Reference:  EWCA Civ 716
Court: Court of Appeal
Judge: May P, Carnwith and Moore-Bick LJJ
Date of judgment: 23 Jun 2010
Summary: Defamation – Slander - Strike out - Summary judgment - Abuse of process – Qualified privilege – Reply to attack -Skeleton argument
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Aidan Eardley QC (Respondent)
Instructing Solicitors: Simons Muirhead & Burton for the Claimant; Davenport Lyons for the Defendants
An article in the Daily Mail reported that the Respondent (A), the former wife of the Sultan of Brunei, had accidentally dropped in the ladies lavatory of a London club a £1 million bracelet which was found and returned by the Appellant (K). K received, according to the Mail, ‘the generous reward’ of ‘a hug and a kiss’. A was aggrieved by the article, believing that it put her in a bad light for behaving ungenerously. The second Respondent (D), A’s retained solicitor, contacted the journalist who had written the offending article. K alleged that D made slanderous allegations against her in this conversation and in D’s subsequent correspondence with the newspaper, in particular that she was dishonest and had attempted to embezzle money from A.
Eady J struck out both claims. With regard to the first alleged publication, the conversation between D and the journalist, he held that D, as A’s authorised agent, could rely on A’s defence of qualified privilege (reply to attack) to speak out against defamatory attacks or to complain of alleged inaccuracies. As to the second publication concerning an alleged conversation between D and a third party, K’s claim in this respect was based on a ‘bare assertion’ not supported by any evidence. On the question of malice, the judge found that K’s pleaded particulars were insufficient to satisfy the requirements of establishing malice. Furthermore, under the jurisdiction of Jameel v Dow Jones & Co Inc, it was appropriate to strike out the claim as not amounting to a real or substantial tort, since there was no reason to believe that the K’s reputation was adversely affected by such minimal publication.
(1) Whether the judge had been correct to find that there was a plain defence of qualified privilege in respect of the first publication by D to the journalist.
(2) Whether the judge had been correct to conclude that K’s claim amounted to an abuse of process.
(3) Whether despite D’s denial, there was evidence that the second defamatory statement had been made, and that real damage had been caused.
Dismissing K’s appeal:
(1) The judge had been correct to hold that D’s conversation with the journalist was covered by qualified privilege. Even if the sting of the article about A was not defamatory, it was at least a disparaging criticism of her in the matter of the return of the bracelet that justified A in defending her position. Further, there was nothing to indicate that D’s retainer did not give him general authority to act on behalf of A which extended to defending her against disparagement in the media. As to malice, K had not produced sufficient evidence to establish a dominant improper motive on the part of A or D to injure her.
(2) The judge had been correct to conclude that K’s claim was disproportionate and that it should be struck out as an abuse. Following Jameel v Dow Jones & Co, it was necessary to establish that there was a real and substantial tort. Here there was no evidence to suggest that the first publication went beyond the journalist and no evidence of loss being caused and as a consequence the claim was properly struck out.
(3) The judge had been entirely correct to conclude that there was insufficient evidence to support the making of the second publication complained of. While it is true that a claimant is entitled to have a material issue of fact decided by a jury, it is for the judge to decide whether there really is such an issue. If the judge decides, as he properly did here, that the evidence, taken at its highest is such that a properly directed jury could not reach a necessary factual conclusion, then he is entitled to withdraw it from the jury – applying the summary judgment jurisdiction under Alexander v Arts Council of Wales, and R v Galbraith.
The case represents a good example of the application of the Jameel v Dow Jones doctrine. The courts, at both first instance and in the Court of Appeal, considered that the claimant would at best have recovered minimal damages at huge expense to the parties and of court time. In the circumstances, striking out what were no doubt expensive and hostile proceedings was appropriate. As well as contributing to the developing Jameel abuse jurisprudence, the decision also contains some interesting comment on the ambit of the reply to attack variant of common law qualified privilege.
By way of final comment, the judgments contained comments on the increasing length of skeleton arguments. It was cautioned that excessive written submissions would have the effect of diminishing the important tradition of oral advocacy.