Thompson v James & Anor

The Claimant applies for permission to amend her Reply in so far as it includes a plea of malice made in response to the Defendants’ defence of qualified privilege. Last Friday 15 February, the third day of the trial, I refused permission for the amendment in so far as it was in response to the Defendants’ defences of honest comment. After giving an ex tempore judgment on that point, I heard the submissions of the parties on this aspect of the application to amend later that day. At the end of the submissions I reserved my judgment over the weekend.

The stage to which the trial has advanced is that, subject to this application, the Claimant has reached the close of her case. She has adduced all the evidence that she has to adduce, or which I have ruled that she can adduce.

The words complained of are in the form of a letter which the First Defendant sent to a third party, a Mr Milan, who posted it on his weblog. The letter was in response to an open letter to the First Defendant which had been posted on that weblog by Mr Milan.

The open letter related to an incident on 8 June 2011 when the Claimant had been asked to leave the Second Defendant’s Council Chamber. As is common ground, she had declined to leave the Chamber, the police had been called, and she had been arrested outside by the police (as she says, for breach of the peace), but subsequently released without charge. She had been asked to leave because the First Defendant and others in the Chamber alleged that she was filming the meeting then in session on her mobile phone. She declined to leave because she contended then (as she does now) that there is nothing wrong in a member of the public filming proceedings at a meeting of the Second Defendant, whether or not they have been asked to stop. The incident had received some publicity, some of it referring to the incident as a “daft arrest”. The Minutes of the meeting of 8 June recorded that she had disrupted the meeting, whereas it is her case that the meeting was disrupted, not by herself, but by those who asked her to leave when she was doing nothing wrong.

Mr Milan sought an explanation from the Defendants.

The explanation put forward in the words complained of referred to a history of incidents involving the Claimant and her family over a period of five years following the refusal of planning applications which the Claimant’s brother in law had made. The First Defendant alleged in the words complained of, as he does in this action, that the Claimant had been engaged in a campaign of harassment against officers and members of the Second Defendant (the meanings attributed to the words complained of are more complicated than that, but that is the gist). He also referred to an earlier occasion when the Claimant had been asked to leave the Chamber when she had been asked to stop filming with her mobile phone. This was on 13 April 2011. On that occasion, she denied that she was filming at all. And after leaving the Council Chamber she alleged to the police that she had been assaulted in the Council Chamber by the officer of the Second Defendant who had gone to speak to her in the public gallery and had asked to her to stop filming.

The defences include truth (justification), qualified privilege and honest comment. There are a numerous letters and other publications by the Claimant, in which the Claimant made allegations which the Defendants submit are baseless allegations of corruption and other misconduct against the First Defendant and other officers and members of the Second Defendant. The words complained of also include a statement that she had made a baseless allegation to the police of attempted theft of her phone. The Claimant agrees that such an allegation would have been baseless, but she denies that she made it to the police.

The Claimant in her Reply also disputes that the publication of the words complained of was on an occasion of qualified privilege. The issues she raises in that regard are not the subject of this judgment. They involve a number of sub-issues, some of which require consideration of the public law duties of the Second Defendant and its officers.

The case in malice is put in two ways: (1) that the First Defendant published the words complained of with a dominant improper motive to discredit the Claimant when she was making lawful criticisms of the Defendants, and (2) that (on the footing that the words complained of contained defamatory statements of fact) they were false, and the First Defendant published them with reckless indifference as to whether they were true or false, wilfully blind to the truth.

Ms Michalos cites Horrocks v Lowe [1975] AC 135 at 150:

“Even a positive belief in the truth of what is published on a privileged occasion — which is presumed unless the contrary is proved — may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames. If this be proved, then even positive belief in the truth of what is published will not enable the defamer to avail himself of the protection of the privilege to which he would otherwise have been entitled. There may be instances of improper motives which destroy the privilege apart from personal spite. A defendant's dominant motive may have been to obtain some private advantage unconnected with the duty or the interest which constitutes the reason for the privilege. If so, he loses the benefit of the privilege despite his positive belief that what he said or wrote was true”.

The Claimant relies on a number of matters included in the words complained of which she submits were irrelevant. Ms Michalos relies on the inclusion of these matters to support an inference that the First Defendant had a dominant improper motive.

Ms Michalos submits that the First Defendant wilfully turned a blind eye to the Claimant’s legitimate requests for an explanation of the legal basis for prohibiting filming by members of the public, and to the facts and matters which she adduced to support her argument that the prohibition was unlawful.

Ms Michalos submits that the reference in the words complained of to the acts in 2005 and 2006 of her husband and brother in law, but which were not acts of the Claimant herself (as the First Defendant knew), were so clearly irrelevant as to give rise to the inference that the First Defendant had a dominant improper motive to discredit the Claimant and bring to an end her lawful criticisms of the Defendants.

Ms Michalos further submits that the First Defendant could not genuinely have regarded the Claimant’s conduct as a campaign of harassment, having regard to the extent to which public figures, including members and officers of a local authority, may lawfully be the subject of criticism. And he could not genuinely have believed that the Claimant’s allegation that on 13 April she had been assaulted in the Council Chamber was a false claim by her.

The foregoing gives only the main points at issue in what is a very detailed pleading referring to many different matters at considerable length.

It is not in dispute that an allegation of malice is an allegation of dishonesty. A pleading of malice requires a high degree of particularity, and the matters pleaded must be more consistent with the presence of malice than its absence: Telnikoff v Matusevitch [1991] QB 102. A mere assertion of malice will not do. A claimant alleging malice may not persist in a defective plea of malice in the hope that, if the defendant gives evidence, something will emerge in cross-examination. Malice cannot be inferred from a pleading of matters which it is alleged that the defendant ought to have known, or ought not to have taken into account if he had been rational. That might support a case of carelessness, but carelessness is not malice.

Mr Speker submits that the inclusion of irrelevant material is not itself evidence of malice. It may be evidence from which malice can be inferred, but only if in all the circumstances it can be inferred that the defendant realised that the impugned material had nothing to do with the particular duty or interest on which the qualified privilege might otherwise have been based. He cites from Horrocks v Lowe at p151:

“As regards irrelevant matter the test is not whether it is logically relevant but whether, in all the circumstances, it can be inferred that the defendant either did not believe it to be true or, though believing it to be true, realised that it had nothing to do with the particular duty or interest on which the privilege was based, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his personal spite, or for some other improper motive. Here, too, judges and juries should be slow to draw this inference”.

Further Mr Speker submits that the plea of malice is prolix and diffuse. He has set out his objections in a written submission in which he refers paragraph by paragraph, to the draft for which the Claimant seeks permission to amend, setting out his objections to each of them.

In my judgment the submissions of Mr Speker are well founded for the reasons he gives. Taken at their highest, the matters relied on by the Claimant could not support a finding by a court (whether judge or jury), which was properly directed on the law, and not perverse, that it is more likely than not that the First Defendant knew that what he included in the words complained of was irrelevant or false, or that he was wilfully blind or indifferent as to whether the words were irrelevant or false. They could not support a finding that his dominant motive was the improper one of silencing legitimate criticism. That is not to say that, if those facts were proved by the Claimant, the words complained of would nevertheless be found to be all true, or that the court would nevertheless find that the matters complained of as irrelevant were relevant. It is simply a decision that the matters pleaded are (on the assumption that they will be proved) not so clearly irrelevant or false that the court could conclude that the First Defendant was acting dishonestly when he published the words complained of. The following are examples.

In the draft plea there are a number of passages in which it is recognised that the legal position on filming by members of the public might not be clear: 15.2.8 is one.

There are a number of passages in which it is asserted that the First Defendant knew that the Claimant’s actions were in good faith and had no connection with the refusal of the planning applications against which her husband and brother in law had protested: 15.7.1(c), 15.7.1(h), 15.7.2(c), 15.7.6.

There are a number of passages in which the Claimant pleads matters which she states “could not properly be regarded as or relied on by the First Defendant as evidence of harassment” (which is no more than a plea that the First Defendant was irrational, and cannot be a plea that he was dishonest): 15.7.1(d) to (g).

There are a number of obvious non-sequiturs. In para 15.1.2 to 15.1.2A the Claimant pleads that because the police did not press charges against the Claimant, it is to be inferred that the First Defendant knew that her allegations of assault were not false. In para 15.7.5 the Claimant pleads that it is to be inferred from the fact that she (the Claimant) had received no direct complaints from officers of the Second Defendant that the First Defendant was not aware of any complaints from such officers.

For these reasons I refuse permission to amend.

Having regard to the stage at which the trial has reached, I would refuse leave for a further reason. Permission to amend would serve no purpose. If this were a trial with a jury, the question that arises on this application for permission to amend would arise at the same time as a question as to whether there was a case in malice that could be left to the jury. That question falls to be decided not just on the words of the pleading, but also having regard to the evidence that the claimant has adduced.

Having considered the evidence adduced by the Claimant, not only her oral evidence, but also her lengthy and detailed witness statement, I find nothing which could form the basis of a finding that the First Defendant was acting with malice in the sense of dishonesty which has to be established. I find nothing which could form the basis of a finding that the First Defendant was actuated by a dominant improper motive. For this purpose, and at this stage of the trial, I assume that I will accept the evidence of the Claimant.

Accordingly, even if I had granted permission for the amendment to the plea of malice, I would in any event have held that, on the evidence adduced by the Claimant, there is no case in malice that could go forward.

The plea of malice must be struck out in its entirety.