Davies v Wm Morrison Supermarkets Plc & Ors

A defamation claim should not be summarily dismissed merely because the claimant may have misidentified the employee who published or caused publication of the words. Where qualified privilege is relied on, malice remains a live issue if it may be proved circumstantially and the identity and responsibility of the relevant employee can still be determined on evidence and proper pleadings. A court should be very slow to decide the claim on evidence obtained during the hearing without allowing the claimant time to consider it, take instructions and respond. Delay is relevant but not necessarily determinative, particularly where the defendants have been reticent about identifying employees involved. An employer may remain vicariously liable for publication and malice arising from an employee’s conduct in the course of employment.

The appellant, a self-employed haulage driver, sued Wm Morrison Supermarkets plc and an employee, Mark Downing, in defamation. The claim concerned words written on a delivery note stating that he was banned from Morrisons sites. The defendants relied on qualified privilege and denied that Mr Downing had written or caused the words to be written.

HHJ Previte QC initially considered that there was an arguable claim. On a later interlocutory hearing, after receiving evidence that another, unnamed employee had directed the endorsement, he refused permission to amend and dismissed the claim. The appellant appealed, arguing that the evidence might support his account, that the relevant employee could be added or substituted, and that vicarious liability and circumstantial malice remained arguable. The central issue was whether the claim could properly be dismissed without giving him an opportunity to address the late evidence.

Disposition

The Court of Appeal unanimously allowed the appeal, restored the action and directed that it be transferred for a further hearing in the county court. Lord Justice Sedley agreed with the entirety of Lord Justice Leveson’s judgment. Lord Justice Auld agreed that the action should be restored and remitted.

1. Late evidence and procedural fairness. Lord Justice Leveson held that the judge should have been very slow to determine the strike-out application on evidence obtained during the hearing. If that evidence was to be decisive, the appellant’s counsel should have had an opportunity to consider it, take instructions and assess whether it supported the appellant’s account, including a possible misidentification.
2. Arguable defamation claim. The reliance on qualified privilege did not make dismissal appropriate where malice remained a live issue and the identity and responsibility of the relevant employee had yet to be determined on evidence and properly pleaded issues. Lord Justice Auld emphasised that the claim was against the employer as well as the named employee, and that naming the wrong employee did not resolve the question of who had published or caused publication.
3. Circumstantial malice and vicarious liability. The possibility that malice could be established circumstantially meant that the claim was not unsustainable. Liability for publication and any malice established in conduct occurring in the course of employment could arguably remain with the employer vicariously; the court referred to Egger v Viscount Chelmsford [1965] 1QB 248 at 291(d-f).
4. Delay. Delay was a relevant consideration but was not determinative in the circumstances, particularly given the defendants’ reluctance to identify the employees involved. The court did not finally determine the merits or other aspects of disposal. It strongly urged urgent mediation.

• Court of Appeal (Civil Division): Allowed the appeal, restored the action and directed transfer to the county court for further hearing: [2007] EWCA Civ 594.
• High Court of Justice, Queen’s Bench Division: HHJ Previte QC refused permission to amend and dismissed the defamation claim on an interlocutory application. The judgment appealed citation was not stated in the judgment.