David v Hosany

Common-law qualified privilege protects complaints made to the proper authority, including reasonably necessary communications to those administering or assisting the complaints process. The privilege is defeated only by proof of express malice. An individual governor may be a public authority for some functions, but an act remains private where its nature is private. A claimant must also establish serious harm under section 1 of the Defamation Act 2013. On the facts, the publications were privileged, serious harm was established, but express malice was not proved.

The claimant, a governor of an NHS foundation trust, sued another governor in libel over two written complaints made under the Governors’ Code of Conduct and an email concerning his attendance at a trust meeting. The defendant relied on common-law qualified privilege. The claimant alleged express malice and argued that the defendant’s position within a public authority defeated privilege. The court determined publication, meaning, qualified privilege, malice and serious harm.

1. Publication and meaning. The defendant was responsible for direct publications and for foreseeable or authorised communications forming part of the complaints process. She was not responsible for republication of the first complaint where its circulation resulted from an unforeseeable chain of events outside her control. The written complaints bore serious defamatory meanings concerning bullying, sexual misconduct, harassment and breaches of the Governors’ Code of Conduct. The email, read in context, alleged deliberate harassment and intimidation at a meeting.
2. Qualified privilege. A complaint to the proper authority is privileged where the publisher and recipient have corresponding duties or interests. The privilege extends to ancillary publications reasonably required for the process, including communications to the chair, secretary, committee members, staff advisers, an investigator and a permitted accompanying friend. All publications for which the defendant was legally responsible were privileged.
3. Public authority. An individual member of a public body might, depending on the function exercised, be a public authority under section 6(3)(b) of the Human Rights Act 1998. Section 6(5) excludes a private act. The defendant’s primary interest was protecting her own security and well-being, so the publications were private and the Clift v Slough Borough Council restriction did not apply.
4. Express malice. The claimant had to prove that the defendant’s sole or dominant motive was improper. The disputed incident was assessed by reference to admitted facts, objective contemporary evidence, surrounding probabilities and consistency. The defendant honestly believed the complaints to be true and fair. Express malice was not proved.
5. Serious harm. The grave meanings, influential readership and wider knowledge within the trust established actual serious harm to reputation under section 1(1) of the Defamation Act 2013. This was distinct from the assessment of damages. The claim therefore failed on qualified privilege and malice.

The judgment records an earlier interlocutory decision concerning strike-out and summary judgment applications: [2016] EWHC 3797 QB. The surviving libel claims proceeded to trial before this court.