Fraser v Mirza

Qualified privilege protects a defamatory communication made in good faith pursuant to a recognised duty or legitimate interest. The privilege is lost where an improper motive, such as a desire to injure the person defamed, dominates the publication.

Express malice depends upon the publisher’s subjective state of mind, inferred from what the publisher did, said or knew. A deliberate attempt to convey a defamatory allegation which the publisher does not believe may establish malice even where the communication, properly construed, conveys only a less serious defamatory allegation. The intended falsehood remains evidence that the privileged occasion was misused.

A police officer sought damages for defamation arising from a letter in which the defender complained to the Chief Constable about the officer’s conduct during a criminal investigation. The letter alleged racial and other prejudice and contained complaints about the treatment of witnesses. The occasion was accepted to be protected by qualified privilege.

The Lord Ordinary found express malice and awarded £5,000. The Inner House allowed the defender’s reclaiming motion and recalled that award: 1992 S.C. 150. The officer appealed. The central issue was whether an intended defamatory allegation, known by its maker to be false but not conveyed on the letter’s proper construction, could establish the improper motive required to defeat qualified privilege.

1. Appeal allowed unanimously. Lord Keith of Kinkel delivered the leading speech. Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Slynn of Hadley and Lord Woolf agreed with his reasons. The interlocutor of the Lord Ordinary awarding £5,000 was restored.

2. Per Lord Keith, a citizen who has grounds for complaining about a police officer’s conduct has a public duty to communicate those grounds to the appropriate authority. The complaint was therefore made on a privileged occasion. The officer bore the burden of proving that the defender had misused that occasion through a dominant improper motive amounting to express malice.

3. Per Lord Keith, the publisher’s motive must be determined from the publisher’s subjective state of mind when making the communication. That state of mind may be inferred from what the publisher did, said or knew. Applying Horrocks v Lowe [1975] A.C. 135, absence of belief in the truth of a defamatory allegation actually conveyed is generally conclusive evidence of express malice.

4. Per Lord Keith, the same inference necessarily arises where a publisher intends to convey a defamatory allegation which the publisher does not believe, although the communication properly construed does not bear that intended meaning. The intention remains material evidence of the publisher’s dominant motive. If the communication conveys another untrue defamatory allegation, even one less serious than intended, the misuse of the occasion defeats qualified privilege.

5. Per Lord Keith, the defender knowingly misstated the circumstances in which television sets were surrendered and intended to allege that the officer had charged him without supporting evidence. The Lord Ordinary was entitled to find that the defender lacked an honest belief both in that intended allegation and in the allegation of racial and other prejudice which the letter actually conveyed. The defender’s motive was to injure the officer, and the seriously defamatory allegation of prejudice justified substantial damages independently of the allegation concerning threats to witnesses.

6. Per Lord Keith, the defender was ordered to pay the whole of the officer’s expenses before the Inner House and his costs in the House of Lords.

1. House of Lords: Allowed the appeal unanimously, restored the Lord Ordinary’s interlocutor awarding £5,000, and awarded the appellant his expenses before the Inner House and costs in the House of Lords.

2. Inner House of the Court of Session: The Second Division allowed the defender’s reclaiming motion and recalled the Lord Ordinary’s interlocutors: 1992 S.C. 150.

3. Outer House of the Court of Session: The Lord Ordinary, Lord Marnoch, held that express malice defeated qualified privilege and awarded the pursuer £5,000 in damages.