Orford v Rasmi Electronics & Anor

Qualified privilege is defeated by malice where the publisher lacked a positive belief in the truth of the defamatory material or published it recklessly, without considering whether it was true. Mere carelessness, impulsiveness or irrationality is insufficient.

On an application for permission to appeal, an appellate court will not interfere with factual findings that were properly reached on the evidence and have no real prospect of being disturbed. In an employment-related misrepresentation claim, the focus is on an antecedent representation inducing entry into employment. Silence and evidence about later work instructions will not establish that element without a relevant positive representation. Costs remain discretionary.

Mr Orford applied for permission to appeal, together with an extension of time, from HHJ Walton’s judgment in the Newcastle-upon-Tyne County Court on 26 November 2003. The judge had dismissed claims in misrepresentation, deceit and defamation, and ordered Mr Orford to pay 75 per cent of the defendants’ costs, including costs arising from an earlier appeal.

The defamation claim concerned a report to the Health and Safety Executive alleging that Mr Orford had fabricated an accident. The defendants relied on qualified privilege, while Mr Orford alleged malice. The misrepresentation claim alleged that he had not been told, before entering employment, that he would be required to copy competitors’ products unlawfully. The central issues were whether the evidence established malice, whether the alleged silence or copying instructions established actionable misrepresentation, whether an earlier Employment Tribunal finding was determinative, and whether the costs order was appealable.

Disposition. The application for permission to appeal and extension of time was dismissed. The application concerning costs was also dismissed.

1. Defamation and qualified privilege. The judge correctly directed himself by reference to Horrocks v Lowe [1975] AC 135. In the ordinary case, malice requires proof that the publisher did not believe the defamatory matter to be true or published it recklessly, without considering or caring whether it was true. Carelessness or poor judgment does not itself establish recklessness. HHJ Walton was entitled to find that the defendants genuinely believed the accident had been fabricated, despite defects in their investigation and errors in the report.
2. Evidence concerning the defendants’ belief and motive was relevant to malice even though it might also have supported an unpleaded justification defence. The judge had discretion to admit a further plan and was not required to hold the defendants to an erroneous plan previously relied upon. The proposed appeal substantially challenged factual findings which had been carefully reached on the evidence and had no real prospect of success.
3. Misrepresentation and estoppel. The alleged requirement to copy products did not establish the essential issue, namely whether an antecedent representation induced Mr Orford to leave earlier employment or enter the defendants’ employment. No positive representation relevant to the alleged unlawful activity had been made at interview, and the alleged silence did not amount to misrepresentation. The earlier Employment Tribunal material was not a clear and positive finding that was determinative under the rule in Henderson v Henderson (1843) 3 Hare 100.
4. The suggestion that disclosure of the report in the Employment Tribunal proceedings might have attracted absolute privilege did not need to be decided because no defamatory publication to the Tribunal was alleged. Any company malice had to be established through the state of mind of the individuals running the company.
5. Costs. Costs were discretionary. It was not arguably outside HHJ Walton’s discretion to order payment of 75 per cent, having regard to the defendants’ conduct and their earlier appellate loss.

1. Court of Appeal (Civil Division). On 10 June 2004, Lord Justice May dismissed the application for permission to appeal, the extension-of-time application and the application concerning costs.
2. Newcastle-upon-Tyne County Court. HHJ Walton dismissed the retried claims in misrepresentation, deceit and defamation on 26 November 2003, ordered payment of 75 per cent of the defendants’ costs and refused permission to appeal.
3. Earlier appellate proceedings. An earlier appeal from a decision of HHJ Bowers had been allowed because the misrepresentation claim had been disposed of summarily and the defamation claim required rehearing in light of an erroneous plan. The matter was remitted for retrial.