Fraser v. Mirza

This case concerned a defamation action by a police officer against a complainant who had written to the Chief Constable. The central legal issue was whether the defendant's plea of qualified privilege was defeated by express malice. The House held that a privileged occasion is lost where the maker of the defamatory statement is shown to have acted with a dominant improper motive (express malice), and that proof the defendant did not believe the truth of the defamatory matter is generally conclusive evidence of such malice. The House further held that evidence the defendant intended to convey a defamatory allegation which he did not believe is admissible to infer dominant improper motive even where the communication, on its proper construction, does not bear that more serious meaning. The Lord Ordinary's findings (in particular that the defendant told deliberate untruths and had no honest belief in the allegation of racial prejudice) were entitled to weight and justified restoring his interlocutor awarding damages.

This was an action of damages for defamation brought by a police officer (the appellant) arising out of a letter sent by the respondent to the Chief Constable complaining about the officer's conduct after the respondent had been charged with reset and subsequently acquitted (verdict not proven). The respondent's letter contained allegations including that the arresting officer was motivated by the respondent's race and position as a justice of the peace and allegations of threats to witnesses. The respondent pleaded qualified privilege and did not plead veritas. The Lord Ordinary (proof before Lord Marnoch) found the letter defamatory, preferred the appellant's evidence on important points, found certain passages of the letter to be deliberately untrue, and concluded that the respondent lacked an honest belief in the truth of the defamatory allegations; he therefore found express malice and awarded damages of £5,000.

The respondent reclaimed to the Second Division of the Inner House, which allowed the reclaiming and recalled the Lord Ordinary's interlocutors (reported 1992 S.C. 150). The Inner House construed the impugned sentence as alleging racial prejudice rather than absence of any evidence to justify the charge and held that malice had not been proved in relation to that meaning; it allowed the reclaiming motion.

On appeal to the House of Lords the issues were (i) whether the Lord Ordinary's findings of deliberate falsehood and lack of honest belief were open to him having seen the witnesses, (ii) whether evidence of intention to convey a defamatory allegation which the defendant did not believe could be relied on to infer express malice when the communication did not, on its true construction, bear that meaning, and (iii) whether malice had been proved in respect of defamatory matter actually conveyed. The House held that evidence that the defendant knowingly published falsehoods and did not believe the defamatory allegation was properly admissible to infer express malice; that the Lord Ordinary was entitled to his findings, including that the respondent had no honest belief even in the restricted defamatory meaning; and that the privilege was therefore defeated. The appeal was allowed and the Lord Ordinary's interlocutor restored. Costs were awarded against the respondent.

Appeal allowed. The House restored the Lord Ordinary's interlocutor awarding damages. The court held that qualified privilege is defeated where the defendant is shown to have acted with express malice; proof that the defendant did not believe the defamatory allegation (or intended to convey an allegation he did not believe) is strong evidence of such malice. The Lord Ordinary's findings that the defendant had told deliberate untruths and lacked honest belief were entitled to weight and justified the conclusion that privilege was lost.

Proof before Lord Marnoch (Lord Ordinary) found for appellant and awarded damages (£5,000). The respondent reclaimed; the Second Division of the Inner House allowed the reclaiming and recalled the Lord Ordinary's interlocutors (reported 1992 S.C. 150). The appellant then appealed to the House of Lords and succeeded ([1993] UKHL 14).