England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		9th October 2007

Lord Justice Longmore:

1. The applicant before us this morning, Mr David Stevens, has been carrying on business as a property developer through his company Foundation Homes South West Limited. At the material time, he wished to build affordable housing for first time buyers in the Weymouth and the Portland area. He accordingly made an application for planning permission and that application went before the relevant committee of the local authority in April 2006.
2. At that meeting, Mrs Margaret Leicester, who was a member of the committee, expressed her strong opposition to the application. The proceedings which have resulted and with which we are concerned are for slander and arise from remarks allegedly made after the committee meeting was adjourned (or otherwise over) and those present were taking coffee together or otherwise around the council's premises.
3. Before applying for planning permission, Mr Stevens had decided that, in order to avoid any free-for-all for the houses when planning permission was obtained, he would write to everyone with a letter, explaining what he hoped to do and the types of home which would be offered. He sent out a registration form to every enquirer, and as part of the letter a refundable deposit was requested by his company. He says that it was clear that the deposit was fully refundable, should the relevant person wish to withdraw at any time. It was also made clear that in order to form an orderly list of prospective buyers a receipt for the deposit would be sent out with the person's position in the list on the receipt. One of the persons who had made an application and paid a deposit was a Mr Steven Brewer; another couple were a Mr and Mrs Duncan.
4. At the adjournment of the meeting for the coffee break, a number of people who had attended, including the claimant and his advisers and ordinary members of the public, were there; and it is said by Mr Stevens that, during the period of that adjournment, Mrs Leicester was spoken to by Mr Steven Brewer, who asked her why permission had been refused, and she responded with the words which are complained of in the slander action :

"I am only trying to protect you. It is all a con".

5. Those words, it is said, were spoken to Mr Brewer and heard by Mr and Mrs Duncan and others, including Mr Stevens himself. Mrs Leicester accepts that she said the first part of the quoted phrase, but she does not admit that she said the second. For the purpose of this application, however, we accept that she did say the full quote that I have set out. Accordingly, Mr Stevens issued a claim-form for slander in June 2006, and on 7 August Mrs Leicester served a defence, alleging that the occasion was one of qualified privilege. The basis of that was that, by reason of her position as a councillor, and as a member of the relevant committee, she had a duty to communicate her concerns about the claimant's scheme to Mr Brewer, who, by reason of the fact that he lived within the council's catchment area and that he hoped to benefit from the scheme, had a reciprocal interest in the information communicated to him, or, alternatively, Mr Brewer made a legitimate inquiry of Mrs Leicester as to why she had not voted for the scheme proposed to the council by Mr Stevens, and the words uttered in reply by the defendant were in response to that inquiry.
6. No reply was served to that defence and accordingly, on 25 January 2007, Mrs Leicester issued an application for summary judgment on the basis that it was too clear for argument that the words complained of were uttered on an occasion of qualified privilege and that there was no other reason for trial. That prompted a counter-application by Mr Stevens for permission to allege, for the first time, that Mrs Leicester was actuated by malice, and that application was made on 28 February 2007. On 12 March 2007, the judge refused permission to amend to allege malice, and he granted summary judgment on the basis that it was indeed too clear for argument that the occasion was one of qualified privilege.
7. Mr Stevens asserts that the judge is wrong and, after being refused permission to appeal on paper, has renewed his application orally; he says that there is a rule of law which says that a defendant may not rely on facts of which he or she did not know at the time of the allegedly defamatory statement in order to support a plea of qualified privilege. He refers the court, as he referred the judge, to the case of Loutchansky v TheTimes Newspapers [2002] QB 321 and [2001] 4 All ER 115, and he submits that what Mrs Leicester is doing by her plea of qualified privilege is contrary to what is laid down in Loutchansky, because at the time she did not know to whom she was responding when she made the remarks to Mr Brewer, or, indeed, that the questioner was referring to Mr Stevens' application at all. As Mr Stevens in his oral submissions to us this morning has said, his points are really three. The first is that for qualified privilege to apply there needs to be a duty to respond; the second is if Mrs Leicester did not even know who Mr Brewer was, then there cannot have been any duty to respond to him and, likewise, and the third that she could not know what application the questioner was referring to, since four applications had been dealt with at the meeting, and it was unclear from the question to which the application referred. Mr Stevens refers in particular to passages from the judgment of Sir Martin Nourse in Loutchansky v Times Newspapers, in which Sir Martin said:

"The [relevant] duty must exist at the time of publication and the defendant must have an adequate knowledge of the facts that give rise to it… [Further, that the defendant's] belief must be judged at the time of publication and it can only be judged by reference to the facts then known to him."

That is in paragraphs 85 and 86 of Loutchansky. The judge's response to this argument was as follows:

"The stance taken by the claimant is unreal. The words complained of are ten words which do not identify the claimant, or even what proposal they relate to. For the claimant to succeed he has to establish that, in the context, they were reasonably understood to refer to him. In the context which is pleaded in the particulars of claim, that is a strong case. But in that context, it follows that there was the corresponding duty and interest required for qualified privilege. It would make no sense for the claimant to ask the jury to find for him on the question of reference, and then go on to say that they could not find against him on the defence of qualified privilege because, while the publishees all understood the words that the defendant spoke to refer to him, nevertheless the defendant was the only person who did not understand that she was talking about the claimant. That would be completely unrealistic."

8. For my part, I entirely agree with the judge. The case of Loutchansky can have no application to the kind of case in which the claimant has to rely on the fact that those to whom the statement was published must have known and understood that the statement referred to the claimant. The claimant's claim does not get off the ground, unless it is clear that the questioner was referring to the Claimant's application for planning permission. The fact that the defendant did not know the identity of the questioner, or perhaps could not be sure that the question related to the relevant planning permission (although she clearly understood that it did) is in my judgment nothing to the point.
9. Mr Stevens, in the limited time that is available to him, has concentrated on that aspect of the judgment, but we invited him to address us shortly on the plea of malice that he applied to the judge for permission to amend to make. In paragraph 36 of his witness statement to the judge he said :

"Since issuing this claim it has come to the Claimant's notice that there are and have been grounds to extend the claim to include Malice."

10. And then various particulars are given, which I can perhaps summarise in this way: that, at a meeting of a working group of the Weymouth and Portland Borough Council, the defendant had voiced her suspicions of a possible fraud and her report to the police, to officers and members of the committee; secondly, that she failed to disclose such information, which the claimant would argue was a breach of the council's code of conduct; thirdly, that having voiced such suspicions, she was prejudiced before she attended the meeting in April; and fourthly, that she dominated the planning meeting and referred to the application as a fiasco. Mr Stevens has also said that there had been a complaint made to trading standards, but both the police inquiry and the trading standards inquiry had completely exonerated him, and nevertheless she still persisted in the remarks which she made. In relation to that, the judge said this:

"…the particulars in the draft, for which permission to amend is sought, could not be argued to provide a basis on which a jury could find malice. Whether or not the defendant was in breach of a code of conduct is of only the most marginal relevance to the issue of malice. The fact that the defendant had expressed concerns, as alleged, prior to the meeting, whether to the police or others, is equally consistent with a genuine belief in the allegations that she made in the words complained of. Likewise, the strength of her interventions, as they are alleged to have been, in the course of meeting."

11. The judge proceeded to say that the allegations were more appropriate for an attack on the planning permission itself, and indeed Mr Stevens has told us that there is an attack on the refusal of the planning permission which he has made by way of judicial review, and that that is going to come on for oral hearing on 24 November, that is next month.
12. Again, I can only say that I entirely agree with the judge; these allegations do not go anywhere near giving a real prospect of substantiating a plea of malice, and it is notable that it is nowhere alleged in the proposed plea that Mrs Leicester did not believe that her remarks were true. Unless a claimant can at least allege that, the claim is going nowhere. If authority is needed for that proposition it is Horrocks and Lowe  [1975] AC 135, but it is, of course, an obvious proposition.
13. So in my judgment the judge was right. I do not think that there is any realistic possibility that this court would reverse his decision, and therefore this application will have to be refused.

Lord Justice Carnwath:

14. I agree. I would only add that the judge commented that Mr Stevens seemed to be, in part, attacking the council's decision on the application. He has told us that there are in fact separate judicial review proceedings relating to that, which are pending before the Administrative Court, and of course nothing we have said on the present case has a direct bearing on that application.

Order: Application refused