Daniel McAteer v Richard Thoburn

A defamation claim requires a properly pleaded and evidentially supported case of serious harm to reputation. Formulaic assertions do not suffice, particularly where publication is to a small audience already familiar with the dispute. Economic loss or failure to obtain a desired commercial outcome is not, without more, serious reputational harm.

Malice must be pleaded with particularity. The facts relied on must support an inference more consistent with malice than innocence. Mere assertions that the defendant knew words were false or acted with an improper purpose cannot defeat qualified privilege or sustain malicious falsehood.

An email exchanged among persons with reciprocal commercial or litigation interests may be protected by qualified privilege. Summary judgment is appropriate where the claimant has no real prospect of overcoming that defence or proving the essential elements of the claim.

The claimant brought claims for libel and malicious falsehood concerning an email sent by the defendant to the claimant, the liquidators of a company, several shareholders and the administrators of the defendant’s SIPP. The email responded to proposals concerning ongoing litigation and the liquidation of Hat & Mitre plc.

The defendant applied for summary judgment under CPR 24.3(a) and, alternatively, strike out under CPR 3.4(2)(a). He argued that the publication was protected by qualified privilege, that malice was inadequately pleaded and unsupported, and that the claimant had no real prospect of proving serious harm or financial loss.

The central issues were whether the Particulars of Claim disclosed reasonable grounds, whether serious harm and malice were properly arguable, and whether the email was published on an occasion of qualified privilege.

1. Strike out. The Particulars of Claim disclosed no reasonable grounds for either claim under CPR 3.4(2)(a). The serious-harm plea was formulaic and unparticularised. The malicious-falsehood plea lacked coherent particulars of malice, falsity and pecuniary loss.
2. Serious harm. Serious harm under Defamation Act 2013, s 1, is a threshold requirement. The claimant must establish actual serious harm, or probable future serious harm, by reference to the publication’s inherent tendency and its actual or probable impact. Publication to a small, closed group already familiar with a contentious dispute substantially reduces the scope for inference. The claimant produced no evidence from the publishees and no real-world consequence attributable to the email. His alleged economic inability to intervene in the company’s affairs was not the relevant type of reputational harm.
3. Qualified privilege. The email was sent in response to contentious proposals concerning ongoing litigation and the company’s liquidation. The defendant had a commercial and litigation interest in communicating his views, and the recipients had corresponding interests. The necessary reciprocity was manifest. The claimant had no real prospect of showing that the occasion was unprivileged or that there was another compelling reason for a trial.
4. Malice. Malice was relevant both to defeating qualified privilege and to establishing malicious falsehood. It requires more than spite, disagreement or carelessness. The claimant had to show a dominant improper motive or lack of honest belief in the truth of the publication. His pleaded assertions and witness evidence supplied no factual platform from which malice could rationally be inferred.
5. Disposition. The defendant’s application succeeded. The question whether the claim was totally without merit was left open because the claimant had not been heard on that issue. The parties were directed to agree an order, with costs and any permission to appeal to be dealt with subsequently.