Bowker & Anor (t/a Lagopus Services) v The Royal Society for the Protection of Birds

In a defamation claim arising from scientific criticism, a publication may reflect adversely on a professional person's skill, judgment or competence even though it attacks the person's work rather than alleging moral fault. Scientific context is relevant to meaning, but it does not confer immunity from defamation claims.

At the meaning stage, the court must adopt a generous, reasonable-reader approach and consider each publication as a whole. Cautious and contingent language may prevent an inference of dishonesty, recklessness or incompetence, while still arguably damaging professional reputation. A trial may properly be ordered before a judge alone where scientific investigation would be inconvenient for a jury. Summary judgment is appropriate where the claimant has no realistic prospect of overcoming qualified privilege or proving malice.

The claimants, researchers specialising in black grouse, sued the RSPB over an internal email, an attached scientific critique and a letter concerning their peer-reviewed paper on black grouse conservation at Lake Vyrnwy.

The defendant sought rulings on meaning, trial by judge alone, summary judgment and, alternatively, strike-out for abuse of process. The publications questioned the study's methodology, data and conclusions. The claimants alleged that they had acted incompetently, recklessly or dishonestly.

The issues were whether the publications were capable of bearing the pleaded defamatory meanings, whether the trial required scientific investigation unsuitable for a jury, and whether qualified privilege and the pleaded case of malice could be determined summarily.

1. Meaning. The pleaded meanings were not capable of being borne by the Grant email, RSPB Critique or Stowe letter. The publications used cautious and contingent language. They raised the possibility that intensive methods had affected the results, but did not assert that the claimants knowingly used dangerous methods, deliberately concealed them, or dishonestly or incompetently presented misleading results. The RSPB Critique was a careful and measured scientific appraisal and was not defamatory in any pleaded or other substantial sense. The Grant email and Stowe letter were arguably capable of reflecting adversely on the claimants' judgment and abilities as field workers, but at a lower level of seriousness than pleaded.
2. The scientific context was relevant to the meaning conveyed to the ordinary reasonable reader. It did not create a blanket immunity for scientific criticism. Criticism of a professional person's methods may be defamatory where it imputes lack of qualification, skill, judgment or efficiency, although a scientist may be wrong without being incompetent.
3. Mode of trial. The three questions under section 69 of the Senior Courts Act 1981 were whether the trial involved scientific investigation, whether that investigation could conveniently be conducted with a jury, and whether the discretion to order a jury trial should nevertheless be exercised. The pleadings raised numerous interlocking scientific issues and required close comparative analysis of scientific studies. A jury would face substantial difficulty understanding and assessing those issues. The action should therefore be tried by a judge alone. The importance of jury trial and the allegations concerning credibility and integrity did not justify ordering a jury trial.
4. Qualified privilege. The internal publications to RSPB staff, the RSPB Critique sent to Dr Galbraith, and the Stowe letter sent to the two relevant Severn Trent Water employees were published on occasions of qualified privilege. The parties' existing relationships and the recipients' legitimate interests in black grouse conservation supplied the necessary reciprocal interest. It was unnecessary for every internal recipient to work directly on black grouse; it was sufficient that the recipients might need to deal with questions arising from the paper.
5. Malice and summary judgment. The claimants' case on malice was inadequately particularised and, even if its factual allegations were assumed true, did not provide a rational basis for inferring dishonesty or an improper dominant motive. Scientists may change their views about methods. Omissions from a scientific critique and differences in data do not, without more, support an inference of fabrication or dishonesty. Each publisher's state of mind had to be considered separately and could not be assembled from the collective knowledge of employees.
6. Applying CPR r.24.2, the claimants had no real prospect of establishing that the relevant publications were not privileged or that the defendant was malicious. There was no other compelling reason for a trial. Summary judgment was entered for the defendant.

First-instance applications in the High Court. The defendant obtained summary judgment on the claim.