England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE

		Royal Courts of Justice Strand, London, WC2A 2LL
		23rd May 2003

Justice Tugendhat:

1. The Claimant in this defamation action is a heating engineer and plumber who has carried on his business for very many years.
2. The defendants' business includes providing maintenance for heating systems under contracts, which they make with the occupiers of residential property.
3. In 1999 the claimant carried out plumbing and heating works under a contract with Michael Shanly Homes Limited ("Shanly"). One of the properties in question was a development known as Newholme Court in Surrey. The Claimant installed the heating system at Flat 11 of that development. The Leaseholder of that flat was a Mrs Cheeseman. Very shortly after this she wanted to obtain a Three Star Maintenance Contract for the heating system with the Defendant. For this purpose the Defendant sent an inspector, who has been identified as a Mr Kelly, whose task it was to check that the system was to a standard satisfactory to the Defendant. The result of the inspection was that the defendant's declined to enter into the contract, explaining to Mrs Cheeseman that her system did not meet the defendant's minimum standards. The Claimant was contacted by Mrs Cheeseman and asked to sort out the matter and, so he pleads, he promised to contact her and to report to LShanly.
4. It appears that there was some delay. The Claimant was, he says, concerned about the damage to his business that the report had caused. There is evidence that LShanly has ceased to give him work as from the inspection in July.
5. The claim for defamation is in relation to two separate publications in respect of each there is also a claim for malicious falsehood.
6. The first claim in defamation is one in slander and is pleaded as follows: "12 on 25^th October 1999 an engineer employed by the defendant (and I interpose to say that he has been identified as a Mr Snell) and acting in the course of his employment attended at Flat 11, Newholme Court for a meeting with Mrs Cheeseman and the claimant. The engineer spoke and published to Mrs Cheeseman the following defamatory words

"the heating system did not meet with British Gas's minimum standards, that there were high levels of flux in the system and also that the system was not adequately flushed".

The meaning which it is pleaded those words meant and word understood to bear, either in their natural ordinary meaning or by way of an alternative plea of innuendo, is that the claimant had not installed the heating system using reasonable care and skill in that he had left high levels of flux in the system and had not adequately flushed the system.

There follows a plea that the words complained of were calculated to disparage him in his business has a heating engineer and to cause him pecuniary damages in respect of his business.

7. There follows immediately after this claim in slander, a claim based on the same facts in malicious falsehood. It is said that there were not high levels of flux in the heating system and that the heating system had been adequately flushed and had been flushed on two further occasions as later pleaded. There then follows a plea of malice, which I shall return to.
8. The second claim in defamation is one in libel and is pleaded as follows:

"19 By letter dated 16 November 1999 [and I pause to interpose that that is a letter written by a Miss Martin] the defendant wrote a letter to the claimant. The claimant sent the letter dated 16^th November 1999 to Mrs Cheeseman and LShanly. The claimant was under a duty to republish the letter dated 16^th November 1999 to Mrs Cheeseman and LShanly because of the promise made by the claimant in paragraph 9 above [that is the pleaded promise to report to LShanly] because the letter concerned the heating system in Mrs Cheeseman's flat which was the subject of investigation and, because of the circumstances particularised in paragraph 18 above [that refers to the plea that what had been said on 25 October had been said orally]. The defendant intended that the letter should be published to Mrs Cheeseman and LShanly given the circumstances particularised in paragraph 18 above. Alternatively the publications were a natural, probable and foreseeable consequence of sending the letter to the claimant given the circumstances particularised in paragraph 18 above. In the premises the defendant is liable for the publication of the letter to Mrs Cheeseman and LShanly."

9. A similar natural and ordinary meaning, alternatively innuendo, is pleaded. There follows a plea of malicious falsehood which is similar to the plea in respect of the slander. For that purpose the plea of malice in paragraph 17, in relation to the slander, is repeated in relation to the libel by the letter.
10. There is before me an Application Notice dated 11^th March 2002 by which the defendant applies for summary judgment under CPR 24.2, on the grounds that the claimant has no real prospect of

1. Showing that the defendant is liable for the republication by the claimant himself of the letter to LShanly and Mrs Cheeseman,

2. Successfully resisting the defendants defence of qualifying privilege in respect of the alleged slander and, as it turns out the alleged libel,

3. Demonstrating in respect of either statement complained of, whether to rebut a defence of qualified privilege or to make out a claim in malicious falsehood, that the defendant had published the words complained of maliciously. It is submitted there is no other compelling reason why these matters should be disposed of at trial. Alternatively the defendant seeks to strike out the plea of libel and or in the alternative the entire Claim Form and Particulars of Claim under CPR 2.4(2)(A).

11. The defence as it is at present includes a plea of qualified privilege only in respect of the slander. If the defendant's argument on republication and malice both fail then there is an application to amend the defence to extend the plea of qualified privilege to the libel. In the event that has not been a matter of disagreement and I need say no more about it at this stage.
12. During the preparation of this hearing the claimant's case, which was presented for him by Mr James Dingemans Queens Counsel, underwent some development. The Skeleton Argument contains an argument on the issue of malice, which goes very considerably further than the existing plea. Counsel for the defendant, Jane Phillips was ready to deal with this and urged me to deal with it in order to avoid a further hearing with the resulting costs and delays. However, I indicated to Mr Dingemans that if I was to do this I ought to have a draft amendment to the Particulars of Malice, which reflected the submissions that he was making. As a result of that, over an extended short adjournment, he prepared a draft. It is right that I should mention that the claimant has means, which are, not surprisingly, limited by comparison to the very substantial costs of pursuing defamation proceedings and he has not found it easy to obtain professional representation.
13. Since the debate focused on the skeleton argument and then the draft amended Particulars of Malice it is convenient that I should set out the draft rather than the original pleading. It reads as follows:

"17 the words were said maliciously:

Particulars of Malice

17.1 the claimants case is that is to be inferred that the defendant appreciated that the information previously given to Mrs Cheeseman (namely that the heating system did not meet the defendants minimum standards) was wrong and that because of the delay, the defendant did not want to admit its error and in this respect was prepared to condemn the claimants work without justification. The claimant relies on the matters set out in paragraphs 17.2 to [17.3] and then 17.5 below:

17.2 the fact that it was obvious to any heating engineer (including the engineer employed by the defendant who visited flat 11 Newholme Court on 25 October 1999) namely Mattew Snell) that 95% of the joint were compression fittings (plastic pipe in sleeve) which did not require flux. This meant that and there follows some words which are crossed out and they are as follows there could not have been enough flux in the system (whether it had been flushed out or not) to mean that there were high levels of flux stop crossing out. It would be surprising to find elevated chloride levels in the water.

17.3 the disparity of the testing results produced by the defendant from Fernox dated 28^th October 1999 (purporting to show Chloride in the heating system at 98 compared to 58 in the mains water) and the further results obtained by the Claimant from Combustion Chemicals recorded in their report dated 7^th December 1999 (showing Chloride at 60 in the heating system compared with 57.5 in the mains water). The claimant's case is that results obtained by the claimant were properly obtained from Combustion Chemicals and showed accurately the state of the water in the heating system. The two test results show that the water tested was not from the same heating system. The Defendant relies on the fact that Mr Lane was unable to reconcile the test results, as appears from paragraph 3 from his letter dated 8 January 2003, and Mr Phillips has confirmed to the Claimants former solicitors as appears from their letter dated 20 November 2002 (and the claimant as appears from paragraph 6 from his witness statement dated 15^th May 2003) that the test results cannot be reconciled. The Claimants case is that his sample was taken from the heating system. He relies on the fact that the radiators have not deteriorated over the course of time as demonstrating that the test report from Combustion Chemicals was an accurate representation of the state of the water in the heating system. This means that Mathew Snell either did not take a water sample from the heating system on 25^th October 1999 (the claimants case is that he saw that Mathew Snell had a bottle which he said contained a sample but the claimant did not see him take the sample) or if Mathew Snell did take a sample from the heating system, the sample which was sent to Fernox for testing was not the sample that he had taken from the heating system. Mathew Snell has wrongly purported to rely on the Fernox test result as an accurate representation of the water in the heating system when he knew, for the reasons given above, that it was not from the heating system. The claimant's is that Mathew Snell did this because he was prepared to condemn the claimants work without justification because he did not want to admit the defendants earlier error in failing the heating system installed by the Claimant;

17.4 Mathew Snell has claimed that he carried out a Sentinel water test on the water in the heating system on 25 October 1999 in paragraph 4 of his statement dated 28th January 2002 and that the test kit showed, according to paragraph 13.5 of the defence, that there was a high level of chloride in the water system which was over the recommended limit laid down by Sentinal. No admission are made as to whether or not such a test was carried out by Mathew Snell, as this is not known to the claimant, but it is denied that the test kit showed that there was a high level of chloride in the system which was over the recommended limits as laid down by Sentinal because such a result would be inconsistent with the results from Combustion Chemicals. The claimants case is that Mathew Snell has reported this because he had condemned the claimants work without justification because he did not want to admit the defendants earlier error in failing the heating system installed by the Claimant;

17.5 Mathew Snell has claimed that he carried out a further Sentinal water test in the presence of the claimant in paragraph 5 of his witness statement. It is denied that he carried out such a water test. Mathew Snell alleges that he took the sample from a radiator. It is denied that Mathew Snell took the sample from a radiator. In order to take such a sample Mathew Snell would have had to have caught the excess water (which would have sprayed out) in a bucket and then would have had to re-pressurise the system. He did not do either of these things. The claimants is that Mathew Snell has reported this because he had condemned the claimants work without justification because he did not want to admit the defendant's earlier error in failing the heating system installed by the claimant"

14. The Particulars of Claim include a plea that the claimant's reputation as a heating engineer and plumber had been destroyed and that he has lost very substantial business indeed. Clearly this is a matter of great importance to him. However, it is also a matter of great importance to any individual against whom the allegation of malice is made. Allegations of malice such as this are allegations of dishonesty and they have to be approached with the care and particularity, which all those settling pleadings and conducting litigation must apply to any allegation of fraud.
15. The way the matter has proceeded is that I have treated this as an application by the claimant to amend his particulars of claim. It is to be noted that as such it comes at a very late stage indeed. The basis of the defendants Application Notice is that witness statements have been exchanged, and are before the court, and that the case is substantially ready for trial. It is also clear from the facts that I have recited that the events in question date back to 1999, nearly four years ago.

Summary Judgment - The applicable legal test.

16. There is no difference between Counsel as to the appropriate legal tests that I should apply. They are summarised in the skeleton argument for the defendant and I take them substantially from that source. CPR 24.2 reads as follows:

"Grounds for summary Judgment. The court may give summary judgment against a claimant or defendant on the whole of the claim or on a particular issue if

(a) It considers that (1) That claimant has no real prospect of succeeding on the claim or issue; or ...

(b) there is no other compelling reason why the case or issue should be disposed of at a trial".

The prospect of success must be "realistic" as opposed to "fanciful". The summary procedure should not be used when there are issues which should be investigated at trial. "The court should not conduct a mini-trial. See Swain v Hillman [2001] 1AER 91

17. The approach to be taken where the issued raised involve questions of fact which are to be determined, ultimately, by a jury, were set out in Alexander v Arts Council of Wales [2001] 1WLR1840 where May LJ said (at Para 37) "....it is open to the judge in a libel case to come to the conclusion that the evidence taken at its highest is such that a jury properly directed could not properly reach a necessary conclusion. In those circumstances it is the judges duty, upon a submission being made to him, to withdraw that issue from the jury. This is the test applied in criminal jury trials: R v Galbraith [1981] 1 WLR1039, 1042C. In my view, it applies equally in libel actions" This approach was confirmed in Spencer v Sillitoe [2002] EWCA Civ 1579 where Buxton LJ said, (at Para 23):

"The question in a case such as the present comes down to whether there is an issue of fact on which, on the evidence so far available, the jury could properly, and without being perverse, come to a conclusion in favour of the claimant".

Although this means that usually, the court should proceed by provisionally resolving all apparent conflicts of fact in the claimants favour (see Bataille v Newland [2002] EWHC 1692 per Eady J) there are important caveats;

(One is that the claimant's evidence may be disregarded where it is fatally incoherent or self-contradictory. This follows from the analogy drawn in Alexander with the Galbraith test.

Republication of the Letter

18. Liability for republication is a matter of fact to be decided by the jury. A defendant may be liable for the republication of defamatory word,

1. Where he authorised or intended the republication;

2. Where the person to whom the original publication was made was under a duty to repeat the statement; or

3. Where the republication was, in the circumstances of the case, the natural and probable result of the original publication.

In relation to cases, such as the present, where the publication of the words complained of to the person other than the claimant himself, is a publication which was made by the claimant himself there is a paragraph in Gatley on Libel and Slander 9^th Edition para 6.14. It reads as follows:

"As a general rule if A writes a letter to B defaming B (which is no publication) and B shows this to C there is no publication for which A is responsible, for the publication is B's own act. However, the position is different where he is under a duty to pass on the charge against him ..."

In relation to that paragraph there is a footnote number 95, which cites a number of overseas authorities, which have not been cited to me. The footnote includes the following "if the employee has at least a moral obligation" to make such disclosure [i.e. disclosure to a third party of the reasons for his dismissal given by his employer] and the dismissing employer must reasonably have anticipated that, such a cause of action has been said to be arguable in New South Wales". However that authority has not been cited to me either.

18. There is also the recent authority of McManus v Beckham [2002] EMLR 40 which requires that, to be liable, a reasonable person in the position of the defendant must have anticipated that there was a significant risk that what the defendant said or wrote would be repeated.
19. As noted above, paragraph 19 of the Particulars of Claim pleads the republication in all three possibilities, namely duty intention and natural probable and foreseeable consequence on the part of the defendant.
20. The defendant points out that there is no evidence of publication in the form of any statement of Mrs Cheeseman, and the only witness statement on behalf of a person from Shanly, a Mr Veevers, does not address the question of publication. However, the witness statement of 16^th January 2002 of the claimant at paragraph 14 includes "I duly sent copies of the letter to Mrs Cheeseman and Michael Shanly Homes".
21. The documents before me include the letter itself. The letter was prompted by a fax from the claimant to a representative of the defendant, dated 3^rd November 1999 which includes a reference to Mrs Cheeseman and the following words "please can you supply us information on what/why our heating system did not meet your minimum standards as our clients are very concerned". The reply is in the form of a letter addressed to the claimant dated 16^th November 1999 and headed "re 11 Newholme Court. It is signed by Miss Martin who is described as Customer Relations for the Defendant. The text of the letter is as follows:

"thank you for your facsimile dated 3 November 1999 concerning the central heating system at the above address.

Firstly please accept my apologies for the delay in responding to you.

According to our engineer's report of 18^th June 1999, the above system failed to meet our minimum standards due to high levels of flux in the system.

I trust that this information has answered your enquiry, should you require any more assistance please contact me on the number above".

22. It may be inferred that there was some discussion between Mrs Cheeseman, Shanly and the claimant as to the events that had occurred and the claimant was investigating the matter and concerned about the delay. On all of the evidence on this topic before me, I find that the claimant has a real prospect of success on this issue. In the circumstances I think it best to say nothing further either on the strength of that case, or on the arguments put forward in relation to it by the defendants. There are a number of issues on the pleadings, which do not arise for consideration at this hearing. They include issues as to meaning, justification in relation to the alleged slander and libel, corresponding issues of falsity in relation to the alleged malicious falsehood, a plea of leave and license in relation to the alleged republication by the claimant of the letter of 16^th November and damages.

Issues not arising for consideration

Alleged slander - qualified privilege

23. The plea of qualified privilege is that the defendant had a legal and/or social and/or moral duty to publish the words complained of to Mrs Cheeseman and Mrs Cheeseman had a like interest in receiving them. There is an alternative basis that the defendant and Mrs Cheeseman had a common and/or corresponding interest in the subject matter of the words, and that the defendant spoke and published the words in the reasonable protection of its own legitimate interests to Mrs Cheeseman who had a like interest in receiving them. The facts on which that plea is based are the matters set out at the beginning of this judgment and in particular that the defendants were being asked by Mrs Cheeseman to provide their Three Star Service Cover and that one of the conditions for granting such cover is that the system be subject to an initial inspection in order to allow the defendant to satisfy itself that the system meets its minimum requirements and that the inspection which did in fact take place on 18^th June 1999 resulted in Mr Kelly finding the system failed due to high flux levels in the system water. Apart from the dispute that there were in fact high flux levels in the heating system these matters are not materially in dispute. In particular it is not in dispute that the purpose of Mr Snell's visit to Mrs Cheeseman's on 25^th October 1999 was in order to test her heating system to see if, contrary to the defendants initial inspection result, it complied with their minimum requirements for Three Star Cover. While Mr Dingemans QC makes no concessions, neither does he advance any argument to the effect that the occasion on which the words complained of were spoken by Mr Snell were not covered by qualified privilege. It would be difficult for him to do so consistently with his argument that the claimant was under a duty to communicate the letter to Mrs Cheeseman. In any event it seems to me that the claimant would, if he were minded to challenge that the occasion was one of qualified privilege, have no realistic prospect of defeating that defence otherwise then by a plea of malice, if such a plea is available to him.
24. So the main issue before me is whether that defence can be defeated by malice. If it can then there is no dispute that the plea can be advanced, as a matter of pleading in the form of the draft amended defence, in relation to the letter. If it so clearly cannot be defeated by any plea of malice, so that no such plea can be left to the jury, then there is no purpose in the defence being amended at this stage.

Malice - the pleading.

25. The pleading in its original form, and in the proposed amended form is set out above. There is no mistaking what the substance of the allegation is. It is, as appears from the claimant's skeleton argument, his case that the defendants through Mr Snell deliberately mislead Mrs Cheeseman. That is the case intended to be made by paragraph 17.1 in its original and its proposed amended form. That case is available to the claimant if, but only if, it is supported the subsequent paragraphs 17.2 and 17.3 of the original and 17.2 through to 17.5 of the proposed amendment.

Malice - the law

26. The law in relation to malice in defamation and malicious falsehood is settled. I bear in mind the well known passage in the speech of Lord Diplock in Horrocks and Lowe [1975] AC 135, 149H to l51B:

" The motive with which a person published defamatory matter can only be inferred from what he did or said or knew. If it be proved that he did not believe that what he published was true this is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person.

Apart from those exceptional cases, what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, "honest belief." If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be "honest," that is, a positive belief that the conclusions they have reached are true. The law demands no more.

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.

Judges and juries should, however, be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity. The motives with which human beings act are mixed. They find it difficult to hate the sin but love the sinner. Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked-the person whom he defamed or was indignant at what he believed to be that person's conduct and welcomed the opportunity of exposing it. It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that "express malice" can properly be found."

27. Lord Diplock goes on a few lines further down, to remind Judges that the burden of affirmative proof of malice is not one that is easily satisfied. More recently, in Komarek v Ramco on 17^th December 2002 unreported Eady J stated:

"A plea of malice is generally treated as tantamount to one of dishonesty, and should therefore be treated with the same circumspection as a plea of fraud. It is a serious allegation to make against anyone, and a finding of malice can have correspondingly serious implications for the individual concerned ...

a person may conceivably be held to be malicious despite an honest belief in the defamatory words provided it can be demonstrated that he or she was abusing the occasion of privilege for the dominant purpose of damaging the claimant. As he explained, that can only be achieved if the legitimate purpose for which the law affords the defence of privilege, i.e. the fulfilment of a duty or the protection of an interest, plays no significant part in the motivation. Lord Diplock warned that judges and jury should be slow to draw an inference of malice where the defendant believes in the truth of the liable. It appears that his words had been heeded since no one can ever cite an example of malice having been found on such a basis. To this moment therefore the formulation remains so far as I am aware, theoretical"

28. Further, in Somerville v Hawkins [1851] 10 CB 583, in a passage cited with approval by Lord Porter in Turner v MGM (1950) 1 AER 449 at 455 Mawle J stated: "it is certainly not necessary in order to enable a plaintiff to have the question of malice submitted to the jury, that the evidence should be such as necessarily leads to the conclusion that malice existed, or that it should be inconsistent with the non existence of malice; but it is necessary that the evidence should raise a probability of malice, and be more consistent with its existence than its non existence". Commenting on this passage in Telnikoff v Matusevitch [1991] 1 QB102, 120 Lloyd LJ said:

"The point is quite simple. If a piece of evidence is equally consistent with malice and the absence of malice, it cannot as a matter of law provide evidence on which the jury could find malice. The judge would be bound so to direct the jury. If there are no pieces of evidence which are more consistent with malice than the absence of malice, there is no evidence of malice to go to the jury".

29. In the present case it must be recalled that the action is one in which a corporation is the defendant and not any individual. A corporation may, of course, be vicariously liable for the defamation or the malicious falsehood of an employee. But in such a case it is necessary to find an individual who is responsible for the words complained of and who had the state of mind required to constitute malice in law. So, for example where one employee publishes the words complained of innocently the employer is not liable merely because another employee would have known that the words complained of were false if he had known they were being published. "A company's mind is not to be assessed on the totality of knowledge of its servants". See Broadway Approvals v Odhams Press [1965] 1 WLR 805, 813.

Malice - the facts.

30. I bear in mind that the plea of malice, whether in its original form or in the form of the proposed draft, makes no reference to any individual other than Mr Snell, the speaker of the alleged slanderous words. There is no suggestion that Mr Kelly, who made the report in June 1999, or Miss Martin who wrote the letter in November 1999, had the relevant state of mind. There is no evidence to support any such suggestion.
31. I therefore turn to consider each of the allegations in paragraph 17.2 through to 17.5 of the proposed draft in turn.
32. Particular 17.2. This paragraph was, in its original form, considered by Eady J on 29^th October 2001. On that date he allowed an appeal against the decision of the Master in this case. The Master had refused to extend time to serve the particulars of claim. Implicit in his decision, in allowing the appeal, is that Eady J considered that paragraph 17.2 in its original form raised a case in malice fit to go to the jury. He did so on the basis that the claimant's contention that there could not have been high levels of flux in the water was a general one that could be tested as well at the time of the hearing as at any date.
33. Eady J was considering only the pleading, and not any evidence that might be adduced in support of it. The matter has progressed since then. On 31^st January 2002 Mr Phillips the consulting engineer who has given an expert report on the instructions of the claimant, said this at paragraph 1.4 of his report: "I consider it impossible for an engineer to take a view on the anticipated chloride level in a heating system merely from an external visual inspection. " In October 2002 Mr Phillips and Mr Lane, the expert instructed by the defendant, signed an agreed statement. This included that the conclusion drawn by Mr Kelly that the system contained high flux levels was reasonable. That of course is inconsistent with the case pleaded in particular 17.2. It follows that this paragraph as originally formulated was incapable of proof, on the evidence available to be put before the jury. Nor is this defect cured by the proposed amendment. The fact, if it be a fact, that it would be surprising to find elevated chloride levels in water in a system where 95% of the joints were compression fittings which did not require flux, would not be capable of establishing that Mr Snell knew that what he said was false.
34. Particular 17.3. This relates to the inconsistency between the test results obtained on two samples of water relied on by each party as having been taken from Mrs Cheesman's heating system. One of these is the sample discussed in the report dated 28^th October 1999 prepared for the defendants by Fornex. The other is the water subject of the report dated 7^th December 1999 prepared by Combustion Chemical for the claimant. The argument for the claimant is that, although these matters all postdate the alleged slander, nevertheless, a jury could infer malice on 25^th October if they find these subsequent allegations to be true. The evidence of the claimant is as follows. First it is said by him, in a chronology of events attached to a letter dated 14^th December 1999, and addressed to the defendant, at paras 10 and 13 "Eventually I managed to arrange a meeting with your engineer at the property. At this point we were told that it was because of high flux content that it had failed. I disputed this, as this was not possible for the reasons mentioned above. [i.e. that the heating system is composed of about 95% compression fittings]. Both parties take a water sample ... I have since had another test carried out on the same sample, this time specific to chloride content and again showed a negligible result. These tests have been at my own expense but it was not possible for there to have had a high flux content". The intervening paragraph had referred to an earlier test, which was done on the 2^nd October. That test is not relied on in this context. Next the claimant returned to the topic in his witness statement dated 24 January 2002 at paragraphs 11 and 13. Paragraph 11 refers to the meeting with Mr Snell on 25^th October. He says that at no time during this meeting did Mr Snell produce a Fernox or Sentinal water testing kit, or test any water in the claimant's presence, and he did not tell the claimant that he had tested any of the water before the claimant had arrived at the flat. In paragraph 13 the claimant says "we both put water samples in a bottle and both took them away at the same time. I do not know from which point in the system the British Gas engineer obtained his sample of water. I obtained my sample both on 25^th October and also on 2^nd October, from the drain cock in the primary return in the airing cupboard. I delivered my sample to the Combustion Chemical Cleaning the same day."
35. It is not clear what the claimant is saying. He might be saying that one sample was taken on each of 2^nd and 25^th October by himself, that is to say two samples. That appears to be so because it is clear both from the chronology and from the witness statement that the claimant is saying that he did take a sample on the 25^th October. When he says "I delivered my sample to Combustion Chemical Cleaning the same day" that appears clearly to refer to the sample taken on 25^th October whether or not it also refers to the sample on 2^nd October.
36. In a statement dated 16^th January 2002 and served on behalf of the claimant Mr Baxter, the managing director of Combustion Chemicals Cleaning limited gives his account of these matters. In paragraph 1 of his witness statement he states that on or about 2^nd October 1999 his company received two samples of water from the claimant and that his company carried out an analysis as set out in a certificate dated 2^nd October. His company had been asked to test the 2^nd October samples to determine whether the water in the heating system had been adequately flushed and they were not tested for levels of Chloride, which would have been the appropriate test if they had been asked to determine levels of flux. The witness statement makes no reference to any other event in October 1999. It goes on to say "on or about 7^th December 1999 we received two further water samples from Mr Webster to be tested. In both cases the samples were received in, I think, soft drink bottles which had been cleaned out. In the case of the second set of samples we were asked to test these specifically to determine the level of flux, if any. For this reason we tested for Chloride concentration." He then attaches a Certificate of Analysis dated 7^th December 1999. This shows a negligible difference in the level of Chloride in the mains water sample as compared with the sample taken from the heating system. He goes on to say that it is "my firm's practice to test water samples the same day or within 24 hours of being taken. Consequently, I believe that the certificate dated 2^nd October relates to the water sample received on or about that date and similarly the certificated dated 7^th December indicated that we had received the samples analysed on that date or on the day before. The length of time a sample is kept before it is analysed whether this be days or months would not in my judgment effect the result of the chloride levels detected"
37. It can be seen that the evidence of the claimant and Mr Baxter is consistent in relation to the sample of 2^nd October, which is irrelevant. It was delivered to Mr Baxter's company on the same day. But in relation to the sample, which is relevant, the evidence is inconsistent. The claimant's witness statement appears to be saying that the sample he took on 25^th October was delivered the same day. Mr Baxter refers only to receipt of a sample on 7 December. It is no part of my function at this stage to attempt to resolve that difference, and I do not do so. What is clear is that on either version of events there is no evidence of how or where or under what conditions the sample, which the claimant took on 25th October, was stored between 25^th October and 7^th December, the date on which it was tested. It makes no difference for this purpose whether I assumed that the claimant did deliver it on 25 October, in which case it is evidence from Mr Baxter's company that it was missing, or that he delivered it on 7^th December, in which case it is evidence from the claimant that is missing.
38. This gap in the evidence for the claimant is crucial to his case. The reason is that the next stage in his argument is that the Certificate of Analysis of 7^th December is irreconcilable with the report of Fernox dated 28^th October. It follows, so the argument runs, that Mr Snell either did not take a water sample from the heating system on 25^th October, or, if he did, it was not the sample, which was in fact sent for testing by Fernox. And, so it is said, Mr Snell knew that the water tested by Fernox was, as a result, not from the heating system of Mrs Cheeseman.
39. But this conclusion will follow, if, but only if, there is evidence to prove that the sample tested by Combustion Chemicals Cleaning Limited came from the heating system in question. For reasons stated above, this evidence is absent.
40. Miss Phillips attacks the claimant's reasoning from another angle as well. She says that it is not as clear as the claimant claims that the two test results really are irreconcilable. The submission that they are irreconcilable is based on three documents.
41. The first document in time is dated 20^th November 2002. This is a letter from solicitors then representing the claimant to the defendant's solicitors. It includes the following:

"We understand that our respective Joint Experts, Mr Phillips and Mr Lane have recently spoken by telephone and intend to issue a Supplementary Joint Statement. We under stand that this further statement will confirm firstly that the experts regard the two certificates of analysis namely that of Messrs Fernox and Messrs Combustion Chemicals as completely irreconcilable".

The supplementary joint statement referred to has not in fact been issued. The letter itself is not evidence that could be put before the jury in substitution for direct evidence, which the two experts do not themselves give.

42. The second document is a letter from Mr Lane to Mr Phillips. It is dated 8^th January 2003 it includes the following "Having consulted the notes I made during our meeting, I can tell you we did discuss the results of the water analysis by Combustion Chemicals Cleaning Limited ... The report states that the samples examined (1 system and 1 mains) were taken on 7^th December 1999. He came to the "engineering" conclusion that the system had been flushed between 25^th October 1999 and 7^th December 1999. Our conclusion was that any sample taken from the system at a date subsequent to the one taken by Mathew William Snell on 25 October 1999 had no relevance to the issue at hand, and therefore should not be mentioned in our agreement document".
43. Implicit in this letter is an assumption that it is Mr Baxter's version of events as to the delivery of the sample tested on 7^th December, which is correct, namely that Combustion Chemicals Cleaning Limited received the sample on that date. The letter of 8^th January does not in terms say that the two samples are irreconcilable. It is fair to say as Mr Dingemans Q.C. does, that it is not for the experts to conclude that the system was flushed between 25 October and 7^th December 1999. I certainly reach no such conclusion myself. But there could be no criticism of the experts declining to form any view based on the test report of 7^th December absent evidence that the sample tested on 7^th December was in fact the sample taken by the claimant on that date.
44. The third document relied on by the claimant in this context is his witness statement of the 15^th May 2003 at paragraph 6. This reads as follows "having seen the notes of the meetings between experts I did (after the meeting between the experts) speak to George Phillips, the expert witness instructed on my behalf, in the presence of my solicitor. I asked him why there was no reference to "my sample" of water and only to the Defendants "sample" of water. He told me that it was not possible to reconcile the results and that the experts had concentrated on the defendant's sample. When asked further whether it was possible that both samples could have been taken from the same heating system he said he did not think so". The statement goes on to refer to the letter of 20 November 2002 and continues, "I understand that the defendant does not agree and that no supplementary statement has been issued by the experts".
45. While this is some indication that at least Mr Phillips considered that it was not possible to reconcile the results it is not clear on what basis that is said or that Mr Phillips is saying anything more to the claimant than is in Mr Lane's letter. If Mr Phillips was saying more, then such second hand evidence from him is not material which could be put before the jury in the absence of a statement by him to that effect. The claimants hearsay statement is not material on which a jury could be invited to decide that the sample tested by Fernox did not come from Mrs Cheeseman's water system and that Mr Snell knew that. It is equally consistent as is all the evidence, with the sample tested on 7 December not having come from Mrs Cheeseman's system. It follows that particular 17.3 cannot be left to the jury.
46. In fairness to the claimant it is important that I make clear, in the light of the way the argument progressed, that this conclusion is not a finding of dishonesty against him. It is simply a finding that there is an absence of evidence, that is to say evidence which it is for the claimant to adduce if he is to prove his case.
47. Particular 17.4. this allegation fails for the same reason as particular 17.3. it too depends on the irreconcilability of the test result reached by Mr Snell on 25^th October 1999 using the Sentinal method, and the test result of Combustion Chemicals on 7^th December. The results are irreconcilable, if, and only if, it is established that the test result of 7^th December relates to water taken from the system on 25^th October. And this is the point on which I held there is no evidence that can be put before a jury.
48. Particular 17.5. This relates to a second test using Sentinal equipment, which Mr Snell says he took on 25 October, but in this instance in the presence of the claimant. The evidence of Mr Snell, which is pleaded in this particular, is paragraph 5 of his witness statement. To make it more readily understandable I will include paragraph 4 as well:

"we are generally only asked to reach recheck a system if a customer has raised a specific query as most customers accept the diagnosis. When I arrived, Mr Webster was not at the premises and I met Mrs Cheeseman. I took a sample from the system and conducted a Sentinal water quality test. ...the level was unacceptably higher than that of the mains supply and I concluded that the initial diagnosis was correct... the central heating system therefore failed on water quality.

5. After I had completed this test, Mr Webster arrived and I informed him that the water quality had failed again. Mr Webster became defensive and aggressive and insisted that this was not possible as the system had been flush again and that there were only a handful of joints which had been soldered and therefore required flux. I looked at the system and there were several joints that required solder. Nevertheless, I was a little surprised at the chloride level and I therefore took a sample from a different radiator and conducted another Sentinal test with Mr Webster present. The sample again failed the Sentinal test. Although the reading was slightly lower, it was still far too high in accordance with the Sentinal guidelines. I am surprised that Mr Webster denies in his reply that I did a Sentinal test whilst he was present"

49. Whether or not Mr Snell performed a Sentinal test in the presence of the claimant is an issue, which it is not for me to decide. I assume, without deciding, for present purposes that the claimant is right. In that case the claimant is still unable to challenge, and does not challenge, Mr Snell's statement that he performed the first Sentinal test. The claimant's attack on the first test described in paragraph 4 of Mr Snell's witness statement is the subject of particular 17.4. That attack leaves nothing to go to the jury for the reasons I have given in relation to it. The argument for the claimant as I understand it would be if particular 17.5 was left to the jury, is that it is open to the jury (as indeed it is) to believe the claimant and not Mr Snell. If the jury were to conclude that the claimant was telling the truth they might, but would not be bound, also conclude that Mr Snell lying (notwithstanding that the witness statements discussed events some 2 years previously). But that would not be enough for the claimant to succeed. The jury would also have to conclude that the finding which I am assuming for this purpose that they might make, also leads them to conclude that Mr Snell is lying about the test that he says he performed with the Sentinal equipment before the claimant arrived at Mrs Cheeseman's flat. Having rejected all the other bases for the plea of malice for the reasons given above, I have to assume that this plea falls to be considered entirely on its own. I conclude that even if the jury were to make all these findings that would still not make it more probable than not that he was deliberately lying to Mrs Cheeseman when he spoke the words complained of. Accordingly this particular cannot be left to the jury.
50. I add, out of fairness to Mr Snell, that I am not suggesting that he was lying or that he was dishonest any more than I have suggested the claimant was. That is no part of my judgment. I am simply reciting the argument that was put forward before me and working out its implications.
51. Since I have concluded that the plea of malice, whether in its original form or in the form of the proposed draft, in the light of the evidence which is proposed to be adduced in support of it, taken at its highest is such that a jury properly directed could not properly reach the conclusion that Mr Snell knew that the information previously given to Mrs Cheeseman was wrong and that he condemned the claimant's work deliberately without justification, I also conclude that it is my duty to withdraw the issue of malice from the jury.
52. In those circumstances, it is not necessary for me to consider whether at this very late stage I would have allowed the proposed amendments to the plea of malice. Miss Phillips did not have the opportunity to reflect in advance on the submissions that she might make on this, although she did make the submission that I should not allow it. The reason she did not have that opportunity is that the draft, as I have mentioned, was only produced after the extended short adjournment that I permitted for this purpose and without there being any Applications Notice I do not need to make a decision on this separate point, and while I see considerable force in Miss Phillips submission, I leave the matter there.
53. It follows that if I turn to the application notice dated 10^th March 2003, the first application (paragraphs 19 to 24 of the Particulars Claim be struck out pursuant to CPR 3.4. (2) On the ground that there is no actionable publication) fails. The second application (that the defendant be given permission to amend the defence to plead qualified privilege in respect of the letter) is pointless. But for the decision I make on the third application however, it is an application that would have been successful and unopposed. As to the third application, it succeeds. The plea of malice has no prospect of success. Accordingly, since the claimant has no prospect of defeating the defence of qualified privilege, the claim is bound to fail and there is no reason why the case should proceed to trial.