Rackham v Sandy & Others (No.2)
Reference:  EWHC 482 (QB)
Court: Queen's Bench Division
Judge: Gray J
Date of judgment: 23 Mar 2005
Summary: Defamation - Libel - Trial - Qualified Privilege - Malice - Damages
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Adrienne Page QC - Leading Counsel (Defendant)
Jane Phillips (Claimant)
Instructing Solicitors: Carter-Ruck for the Claimant; Olswang for the Defendants
Libel trial in respect of a letter written by three Defendants in their professional capacities as the CEO, Finance Director and Legal Director of a company and sent to four members of the board of the company making allegations of poor corporate governance by the Claimant. The Defendants had first raised their concerns with the Chairman of the company, but he had not dealt with them. The Defendants obtained and followed legal advice from solicitors on the letter prior to it being sent. The Second Defendant was not involved in the writing of the letter. He approved it after it was read over the telephone to him while he was on holiday in Madeira. The Defendants relied on the defence of qualified privilege. The Claimant admitted that the publication was made on an occasion of qualified privilege.
Was each or any of the Defendants actuated by malice in publishing the letter complained of?
This was a case where there was an established relationship between the publishers and the publishees and the court should be slower to find malice in such cases. The judge found that the Second and Third Defendants had not been actuated by any improper motive in sending the letter. The First Defendant was found to have written the letter in order to procure the removal of the Claimant from the Board and to save his own position. The Claimant was awarded judgment against the First Defendant and £2,000 damages.
Dominant improper motive is the key in establishing malice. The judge agreed with Gleeson CJ’s view expressed in Roberts v Bass  HCA 57, that there is nothing in Lord Diplock’s speech in Horrocks v Lowe which supports treating the defendant’s knowledge of falsity or lack of belief in truth as being probative, of itself and without more, of malice. The question which ultimately needs to be decided in cases such as this one is whether or not the Defendant was actuated by a dominant improper motive.