Makudi v Baron Triesman of Tottenham in London Borough of Haringey

Defamation proceedings may be struck out where the pleaded meaning is incapable of being conveyed by the publications, the publications were made on occasions of qualified privilege, and the claimant has no realistically arguable case of malice. A defendant’s intention is irrelevant to the objective assessment of meaning. The court must read each publication in its full context, including the identity and professional role of the publishee. A claimant’s belief at trial, or proof that a statement was false, does not by itself establish malice, since mistake may be equally consistent with the evidence. Pleading damages suffered before the cause of action arose may constitute an abuse of process.

The claimant, a senior football administrator, brought claims in libel, slander and malicious falsehood arising from statements made by the defendant to an investigator appointed after the defendant had given evidence to a House of Commons committee. The Parliamentary evidence itself was protected by absolute privilege and was not sued upon. The claimant alleged that the later publications repeated or adopted allegations of corruption and improper conduct.

The defendant applied under the Civil Procedure Rules 1998 for strike-out and summary judgment. The issues included whether the publications were capable of bearing the pleaded meanings, whether they were protected by qualified privilege, whether malice was realistically arguable, and whether the pleaded claim was an abuse of process.

1. Disposition. The claims were struck out and judgment entered for the defendant. The publications to the investigator and by him to the relevant football bodies were plainly made on occasions of qualified privilege, and there was no case in malice which could be left to a jury.
2. Meaning. Applying the approach in Jeynes v News Magazines Ltd [2008] EWCA Civ 130, the words had to be read as a whole and in their proper context. The relevant reasonable reader was a lawyer or professional representative acting in the investigation. Publications 1 and 2 were incapable of bearing the pleaded meaning that the claimant was actually guilty of corruption or other reprehensible conduct. Publications 3 and 4, including the reports read as a whole, were likewise incapable of bearing that meaning. The pleaded Thai criminal-law meaning was an innuendo which had not been pleaded.
3. Privilege and malice. The defendant’s communications to the investigator, and the investigator’s communications to the FA and FIFA, concerned matters of corresponding duty and interest and were therefore protected by qualified privilege. Under Horrocks v Lowe [1975] AC 135, malice required dishonesty. The claimant’s assertion that he had not made the alleged proposal could be consistent with the defendant’s mistake. In addition, investigating the defendant’s state of mind would impermissibly involve examining his state of mind in Parliament, contrary to article 9 of the Bill of Rights, as explained in Hamilton v Al Fayed [2001] 1 AC 395 and Church of Scientology v Johnson-Smith [1972] 1 QB 522.
4. Abuse and damages. Pleading damage suffered before the first actionable publication was either an attempt to recover for the privileged Parliamentary evidence or a gross exaggeration. It was an abuse of process under the principles in Broxton v McClelland [1995] EMLR 485 and Fairclough Homes Ltd v Summers [2012] UKSC 26. The court did not need to determine the separate real-and-substantial-tort issue under Jameel v Dow Jones [2005] QB 946.