Daniel McAteer v Richard Thoburn

This is a claim for libel and malicious falsehood, commenced by Claim Form dated 25 October 2024. The Claimant is an accountant and businessman, who is involved through the medium of an entity called PCI Corporate Partners in providing business consultancy services, project management, and partnering with or investing in companies. The Defendant is a public relations director, who founded a company called Thoburns Communications Limited in 1986, and has various other business interests. They came into contact with one another in relation to the affairs of a company called Hat & Mitre plc (“the Company”), which was placed in administration on 19 December 2018 and entered into liquidation on 19 April 2021. At all material times, they each had shareholdings in the Company, as did eight other individual beneficial shareholders.

The Particulars of Claim were served on 24 February 2025. The words complained of comprise the entirety of an email that was sent by the Defendant on 25 October 2023 (“the Email”) to (i) the Claimant, (ii) the two joint liquidators of the Company, (iii) six of the other shareholders in the Company, and (iv) the administrators of the Defendant’s SIPP (through which he held his shareholding in the Company). That email was sent in response to an email from the Claimant dated 21 October 2023 (“the 21 October Email”), which had been sent to the Defendant and to the same persons as are identified at (ii)-(iv) inclusive. The Defendant contends that the material correspondence dates back further than the 21 October Email, however, and includes further emails sent by the Claimant on 28 July 2023, 6 September 2023, 3 October 2023, and 18 October 2023.

An acknowledgment of service was filed on 11 April 2025. On 25 April 2025, the Defendant issued an application seeking summary judgment against the Claimant pursuant to CPR 24.3(a), further or alternatively strike out of the entire claim pursuant to CPR 3.4(2)(a). In essence, summary judgment is sought on the grounds that the pleaded causes of action have no real prospect of success because (i) the Email was published on an occasion that is protected by qualified privilege, (ii) the pleaded case on malice is defective, and in any event there is no factual basis for a case on malice, and (iii) the pleaded case on serious harm is defective, and there is no evidence to support a case on serious harm; and, further, there is no other compelling reason for a trial. Strike out is sought on the footing that the pleaded case discloses no reasonable grounds for bringing either the claim in libel or the claim in malicious falsehood.

By Order of Collins Rice J dated 2 May 2025, the Defendant’s application was listed to be heard with a time estimate of one day, and it came before me on 27 June 2025, when the Defendant was represented by Mr de Wilde and the Claimant appeared in person. It was not possible for me to deliver judgment on the hearing date, however, because although Mr de Wilde completed his submissions well before 1pm, the Claimant’s submissions occupied the entirety of the rest of the day until long after 4.30pm, such that it would have been impractical and unfair to the Court staff to give judgment then.

In setting out the background to this claim, I am fortunate that disagreements about the conduct of the affairs of the Company have been the subject of earlier litigation.

First, in Kebbell & Anor v Hat & Mitre PLC & Ors (As Joint Administrators of Hat & Mitre PLC) [2020] EWHC 2649 (Ch), two shareholders who held a majority shareholding in the Company (Mr Kebbell, 51%; and Mr Kitchen, 17%) brought an application with a view to obtaining a ruling from the Court that the Company was not, or should no longer be, in administration. That application was heard by Trower J in July 2020, and resulted in his reserved judgment dated 8 October 2020, whereby it was dismissed. Trower J rejected criticisms concerning the manner in which the joint administrators of the Company had been appointed, and concerning the way in which they had conducted the administration. He also accepted (at [210]) that the “obvious and appropriate way forward” would be for the Company to go into liquidation. Further, (see [5]), he was critical of the fact that Mr Young (a 10% shareholder) and the present Defendant (who held a shareholding of around 8.8% through his SIPP) had not been joined as parties “[f]or reasons which were never explained, and which caused difficulties in getting to the bottom of what occurred”. By a further decision dated 28 October 2020, Trower J ordered indemnity costs against Mr Kebbell and Mr Kitchen.

Second, in McAteer v Hat & Mitre Plc & Ors [2024] EWHC 1601 (Ch), Sir Anthony Mann had to consider an appeal by the present Claimant from a decision and order of ICCJ Jones delivered and made in May 2023, whereby the Claimant’s application for relief seeking the intervention of the court in the liquidation of the Company failed on the basis that he lacked standing to bring the application. Sir Anthony Mann held that the Claimant had standing, but nevertheless dismissed the application on the basis that the Claimant’s shareholding in the Company (of about 0.02%) did not give him “an ultimate legitimate interest in the relief claimed bearing in mind his otherwise intended direction of travel” (see [57]). In this regard, Sir Anthony Mann observed at [56]-[57]:

“At the end of the day Mr McAteer’s plan seems to be to get claims made by the company in order to swell its assets. However, as Mr Curl pointed out, Mr McAteer’s interest was 0.02% of the shareholding in the company. That meant that for every additional £1m which might be available for distribution, Mr McAteer would be entitled to just £200. No rational person would seek to spend time and money for such meagre potential rewards, particularly when the other shareholders did not support any further action being taken. The situation was analogous to the sort of abuse identified in Jameel v Dow Jones [2005] QB 946 (CA) where it was held to be an abuse where pursuing a claim was “not worth the candle” (para 69).

I agree with Mr Ramel that the mere fact of a small shareholding, without more, will not necessarily bar an application under the Act. The fate of any particular application depends on what the application is and what the end result is going to be. However, on the facts of this case I agree with Mr Curl that the size of the shareholding and the likely returns, against the background of unanimous opposition from the other shareholders, means that the invocation of sections 108 and 112, (assuming for these purposes that their intended effect would be to enable claims to be brought against others) would not be justified. If £5m were recovered (which might be thought to be a fancifully large amount) and there were no deductions from it (even more fanciful), Mr McAteer would receive just £1000. That is not real-world commercial litigation and is capable of being a Jameel type abuse.”

The following narrative is taken in substance from the judgment of Sir Anthony Mann.

Until it was sold by the liquidators, the Company owned a very substantial property (eventually sold for over £7 million). The property was an office block which was let to a sister company, Maxwell Stamp plc (“Maxwell Stamp”). The Company was placed in administration as a result of a resolution of the board on 19 December 2018 on the footing that it was cash-flow insolvent. At the time the board was controlled by minority shareholders, including a Mr Young against whom criticism was levelled for doing so by two shareholders constituting the majority, namely a Mr Kebbell (51%) and a Mr Kitchen (17%). Mr Kebbell’s two children each had 1%. The remainder of the shares were held by six other shareholders, including Mr Young (10%) and the present Defendant. The share capital of the Company comprised 50,000 £1 shares. The administrators became the liquidators of the Company when a liquidation ensued.

The administration was challenged by Mr Kebbell and Mr Kitchen and that challenge was heard by Trower J who dismissed it in decisions dated 8and 28October 2020 (see above).

The Claimant was acting as an adviser to Mr Kebbell and Mr Kitchen. In April 2020 the Claimant, Mr Kitchen and Mr Kebbell signed a Memorandum of Understanding (“MOU”) which conferred certain rights of pre-emption over the shares of the company. The Claimant was not a shareholder at all at this stage. The Claimant relied on the MOU as giving him standing to make the application that came before Sir Anthony Mann, but it conferred no standing on him for that purpose (see [75] and [94] of the judgment).

On 16April 2021 Mr Kebbell apparently signed a stock transfer form in respect of 10 of his shares in favour of the Claimant. The validity and force of that transaction was not necessarily accepted by the liquidators (or Mr Kebbell) but it was assumed for the purposes of the appeal before Sir Anthony Mann that it was a valid document. The Claimant was not registered as a shareholder in respect of those shares. So far as it conferred an interest on the Claimant, it was an interest in 0.02% of the shareholding.

On the same day, the Claimant submitted a rescue plan to the administrators, with the support of Mr Kebbell and Mr Kitchen, in respect of the Company. The liquidators rejected that plan on 19April 2021, a matter which became a considerable source of criticism and complaint by the Claimant. Also on 19April 2021, the Company entered into creditors’ voluntary liquidation. The administrators became the liquidators. The Company was heavily balance sheet solvent, owning the above property worth millions of pounds and with creditors of, at most, a few hundred thousand pounds.

On 14October 2021, the Claimant and Mr Kebbell entered into an option agreement (the “Option Agreement”) conferring on the Claimant an option to purchase the remaining shares (26,990) of Mr Kebbell. The Option Agreement was also relied on by the Claimant as giving him standing to make the application before Sir Anthony Mann.

The liquidators were proposing to sell the property. The Claimant, and Mr Kebbell and Mr Kitchen opposed that sale. On 12January 2022 the Claimant (but not the other shareholders) issued an application which, inter alia, sought an injunction restraining the sale. Despite that, the Claimant never sought an injunction restraining the sale. At that stage the application sought the following relief as against the liquidators (so far as material to the appeal before Sir Anthony Mann): (i) An order that the liquidators be directed to direct qualifying decision procedures to be instigated forthwith to ascertain the wishes of the contributories and creditors as to whether the Claimant’s rescue plan or the liquidators’ sale plan should be adopted or whether the liquidators’ proposed sale should go ahead. (ii) A stay of the liquidation pending the determination of the application. (iii) In the alternative, further or other relief, including an injunction restraining the sale pending the determination of the application. (iv) Disclosure of the accepted price for the property.

By about 30March 2022 the property had been sold for just over £7m. The liquidators proposed an interim distribution, and the Claimant did not oppose that distribution. In due course it took place. The liquidators made a significant retention to allow for future costs and expenses. The amounts paid to Mr Kitchen and Mr Kebbell were, it seems, adjusted to reflect claims for misfeasance that the liquidators had made against them. Subject to finalisation of costs and expenses, and (as Sir Anthony Mann presumed) when the liquidators had become sufficiently satisfied that they were not going to have to face future litigation, there might be a final distribution to come in future.

At [53] of his judgment, Sir Anthony Mann said this about the state of the evidence before ICCJ Jones in May 2023:

“On the evidence before the judge it was plainly the case that none of the other members, with the vast majority of the shareholding, wished to have a stay. They had expressed their wishes to allow the liquidation and distribution to go ahead and did not wish to prolong the liquidation further. On a fully fought application as to whether there ought to be a stay those wishes would plainly have great force, and it is inconceivable that Mr McAteer’s tiny shareholding would be able to carry the day in the face of opposition from the other shareholders.”

It is clear from this that, by May 2023, the Claimant no longer had the support of Mr Kebbell and Mr Kitchen. Before me, the Claimant accepted this, although he voiced a dispute, which is not suitable to be resolved at this hearing, as to why this was so.

It is also clear that, quite apart from the fact that the Claimant’s application before ICCJ Jones was opposed by the joint liquidators of the Company and was not supported by any of the other shareholders, and was therefore plainly not warmly received by any of them, the litigation instigated by the Claimant occasioned financial detriment to the other shareholders. The reason for this is that the application caused legal costs to be expended by the liquidators, and if and to the extent that those costs were not recouped in full from the Claimant this will have reduced the assets of the Company, and the monies available to be distributed to the shareholders. Typically, the unsuccessful party in litigation is ordered to pay the costs of the successful party, but equally typically the successful party does not recover all of that party’s costs. In the case of the application, it is apparent from the emails referred to below that the Claimant considered that the costs of the liquidators were unacceptably large, and it is clear from what I was told at the hearing that the Claimant has not paid those costs in full (or maybe at all). It would appear that they are still proceeding through an assessment. Accordingly, although the Claimant maintains that he can and will pay whatever sum is assessed as being due, the liquidators are out of pocket, and will almost certainly remain so at least in part.

The hearing before Sir Anthony Mann took place on 17 May 2024, and his reserved judgment was handed down on 25 June 2024. Accordingly, although the background events preceded the date of the Email, that hearing and ruling occurred at later dates. To complete the chronology: (1) the Claimant sought permission to appeal to the Court of Appeal against the decision of Sir Anthony Mann, and (2) on 17 February 2025 permission to appeal was refused by Snowden LJ on consideration of the papers.

In the meantime, and in the run up to the exchange comprising the 21 October Email and the Email, the Claimant was pursuing his own agenda.

On 28 July 2023, the Claimant sent an email to the solicitor at Ashfords instructed by the liquidators of the Company, the liquidators themselves, and the Defendant, referring to his application for permission to appeal against the decision and order of ICCJ Jones, and to a complaint process that he was “engaged in” with the regulator in respect of the liquidators. The Claimant asked each recipient to provide their best recollection of what was said at the hearing before ICCJ Jones on 25 May 2023 in relation to Ashfords’ costs, and stating that if they failed to do so by his deadline of 4pm on 1 August 2023, he would conclude that the recipients agreed with his own “analysis”.

On 6 September 2023, the Claimant sent an email to seven of the shareholders in the Company and the administrators of the Defendant’s SIPP (but not the liquidators) setting out his version of the history of the disputes relating to the Company and its affairs, and his complaints about the hearing before ICCJ Jones (in respect of which, he said that his existing appeal arguments were about to be supplemented), and saying “I intend pursuing my remedies”. He also wrote: (i) “I am prepared to immediately accommodate your exit from the Company, should you wish to exit”, (ii) “If my appeal is successful, I do intend pursuing those that damaged the interests of [the Company]”, (iii) “I am of course open to any sensible and commercially viable proposal [to resolve the ongoing dispute]”, and (iv) asking the recipients “if you would, individually, clarify whether or not you made a request to Mr Jones [of Ashfords] to explore discussing with me a resolution of the dispute”.

On 3 October 2023, the Claimant sent an email to the liquidators of the Company, which was copied to the same seven shareholders and the administrators of the Defendant’s SIPP, complaining about his “valuable time” being wasted “dealing with issues that serve no useful purpose other than to run up costs”. He explained why, according to him, his attempts to pay £40,000 as an interim payment on account of costs (it would seem, as ordered by ICCJ Jones) had been frustrated through no fault of his own, and protested that there was no need to commence enforcement proceedings against him. The immediate purpose of the email appears to have been to ascertain whether, in threatening enforcement proceedings against the Claimant, Mr Jones of Ashfords had or had not been acting on the instructions of the liquidators. In this regard, the Claimant ended by saying that unless he heard back from the liquidators by 4pm on the following day he would assume that Mr Jones was not acting on their instructions, but instead was acting on those of someone else, or without instructions.

On 18 October 2023, the Claimantsent an email to the same shareholders and SIPP administrators, copying in the liquidators. He said that he had brought proceedings “with a view to protecting the Company and my personal interest in it”, and that the way in which the hearing before ICCJ Jones had been conducted “was, quite frankly, scandalous”. He explained that he had been notified that his application forpermission to appeal would be heard at an oral hearing. He put forward aproposal (in essence, for the shareholders to sell out to him or else “Remain as a shareholder in the Company until I secure justice for the Company, which will result in an uplift for all shareholders”) that was said to be made in the context of “the possibility of future, prolonged and expensive litigation which I am trying to avoid”. He nevertheless made clear that “I have every intention of pursuing those shareholders who have damaged the interests of the Company, who have damaged the interests of my family and I, and who have attacked me personally”. The Claimant ended by requesting a response “by no later than 4pm on Wednesday 25 October 2023”.

Before this deadline had expired, the Claimant sent the 21 October Email, in which he invited the seven shareholders to endorse a proposed consent order (“the Proposed Consent Order”) pursuant to which his appeal “may become redundant” and which, according to him, would not damage the interests of the Company or of any of the shareholders, and would instead improve the interests of all of them. This suggestion was put forward in the context that the hearing of his appeal was listed for 2.5 hours but might require a day, and that the Claimant had already instructed his solicitors to write to the liquidators to ask them to agree to the Proposed Consent Order. The terms of the Proposed Consent Order were not set out, but involved the acceptance that (contrary to the judgment of ICCJ Jones) the Claimant had “standing in the Company by virtue of [his] shareholding and other documentation”. The Claimant asked for a response by the previously stipulated deadline of 4pm on Wednesday 25 October 2023, and further said that “In the event that I do not hear from you by that time, I shall conclude that none of you have any objection to the course of action proposed by me”.

It is self-evident from the contents of the Email, and in any event supported by the evidence of the Defendant, that it was written in direct response to the 21 October Email. I return to this below, when considering the Defendant’s arguments on the current application. Before doing that, I will complete the narrative relating to context.

The Claimant replied to the Email on 25 October 2023, keeping all recipients in copy. He said that it was “deeply offensive and insulting” and asked the recipients to confirm whether the Defendant’s comments were his alone or whether the recipients adopted them, failing which he would assume they were the Defendant’s alone, and would “proceed accordingly”. It appears that the Claimant received no reply to that email.

On 2 November 2023, the Claimant sent an email to the Defendant alone, which again referred to the Email being “deeply offensive” and intimated “future litigation”.

On 14 November 2023, the Claimant sent an email to the liquidators of the Company, copying in the seven shareholders, and referring to the Email. He wrote that he thought that he should “set the record straight” about the payment of the £40,000 ordered in respect of costs by ICCJ Jones, saying that he had paid this amount “not once but twice” and that it was “[the liquidators’] solicitors that have refused to accept the payment”. He said that he had a genuine interest in preserving the Company, and that he believed that “[the Defendant’s] desire to kill off and bury the Company is motivated by factors which are not in the interests of the Company”. He asked the liquidators to say if they disagreed, and said that, in the absence of a reply by 4pm on Thursday 16 November 2023, he would conclude that they accepted his version of events as being accurate.

As set out above, the Claimant’s appeal against the judgment of ICCJ Jones was heard by Sir Anthony Mann in May 2024, was dismissed by a judgment handed down in June 2024, and was then made the subject of an application for permission to appeal to the Court of Appeal, which was refused by Order of Snowden LJ dated 17 February 2025. While the attempt at appeal was extant, the Defendant sent an email to the Claimant on 22 August 2024 on behalf of all of the shareholders in the Company, saying “We have no interest in selling shares to you; We wish you to desist from further communication with us; We desire that the liquidation of Hat & Mitre is brought to a rapid conclusion”.

The Defendant’s evidence is that he heard nothing further about the Email until he discovered the existence of the present proceedings when he was searching online for a judgment relating to the Claimant on 6 April 2025. The Defendant called the Court on 7 April 2025 and received an email from Master Dagnall attaching the Claim Form and Particulars of Claim, and explaining that he would need to decide whether to file an acknowledgement of service, and then, within 14 days, whether to contest jurisdiction or file a defence, along with a suggestion that he seek legal advice.

The only additional background matter that it is convenient to mention at this stage is that one other piece of litigation with which the Claimant had been involved before the Email was sent was the case of Sanjeev Guram and Anoop Guram v Daniel McAteer and Aine McAteer [2008] NIQB 162. In that case, the plaintiffs alleged that they had been induced to enter into an agreement in November 2001 by the undue influence of the Claimant, and they sought to have that agreement set aside. They also alleged that the Claimant was in breach of fiduciary duty to them, and was negligent in advising them. The case was tried by Peter Smith QC, sitting as a Deputy Judge of the High Court in Northern Ireland, and he handed down judgment on 20 June 2008. The Deputy Judge held that the plaintiffs’ case based on undue influence succeeded, that their claim that the Claimant was a fiduciary added nothing to that case, and that their case based on negligence also succeeded (see [77]-[86]). He was also highly critical of the Claimant. At [98], the Deputy Judge said that the Claimant “presented as cunning, dogmatic, obsessive and ruthless”. At [99], he said that he found the Claimant “generally unconvincing” and that there was one aspect of the Claimant’s evidence, in particular, which seemed to the Deputy Judge “to exemplify his preparedness to dissemble when it suited him”. And at [100], the Deputy Judge referred to the Claimant’s “lack of candour” in relation to one matter, to the Claimant’s “untruthful denial” in relation to another matter, to “the vague and evasive nature of his evidence” in relation to other events, and to the Claimant’s “preparedness to say whatever suited him”.

There is no doubt that the Defendant and the liquidators knew about the contents of this judgment before the Email was sent, because the Defendant referred to numerous passages from it in an email that he sent to the liquidators dated 15 November 2021.

Mr de Wilde drew my attention to the following:

Although I understand why Mr de Wilde considered it sensible to refer to these matters, in my view they are of no direct relevance to the issues that I currently have to decide. The only point that I do consider to be of relevance is that the Claimant was professionally represented – it would seem by Simon Smith, a partner at Knights plc with great experience of defamation litigation – at the time when the Claim Form and Particulars of Claim were served, and accordingly there is no basis for extending latitude to him in respect of those documents on the footing that he was acting in person.

At [3], the Particulars of Claim set out the Email and its publishees, and complain of all of the words published within it. The full text of the Email is as follows:

“Dear Daniel,

You requested a response to your proposed course of action regarding the Consent Order by 4pm today, Wednesday 25 October 2023, regarding whether or not I oppose your proposals.

As you are aware, usually I tend not to dignify your threats and unbearably repetitive accounts of the latest injustices to have befallen you with a response. But as the number of your perceived persecutors (judges, liquidators, lawyers) grows, so your distortions of the truth become ever more inflated.

Here are my views on the points you wish the liquidators to consent to individually below:

•

They agree with me that it would be in the interests of the Company not to incur further costs and expense;

This is disingenuous on a number of levels. Your deliberate intention is the opposite of what you claim - you aim to create more costs for the company. Look at the huge expense caused by the volumes of pointless correspondence you generate that then requires a response. For example look at the amount of correspondence caused by you pretending to pay £40,000 into Court but then attaching a last minute condition to give yourself a reason to withhold payment. The sole reason the costs continue to be incurred and the liquidation can’t be concluded is you.

•

They agree with me that the Consent Order would not in any way prejudice the Company or any of its stakeholders, including the shareholders, all of them;

You refer to “the Company” and its stakeholders as if it is a functioning entity. We all know it has been liquidated and has no property, no business, no office and no employees. Your only interest is opportunistic and selfish but you try to give the impression your motives are noble - you hope that if you make enough of a nuisance of yourself people will give you money to go away. This is your modus operandi: you have made a career as a vexatious litigant abusing the legal system. When you first appeared you were always saying you wanted to buy shares but there was always a reason not to put your lawyer in funds. This was your game all along and you never had a serious intention to buy shares.

•

They agree with me that (as they have already have stated in open correspondence) I have an economic interest in the Company; and

You are not present on the register of shareholders and we had not heard of you when the company went into administration nearly 5 years ago. I don’t believe you have a genuine economic interest in the company but rather you have deliberately tried to insert yourself in the middle of a dispute that is nothing to do with you. You have achieved something remarkable - you have united most if not all of a group of shareholders who hitherto have been able to agree on nothing, but who now agree that your motives are opportunistic and without integrity and that your actions are self-serving and contrary to the interests of all shareholders. No mean feat considering how bitterly divided the bona fide shareholders have all been.

•

They agree that I have standing in the Company by virtue of my shareholding and other documentation.

Of course you have no standing and this was the decision of Judge Jones. I note that Judge Jones is the most recent addition to those figures who are always putting you down and treating you unfairly, and that he joins the liquidators, their lawyers and the person chosen by the lawyers to serve proceedings on you. No doubt you will soon be lodging another complaint to a professional body.

In short, I believe that what I seek in the Consent Order is not controversial, does not in any way damage the interests of the Company, improves the interests of the Company, does not in any way damage the interests of any shareholder, improves the interests of all shareholders and will result in the avoidance of costs/waste of Court time.

When you refer to the interests of ‘The Company’ you really mean ‘the interests of D. McAteer’. When you say shareholder interests will be improved and costs will be avoided you are again being disingenuous - your whole ambulance chasing campaign to artificially prolong this dispute has been about wasting Court time, increasing costs and damaging shareholder interests, until people consider you a sufficient nuisance to pay you to go away. Let’s call it like it is.

I think it’s time we all acknowledge that by seeking to prolong this case for years after it should have been resolved and contrary to the interests and wishes of all the genuine shareholders you have shown yourself to be nothing more than an opportunist trying to insert himself in the middle of a dispute that is not your concern, in the hope of making an unjustified profit for yourself at the expense of the genuine shareholders - of whom you are not one.

I doubt this is the first campaign of this type you have conducted.

Sincerely,

Richard Thoburn”

At [4], the Particulars of Claim plead the following natural and ordinary meanings:

“4.1

that the Claimant has made a career as a vexatious litigant abusing the legal system;

4.2

that the Claimant’s modus operandi and deliberate intention is to make a sufficient nuisance of himself that people will give him money to go away; and

4.3

that the Claimant’s motives in the Hat & Mitre litigation have at all material times been opportunistic and without integrity and amounted to an ambulance chasing campaign to artificially prolong a dispute in which he had placed himself in the middle but that was not of his concern, to waste Court time, to deliberately increase costs and to damage shareholder interests, of which he was not one and at no time had any genuine intention to become one.”

At [5], there is the following plea:

“The publication of the said words contained within the Email has gravely injured the reputation of the Claimant, has caused her (sic) considerable embarrassment and distress, and serious harm to him and/or is likely to cause or continue to cause serious harm to him”.

At [6], it is pleaded:

“Further, or alternatively, the said words contained within the email were false and published maliciously and reflected adversely upon the Claimant’s professional reputation and calling”

At [7], under the heading “Particulars of Malice”, the following plea appears:

“The Defendant made no secret of his determined opposition to the Claimant increasing his shareholding in Hat & Mitre. In publishing the words in the Email to the remaining shareholders in that company, the Defendant did so knowing they (sic) to be false, or did so recklessly, not caring whether they were true or false, in order to induce unity amongst the remaining shareholders to oppose the Claimant’s proposed Consent Order”.

The prayer for relief seeks “Damages (including Aggravated Damages) Damages (sic), for Libel and/or for Malicious Falsehood (in the latter case pursuant to section 3(1)(b) of the Defamation Act 1952) in respect of the words complained of in the email”.

It is immediately apparent that:

These are not minor or inconsequential deficiencies in the Particulars of Claim.

On the contrary, in accordance with s1 of the Defamation Act 2013 (“A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”), serious harm is a threshold requirement for a claim in defamation. As Lord Sumption explained in Lachaux v Independent Print Ltd [2020] AC 612 at [14] and [21]:

“… section 1 necessarily means that a statement which would previously have been regarded as defamatory, because of its inherent tendency to cause some harm to reputation, is not to be so regarded unless it “has caused or is likely to cause” harm which is “serious”. The reference to a situation where the statement “has caused” serious harm is to the consequences of the publication, and not the publication itself. It points to some historic harm, which is shown to have actually occurred. This is a proposition of fact which can be established only by reference to the impact which the statement is shown actually to have had. It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. The same must be true of the reference to harm which is “likely” to be caused. In this context, the phrase naturally refers to probable future harm.

… [the claimant] must demonstrate as a fact that the harm caused by the publications complained of was serious … (or, I would add, likely to be serious)”.

Of equal significance, the authors of Gatley on Libel and Slander, 13^th edn, state the following at 22-019 and 28-042, accurately in my opinion (emphasis added):

“22-019 It has been said many times that malice is a serious allegation, tantamount to dishonesty, which should not be made lightly. To be probative of malice, the pleaded case must be more consistent with the presence of malice than its absence. It is vital to plead and prove the facts from which malice is to be inferred. The courts commonly encounter pleas of malice that fail because they are formulaic, or nothing more than assertion, or allege facts that on analysis are equally consistent with innocence. They are likely to be struck out.

28-042 Where the claimant pursues a claim for slander of goods, slander of title or other malicious (or injurious) falsehood, there are different requirements of pleading. The claimant must plead the issue of publication with equal particularity as in libel or slander … The claimant must also specifically allege that the words in the relevant meanings were false and that they were published maliciously. He should set out the factual respects in which the words complained of are alleged to be untrue, and he should give particulars of the facts and matters on which he relies to support the allegation of malice. Before settling any document containing an allegation of malicious falsehood, a pleader should satisfy himself not only that he has clear instructions to make the allegation but also that the material on which it is based is of such a character as to lead a responsible lawyer exercising an objective professional judgment to conclude that serious allegations could properly be based upon it. Further, there are special rules governing the pleading of a case of malice: the facts as pleaded must be more consistent with the existence of malice than its absence. Finally, the claimant must allege either that the words were calculated to cause pecuniary damage and give particulars of the nature of the alleged probable damage and the grounds relied on for saying that damage is more likely than not, or that they did in fact cause such damage and again particularise that loss. In the latter case, the claimant should give particulars of the damage and show sufficient nexus between the publication of the words and the damage. A claimant suing for malicious falsehood may make a claim for aggravated damages in respect of injury to feelings where the hurt feelings have been caused by any financial loss that the claimant can prove he or she has sustained.”

Further, in George v Cannell [2024] 3 WLR 153 the Supreme Court held: (1) the effect of s3(1) of the Defamation Act 1952, where it applies, is to create a presumption of law that the publication of the words complained of has caused financial loss, which presumption is irrebuttable so far as concerns liability; nevertheless (2) if the malicious falsehood has not in fact caused any financial loss, then the claimant is not entitled to damages for financial loss or damages for injured feelings consequent on such loss, even if financial loss is presumed for the purposes of liability under section 3(1) (and the question of an award of aggravated damages on the basis that the conduct or motives of the defendant has aggravated the injury done to the claimant also does not arise unless he or she has been caused financial loss). Accordingly, a claimant will be entitled to no more than nominal damages in circumstances where the claimant has not, in fact, suffered financial loss.

In light of this decision, a failure to plead and prove financial loss has the effect that the claim will result in nothing more than an award of nominal damages, and is accordingly liable to be struck out as an abuse of process as no rational person brings proceedings, especially those as expensive as the present claim is likely to be, for such an objective.

For these reasons, I would uphold the second limb of the Defendant’s application, in respect of both the pleaded case in defamation and the pleaded case of malicious falsehood, on the grounds (see CPR 3.4(2)(a)) that the relevant statement of case – i.e. the Particulars of Claim – “discloses no reasonable grounds for bringing … the claim”.

Nevertheless, as often happens, Mr de Wilde placed greater emphasis on the summary judgment limb of the application, and argued it first. Moreover, although the Claimant advanced no such argument, where an application is made to strike out a statement of case which is, on the face of it, defective, it is sometimes appropriate to permit the statement of case to be amended to cure any apparent defects, rather than to strike it out. For example, if the Claimant’s evidence included facts supporting a case of serious harm to reputation, justice and the overriding objective might be better served by permitting him to amend to transpose those facts into the Particulars of Claim rather than striking out the claim for defamation on the basis that serious harm to reputation is not sufficiently pleaded.

In these circumstances, I shall also consider the evidence and the case for summary judgment in respect of both pleaded causes of action - defamation and malicious falsehood.

In doing that, I have well in mind the often-cited summary of the relevant principles contained in the judgment of Lewison J in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch), with which I am very familiar. I also have regard to the following passages of the judgment of Cockerill J in King v Stiefel [2021] EWHC 1045 (Comm):

“[21] The authorities therefore make clear that in the context of summary judgment the court is by no means barred from evaluating the evidence, and concluding that on the evidence there is no real (as opposed to fanciful) prospect of success. It will of course be cautious in doing so. It will bear in mind the clarity of the evidence available and the potential for other evidence to be available at trial which is likely to bear on the issues. It will avoid conducting a mini-trial. But there will be cases where the Court will be entitled to draw a line and say that - even bearing well in mind all of those points - it would be contrary to principle for a case to proceed to trial.

[22] So, when faced with a summary judgment application it is not enough to say, with Mr Micawber, that something may turn up.”

The evidence before the Court consists of (1) the 1^st witness statement of the Defendant, dated 25 April 2025, made in support of the application, (2) the 1^st witness statement of the Claimant in response, dated 19 May 2025, (3) the 2^nd witness statement of the Defendant, dated 6 June 2025, made in reply (all of which were made and served in accordance with the Order of Collins Rice J dated 2 May 2025), and (4) the 2^nd witness statement of the Claimant, dated 10 June 2025 (made and served outside the parameters of that Order).

Serious harm is addressed by the Defendant in [75]-[80] of his 1^st witness statement. Much of that material takes the form of argument or making forensic points. The statements that consist of evidence or at least partly of evidence comprise the following with regard to the addressees of the Email: (1) the four minority shareholders had been united in their opposition to the Claimant throughout and “cannot be expected to give evidence” to support his case, (2) the same applies to the two majority shareholders, who had fallen out with the Claimant long before the Email was sent, (3) there is “no prospect” of the two individual liquidators “supporting any case on serious harm arising from the words complained of”.

The Defendant also makes the points that these conclusions are supported by the following facts: (1) none of the addressees engaged with the Claimant after the Email was received by them, and (2) by 22 August 2024, all of the shareholder addressees were united in asking the Claimant to desist from further communications with them.

The Defendant also points out that the Email cannot be viewed in isolation, but instead formed part of a long history of interactions relating to the Claimant’s conduct in relation to the affairs of the Company, including litigation which had caused “huge loss and inconvenience” to all of the addressees “over an extended period”. Accordingly, it is said, the Email “cannot realistically have caused further damage to [the Claimant] in their eyes”, and he faces “insuperable causation issues” in seeking to demonstrate that the Email, rather than other factors, caused damage to his reputation in their perception.

The Defendant concludes this part of his evidence by asserting that: “there are no reasonable grounds for believing that any fuller investigation or disclosure would alter the picture in relation to serious harm to reputation at trial”.

The Claimant’s 1^st witness statement contains a section at [54]-[59] entitled “How have I (and Hat & Mitre) been damaged”. The thrust of his case (based on a detailed account of his involvement with the affairs of Company, as he sees matters, contained in earlier parts of that witness statement) is that: (1) the Company could and should have been operated differently, (2) losses were caused by the administration and the liquidation which the Claimant would have liked to be able to recover for the benefit of the Company and for his own benefit, (3) the Defendant, and others, have an interest in thwarting the Claimant’s intervention as there has been wrongdoing in connection with the running of the Company and Maxwell Stamp that the Claimant will otherwise expose, and (4) he (and his family) have lost the opportunity to profit by realising the value that he would have able to unlock.

This part of the Claimant’s 1^st witness statement is all about alleged damage to his economic interests. Moreover, the complaints made here make no mention of the Email, but instead relate to the conduct of the Defendant and the conduct of others over, it seems, many years.

The witness statement moves on to address the consequences of the Email in a section at [60]-[66] entitled “Summary”. At [62] it is stated: “These statements have lowered me in the eyes of right-thinking members of society and have affected the attitude of other people towards me.” That is, on the face of it, a purely formulaic assertion, and, moreover, not one that sits readily with the facts of this case, which does not concern publication to the world at large but instead to the handful of persons to whom the Email was sent. At [63] it is stated: “The publication of the statement (sic) has caused and is likely to cause serious harm to my reputation”. That, again, is a purely formulaic assertion. Nor is it made good by what follows, which consists of statements that “The content and context of the statements meant that [the Defendant] intended to and did influence the views held about [the Claimant]” and that “the protection of my reputation (especially in the eyes of the Court) is vital to me”.

The Defendant returns to the topic of serious harm to reputation in [10]-[14] of his 2^nd witness statement. Again, much of this material is argumentative in nature. It is said that the harm to the Claimant’s economic interests is entirely speculative, and in any event is not attributable to any reputational harm that can be argued to have been caused by the Email. The main point made is that, in the teeth of a challenge to his ability to establish serious harm to reputation, the Claimant has produced no evidence, whether from the recipients of the Email or otherwise, nor attempted to point to any real-world consequences for his reputation as a result of the publication of the Email, nor even suggested “a platform of facts” from which serious harm to his reputation “could theoretically be inferred”.

By way of riposte, at [11]-[14] of his 2^nd witness statement, under the heading of “Serious harm to reputation”, the Claimant states: (1) that “it is my case that [the Defendant] attempted to, and did, damage my economic interests”, (2) that the Email “was a malicious attack on my character, and being the spokesperson for the minority shareholders, I have no doubt that [the Defendant] influenced their views”, (3) that “the resulting consequences for me were serious [as is] evident from the judgment of Sir Anthony Mann”, (4) that his claim that he has suffered serious harm “is set out”, and that he believes that with the benefit of a full hearing he will be able to show “that I have suffered the type of serious harm as identified and explained in … George v Cannell”, and (5) that “The real-world consequences of [the Defendant’s] actions are that he influenced shareholders against me which resulted in the adverse findings of Sir Anthony Mann … [who] concluded that I was not in a position to increase my shareholding to 54% of the Company”.

During the course of the hearing, the Claimant confirmed that he had made no attempt to contact any of the addressees of the Email to ask what effect the Email had on their view of the Claimant and his reputation, and nor, as far as I could tell, did he suggest that he intended to try and contact them between now and the time of trial, or that they would respond to him if he did. Mr Young has sadly died, and so cannot be contacted in any event.

In my judgment, it is clear that the Claimant has no evidence that the publication of the Email caused serious harm to his reputation, or for that matter is likely to do so. This is unsurprising, both in light of the general and unsubstantiated manner in which the Particulars of Claim is pleaded, and having regard to the history and context in which the Email was written and sent. As a result of those matters, it is fanciful to suggest that those addressees who took the trouble to read and digest its contents (which may not include the administrators of the Defendant’s SIPP) would not already have formed settled views about the Claimant and his conduct, which would not be affected by the contents of the Email. In the case of the liquidators, they would also have known of the judgment of Peter Smith QC. The prospect that, even if they did think any the worse of the Claimant as a result of the Email, any of them would give evidence to support his present claim is also non-existent: not only because they fell out with him long ago, for reasons entirely independent of the Email, but also because it is clear that if the present claim proceeds it will involve revisiting the rights and wrongs of the previous disputes, which they cannot have any wish to do.

For much the same reasons, I do not consider that there is any real prospect that the Claimant could or would obtain evidence between the present time and the date of a trial that the publication of the Email caused (or is likely to cause) serious harm to his reputation.

The Claimant does not make any serious attempt in his evidence to grapple with the difficulties in this part of his case. Instead, in part he resorts to formulaic assertions. In other respects, his evidence makes clear that his real grievance is not harm to his reputation but the supposed adverse economic consequences for him of being unable to intervene in the affairs of the Company as he would have liked to do. That is the wrong type of harm for the purposes of s1 of the Defamation Act 2013. Further, that grievance is founded on the other shareholders being influenced against him by the Email, although (1) there is no evidence of that, and (2) even if it is properly arguable that this can be inferred, it does not follow that it was a result of the other shareholders thinking less of the Claimant than they would otherwise have done (as opposed to simply agreeing that for commercial reasons they wanted no truck with the Proposed Consent Order or the Claimant’s plans in general).

There are in any event insuperable problems with the suggestion that the Email caused adverse economic consequences for the Claimant. Resistance to his stance began well before the Email was sent, and resulted in the Order of ICCJ Jones. If the Claimant was to have fared better before Sir Anthony Mann, or by avoiding an appeal through the agreement of the Proposed Consent Order, that would have required a sea change on the part of those opposed to his stance, and there is no evidence at all that this was ever a realistic prospect. On the contrary, all the evidence points to the opposition to his stance being settled, both long before and long after the Email was sent. The Claimant’s reference to the importance to him of protecting his reputation “especially in the eyes of the Court” is telling, and betrays the confusion between the case that he is required to make on serious harm to reputation to have a real prospect of success on his claim for defamation and his true grievance, which is that he failed in his attempts to insert himself into the affairs of the Company and make financial gains: the Email was not published widely (and, in particular, there is no suggestion in the evidence or the pleaded case of “percolation”), or to the Court.

I have reached these conclusions without the need to consider the authorities to which I was referred by Mr de Wilde, but these conclusions are entirely consonant with the decided cases. It is sufficient to refer to the following passages from the judgment of Nicklin J in Amersi v Leslie [2023] EWHC 1368 (KB):

“[140] Of particular relevance and importance is Collins Rice J’s decision in Sivananthan v Vasikaran [2023] EMLR 7 …

“[53] I start with some general observations about how [the Claimant] seeks to establish his case on serious harm. The first is that a purely inferential case, while in principle available, is not an alternative to an evidential process for establishing serious harm – it must be an evidential process for establishing serious harm. There is a difference between inference and speculation. The components of an inferential case must themselves be sufficiently evidenced and/or inherently probable to be capable of adding up to something which discharges a claimant’s burden.

[54] The second is that, given [the Claimant] accepts the class of direct publishees is a small one, the absence of evidence from any direct publishee is not inconsequential. The concern [the Claimant] expresses about inflaming an already partisan context by seeking evidence from direct publishees may or may not be understandable (it is asserted rather than demonstrated). But deciding not to do so places him at an evidential disadvantage. The authorities on establishing serious harm by inference alone tend to feature mass-circulation publications so that evidence of individual impact may be both genuinely unreachable and inherently probable at the same time. Publication to a closed and small WhatsApp group where there is little or no evidence of adverse impact in the chat itself or from any member or reader is a different matter. These facts alone do not easily facilitate an inference of serious harm.

…

[57] The fifth point is related, but distinct. If publication is not only in the context of a well-known dispute between the parties, but to an audience already either partisan or resolutely neutral as between them, then again a claimant may have to work harder to make their case on causation. In a polarised context, it may be less probable that anyone’s mind will have been changed either way by the publication. If no-one’s mind is changed, then establishing the causation of reputational harm is a problem.”

[158] But where a claimant complains of publication of a defamatory statement to either a single publishee or a limited number of publishees, the scope for reliance on inference is likely to be very much reduced, both in relation to the direct harm caused to the claimant’s reputation in the eyes of the immediate publishee(s) and any ‘percolation’ effect. The impact of Lachaux is that such reputational harm must be proved. Where the publishees can be identified, that means that an absence of evidence of the actual impact on the individual publishees may mean that a claimant cannot discharge the evidential burden placed on him/her by s1. Drawing inferences is not a process of optimistic guesswork; it is a process whereby the court concludes that the evidence adduced enables a further inference of fact to be drawn.”

Mr de Wilde began his submissions under this head by referring to some general and uncontroversial statements of the law, beginning with Gatley at 15-005 (citations omitted):

“The occasions [of qualified] privilege can never be catalogued and rendered exact, but the tendency of the courts has been to regard most privileged occasions under the common law as very broadly classifiable into two categories: first, where the maker of the statement has a duty (whether legal, social or moral) to make the statement and the recipient has a corresponding interest to receive it; or, secondly, where the maker of the statement is acting in pursuance of an interest of his and the recipient has such a corresponding interest or duty in relation to the statement, or where he is acting in a matter in which he has a common interest with the recipient.”

In the same passage, the authors of Gatley refer, as did Mr de Wilde, to two formulations which have become “almost canonical” in this area of the law:

Mr de Wilde developed his submissions on qualified privilege under three heads: (i) protection of interests, (ii) answers to enquiries, and (iii) communication sent in the course of proceedings. However, I consider that it is sufficient to refer to the first of these alone.

In this regard, two authorities are cited in Gatley, at 15-011:

At 15-046, under the heading “Other common interests”, the authors of Gatley state (omitting citations): “Any other legitimate common interest will also be protected.Any continuing transaction is likely to give rise to such an interest in the parties concerned.”

Mr de Wilde cited further authorities, but I do not consider it necessary to refer to them.

Mr de Wilde submitted, and I agree, that: “It is difficult to conceive of a more obviously privileged occasion than, in the course of proceedings, the publication of views concerning contentious proposals for resolution of the dispute, where those views are sent both to the opposing side and those on the same side of that dispute”. Mr de Wilde emphasised that, as the Defendant’s evidence explains, and as is self-evident from the undisputed circumstances in which the Email was sent: (1) in publishing the Email, the Defendant was protecting his business or commercial interests in the ongoing dispute concerning the liquidation of the Company, and his interests relating to litigation in which he was involved (or at least his interests were involved), and (2) the recipients had a reciprocal business or commercial interest, and one further arising from the litigation itself, in the subject matter of the Email, which included protecting the Defendant and the publishees from the Claimant’s ongoing involvement in the dispute, and resisting the Claimant’s proposals relating to the litigation in respect of the judgment of ICCJ Jones and his prospective appeal.

Mr de Wilde further submitted, with some force in my view, that, although the Claimant only complains about three distinct defamatory imputations, and although it was unnecessary for the Court to grapple with issues of determination of meaning for the purposes of the present application, the Email, when read as a whole: (1) is primarily a response to the Proposed Consent Order and contains the Defendant’s opinion about the merits of the Claimant’s proposal in the context of the litigation, all of which is indicative of its status as opinion, (2) conveys to the recipients that the Proposed Consent Order should not be agreed, contending among other things that the Claimant’s involvement in the disputes concerning the Company is not in the interests of shareholders and is so universally objectionable that a previously divided group has become united against him, and (3) only bears any meaning(s) along the lines contended for by the Claimant against the background of its wider content, namely that it was responding to the Proposed Consent Order.

The Claimant’s evidence contained in his 1^st witness statement was such that in [15] of his 2^nd witness statement the Defendant observed that “[the Claimant] does not appear to dispute my contention that [the Email] was sent on an occasion of qualified privilege, including my detailed account of the circumstances surrounding its sending, and of its content”. In response to that evidence, the Claimant said at [15] of his 2^nd witness statement: “I do not accept that [the Defendant’s] communication was sent on an occasion of qualified privilege. Neither [he] nor the other shareholders were parties to the litigation”. Neither this evidence nor the written and oral submissions that the Claimant addressed to me on the subject of privilege persuaded me that there is any answer to Mr de Wilde’s submissions.

In my judgment, the issue of whether the Email was published on an occasion that was protected by qualified privilege is properly susceptible to summary judgment in accordance with CPR 24.2. The necessary reciprocity of interest was manifestly in existence. The Email was plainly published on such an occasion. The Claimant has no real prospect of succeeding on the issue. There is no other compelling reason why the issue should be tried.

In the present case, malice is relevant in two contexts. First, as a potential answer to a defence of common law qualified privilege to the claim for defamation. Second, because it is one of the elements of the tort of malicious falsehood. In the latter regard, the authors of Gatley state at 22-001:

“At common law the claimant may maintain an action for malicious falsehood if he can show that: (1) the defendant published to third parties words which are false; (2) that they refer to the claimant or his property or his business; (3) that they were published maliciously; and (4) that special damage has followed as a direct and natural result of their publication, except when Defamation Act 1952 s.3(1) applies, and in essence it will suffice to show that special damage was likely to have been caused.”

Malice was considered by the Court of Appeal in the context of a claim to (statutory) qualified privilege in Iqbal v Geo TV Ltd [2025] 2 WLR 663, when allowing the defendant’s appeal against the refusal of the judge at first instance to find that the claimant had no realistic prospect of succeeding at trial in establishing that the publications complained of had been made with malice. Warby LJ summarised the authorities as follows at [91]-[93]:

“91.

In the present context malice does not bear its ordinary meaning of spite, ill-will or animosity. So far as common law privilege based on interest and duty is concerned, the classic exposition of malice is that of Lord Diplock in Horrocks v Lowe [1975] AC 135, 149–150. The key points are these. Malice consists in abusing the privileged occasion for some dominant improper motive. Proof that the defendant lacked an honest belief in the truth of what was published – that it was published in the knowledge that it was untrue or with reckless indifference to whether it was true or not – will generally be conclusive evidence of such a state of mind. But recklessness is not the same as carelessness, impulsivity or even irrationality. And there are “exceptional cases” where a person may be under a duty to pass on defamatory reports made by another even if he believes them to be untrue.

92.

In two first-instance decisions mentioned by the judge, the court has noted that there have been few if any findings of “dominant improper motive” malice, describing it as an “endangered species”, and casting doubt on whether the Horrocks v Lowe analysis can even apply to reporting privileges: see Lillie [2002] EWHC 1600 (QB) at [1093] (Eady J) and Huda v Wells [2018] EMLR 7, paras 70–71 (Nicklin J). These were, however, obiter observations and neither case ruled out the possibility that a reporting privilege may be defeated by proof that the publisher knew the underlying statement to be true or was recklessly indifferent to its truth or falsity.

93.

The law takes a particularly strict approach to the pleading and proof of allegations of malice, treating them as akin to fraud. The principles have been established for over 150 years and repeatedly reaffirmed. Eady J summarised them in Seray-Wurie v Charity Commission for England and Wales [2008] EWHC 870 (QB) at [33]–[35]:

“the facts relied upon by a claimant, whether in a pleading or in a witness statement, must be capable of giving rise to the probability of malice, as opposed to a mere possibility … In order to survive, allegations of malice must go beyond that which is equivocal or merely neutral. There must be something from which a jury, ultimately, could rationally infer malice … Mere assertion will not do. A claimant may not proceed simply in the hope that something will turn up if the defendant chooses to go into the witness box …”

An allegation of malice must be pleaded with “scrupulous care and specificity”: Henderson v Hackney London Borough Council [2010] EWHC 1651 (QB) at [40], also a decision of Eady J.”

In my judgment, for the reasons given in [43] above, the Claimant’s pleaded case contained in the Particulars of Claim incontrovertibly falls far short of meeting these exacting criteria.

That leads on to consideration of whether the evidence improves the Claimant’s position.

Unsurprisingly, the evidence of the Defendant does not. At [74] of his 1^st witness statement, he states “I believed that what I wrote in the Email was true and I was not motivated by any intention to injure [the Claimant]. I believed that the Proposed Consent Order was wholly inappropriate as a next step in the proceedings, and that neither the Order itself nor [the Claimant’s] involvement in the litigation was in the interests of the shareholders”. He goes on to say, in summary, that he believed that the Claimant attempted to make a nuisance of himself in disputes in which he has no proper role in order to improve his position, that the Claimant’s motivation was opportunistic and selfish, that the Claimant’s conduct was likely to waste time and costs, and that the Claimant is a vexatious and abusive litigant. This evidence is, of course, verified by a statement of truth at the end of that witness statement.

In his 1^st witness statement, the Claimant states at [64] that the Defendant “knew that the statements [contained in the Email] were not true, and he was reckless regarding the truth of the statements”, and at [66] that the Defendant “used the opportunity to launch an attack on me personally” and that “His response was a vicious and malicious attack on my character”. The first of these statements is formulaic. The others consist of mere assertion. None of them, in my opinion, evidences a case on malice which is suitable to go to trial.

In his 2^nd witness statement, the Defendant returns to the topic of malice at [16]-[20]. Once again, much of this text consists of argument and forensic points. For example: “Opposing [the Claimant’s] position, or refusing to work with him, as he now attempts to characterise my conduct, cannot amount to a campaign or acting “maliciously” towards him. In order to succeed with a plea of malice, [the Claimant] would have to satisfy the Court, either that I used the occasion for some dominant improper purpose, or, more likely, that I did not honestly believe what I wrote. [The Claimant] has not even attempted to put forward a platform of facts from which such a conclusion could theoretically be reached, much less any positive proof of it”. Among other things, the Defendant states (at [19]) that “the public judgments regarding the [Company] litigation show reason on their face for me to have honestly held the view that I expressed in [the Email]”; and (at [20]) the Defendant makes reference to the judgment of Peter Smith QC and says “I can only go by what I have seen”.

In response to that, the Claimant includes text under the heading “Malice” at [17]-[23] of his 2^nd witness statement. At [18], the Claimant states (again, in terms that are formulaic and consist of pure assertion) “[The Claimant’s] communication was used for a dominant, improper purpose and the statements made by him were untrue and he knew that to be the case. His comments were knowingly untrue attacks on my reputation which caused and are likely to cause serious harm to me.” At [19], the Claimant says that he would like the opportunity to cross-examine the Defendant in relation to each of the “dozens of judgments” that the Defendant says are in the public domain concerning the Claimant and “what [the Defendant’s] state of knowledge of the judgment is and what steps he took to satisfy himself of the circumstances and truth of the outcomes”. However, I am unable to see how that expressed intention can support a properly triable case on malice in respect of the Email. At [20]-[21], the Claimant says that the judgment of Peter Smith QC is “under challenge”, that the Defendant knew this from meetings that he had with the Defendant, and that he believes that the Defendant has introduced this case (as I understand it, in the Defendant’s evidence in reply in the present proceedings) “maliciously and with a malevolent intent of discrediting me”. However, once again, I am unable to see how this assists to make out or support a properly triable case on malice in respect of the Email. Finally, in [25], by reference to [5] of the Particulars of Claim, the Defendant states “At the time of publication, [the Defendant] intended to damage my reputation in the eyes of the other shareholders” and “He knew or ought to have known the statements were untrue” - thereby alleging dominant improper purpose and knowledge of falsity in formulaic terms.

Mr de Wilde submits: (1) there is no factual basis whatsoever for the Claimant’s allegations of malice, which the onus is on him to establish either for the purpose of defeating a defence of qualified privilege, or for establishing a cause of action in malicious falsehood, and (2) this means that the Claimant can neither defeat the defence nor succeed on the claim. The Claimant submits (1) there is substance in the case on malice as set out in the Particulars of Claim and the witness statements, and (2) this is summarised in [5.7] of his Skeleton Argument (which sets out a series of propositions about the law on malice, such as “Malice is therefore defined as the absence of an honest belief in the truth of the statement or the presence of some improper motive for the publication going beyond the scope of the occasion’s purpose”, but does not contain any submissions on the contents of the evidence).

I have no hesitation in preferring the Defendant’s case on this issue. In my judgment, the Claimant has not shown that he has any real prospect that he will succeed in establishing malice on the part of the Defendant in connection with the publication of the Email. Nor, for completeness, is there any compelling reason why the determination of that issue should be disposed of at a trial. On the contrary, there is every reason to dispose of that issue now.

For these reasons, the Defendant’s application succeeds. In addition, I was invited by Mr de Wilde at the conclusion of his Skeleton Argument to hold that the claim is totally without merit in the meaning of that term stated by the Court of Appeal in R. (Grace) v Secretary of State for the Home Department [2014] 1 WLR 342, namely “bound to fail”. However, I heard no submissions from the Claimant on that issue, and I do not consider it appropriate to rule on that matter without affording him an opportunity to oppose that finding (if he is minded to do so). Therefore, I consider that the matter will need to be resolved on some future occasion, if the Defendant wishes to pursue it and if it is not capable of being agreed.

I ask the Defendant’s legal advisers and the Claimant to agree an order which reflects the above rulings. I will deal with submissions on any points which remain in dispute as to the form of the order, and on any other issues such as costs and permission to appeal, either when judgment is handed down, or on an adjourned hearing on some other convenient date.