England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR JUSTICE TUGENDHAT)

		Royal Courts of Justice Strand London, WC2
		24th March 2006

1. LORD JUSTICE MAY: This is an application on behalf of the defendant in defamation proceedings, Mr Mohammed Khan, for permission to appeal against an order made by Tugendhat J on 15 December 2005. Tugendhat J dismissed the defendant's application for summary judgment on the issue of qualified privilege. The judge refused permission to appeal; so did Sedley LJ on the papers. This is a renewed application.
2. The factual background is complicated and I do not think it is necessary to go into great detail, but a brief summary is as follows. Mr Khan says that he was introduced to the claimant, Mr Mohammed Raja, in 1993 by Mr Khan's brother in law, who was an old friend of Mr Raja. Mr Raja was, and so far as I am aware still is, a director and shareholder of a company called Greenswan Consultants Ltd. That company runs a nursing home. Mr Khan apparently, in about 1993 or 1994, invested in the company. He apparently became a director and shareholder of the company, and remained so from about August 1994 until the end of February 1998. He then resigned his directorship and sold all his shares in the company.
3. For reasons which he explains in the papers before us, but which it is not necessary for the moment to go into, it was not until 22 February 2004 – that is to say, almost exactly six years later – that Mr Khan wrote a letter to Mr Raja which is the subject of these defamation proceedings. The letter of 22 February 2004 has the apparent oddity that it starts off by saying, "I am replying to your letter dated 23 April 1998", emphasising the period of time that had elapsed since Mr Khan was directly involved with this company and the nursing home that was its business.
4. The 22 February letter, in short summary, accuses Mr Raja of various dishonesties as well as other misbehaviour. The letter says that Mr Raja defrauded the company by diverting payments in cash of some £200,000 and £65,000 in repayment of a personal loan. It alleges that he defrauded the Department of Social Security as it then was. It alleges that he defrauded insurers, and it alleges that he committed offences against his tenants, and so forth. On the face of it plainly a defamatory publication, if published it was. The letter stated at its foot that copies were sent to a number of other parties, and it appears not to be disputed that at least some of them – perhaps eight – did receive copies of this letter. Five of these people were former shareholders in the company and others were the company's solicitors, accountants and their bank.
5. Mr Raja issued these proceedings for defamation on 16 February 2005, incidentally running quite close up against the statutory limitation period. Mr Khan served his defence on 27 April 2005. That defence pleads justification, fair comment and qualified privilege. Under the particulars of qualified privilege, the particular pleading says all the recipients individually and collectively had both a duty and an interest to receive this letter relating to the running of the nursing home and the conduct and integrity of its sole and effective manager and controller; that is, the claimant. The defendant, as a former director and former major shareholder of the company, had a duty and interest to inform both current and past directors and others associated with the claimant in the nursing home about the wrong and fraudulent conduct by the claimant.
6. The claimant served a reply on 3 August 2005, which so far as the plea of qualified privilege is concerned merely stated that the allegations were not made from a sense of duty. The court was concerned with an application made by Mr Sahota on behalf of the defendant for an order under Rule 3.4(2)(a) and (b) of the Civil Procedure Rules, or under Rule 24.2(a)(i) and (b) that the words complained of were published on an occasion of qualified privilege, and there were other orders that were sought which are not relevant to this appeal. In other words, to put it shortly the defendant was seeking summary judgment on the issue of qualified privilege.
7. This application was heard by Tugendhat J, who considered the matter carefully. He looked at the background and referred in particular to Mr Khan's witness statement, which includes this passage:

"All the people to whom the letter had been sent had been deceived, personally or professionally, by the claimant and I felt it was my duty to set the record straight and tell them the truth about the kind of man the claimant was and how he was running the nursing home."

The judge, having referred to that passage in Mr Khan's witness statement said that that appeared to him to be the sum of the evidence before him to determine what the interest was of the individuals to whom the letter was sent.

8. The judge referred to CPR 25.2; he identified what he referred to as three main issues which appeared to him to arise on the subject of qualified privilege. The first of these was whether the duty and interest which was pleaded in the defence was an interest which was still subsisting in February 2004, assuming that it had subsisted between 1994 and 1998, and that of course was with reference to the fact that the allegedly defamatory publication was made six years after the defendant had ceased to be concerned with the nursing home. The judge's second issue was the question of the inclusion of allegedly irrelevant matters, such as the allegation about burning tenants' possessions and fraud on third parties; and the third, he said, was the position of each of the people to whom the letter had been published. This to some extent overlapped the other two in that, for example, it might have been that the duty and interest relationship would subsist in relation to one person to whom the letter was published but not perhaps in relation to another.
9. On behalf of the defendant Mr Sahota had submitted to the judge that Mr Khan had a duty to make the communications complained of which arose out of his former position as co-director and shareholder in the business; and that the former shareholders who had been involved with the company as well as the solicitors, accountants and bankers, and for that matter the association concerned with nursing homes, all had an interest in learning about the claimant's dishonest activities. Mr Sahota submitted that any delay between the events the subject of the letter and the date of the letter itself went to the issue of malice, and did not negate the occasion itself from being privileged.
10. The judge identified the main point made on the application on behalf of the claimant, that being that the point arising out of the lapse of time, although there were six years between the last event referred to in the words complained of in 1998 and the writing of the letter in February 2004. There was no detailed or specific explanation given as to what the publishees might have been expected to do with this information, or how in practical terms it was something of interest to them. The point was made that these were such serious allegations that it might have been expected that, if there really was a duty and interest of a kind relied, on the duty would have been fulfilled on the part of the defendant long ago and if it had been, then there were investigations and other steps which the publishees might have had available to them. It was submitted that it was hard to see how and why the duty and interest was said to subsist in February 2004.
11. Mr Sahota had obviously done a large amount of research to see whether there was authority on the question of delay of this kind, and the continued subsistence of a duty and interest situation such as might support a plea of qualified privilege, for which the judge was grateful. He confirmed his own recollection that among the large amount of case law on the defence of qualified privilege there is not to be found a case which specifically addresses the possibility of a duty and interest relationship having existed in the past but no longer subsisting at the time of the publication complained of.
12. The judge, however, concluded that it was clear from the cases that the test for qualified privilege is expressed in the present tense, that is to say in the present as at the time of publication. He quoted such phrases as "has an interest or duty" and not "has had". It seemed to the judge that on the issue whether there was still subsisting a relationship of duty and interest, there was clearly a prospect of the claimant succeeding in the submission that this was not a case where the occasion was one of qualified privilege at the time of publication. The issue, he said, would have to be resolved at a trial, when the facts could be established and the subsisting duty and interest, if any, identified.
13. Mr Sahota, in his first skeleton argument of January 2006, submitted that the judge made what can be summarised as three errors of law. He submits that the judge was wrong in declining to make a ruling on qualified privilege. He suggested that all relevant and necessary facts were agreed, so not only was it unnecessary for any additional facts to be brought in, but to have done so would have been wrong in law since once the building blocks of the occasion had been established or agreed then it was for the judge alone to decide on whether qualified privilege attaches to the occasion. Secondly, Mr Sahota suggests that the judge was wrong in law in overlooking the fact that qualified privilege could arise from a social or moral duty, not only a legal duty, and that he misdirected himself into thinking that some present relationship was required for qualified privilege to arise. Thirdly, Mr Sahota suggested that if the judge needed to hear more evidence, it would have been fairer to have adjourned and re-listed for further paper evidence, or for the matter to be re-listed as a preliminary issue for trial by judge alone – or indeed with a jury – if disputed facts needed to be established.
14. Mr Sahota further submitted that there were two other compelling reasons to grant permission to appeal. Firstly, there is a substantial point of law on the occasion of qualified privileges on facts and law which had never arisen before or been judicially determined, and finally, that justice to the defendant and general considerations of efficiency meant that the issues of qualified privilege needed to be resolved before a full- blown trial.
15. I pause there to observe that two of Mr Sohata's points (they are not the only points) are these. The one that I have just identified, that he submits that the issue of qualified privilege, or if he is pressed the issues of qualified privilege and malice, should be determined by way of summary judgment if possible, or if not as a preliminary issue, in order to save what he suggests will be enormous time-consuming and expensive preparations for a full-blown trial including the issue of justification.
16. Secondly, that in that respect he refers to the decision of this court in GKR Karate v Yorkshire Post and Ors [2000] 1 WLR 2571. The circumstances of that decision do not need to be rehearsed. It is sufficient to say that in that case, the issues of qualified privilege and malice arose in relation to publication by a journalist where the widespread facts relating to justification related in the main to the evidence of a quite separate person. What had happened in that case was that Popplewell J had ordered the issues of qualified privilege and malice to be determined as preliminary issues, and the appeal was brought on the basis that he was wrong to do so, that they should all have been taken together with the issue of justification. The appeal failed, and the court held that on the facts of that case it was entirely appropriate for the judge to have made the order which he did.
17. In my view there are substantial and significant differences between that case and this. Firstly the fact, as I have already indicated, that the issue of qualified privilege and malice related in the main to the journalist and the issue of justification to somebody else, whereas in the present case there is at least an identity of person and witness in relation to not only qualified privilege and malice but also the issue of justification. Secondly, as Mr Sahota accepts, the present application began, and was decided by the judge, as an application for summary judgment and not as an application for the trial of a preliminary issue.
18. Sedley LJ refused permission to appeal on the papers, and in doing so he wrote as follows:

"It does not follow from the fact that qualified privileges for the judge, that it can be decided on the pleadings. Tugendhat J, with his experience, was right to take the view that the decision depended in the present case on disclosure and evidence. If, as is asserted, all relevant facts were agreed, they included the long lapse of time which itself made the availability of qualified privilege debateable. I do not accept that the right course in either event was to adjourn for evidence. Any interim issue was going to prolong the proceedings and an eventual decision in the defendant's favour on qualified privilege would have left the issue of malice intact and have done little to shorten the trial. The decision against him would have left qualified privilege to be tried out again. This was eminently a case management matter. Little of the interesting skeleton arguments touch these problems; its proper place is at trial".

19. Mr Sahota has very helpfully put in a further written submission following upon what Sedley LJ said, and essentially – I hope you will forgive me if I say so – he repeats points already made. He suggests that the relationships underlying the duty interest test, both earlier and at the date of publication, are agreed and that qualified privilege and malice should be heard before justification, on the grounds he suggests of logic, court time, costs and fairness. He cites the GKR Karate case as being authority on the latter point.
20. As it happens, enquiries have turned up a House of Lords authority which was not drawn to the judge's attention, but which appears to be of some, if not, as I think, determinative relevance. That decision is called Ley v Hamilton [1935] 153 LTR 384. It does not at first reading support the proposition that, on the facts pleaded in the present case, the defendant may have retained a sufficient duty, nor the recipients of the defamatory publication a sufficient interest, six years after the defendant ceased to have an interest in the claimant's business. I say "at first reading" to emphasise that what I have just said is not a considered finding or ruling that would be binding or indeed have any weight in the subsequent conduct of the proceedings. It does, however, confirm my view that Tugendhat J was entirely right to decide that the issue of qualified privilege could not properly be decided upon an application for summary judgment.
21. For all that Mr Sahota may say that the relevant facts are agreed, it seems to me that the very fact of this long delay, and the quite difficult issue which arises out of it, were not amenable to summary determination in favour of the defendant. In the end this was simply a refusal by the judge to decide the issue of qualified privilege alone summarily, and it leaves it open for the defendant to pursue that matter, upon evidence, at trial. It was a decision, in my judgment, which was well within Tugendhat J's case management discretion for him to decline to order that qualified privilege should be determined as a preliminary issue. It was also, in my judgment, well within his discretion in so far as he may have been asked to do so, not to order that issue to be tried, on evidence, as a preliminary issue.
22. Mr Sahota seeks to enlarge the possible scope of a preliminary issue by including within it malice, but that application was not before the judge. It does not seem to me that it is appropriate for this court to consider that possibility. I would, however, only say that Tugendhat J, having declined to find that qualified privilege was the proper subject of summary proceedings, that he might well reach an equivalent conclusion as to preliminary issues. For these reasons I would dismiss this application.
23. LORD JUSTICE WALL: I agree and cannot usefully add anything.

Order: Application dismissed.