Howe & Co v Burden

A defamation claim is not an abuse of process merely because it is unlikely to produce a substantial financial recovery or because the alleged publication caused little practical harm. Serious allegations may justify proceedings seeking vindication. Summary judgment should be granted only where a substantive defence is genuinely bound to succeed and no material factual dispute requires trial. Qualified privilege may sometimes be determined from the relationship and subject matter alone, but the issue may require factual investigation. Consent or leave and licence cannot be resolved summarily where the evidence leaves disputed questions about invitation, authority, motive or intention.

The claimants brought a slander action concerning serious allegations of professional and potentially criminal misconduct made by the defendant in recorded telephone conversations. The defendant appealed against Master Leslie’s refusal to strike out the claim as an abuse of process and sought summary judgment on the grounds of qualified privilege, absence of malice and consent or leave and licence.

The court considered whether the claim had no tangible advantage, whether the defences were bound to succeed on the available evidence, and whether factual disputes required determination at trial.

1. The appeal from Master Leslie’s refusal to strike out the claim as an abuse of process was dismissed. The expression that the litigation must be worth pursuing was not a general principle. It had been used in Schellenberg v BBC [2000] EMLR 296 in the context of that case’s unusual procedural history and was not applicable generally. The seriousness of the allegations and the claimants’ legitimate interest in vindication meant that triviality could not establish abuse.

2. The mere fact that a claimant may recover little or nothing from an impecunious defendant does not make proceedings abusive. The claimants had not yet obtained a determination on the truth of the allegations, and the absence of a justification plea did not remove the possible value of vindication.

3. Summary judgment on qualified privilege was refused. Although communications between employees about alleged improprieties in their employer’s business may attract common interest privilege, that conclusion is not inevitable. The relationship between the speakers, their relative seniority and the surrounding circumstances might require factual investigation and possibly determination by a jury. The approach in Alexander v Arts Council of Wales [2001] 1 WLR 1840 was followed as to caution at the interlocutory stage.

4. The court recognised that privilege and malice may overlap. A plea of malice must be properly formulated before its prospects can be assessed. The existing plea was prolix and defective, and the court struck it out to allow a clear repleading.

5. Summary judgment on consent or leave and licence was also refused. The evidence did not establish conclusively whether the conversation had been invited, whether Miss Pavlow acted with Mr Howe’s express or implied authority, or what their respective motives and intentions were. Cross-examination might be material. It was also generally inappropriate to give summary judgment where the relevant law was uncertain or developing, as explained by Sir Thomas Bingham MR in E v Dorset County Council [1995] 2 AC 633.

The application for summary judgment was dismissed. The existing plea of malice was struck out, with an opportunity to replead.

• High Court (Queen’s Bench Division): appeal from Master Leslie’s order dated 2 October 2003 refusing to strike out the claim as an abuse of process. The appeal was dismissed, and the defendant’s additional application for summary judgment was also dismissed.