France v Freemans Solicitors & Anor

Qualified privilege protects limited publications made for a proper business or professional purpose. The privilege is defeated only by proof of malice, including knowledge of falsity, recklessness as to truth, or a dominant improper motive. On summary judgment, the court must avoid a mini-trial and assume pleaded facts can be proved unless documentary evidence shows them to be plainly wrong. An inference of malice should be removed only where a jury would be perverse to draw it. A very limited publication does not automatically make a defamation claim abusive, because serious reputational harm may result even from publication to one person.

The claimant, a freelance duty solicitor, brought a libel action against a solicitors’ firm and its employee over a spreadsheet entry recording that £270 had been deducted from an invoice because of a conflict of interest. The entry was circulated internally to two employees. The defendants applied for summary judgment, arguing that the publications were protected by qualified privilege and that there was no realistic prospect of proving malice.

The claimant relied on disputed conversations, documentary material and alleged hostility by the employee. The court also considered an alternative argument that the claim was an abuse of process because publication had been very limited.

1. The two internal publications were protected by qualified privilege. The defendants had a duty to scrutinise claims made under the duty solicitor scheme and to record the reasons for any deduction. The publications were correspondingly made to persons with a legitimate interest in the matter.

2. Following Horrocks v Lowe [1975] AC 135, the claimant had to establish that the second defendant knew the words were false, was reckless as to their truth or falsity, or was actuated by a dominant motive to damage her reputation. The particulars of malice had to be more consistent with malice than with its absence.

3. On a summary judgment application the court should not conduct a mini-trial. It should assume that pleaded facts can be established unless the documents already demonstrate that they are plainly wrong. An inference of malice should be rejected only if a jury would be perverse to draw it.

4. The contemporaneous documents showed that the second defendant had genuine concerns about the sequence of interviews and the possible conflict. He sought clarification from the claimant and referred the issue to the supervising partner. The evidence provided no realistic prospect of establishing dishonesty, recklessness or a dominant improper motive. Allegations concerning unrelated workplace disagreements did not materially support malice and were consistent with its absence, as illustrated by Alexander v Arts Council of Wales [2001] 1 WLR 1840 and Somerville v Hawkins (1851) 10 CB 583.

5. The abuse of process argument was rejected as a separate ground for striking out. The court should not apply an arbitrary numerical threshold to publication. Even publication to one person may have serious consequences. The limited publication therefore did not itself make the claim abusive.

6. Summary judgment was granted to the defendants on the basis of qualified privilege and the absence of any realistic prospect of proving malice.