Seray-Wurie v The Charity Commission of England and Wales

Qualified privilege may protect a publication made under a statutory duty where the public has a legitimate interest in receiving the information. The protection is defeasible on proof of malice. A claimant alleging malice must identify particular facts connected with the publication from which a jury could rationally infer dishonesty or a dominant motive to injure. Mere disagreement with the publication, assertions of falsity, collateral matters, or a hope that cross-examination will produce evidence is insufficient. Summary judgment may be given where the malice allegation has no realistic prospect of success and there is no compelling reason for a trial.

The appellant, a trustee and former chair of a registered charity, alleged that an inquiry report published by the Charity Commission defamed him by implying abuse of office and serious dishonesty. He brought claims in libel and for breach of human rights, discrimination, harassment, abuse and misuse of power.

Eady J struck out the non-libel claims and entered summary judgment for the Commission on the libel claim, holding that the publication was protected by qualified privilege and that the pleaded case of malice was hopeless. The appellant sought permission to appeal, relying on alleged procedural unfairness, lack of jurisdiction and infringement of Article 6. The central issue was whether there was at least a triable case that the Commission had acted maliciously.

1. Application refused. The Court of Appeal agreed that the claim could not proceed. The Commission’s inquiry report was published on an occasion of qualified privilege. The statutory duty to publish inquiry information and the public interest in receiving it supported that conclusion under sections 1B, 1C, 2 and 8 of the Charities Act 2006.
2. Qualified privilege is not blanket immunity. It depends on the particular publication and context and may be defeated by malice. The claimant therefore had to show a triable case that the relevant publication was malicious.
3. Malice is a serious allegation, generally tantamount to dishonesty. It is distinct from conduct falling short of malice, such as an incorrect analysis of evidence or a misguided conclusion. The allegation must be tied to the defamatory publication. Particularised facts must support a rational inference that the publisher was dishonest or had a dominant motive to injure the claimant. Mere assertion, equivocal or neutral material, or a hope that cross-examination will produce evidence is insufficient.
4. The documents relied on did not clearly show that the Commission knew the report was false. In particular, they did not establish that the claimant had passed the relevant legal advice to the charity. Material concerning other proceedings and alleged wider conspiracies had little or no bearing on the publication said to be malicious.
5. There was no realistic prospect of success and no compelling reason for a trial. Summary judgment was therefore correctly entered on the defamation claim, and no challenge was made to striking out the other causes of action.

• Court of Appeal (Civil Division) — Smith LJ dismissed permission on the papers on 5 September 2008. The renewed application was adjourned on 16 October 2008 and refused on 3 February 2009: [2009] EWCA Civ 153.
• Queen’s Bench Division — Eady J struck out the non-libel claims and entered summary judgment for the Charity Commission on 23 April 2008: [2008] EWHC 870 QB.