Mr Justice Tugendhat earlier this month dismissed a defamation claim in an interlocutory appeal hearing because he concluded that it had no reasonable prospect of success.
The claimant was a social worker who was studying for a diploma in social work, for which he had to complete two placements. The two defendants were the manager and assistant manager at the Carers Centre where the claimant was placed. The words complained of were alleged to have been written maliciously by the defendants in an assessment report about the claimant.
The judge had no hesitation in concluding that the report was published on an occasion of qualified privilege because the defendants were clearly under a duty to prepare it, and there was an obvious right and obligation on the recipients to receive it. The Statement of Case and Reply both contained a plea of malice to overcome this difficulty.
The defendant’s original application to strike out the plea of malice was unsuccessful, and the judge heard their appeal against that judgment. He observed that in order to strike out such a plea, it is necessary (applying Alexander v Arts Council of Wales) to establish that a properly directed jury could not conscientiously reach the conclusion that the defendants were actuated by malice.
The judge helpfully summarised the two strands of the current law of malice stating:
“…it is not enough for the claimant to prove that the defendant’s motive in publishing what they allegedly did was personal spite, or desire to injure. He must also prove either that personal spite, or a desire to injure, was their dominant motive, or that they did not believe what they wrote to be true” (emphasis added).
The judge found that the legal presumption of a belief by the defendants in the truth of what was published on a privileged occasion had not been rebutted by the plea of malice, and he struck it out. Since the defence of qualified privilege was bound to succeed, he went on to grant summary judgment to the defendants.
In so doing, the judge illustrated the practical use of the (still relatively new) summary judgment provisions of the Civil Procedure Rules (CPR) as they apply to defamation actions. He showed the willingness of the judiciary to strike out hopeless pleas of malice when it is appropriate to avoid expensive and lengthy jury trials, confirming the usefulness of such provisions particularly where the claimant is (as in this case) a litigant in person.