Seray-Wurie v The Charity Commission of England and Wales

A statutory regulator’s publication of an inquiry report may attract common-law qualified privilege where the regulator has a duty to communicate its activities to the public and the public has a corresponding interest in receiving the information. The publication need not satisfy the Reynolds criteria where traditional privilege applies. Qualified privilege is defeasible by malice, but allegations of malice require a proper factual basis capable of supporting a rational inference of dishonesty or a dominant improper motive. Mere disagreement with the report, bare assertions of conspiracy, or the hope that cross-examination will produce supporting evidence is insufficient. Where no realistic prospect of establishing malice exists, summary judgment may be entered on the defamation claim.

The Charity Commission applied under CPR 3.4 and, alternatively, CPR 24.2 to strike out Dr Seray-Wurie’s claim or obtain summary judgment. The claim included inadequately particularised causes of action and defamation arising from the Commission’s publication of an inquiry report concerning a charity of which he had been a trustee.

The Commission relied on common-law qualified privilege and contended that there was no sufficient evidential basis for malice. The central issues were whether publication of the report was privileged, whether the Reynolds principles governed the question, and whether the pleaded case disclosed a realistic prospect of defeating privilege by proof of malice.

1. Disposition. The references to the non-defamation causes of action were struck out for disclosing no reasonable grounds. Summary judgment was entered for the Commission on the defamation claim.
2. Qualified privilege. The statutory framework gave the Commission objectives including increasing public trust and confidence in charities and enhancing their accountability. Its functions included investigating misconduct or mismanagement and taking remedial or protective action. In that context, the Commission had a duty to communicate the results of its inquiries to the wider public, and the public had a corresponding interest in receiving that information. Publication of the report therefore attracted traditional common-law qualified privilege.
3. Reynolds. The Reynolds principles were not exclusive. They might provide an alternative route where publication was of genuine public interest, but they were unnecessary where the established reciprocal duty and interest supporting traditional privilege were present. The passage in Seaga v Harper was confined to its factual context and did not remove existing forms of common-law privilege.
4. Malice. Qualified privilege was not a blanket immunity because it could be defeated by proof of malice. Malice, generally tantamount to dishonesty, required evidence capable of supporting a rational inference that the publication was dishonest or actuated by a dominant motive to injure. The burden was difficult to discharge. Allegations had to be pleaded with specificity and could not rest on mere assertion, disagreement with the inquiry’s conclusions, or the hope that evidence would emerge at trial.
5. The inquiry had involved a detailed investigation, evidence and documents, consultation with the claimant, and an opportunity to comment on the draft report. Nothing in the available material approached a factual basis for bad faith or conspiracy. There was no realistic prospect of defeating privilege and no compelling reason for a trial.