Hughes v Risbridger & Anor

At the summary judgment stage, a libel claim should proceed where the pleaded facts could enable a jury rationally to infer that a defamatory allegation was knowingly false or motivated by an improper purpose. A claimant must plead malice so that it raises a probability, rather than a mere possibility, of malice; general assertion and speculation are insufficient. The court should not resolve disputed inferences or prevent cross-examination where the evidence is capable of supporting the allegation. Proposed amendments adding unidentified publishees are too vague. The claimant must identify the additional individuals and plead the circumstances supporting publication. Mere electronic accessibility does not establish publication.

The claimant, a senior British Airways employee, brought a libel claim concerning internal emails sent by the first defendant after the claimant was found with miniature bottles of whisky during a stop-and-search operation. Qualified privilege was accepted for the pleaded recipients. The defendants applied for summary judgment under Civil Procedure Rules 1998 Part 24, arguing that no realistic plea of malice existed. The claimant also sought late amendment to add unspecified further publications and to deny qualified privilege in anticipation of a possible defence.

1. Summary judgment. The defendants’ application under Civil Procedure Rules 1998 Part 24 was refused. The claimant accepted that qualified privilege applied to the eight pleaded recipients, but alleged that the first defendant had knowingly stated that he admitted theft, although he had admitted only taking the bottles and failing to pay.
2. Malice. An allegation of malice is serious and must be pleaded with particulars capable of raising a probability, rather than merely a possibility, of malice. It must go beyond equivocal or neutral material and provide a basis from which a jury could rationally infer dishonesty or a dominant improper motive. The principles stated in Seray-Wurie v Charity Commission of England and Wales [2008] EWHC 870 (QB) were applied.
3. The claimant relied on the combination of the first defendant’s experience as a former detective sergeant and the undisputed fact that the claimant had never admitted dishonesty. Those matters were capable of supporting an inference that the first defendant knew the allegation was false. The judge would exceed the proper function of summary judgment by holding that a fact-finding tribunal would be perverse to draw that inference. The possibility that the first defendant had merely used careless language was a matter for trial.
4. Proposed amendments. The amendments adding every publication or republication, without identifying additional publishees or the circumstances of publication, were refused as too vague and too late. The claimant bore the burden of pleading publication. There was no presumption that material retained electronically, or accessible to a person who chose to seek it, had thereby been published. The proposed reply concerning qualified privilege was also premature because it anticipated a hypothetical defence to unidentified publications.