Reference: Unreported, 20 January 2011
Court: Queen's Bench Division
Judge: Mackay J
Date of judgment: 20 Jan 2011
Summary: Libel - Qualified privilege - Malice - Summary judgment - Strike out - Jameel v Dow Jones - Abuse of process - Proportionality
Richard Munden (Defendant)
Instructing Solicitors: Collyer Bristow for D
C and D were shareholders in a property development company. C was the Managing Director (there was a dispute as to whether D was also a Managing Director). An acrimonious dispute developed between C and D’s husband, who acted as her agent in relation to company matters. C brought proceedings for libel in respect of 5 letters sent to him by email and copied to 8 shareholders (and in 2 cases the company’s solicitor), critical of his conduct in various ways. D pleaded a defence of qualified privilege in respect of each letter, and partial or full justification in respect of 3 of the letters. C pleaded that D had published the words maliciously.
D applied for summary judgment and/or strike out in respect of C’s plea of malice; alternatively that the claim should be struck out in accordance with the principles set out in Jameel v Dow Jones. In relation to the latter, there was evidence from 3 of the shareholder publishees that they had not placed any weight on D’s allegations and there was no evidence that C’s reputation had suffered any actual damage.
(1) Whether C had any real prospect of defeating the defence of qualified privilege, including whether there was a real prospect of establishing malice against D;
(2) Whether the claim should be struck out as an abuse of process in accordance with the principle in Jameel v Dow Jones.
Granting summary judgment and striking out the claim as an abuse of process:
(1) The words were published on occasions of qualified privilege, as C inevitably conceded, and C had no real prospect of establishing malice. The pleaded case did not allege facts probative of malice but was rather principally made up of allegations of negligence or failure to inquire.
(2) There had been no real damage to C’s reputation and the minimal vindication and award of damages that C could expect if successful at trial would be out of all proportion to the court resources and legal costs necessary to try the claim.
The threshold for pleading and proving malice is a high one but, as the Judge commented, were it lower the defence of qualified privilege and defendants’ Article 10 rights would be undermined. In relation to the successful Jameel application, it is most unusual for almost half of the publishees of a libel to make it clear that they attach no credence whatsoever to the allegations complained of and it was that, combined with the small scale of publication and the lack of any evidence at all to suggest that the Claimant’s reputation had actually been damaged, that made the likely damages and vindication minimal and the estimated 5-day trial of the claim a disproportionate use of court resources.