Underhill v Corser & Anor

A person is not liable for publishing defamatory matter merely because he knew of a proposed publication and could have prevented it. Liability requires knowing involvement in the process of publication, including an appropriate degree of awareness or an assumption of responsibility. Passive inaction is insufficient where the person has not addressed his mind to whether publication should proceed.

Qualified privilege depends on the communicator and recipient having the necessary interest or duty in the particular communication. An existing commercial or organisational relationship does not, by itself, create an interest in receiving allegations about an organisation’s financial affairs. Publication to outsiders is not ancillary or incidental merely because they have some relationship with the organisation.

A libel claim concerning a serious allegation of dishonesty may serve the legitimate purpose of vindication even where publication was limited.

The claimant, a former chairman and engineering manager of a charitable locomotive society, sued the society’s treasurer and publications editor for libel. The claim concerned an editorial alleging misconduct and dishonesty in connection with payments made to the claimant’s employer.

The court tried preliminary issues concerning publication to non-members, qualified privilege, and the first defendant’s responsibility for publication. Sixteen copies had been sent to people on a non-members mailing list. The central questions were whether sufficient recipients had read the editorial, whether the publications were privileged, and whether the treasurer was legally responsible because he had seen a draft but had taken no action.

1. Responsibility for publication. A person who knowingly participates in publication may be liable, but liability requires knowing involvement in the publication process. Knowledge of a draft and an ability to prevent publication do not suffice where the defendant did not address his mind to whether publication should proceed. The principle in Byrne v Deane [1937] KB 818 was distinguishable because the defendants there were proprietors entitled to remove the defamatory material. The treasurer was not the proprietor, and his inaction did not amount to consent. He was therefore not responsible for publication.
2. Publication and qualified privilege. Sending copies did not itself establish publication for libel. The claimant had to prove that recipients read the words, directly or by inference. The court found that approximately thirteen non-members had read the editorial. The burden then lay on the defendant to establish the facts necessary for qualified privilege.
3. The reciprocity principle in Adam v Ward [1917] AC 309 requires an interest or duty in the communicator and a corresponding interest or duty in the recipient. The distinction discussed in Kearns v General Council of the Bar [2003] EWCA Civ 331 and [2003] 1 WLR 1357 between established relationships and communications between strangers did not make every communication within an existing relationship privileged. None of the identified non-members had an interest in receiving information about the society’s financial affairs. The publications were not ancillary, reasonably incidental, or a reasonable risk of publication to members.
4. Abuse of process. Applying the principles in Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946, the claim was not an abuse. The allegation of dishonesty was serious, and the proceedings could provide vindication. The limited number of readers, absence of evidence of actual harm, and potential costs did not outweigh that legitimate purpose.
5. The preliminary issues were answered accordingly: publication was made to about thirteen non-members; none of those publications was privileged; and the first defendant was not legally responsible for any publication.