Raja v Khan

In defamation proceedings, qualified privilege may depend on whether the publisher’s duty and the recipient’s corresponding interest were still subsisting when the words were published. A long lapse between the underlying events and publication can make that issue fact-sensitive and unsuitable for summary judgment, particularly where disclosure and evidence are needed. Whether to try qualified privilege as a preliminary issue is a case-management decision. The court may leave the issue to trial where the evidence overlaps with malice and justification. A decision approving a preliminary hearing on materially different facts does not compel the same course. Refusing summary judgment does not determine the defence; it leaves qualified privilege open for trial.

The claimant brought defamation proceedings concerning a letter sent by the defendant on 22 February 2004. The letter alleged dishonesty and other misconduct in connection with a nursing home. The defendant had been a director and shareholder of the relevant company until February 1998. Copies were sent to former shareholders and professional advisers.

The defendant pleaded justification, fair comment and qualified privilege. He applied under the Civil Procedure Rules for summary judgment on qualified privilege. Tugendhat J dismissed the application and refused permission to appeal. Sedley LJ refused permission on the papers. The renewed application concerned whether qualified privilege could be determined summarily or as a preliminary issue, particularly given the lapse of time and the alleged continuing duty and interest.

Lord Justice May delivered the judgment, with which Lord Justice Wall agreed. The renewed application for permission to appeal was dismissed.

1. The Court of Appeal did not determine whether the publication was in fact protected by qualified privilege. The issue remained open for determination on evidence at trial.
2. The availability of qualified privilege depended on the alleged duty of the publisher and interest of each recipient at the time of publication. The six-year lapse raised a substantial and fact-sensitive question whether any earlier relationship of duty and interest was still subsisting. That question was not suitable for summary determination without disclosure and evidence.
3. The application had been made under Rules 3.4(2)(a) and (b), and Rules 24.2(a)(i) and (b) of the Civil Procedure Rules. It was within Tugendhat J’s case-management discretion to decline to determine qualified privilege summarily or to order it to be tried as a preliminary issue.
4. The decision in GKR Karate v Yorkshire Post and Ors [2000] 1 WLR 2571 was materially different. There, qualified privilege and malice mainly concerned a journalist, while justification concerned evidence relating to another person. Here, the same person and witness was involved in qualified privilege, malice and justification, and the application had begun as one for summary judgment rather than for a preliminary trial.
5. Ley v Hamilton [1935] 153 LTR 384 was relevant and did not, on its initial consideration, support the defendant’s case that a sufficient duty and interest necessarily remained after six years. It confirmed the conclusion that the issue could not properly be decided summarily. The Court declined to consider enlarging a possible preliminary issue to include malice because that application had not been before the judge.

1. Court of Appeal (Civil Division): The renewed application for permission to appeal was dismissed: [2006] EWCA Civ 487.
2. Court of Appeal (on the papers): Sedley LJ refused permission to appeal.
3. Queen’s Bench Division: Tugendhat J dismissed the defendant’s application for summary judgment on qualified privilege on 15 December 2005 and refused permission to appeal.