Hayter v Fahie

In a libel claim arising from a complaint to a public body, the occasion may be protected by qualified privilege, but malice can defeat that protection. Reckless indifference to truth or falsity will normally be treated as knowledge of falsity and establish malice. Where the alleged defamatory meaning is an implication that the defendant may not have appreciated, it is properly arguable that recklessness cannot be established unless the defendant was aware of that meaning. A late attempt to plead absolute privilege may be refused where it was not raised below and would require an unnecessary extension of the common-law categories, particularly where qualified privilege adequately protects the public interest.

The appellant, who had been the defendant below, sought permission to appeal from summary judgment in a libel claim. The claimant, a Justice of the Peace, alleged that a letter sent to the Department of Constitutional Affairs falsely suggested fraudulent conduct and that a police investigation remained current. The High Court held that the words were defamatory, entered summary judgment, and found that qualified privilege was defeated by malice based on recklessness.

The first application for permission was refused on paper. On renewal, the Court of Appeal considered whether the High Court had conflated the objective meaning of the words with the defendant’s state of mind, whether an abuse of process defence had been addressed, whether a different meaning was reasonably open, and whether the defence could be amended to plead absolute privilege.

Lord Justice Keene granted permission to appeal on the central malice issue and the abuse of process issue, but refused permission on the alternative meaning and refused the proposed amendment to plead absolute privilege.

1. Qualified privilege and malice. The court accepted the general principle stated in Horrocks v Lowe [1975] AC 135: reckless indifference to the truth or falsity of a statement will normally be treated as knowledge of its falsity and will establish malice.
2. Meaning and state of mind. The High Court appeared to have accepted that the appellant might not have appreciated the implied meaning that the police investigation was continuing. It was therefore properly arguable that a person cannot be indifferent to the truth or falsity of a proposition without awareness of the meaning in question. Whether recklessness applies only to truth, rather than to an objectively determined meaning of which the defendant was unaware, was left for the appeal.
3. Alternative meaning. Permission was refused on the argument that the words could mean only that the claimant had been on bail. The implied meaning found by the judge was regarded as plain and clear-cut, with no realistic prospect of a different conclusion.
4. Absolute privilege. Amendment was refused because the defence had not been pleaded, raised before the judge, or included in the earlier grounds and skeleton argument. Extending the common-law categories was unnecessary because qualified privilege adequately protected the public interest in investigating complaints about Justices of the Peace.

The renewed application was granted only to the extent specified. The appeal itself was not determined.

1. Court of Appeal (Civil Division): On renewal, permission to appeal was granted on the relationship between meaning and truth in the malice finding and on abuse of process. Permission was refused on the alternative meaning and the proposed absolute-privilege amendment. [2008] EWCA Civ 593.
2. High Court of Justice, Queen’s Bench Division, Bristol District Registry: On 19 December 2007, HHJ Bursell QC entered summary judgment for the claimant in libel, found the occasion qualifiedly privileged but defeated by malice, awarded damages to be assessed, and made a declaration.