Henderson v London Borough of Hackney & Anor

A defence of justification should not be struck out at an interlocutory stage where an amendment could identify a possible victim of the alleged harassment, unless the defence has no realistic prospect of success. Section 5 of the Defamation Act 1952 may also provide an arguable defence where one unproved allegation does not materially add to the injury caused by proved allegations.

To defeat qualified privilege by malice, a claimant must plead and prove specific facts more consistent with malice than its absence. Formulaic assertions, speculation about disclosure or evidence at trial, and unidentified corporate decision-makers are insufficient. The claim was dismissed because there was no realistic prospect of proving malice.

Claire Henderson brought a libel claim against the Learning Trust concerning a referral letter sent to the Independent Safeguarding Authority after her dismissal for gross misconduct involving pornographic material at school. The First Defendant had been discontinued.

The Second Defendant relied on justification and qualified privilege. Ms Henderson accepted that publication occurred on an occasion of qualified privilege but alleged malice. She applied to strike out the justification defence or obtain summary judgment. The Second Defendant applied for summary judgment or strike-out of the plea of malice. The court considered whether the justification defence had any realistic prospect of success and whether the pleaded facts could defeat qualified privilege.

1. The application to strike out the justification defence was refused. The evidence referred to an unidentified Muslim agency worker who had found pornographic material in the workplace offensive. It was therefore possible to amend the defence to identify a potential victim of sexual harassment. Whether that case would succeed at trial was not decided; the question was whether the defence had no chance of success.

2. The court also held that the Second Defendant should be able to argue at trial that section 5 of the Defamation Act 1952 applied. If the words contained two distinct charges, the defence might succeed even if sexual harassment were not proved, provided that allegation did not materially injure the claimant’s reputation having regard to the truth of the allegations concerning pornography. The significance of the additional sting was for a jury.

3. The plea of issue estoppel or abuse of process based on the employment tribunal’s findings had no substance.

4. Publication was conceded, and plainly took place, on an occasion of qualified privilege. Under Telnikoff v Matusevitch [1991] 1 QB 102 and Alexander v Arts Council of Wales [2001] 1 WLR 1840, a claimant seeking to establish malice must plead and prove facts more consistent with malice than its absence. The facts must permit a rational inference that the defendant was dishonest or had a dominant motive to injure.

5. Unsupported assertions of lack of honest belief, recklessness or dominant motive are merely formulaic. A claimant cannot proceed in the hope that disclosure, cross-examination or the defendant’s evidence will reveal something capable of establishing malice. Where malice is alleged against a company, the individual said to possess the relevant state of mind must be clearly identified.

6. The pleaded facts suggested that the author had misunderstood the law while attempting to comply with statutory safeguarding responsibilities. They did not point towards a probability of malice. There was therefore no realistic prospect of defeating qualified privilege. The particulars of claim were struck out and the action dismissed.