Cambridge v Makin

In a libel action, a defence of truth fails where the defendant cannot prove the defamatory meaning substantially true on the facts existing when the alleged conduct occurred. A director’s later receipt of a benefit does not show that she stood to benefit when she participated in an earlier decision. The relevant conflict-of-interest inquiry is objective and asks whether, on the true facts, a reasonable person would see a real sensible possibility of conflict. Qualified privilege requires an actual duty or interest in the publisher and a corresponding duty or interest in the recipients. A serious personal accusation made without proper factual inquiry, and without giving the subject an opportunity to respond, is not protected merely because recipients share a professional or economic interest.

The claimant, a professional interpreter and non-executive director of NRPSI Ltd, sued over an email published by the defendant during a campaign concerning NRPSI’s policies and its licence to CINTRA Ltd. The agreed defamatory meaning was that the claimant had abused her position by acting on a conflict of interest in overseeing the licensing of NRPSI members’ data to CINTRA, in which she was privately interested and from which she benefited.

The defendant pleaded substantial truth and qualified privilege. The claimant admitted privilege for publication to CIOL members entitled to vote at the relevant AGM, but disputed privilege for other recipients. The issues were whether the meaning was substantially true, whether the wider publications were privileged, whether malice defeated privilege for AGM voters, and the appropriate damages.

1. Truth. The defence of justification failed. The claimant did not work as a CINTRA trainer when the licence was granted or when she participated in the fee discussion. She did not know of CINTRA’s tender or any prospective benefit. The later training work and the documents referring to her as a trainer did not prove the defamatory charge.
2. The conflict-of-interest rule applicable before Companies Act 2006 s 175 was stated by Lord Upjohn in Phipps v Boardman [1967] 2 AC 46, as explained in Bhullar v Bhullar [2003] EWCA Civ 424. The court had to examine the true relevant facts and circumstances, not facts as they appeared to an objector. The test was whether a reasonable person would see a real sensible possibility of conflict. A later benefit could not retrospectively establish that the claimant stood to benefit at the earlier time.
3. Even assuming the claimant knew of CINTRA’s tender, her intervention concerned only the licence fee, not whether CINTRA should receive a licence. On the findings, no reasonable person would regard her as preferring a private interest to NRPSI’s interests. An alleged failure to declare an interest was not equivalent to acting to promote a private interest.
4. Qualified privilege. The general test was whether, having regard to the subject matter, the publisher had a duty or interest to make the communication and the publishees had a corresponding duty or interest to receive it. Publication of the personal charge to persons without a right to vote at the AGM was not privileged. It was an accusation made without proper factual basis, inquiry or opportunity for rebuttal. The data-protection allegation stood differently because it had been investigated and upheld by the Information Commissioner, but that allegation was not sued upon.
5. If the charge had been established by an appropriate investigating body, the intended professional recipients could have had the necessary reciprocal interest, and the method of publication might have been reasonable and proportionate. That alternative analysis did not assist the defendant on the facts found.
6. Privilege for publication to AGM voters was defeated by malice. The defendant did not believe the charge to be true and did not care whether it was true or false. The defences of truth and qualified privilege therefore failed. General damages were assessed at £30,000, taking account of the settlement payment made by GMB and the separate, less serious data-protection allegation.

The judgment states that an earlier determination of meaning in July 2010 was appealed to the Court of Appeal, but it does not give the citation or outcome of that appeal. The present judgment determined the remaining trial issues.