confidence which he proposed against her. His intention was to replace her as a director of the NRPSI.
The motion was due to be debated and voted upon at the AGM of the Chartered Institute of Linguists on 19 May 2007. The Defendant campaigned against the Claimant by sending out emails to an address list of some 925 persons. On 7 May 2007 he sent out an email which held the following meaning (as agreed between the parties): ‘the Claimant abused her position as a director of NRPSI by acting on a conflict of interest, namely overseeing the sale of NRPSI members data to a commercial agency, CINTRA, in which she was privately interested and from which she stood to and did personally benefit.’
The claim had originally also been brought against the trade union the GMB as a joint tortfeasor. The GMB settled the claim against it in September 2009 by making a statement in open court and paying costs and 30,000 in damages to the Claimant.
(1) Justification: were the words complained of substantially true.
(2) Qualified privilege: (a) to what categories of person was the email published (b) publication to which of those categories was protected by qualified privilege.
(1) The justification defence failed on the evidence.
(2) The Claimant conceded that any publications to those persons who were entitled to vote on the motion would be protected by qualified privilege. The court rejected the Defendant’s case that qualified privilege also protected the publication of the email to two other categories of publishee: (a) those who worked as interpreters in the criminal justice system and were affected by the issues underlying the motion of no confidence; and (b) members of professional associations concerned with the issues underlying the motion of no confidence.
(3) The judge found that the Defendant had not believed what he wrote in the defamatory email; he did not care whether it was true or false. Therefore he found that he had acted with malice in the sense set out by Lord Diplock in Horrocks v Lowe  AC 135 at 150: “what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, “honest belief”. If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false.”
(4) An allegation that a director had abused her position to prefer her private interests over her duties as a director was a serious libel. The allegation had been published to members of her own profession. A professional person’s reputation amongst her colleagues would be precious to her. The libel caused the Claimant great distress; it was a personal allegation. Serious professional damage was likely to have resulted from the publication of the email. It was necessary to take into account the fact that the Claimant had already received £30,000 in damages from the GMB for its role in the publication of the email. Taking all of these factors into account, the Defendant was to pay the Claimant £30,000 in damages.
It is notable that the Defendant was found to have acted with malice by reason of publishing an allegation which he did not believe to be true. Such findings are rare.
Kirwans for the Claimant; Collyer Bristow for the Defendant
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.