Raja v Khan

An occasion of qualified privilege requires a present interest or duty in the maker to communicate the information and a corresponding present interest or duty in the recipient to receive it. The relevant relationship must subsist when publication occurs; a relationship that existed only in the past may be insufficient. Whether the necessary reciprocal relationship existed, and whether it extended to each recipient or to all the matters published, may require a trial. Summary judgment is inappropriate where the evidence is incomplete and the claimant has a real prospect of succeeding on the issue.

The claimant brought a libel action concerning a letter in which the defendant made allegations of fraud, embezzlement and other misconduct and circulated it to shareholders, professional advisers and other individuals connected with a nursing-home business. The defendant applied for summary judgment under the Civil Procedure Rules 1998, principally on the basis that the publication was made on an occasion of qualified privilege.

The central issues were whether any reciprocal duty or interest had continued until publication in February 2004, whether allegedly irrelevant allegations affected the privilege, and whether the necessary relationship existed in respect of each recipient.

1. The application for summary judgment on qualified privilege failed. The court was deciding the application on incomplete evidence, without disclosure by the defendant, oral evidence or cross-examination.
2. The governing principle is the reciprocal duty-and-interest test stated by Lord Atkinson in Adam v Ward [1917] AC 309 at 334. A privileged occasion requires the maker to have a legal, social or moral duty or interest to communicate the matter and the recipient to have a corresponding duty or interest to receive it.
3. The language of that test is in the present tense. It refers to a person who has a duty or interest and a recipient who has a corresponding duty or interest. It does not refer merely to a duty or interest which existed in the past. Accordingly, the fact that the defendant and some recipients had previously been directors, shareholders or professional associates did not establish, without further evidence, that the necessary relationship still subsisted when the letter was published.
4. There was a real prospect that the claimant could establish at trial that no privileged occasion existed at the date of publication. The lapse of more than six years from the last events described in the letter raised a fact-sensitive issue concerning what practical interest the recipients had in receiving the allegations at that time.
5. The court did not finally determine the effect of allegedly irrelevant matters or the position of each individual recipient. Those issues, together with the existence and scope of any subsisting duty or interest, were left for trial.