Bray v Deutsche Bank AG (Rev. 1)

On a renewed summary judgment application, the court must consider whether the new material makes the claim unanswerable, while also having regard to the discretionary concerns arising from successive applications. A second application is not automatically barred merely because material could have been deployed earlier. Summary judgment is inappropriate where the claimant’s case remains non-fanciful and has a real prospect of success.

In a malice claim, the hypothetical reasonable reader’s understanding of words cannot simply be attributed to the maker. The claimant must show a real prospect that the maker knew the relevant meaning was false and intended to mislead. A statement may be capable of bearing an attributed meaning without the evidence establishing the necessary state of mind.

The claimant brought a libel action against the defendant bank. In an earlier judgment, the bank’s application for summary judgment on the whole claim had been dismissed, although other orders had been made.

The bank renewed its application on the publication issue, relying on pleaded affirmative case, witness statements and voluntary disclosure. It also applied for summary judgment on a new allegation of malice concerning A, a senior banker involved in approving and altering the press release. The issues were whether the publication case against X and Y had a real prospect of success, and whether the malice case against A could overcome qualified privilege.

1. Publication issue. The defendant’s renewed application for summary judgment on the whole claim was dismissed. The disclosed documents and witness statements did not make the defendant’s case unanswerable, nor did they show that the claimant’s case against X and Y was fanciful. The case remained fit for trial. The court had not conducted a trial and made no finding that the defendant’s defence lacked a real prospect of success.
2. Successive applications. The unusual decision to advance the defence serially caused concern. The principles concerning successive applications and the public interest in avoiding oppression and abuse of process were relevant to the exercise of discretion. However, the example given in Woodhouse v Consigia Plc [2002] 1 WLR 2558 was not an additional condition which every applicant under CPR Part 24 had to satisfy. The new material still failed on its merits. There was no need to decide whether the defendant’s conduct amounted to abuse of process.
3. Meaning and malice concerning A. Under CPR Part 53 Practice Direction para 4.1(1), the court could determine whether the press release was capable of bearing the impugned meaning, even though that meaning was not itself alleged to be defamatory. Applying the ordinary reasonable reader test, the press release was capable of suggesting that responsibility lay principally with a subsidiary of Bankers Trust.
4. That conclusion did not establish malice. The claimant had to show a real prospect that A understood the press release in that way, knew it to be false, and intended readers to be misled. A was a senior banker who had studied the draft and received legal advice. It was unrealistic to attribute to him the hypothetical reader’s loose understanding of the grammar. The claimant therefore had no real prospect of proving the necessary state of mind.
5. The plea of malice based on A succeeded against the claimant on summary judgment. The defendant’s application on the whole claim was dismissed.

The judgment describes an earlier decision in the same proceedings, [2008] EWHC 1263 (HC), which had dismissed the defendant’s earlier application for summary judgment on the whole claim. The present judgment determined renewed and additional applications at first instance.