Alexander v Arts Council of Wales

Where a defamatory publication is made on an occasion of qualified privilege, the claimant bears the burden of proving express malice. The inquiry concerns the publisher’s subjective belief and intention as to the words actually published. An objectively defamatory meaning, or an alleged untruth derived from misconstruing the publication, does not itself establish malice.

A judge must leave genuine factual issues to the jury under Supreme Court Act 1981, section 69. But the judge must withdraw an issue where, even taking the evidence at its highest, no properly directed jury could make the inference necessary to sustain it.

Alexander v Arts Council of Wales was a defamation action arising from statements made by the Arts Council’s chief executive at a press briefing about a request by Chapter Limited for a substantial commitment of lottery funding. The claimant, Chapter’s director, alleged that the statements and ensuing media reports conveyed that he was incompetent and cavalier with public money.

The defendants relied on qualified privilege. Eady J held that the occasions were privileged and withdrew the issue of express malice from the jury because there was no evidence on which a properly directed jury could find it. The claimant appealed only that ruling. The central issue was whether disputed evidence of a later conversation with a journalist, and the alleged failure to give the full reasons for the funding decision, raised a jury question on the chief executive’s subjective dishonesty or improper motive.

1. Appeal dismissed. May LJ, with whom Jonathan Parker LJ and the Lord Chief Justice agreed, held that Eady J was entitled to withdraw malice from the jury. The evidence, taken at its highest, could not properly support the necessary inference that the second defendant lacked an honest belief in what she intended to convey by the publications relied on.
2. Following the principles stated in Horrocks v Lowe [1975] AC 135, qualified privilege presumed an honest positive belief in the truth of the publication. The claimant had to prove a dominant improper motive, including a desire to injure, or prove lack of honest belief. Malice was a subjective inquiry. The objective meaning attributed to words did not determine what the defendant intended to convey or honestly believed.
3. The alleged conversation with the BBC journalist did not create an evidential case of malice concerning the publications sued upon. The conversation was not itself a material publication relied on. In the circumstances, it could not reasonably show that the second defendant intended the objectively alleged defamatory meaning in the press briefing or broadcast. Nor did the evidence support an inference that she intended to say that the claimant had failed to provide information he had been asked to provide.
4. Section 69 of the Supreme Court Act 1981 preserved trial by jury where a material factual issue genuinely arose in a libel action. It did not prevent a judge from deciding that no such issue existed. A judge must withdraw an issue if the only verdict capable of supporting it would be perverse; this did not amount to evaluating a genuine jury question.
5. The Court therefore upheld the judgment for the defendants. The appeal was dismissed with costs.

• Court of Appeal (Civil Division) — dismissed the claimant’s appeal in Alexander v Arts Council of Wales [2001] EWCA Civ 514 and upheld the withdrawal of malice from the jury.
• High Court — Eady J held that the publications were made on occasions of qualified privilege and, after the evidence, withdrew the issue of malice from the jury and entered judgment for the defendants.