Barry v Butler & Anor

In a defamation claim, a plea of malice defeating qualified privilege must identify specific facts about what the defendant did, said or knew. Those facts must be more consistent with malice than with its absence. Mere assertions, failure to investigate, unreasonable belief, carelessness or negligence are insufficient. An allegation of dishonesty must be pleaded with particularity and supported by facts capable of proof at trial.

A reply which does not specifically address a defence does not admit it where the general joinder of issue keeps the matter in dispute. Summary judgment also requires compliance with the prescribed notice and evidence requirements. Preliminary issues should be ordered only where they are clearly separable and may produce a final and proportionate resolution.

The claimant brought a libel action concerning two emails published by the defendants, alleging that they contained defamatory accusations and claiming general and substantial special damages. The defendants pleaded qualified privilege, justification and denial of damage.

At a pre-trial review, the defendants sought to strike out the plea of malice, obtain judgment concerning the second email on the basis that qualified privilege was not denied, compel disclosure supporting the special damages claim, and limit the issues for trial. The court also considered applications concerning preliminary issues, procedural compliance and collateral disclosure of witness statements and documents.

1. Malice. The plea of malice was struck out under CPR 3.4(2). The governing principles from Horrocks v Lowe [1975] AC 135 and Telnikoff v Matusevitch [1991] 1 QB 102 require proof that the dominant motive was to injure, or that the defendant did not honestly believe the publication to be true or was reckless as to its truth. An honest but unreasonable belief, inadequate investigation, carelessness or impulsiveness does not establish malice.
2. An allegation of malice is an allegation of dishonesty. Under the principles stated in Three Rivers DC v Bank of England (No.3) [2003] 2 AC 1 and summarised in Henderson v London Borough of Hackney [2010] EWHC 1651 (QB), the claimant had to plead specific admissible facts from which malice could rationally be inferred. The pleaded intention to damage business relationships, use of a generic email address, failure to verify the allegations and lack of reasonable belief did not satisfy that test.
3. The omission from the Reply of a specific response to the qualified privilege defence did not amount to an admission. CPR 16.7(2) treated the matter as requiring proof, and the Reply’s general joinder of issue, together with counsel’s submissions, showed that privilege remained disputed. The defendants’ application could not properly be treated as an application for summary judgment because the notice period and evidential requirements under Part 24 had not been met.
4. An unless order was made requiring a search and disclosure of documents relevant to the special damages claim, with inspection by copies. Unless the order was complied with by 27 February 2015, the special damages claim would be struck out.
5. The trial was confined to meaning and qualified privilege. The late and evidently incomplete disclosure made it unfair and disproportionate to require the defendants to meet the substantial special damages and justification issues at trial within the available period.
6. Permission to disclose the claimant’s witness statements and recently disclosed documents to third parties was refused. The evidence and notice were insufficient to justify departure from the restrictions on collateral use under CPR 32.12 and CPR 31.22.

Not an appeal. The judgment was given at a pre-trial review in the High Court.