Khader v Aziz & Ors

Defamation proceedings may be summarily terminated where the evidence, taken at its highest, could not support a necessary factual finding by a properly directed jury. A response to a disparaging media attack may attract qualified privilege if it is broadly germane to the attack. An authorised solicitor receives the same privilege as the client.

Malice requires proof that an improper desire to injure was the dominant motive. Where only the publication supplies evidence of motive, the claimant must affirmatively show disbelief in its truth or indifference to truth or falsity.

The court must also stop a defamation claim which serves no legitimate reputational purpose because the alleged tort and any likely vindication are insubstantial and disproportionate to the cost and use of court resources.

The appellant brought defamation proceedings concerning three alleged publications by a solicitor acting for the first respondent. The publications were said to accuse her of dishonesty in connection with the return of a valuable bracelet. Eady J dismissed the claims by summary judgment or strike-out in [2009] EWHC 2027 (QB).

Permission to appeal was limited to the first two alleged publications and to an order restricting publication of private material. The principal questions were whether there was evidence capable of proving the publications, whether the first occasion attracted qualified privilege, whether malice was arguable, and whether the proceedings alleged a real and substantial tort.

1. The appeal was dismissed unanimously. The second alleged publication had no evidential foundation. Neither the suspension of the appellant’s club membership nor a later conversation supported the pleaded words. A jury finding that the publication occurred would therefore be perverse, and the claim was properly struck out.

2. A claimant cannot obtain a full jury trial merely by asserting that factual issues exist. Under section 69 of the Senior Courts Act 1981, the judge determines whether a material factual issue genuinely arises. Summary judgment may be granted where the evidence, taken at its highest, could not permit a properly directed jury to make a necessary finding.

3. By a majority, the occasion of the first alleged publication attracted qualified privilege. The newspaper article contained a disparaging criticism which entitled the first respondent to answer. An authorised publication by an agent attracts the privilege which would attach to the same publication by the principal. A solicitor acting under a sufficiently broad general authority need not have specific instructions concerning the particular communication or its precise words.

4. The appellant could not establish malice. She had to show positively that an improper desire to injure was the dominant motive. Where the content of the publication supplied the only substantial evidence of motive, she had to establish that the publisher disbelieved it or was indifferent to its truth or falsity. Once the unsupported allegation of “embezzlement” was removed, the pleaded language did not sustain that inference. Carnwath LJ reserved his position on privilege and malice if the full pleaded allegation were assumed to be provable, but agreed that the appeal failed on the broader abuse principle.

5. The first-publication claim did not allege a real and substantial tort. There was no evidence of harmful republication or consequential loss. Even success would produce only minimal damages and vindication at disproportionate expense. Applying Jameel v Dow Jones, continuation would serve no legitimate reputational purpose and would be an abuse of process.

6. The restriction on publishing alleged private relationships was justified and proportionate. The underlying claim would not proceed, and publication under the protection of absolute privilege would constitute an unwarranted intrusion.

7. The court also warned that excessive skeleton arguments and unnecessary bundles may result in the disallowance of costs. Skeleton arguments should identify the essential facts, issues, submissions and principal authorities simply and concisely.

1. Court of Appeal (Civil Division): The appeal in [2010] EWCA Civ 716 was dismissed. The summary disposal of the permitted claims and the restriction on publication were upheld.

2. Queen’s Bench Division: Eady J granted summary judgment or struck out the claims in [2009] EWHC 2027 (QB). He held that qualified privilege applied, malice was unsupported, two publications lacked evidence, a third was inadequately pleaded, and the proceedings did not concern a real and substantial tort.

3. Permission stage: Waller LJ permitted an appeal concerning the first two alleged publications and the publication restriction. Permission concerning the third publication and the separate action against the solicitors was refused.