Fraser-Armstrong v Hadow & Ors

Qualified privilege does not protect a defendant who publishes defamatory material to divert attention from criticism which the defendant knows to be true. Defending oneself against untrue attacks is a proper motive. Defending oneself against true attacks is not. Allegations that publication was intended to conceal business or staff problems can therefore support a plea of malice and should not be struck out as irrelevant where they bear on the privilege defence. The same facts may show either that no privileged occasion arose or that malice defeated the defence. On an interlocutory appeal, points not relied on below and not raised by Respondent’s Notice will not ordinarily be entertained.

This was an appeal from Popplewell J on an interlocutory application in libel proceedings. The claimant alleged that the defendants had published defamatory statements about his dismissal, conduct and criticisms of the business. The defendants relied on justification, consent and qualified privilege.

The judge struck out parts of the claimant’s replies to the qualified-privilege defence, including allegations concerning poor staff morale and an improper motive to divert attention from those problems. The claimant sought reinstatement of the struck-out material. The central issue was whether those allegations were relevant and arguable as supporting malice or negating the privileged occasion.

1. The appeal was allowed in part. Lord Justice Staughton gave the principal judgment, and Lord Justice Simon Brown agreed with the result and reasoning.
2. It was a proper motive to defend oneself against attacks that were untrue. It was not a proper motive to publish defamatory material in order to defend oneself against criticism known to be true. If the defendants published to divert attention from genuine problems in the business, the publication could be treated as actuated by malice and the occasion would not attract qualified privilege.
3. Lord Justice Simon Brown expressed the same conclusion in alternative terms. A person has no privilege to protect himself against a justifiable attack on his character or conduct. The facts could either show that no privilege arose or defeat the defence through a successful reply of malice.
4. The allegations concerning staff morale and the alleged purpose of distracting attention from those problems were therefore relevant and arguable. They were restored to the pleadings. The court declined to entertain further objections concerning events after publication or the defendants’ knowledge, because those matters had not featured in the judge’s reasons and no Respondent’s Notice had been filed.
5. The appeal was allowed to the extent sought in the Notice of Appeal, except for paragraphs 1.1 and 1.2, which had been regarded as unarguable. The plaintiff was awarded the costs of the appeal; the costs below remained costs in the cause.

• Court of Appeal (Civil Division): On appeal, the order was varied by restoring the relevant parts of the pleadings, except paragraphs 1.1 and 1.2. The appeal was otherwise allowed in part: [1993] EWCA Civ 33.
• Queen’s Bench Division: Popplewell J, on an interlocutory application, struck out parts of the claimant’s replies to the qualified-privilege defence and left other parts intact. The judgment does not state a separate citation for that order.