Cambridge v Makin

Common-law qualified privilege depends on whether, in the public interest, the particular recipient needed to receive frank communication from the particular source, assessed in all the circumstances. An established relationship makes privilege more readily available. Where publisher and recipients are strangers, factual inquiry may be required. Shared membership of a profession does not itself create a reciprocal duty or interest where the publication alleges personal abuse of office rather than matters concerning the profession generally. Verification is not an inflexible condition, but its adequacy or absence may be relevant outside an established relationship. Privilege is defeated by malice where the defendant does not positively believe the allegation to be true and publishes it regardless of its truth.

At trial, Tugendhat J found that an email sent during a professional campaign contained a false and defamatory allegation that the claimant, an unpaid non-executive office-holder, had abused her position for personal financial benefit. He held that qualified privilege applied only to recipients entitled to vote at the relevant AGM, not to two wider recipient categories, and that the defendant was actuated by malice; damages were awarded. On appeal from [2011] EWHC 12 (QB), the issues were whether publication to the wider groups was privileged and whether malice was established. The challenge to justification was not pursued.

The appeal was dismissed unanimously. The court upheld the findings that the email was defamatory and untrue, that qualified privilege did not protect publication to the wider non-voting groups, and that the appellant was actuated by malice.

1. Qualified privilege. The court adopted the public-interest rationale stated by Lord Nicholls in Reynolds v Times Newspapers Ltd [2001] 2 AC 127: the question is whether the particular recipient needed to receive frank communication of particular information from the particular source, having regard to the position of both parties and all the circumstances surrounding publication.
2. An established relationship is significant. Kearns v General Council of the Bar [2003] EWCA Civ 331 and Downtex plc v Flatley [2003] EWCA Civ 1282 supported the distinction between communications within an established relationship and communications between strangers. Outside such a relationship, the circumstances, including the nature and adequacy of inquiries into the allegation, may be relevant. Verification is not an inflexible prerequisite in every case.
3. The appellant had no pre-existing relationship with the wider recipients. Their shared status as public-service interpreters might have supported communication about general contracting arrangements or rates, but it did not create a duty or interest to receive an unsupported allegation concerning the claimant’s personal integrity and abuse of office. The fact that most recipients were registrants, and that they could be affected by the general subject matter, was insufficient. The trial judge’s observation that a properly investigated finding might have attracted privilege did not impose a general verification requirement. The separate allegation reporting an Information Commissioner’s finding under the Data Protection Act 1998 stood on a different footing and was not sued upon.
4. Malice. Under Horrocks v Lowe [1975] AC 135, qualified privilege requires a positive belief in the truth of the publication. Recklessness or indifference to truth may defeat privilege, although carelessness, impulsiveness or irrationality alone may not. The appellant’s allegation was novel, unsupported by the documents on which he relied, and sent to maintain campaign interest. He did not believe it to be true and did not care whether it was true or false. The belief of the co-author did not answer the separate question of the appellant’s own belief. The conduct could also properly be characterised as wilful blindness.
5. The appellate court exercised caution before reversing the trial judge’s evaluative findings, in accordance with Biogen Inc v Medeva plc [1997] RPC 1, but there was ample material supporting those findings.

• Court of Appeal (Civil Division) — In Cambridge v Makin [2012] EWCA Civ 85, the court unanimously dismissed the appeal and upheld the findings on qualified privilege and malice.
• High Court of Justice, Queen’s Bench Division — Tugendhat J, in [2011] EWHC 12 (QB), found the email defamatory and untrue, held that qualified privilege applied only to one category of recipients, found malice, and awarded damages of £30,000.