In the case of David v Hosany [2017] EWHC 2787 (QB), His Honour Judge Moloney QC considered a libel claim brought by the claimant, a Governor of the East London Foundation NHS Trust, in respect of three publications by the defendant, another Governor of the same Trust. These publications alleged that the claimant had intimidated and harassed the defendant, with two of the publications containing allegations of sexual harassment.
The defendant’s allegations were made following an incident she claimed took place on the evening of 20 January 2015. After a meeting where they had supper and drinks together, the defendant claimed that the claimant made a pass at her which she rejected. The claimant stated that this did not happen.
Extent of publication
The publications complained of were directly published to a relatively small number of Governors and/or executives at the Trust. The claimant submitted that the defendant ought to be held liable for onward dissemination of the publications to other individuals identified as having read the words complained of but the Judge largely rejected this on the basis that the eventual disclosure the result of a sequence of unforeseeable events outside the defendant’s control. The Judge likewise declined the claimant’s invitation to draw the inference that an even wider class of people not individually known had read the publications for want of a proper factual basis on which to draw the inference.
Qualified Privilege
Having determined the extent of publication and the meaning of the words complained of, the Judge next considered the issue of qualified privilege and, in turn, whether it was defeated by malice. Qualified privilege provides a defence to the publisher of a statement in circumstances where s/he had a legal, social or moral duty or interest to make the publication and where the publishee has a corresponding interest in receiving it. If a defendant successfully establishes that a statement was made on an occasion of qualified privilege this offers a complete defence, unless the claimant can prove the statement was made maliciously.
Following the Court of Appeal decision in Clift v Slough Borough Council [2010] EWCA Civ 1484 a public authority will not be allowed to rely on a defence of qualified privilege if such reliance is incompatible with the claimant’s right to respect for his private and family life under Article 8 of the European Convention on Human Rights. The Judge accepted that if the claim had been brought against the Trust itself or one of it officers acting on its behalf, the Clift restriction on qualified privilege would have applied. In the present case, however, the claim had been issued against an individual governor of a public authority and thus the main issue was whether the defendant had published the words in the exercise of a public function, or as a private act. If, as section 6(5) of the Human Rights Act 1998 makes clear, “the nature of the act is private”, then the defendant is not a public authority, meaning that the Clift restriction would not apply.
In this case, the Judge found that the defendant was primarily protecting her own security and well-being from the claimant’s alleged sexual harassment. While the Judge accepted that this private interest had a link to the defendant’s public functions as a Governor, it did not make the act of publication one done in the discharge of a function of a public nature.
Having found the Clift exemption not to apply, the Judge went on to determine that all the instances of publications complained of took place on occasions of qualified privilege. In short, the defendant’s complaints were made to individuals who played a legitimate part in the complaints process
Express Malice?
In order to defeat a defence of qualified privilege, a claimant must show that defendant acted maliciously in publishing the words complained of. Malice, in a libel context, means that the defendant makes the statement for some dominant improper motive. If it can be shown that defendant did not believe the words to be true, or was reckless as to their falsity, then that is generally conclusive evidence to show that the defendant has acted with a dominant improper motive.
The Judge reviewed an extensive body of contemporaneous communications between the parties to try to ascertain whether the defendant knew her allegations to be false. What these communications revealed was that there was a marked change in the nature and frequency of the messages exchanged before and after the claimant’s alleged pass at the defendant on 20 January 2015. Prior to this alleged incident, the parties’ messages were cordial and were increasing in frequency. On 13 January 2015, for example, approximately 60 messages were exchanged.
The claimant’s explanation for the transformation in the nature of the communications was because he had told the defendant that she was “rather controlling”, which sufficiently angered her and caused her to make up a false allegation against him. The defendant contended that the change in the relationship was caused by the claimant’s pass at her and her rejection of it. The Judge found that the latter version of events was more plausible given that it was consistent with the documents. Further, under cross-examination, the defendant “gave every impression of sincerity” whereas the claimant “gave an impression of braggadocio”.
In view of the Judge’s findings as summarised above, he concluded that the defendant made her written complaints about the claimant honestly believing that they were true and fair. Accordingly, her defence of qualified privilege succeeded.
Serious harm
Pursuant to s.1 (1) of the Defamation Act 2013, a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the claimant’s reputation. Given the Judge determined that the qualified privilege defence should succeed, it was not strictly necessary for him to consider serious harm, but he did so in any event since it related to one of the essential elements of liability for defamation.
The Judge held that publications complained of actually caused real and serious harm to the claimant’s reputation notwithstanding that the class of publishees was very small. In reaching this conclusion, the Judge noted that the original publishees were influential people who worked closely with the claimant and that knowledge that the defendant had made a complaint against him which was under investigation became widespread within the Trust.
Comment
Provided allegations made in the workplace are made in accordance with a legal, social or moral duty and are communicated only to those who have a legitimate interest in receiving them then the defence of qualified privilege is likely to be available to a defendant. The claimant will therefore need to allege and prove malice on the balance of probabilities. In the present case, based on the available evidence, the Judge found that malice was not made out. What the judgment makes clear is that contemporaneous documentary evidence can be the key to determining whether the defendant has acted with a dominant improper motive.
In the case of Singh v Weayou [2017] EWHC 2102 (QB) (see our earlier blog here), a claim based on similar facts, the defendant failed to convince the Judge that he believed what he was saying was true. One of the main reasons for this was that he “altered his evidence in Court to suit the times and dates of documentation” and, on one occasion, after being tripped up on times and dates under cross-examination, was forced to admit, contrary to what he had stated in his witness statement, that a telephone call with the HR Manager at a private hospital which he had claimed took place before sending his defamatory email simply did not happen.
While defamation claims in an employment context are often not advisable (both in terms of prospects of success and practicality), they can succeed if evidence exists to show that the defendant has acted with a dominant improper motive. It is crucial, therefore, that all relevant documentary evidence is retained from the outset. Documentary evidence which undermines a defendant’s honest belief in the truth of the allegation in question places the claimant in a much stronger starting position.
This post originally appeared on the Brett Wilson Media Law Blog and is reproduced with permission and thanks
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