Bray v Deutsche Bank AG

On a summary judgment application in a libel claim, the court must ordinarily assume that sufficiently particularised pleaded facts will be proved. Summary judgment is appropriate where the claim has no real prospect of success, but complex factual disputes should not be resolved by a mini-trial. Allegations of malice, equivalent to dishonesty, require a more rigorous threshold: they must be properly particularised and more consistent with malice than with its absence.

Common-law qualified privilege based on a legal, social or moral duty is not defeated merely because the publication is inaccurate; bad faith is required. Nor, in the context of a press release published to the world, is existing privilege lost merely through the passage of time.

The claimant, a former Deutsche Bank employee, brought a libel claim over a press release concerning tax-oriented transactions and alleged legal provisions. Although unnamed, he pleaded that readers with knowledge of his employment history would identify him.

The Bank applied for summary judgment on qualified privilege, the adequacy of the claimant’s case that X and Y were legally responsible for publication, and the alternative allegation of malice against members of the Management Board. It also sought trial by judge alone under section 69 of the Supreme Court Act 1981.

The central questions were whether the pleaded cases had a real prospect of success and whether the proposed mode-of-trial application was premature.

1. The court applied the general summary judgment principles in Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1. The question was whether the pleaded case had reality, not whether it was more or less probable. At this stage, sufficiently particularised allegations and the claimant’s pleaded meaning had to be assumed, unless the factual basis was fanciful or contradicted beyond question by the available material.

2. The allegation that X and Y authorised, caused or otherwise participated in publication was sufficiently particularised and supported by admissible evidence. Applying the stricter approach required for allegations of dishonesty or malice, the case was more consistent with their involvement than with its absence. General denials and the defendant’s submissions did not justify summary judgment. The primary malice case therefore proceeded.

3. The alternative malice case against the Management Board was inadequately pleaded and lacked sufficient evidential strength. It did not allege that the Board knew the defamatory meaning or the facts identifying the claimant, as required by Loveless v Earl [1990] EMLR 530. Summary judgment was granted on that alternative case.

4. The Bank’s publication was capable of attracting common-law qualified privilege because it was made pursuant to a legal duty to disclose information affecting the market. Following Horrocks v Lowe [1975] AC 135, inaccuracy did not defeat this form of privilege; bad faith was required. The claimant therefore had no real prospect of defeating the privilege defence on inaccuracy alone.

5. The court rejected the argument that privilege expired when the financial adjustment was completed or when the press release remained available online. In the circumstances, mere passage of time could not cause an existing privilege to be lost.

6. The application for trial by judge alone was premature. The proceedings remained at an early stage, and it was not yet possible to determine whether a trial would require prolonged examination of documents within section 69(1) of the Supreme Court Act 1981.

The application for summary judgment on the whole claim failed. Summary judgment was entered only on the qualified privilege issue as formulated and on the alternative malice case against the Management Board. The primary malice case proceeded towards trial.