Stevens v Leicester

For qualified privilege in a defamation claim, the words and their context must be considered together. Where reference to the claimant depends on the publishees understanding the words as concerning him and his proposal, that context may also establish the publisher’s duty and the publishees’ corresponding interest. Uncertainty about the questioner’s identity or the precise proposal does not prevent privilege where the defendant understood the relevant subject. The publication-time knowledge principle in Loutchansky v The Times Newspapers [2002] QB 321 does not govern that situation. To plead malice, the claimant must at least allege that the defendant did not believe the words to be true. Allegations consistent with genuine belief do not provide a realistic prospect of proving malice.

Mr David Stevens brought slander proceedings against Mrs Margaret Leicester concerning words allegedly spoken after a local planning committee meeting about his affordable-housing proposal. Mrs Leicester pleaded qualified privilege, asserting a duty and reciprocal interest in communicating concerns to a prospective participant in the scheme.

After Mr Stevens served no reply, Mrs Leicester applied for summary judgment. Mr Justice Tugendhat refused permission to amend the claim to allege malice and entered summary judgment on the basis that qualified privilege was too clear for argument. Mr Stevens renewed his application orally, challenging both conclusions. The central issues were whether the pleaded context could support qualified privilege and whether the proposed particulars disclosed a realistic prospect of proving malice.

Lord Justice Longmore gave the judgment, with Lord Justice Carnwath agreeing. The renewed application for permission to appeal was refused.

1. Qualified privilege. The alleged words did not identify Mr Stevens or the relevant proposal without reference to their context. Mr Stevens’s claim therefore depended on showing that the publishees understood the words as referring to him and his planning application. In that same context, it was unrealistic to contend that the defendant alone lacked the duty and understanding necessary for qualified privilege.
2. Scope of the knowledge principle. The passages relied on from Loutchansky v The Times Newspapers [2002] QB 321; [2001] 4 All ER 115, concerning the defendant’s knowledge at the time of publication, did not apply to this type of contextual reference case. The defendant’s lack of knowledge of the questioner’s identity, or uncertainty about which application was meant, was immaterial where she understood that the question concerned the relevant planning application.
3. Malice. The proposed particulars alleged prior suspicions, reports to the police and others, prejudice, forceful interventions at the committee meeting, and alleged breach of a code of conduct. Those matters were equally consistent with a genuine belief in the allegations and did not provide a real prospect of substantiating malice. The proposed pleading did not allege that Mrs Leicester disbelieved the truth of her remarks. That minimum allegation was required; the principle was supported by Horrocks and Lowe [1975] AC 135.
4. The separate judicial review proceedings concerning the planning decision were distinct, and nothing in the present application had a direct bearing on them. Order: Application refused.

1. Court of Appeal (Civil Division) — Refused Mr Stevens’s renewed oral application for permission to appeal and ordered: “Application refused”: [2007] EWCA Civ 1116.
2. Queen’s Bench Division — Mr Justice Tugendhat refused permission to amend to allege malice and granted summary judgment for Mrs Leicester on the basis of qualified privilege.