Defamation – Libel – Qualified privilege – Malice – Withdrawal of malice from jury
The Claimant worked as a senior education welfare officer with Hampshire County Council. The second Defendant, a police sergeant, received a complaint that the Claimant had assaulted his stepson and caused him actual bodily harm. The Claimant was arrested and released on bail. In police terms, the complaint against the Claimant was “not proven” and the file remained “open”. The Claimant’s stepchildren were later placed on the child protection register. The Claimant brought an action for defamation in relation to a letter from the second Defendant to the Claimant’s assistant principal and a telephone conversation between the same parties. The Defendants relied on qualified privilege. The Claimant alleged malice. At the trial of the action, after the close of the evidence, the judge ruled that the publications were protected by qualified privilege and there was no evidence fit to go to the jury on the issue of malice. The Claimant appealed.
(1) Whether the publications took place on occasions of qualified privilege.
(2) Whether the second Defendant had been actuated by malice.
Both publications took place on occasions of qualified privilege. Nothing communicated was irrelevant or factually incorrect. The words “not proven” and “open” were not assertions of guilt, so there was no malice on the part of the second Defendant’s part.
This was a clear case of qualified privilege. As Simon Brown LJ said, the arguments to the contrary were “hopeless” and “absurd.” The Judge was equally scathing about the plea of malice, describing it as “forensically constructed without any proper evidence”. It is perhaps surprising that the Court of Appeal gave permission to appeal. However, the case does have a useful discussion on the importance of ascertaining the subjective meaning intended to be conveyed by a defendant (rather than the objective meaning the words are found to bear) when assessing alleged malice.