Spencer v Sillitoe & Anor

On an application for summary judgment in a defamation claim to be tried by a jury, the court must not conduct a mini-trial or determine genuinely disputed witness evidence merely because one account appears improbable. The relevant question is whether, taking the available evidence at its highest and respecting the jury’s function, a properly directed jury could reach a conclusion for the claimant without being perverse. Where the defendant relies primarily on justification, the defendant bears the burden of proving the defamatory statement true. A qualified-privilege defence does not shift that burden. If the statement was fabricated, malice will defeat qualified privilege. Rule 24 may determine legal issues within the judge’s jurisdiction, but cannot remove a factual issue reserved for the jury.

Mr Spencer, a senior in-house lawyer employed by International Computers Ltd, brought a defamation claim against Mr Sillitoe and ICL. He alleged that Mr Sillitoe had falsely recorded and circulated statements that he threatened to manipulate the company’s contracts if it attempted to remove him.

The defendants pleaded justification and qualified privilege. Morland J granted summary judgment under rule 24(2)(a)(2), concluding that Mr Spencer had no real prospect of establishing that the allegations had been dishonestly fabricated. Mr Spencer appealed. The central issue was whether the disputed account of the private meeting could properly be withdrawn from a jury at the summary-judgment stage.

1. Appeal allowed. The central issue was whether Mr Spencer made the threats attributed to him. If he did, justification succeeded. If he did not, the allegations were necessarily fabricated and the qualified-privilege defence could not succeed because Mr Sillitoe would necessarily have acted maliciously.
2. Per Buxton LJ, with Carnwath LJ agreeing, the judge below approached the application incorrectly by placing the burden on Mr Spencer to establish dishonest fabrication. The defendants’ primary defence required them to prove the truth of the recorded statements. The inquiry should have remained focused on that factual issue, rather than on the general conduct and apparent decency of ICL and its employees.
3. The rule 24 jurisdiction in a defamation case involving a jury is limited. Applying the guidance in Swain v Hillman [2001] 1 All ER 91, and the jury-trial approach derived from Alexander v Arts Council for Wales [2001] 1 WLR 1840 and R v Galbraith [1981] 1 WLR 1039, the question was whether a jury could properly find for the claimant on the evidence, without being perverse. A judge should rarely conclude that a witness will necessarily be disbelieved without hearing that witness and cross-examination, unless counter-evidence plainly demonstrates falsity.
4. Section 69 of the Supreme Court Act 1981 reinforced the conclusion that the disputed factual issue belonged to the jury. The approach in Safeways Stores v Tate [2001] 2 WLR 1377 confirmed that rule 24 cannot be used to determine factual questions which Parliament has reserved for a jury.
5. Simon Brown LJ agreed that the factual issue should go to the jury, despite considering the claim highly likely to fail. He added that the court could consider an order for payment into court under paragraphs 4 and 5 of Practice Direction 24, following Olatawura v Abiloye [2002] All ER (D) 253. The defendants’ payment-into-court application was remitted to Morland J.

• High Court, Queen’s Bench Division: Morland J granted summary judgment under rule 24(2)(a)(2), holding that the claimant had no real prospect of succeeding.
• Court of Appeal (Civil Division): The appeal was allowed. The summary judgment was set aside, and the payment-into-court application was remitted to Morland J.