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

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		8th December 2003

Mr Justice Tugendhat :

1. In September 1999 Mr Mulligan, then a Detective Chief Inspector, and now a Superintendent, of the West Midlands Police, wrote some letters concerning a Mr Hart. Mr Hart was engaged in the business of salvaging motor vehicles that had been damaged beyond repair, and the name of the business was Vehicle Salvage Group Ltd ('VSG'). In June 1999 Mr Hart had been arrested and charged with handling stolen goods, following the recovery by the police of some vehicles from his home address. The letters were addressed to Mr Wagstaff of the Crime Fraud Prevention Bureau, Mr Arnold, an independent Insurance Engineer who acts on behalf of major insurance companies to advise them concerning motor loss claims, and to Mr Simpson of Markfield Insurance Brokers, who acted for what used to be known as the Tarmac group of companies, and is now called Carillion plc.
2. These letters have given rise to this libel action. It is brought by Mr Woods, who claims to have co-founded VSG with Mr Hart in November 1998, each holding 50 per cent of the share capital, and each being a director.
3. The action is against the Chief Constable of West Midlands Police, who admits that Mr Mulligan was acting under his direction and control.
4. The action is listed for trial before myself and a jury on Monday 8 December 2003. On 2 December, the preceding Tuesday, I heard argument upon an application issued on 11 November 2003 on behalf of the Claimant that pursuant to CPR Parts 3.4 and 24 the plea of qualified privilege in paragraph 9 of the Re-Amended Defence be struck out. Miss Page QC appeared for the Claimant. Mr Perks appeared for the Defendant. Mr Perks opposes the application not only on its merits, but also on the ground that notice has been given too late and that in any event the defence of qualified privilege depends on facts which are required to be found by the jury.
5. CPR Parts 3.4 and 24, so far as material, read as follows:

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6. The words complained of are pleaded in paragraphs 5 to 5A of the Re-Amended Particulars of Claim, as follows:

4. In a letter dated 10 September 1999 written and signed by DCI Mulligan and sent through the post to Neil Simpson of Markfield Insurance Brokers, part of the Tarmac group of companies, DCI Mulligan wrote and published of the Claimant the following defamatory words:

"Mr Hart has recently been arrested and charged with numerous offences including stealing motor vehicles and dismantling them in order to re-sell and "ring" further vehicles. He has to date not been convicted at Court as we are awaiting a Crown Court Trial, however, I feel I must bring this to your immediate attention. On this occasion we recovered 17 stolen vehicles, many as stated already "cut up".

Mr Hart was employed for some years by Hunters Salvage, Bott Lane, Lye, West Midlands and now operates under the company name of Vehicle Salvage Group, Chester Road, Cradle Heath, West Midlands. My main aim is to inform companies like yourselves of Mr Hart and his attempt to disguise his criminal activities with a veil of legitimacy. I am aware that you are using Mr Hart to salvage Tarmac vehicles and would ask that you consider your position with him. If you require any further details please do not hesitate to contact me."

5. In a letter dated 6 September 1999 written and signed by DCI Mulligan and sent through the post to John Wagstaff of the Crime Fraud Prevention Bureau, DCI Mulligan wrote and published of the Claimant the same defamatory works as set out in paragraph 4 above, save that the last three sentences were not included and in their place was the following:

"I am aware that he has contracts with companies such as Tarmac and British Gas who hold insurance Bonds and I will be notifying them direct. I would ask that Mr Harts details are circulated accordingly if you require further details please do not hesitate to contact me".

5A. By cover of a fax dated 6 September 1999 sent to Jim Arnold, DCI Mulligan published a copy of the defamatory letter originally sent to John Wagstaff (complained of in paragraph 5 above) and on the fax front-sheet wrote and published the following words which also defamed the Claimant.

"Further to our telephone conversation last week please find the details of Hart as discussed. HART Used to be employed at Hunters Salvage, Bott Lane, Wye, West Midlands and now works under the Company name of Vehicle Salvage Group, Chester Road, Cradley Heath, West Midlands. Hart is presently on bail to Crown Court for many offences including having 17 stolen vehicles found at his home address some which had been "cut up" for resale and use.

I have already contacted John Wagstaff and written to him regarding circulation to the Insurance World however, I would ask that you also circulate his details in order that he is unable to use a legitimate business front to disguise a criminal venture".

7. The defamatory meaning which it is alleged the words bore is: 'The Claimant aided and abetted Gary Hart in the commission of numerous serious criminal offences'.
8. In addition to the publication of the letters to the three individuals to whom it is admitted that they were sent, the Claimant alleges publication, or re-publication, to other thus far unidentified companies with whom VSG was trading or likely to trade.
9. In support of the plea of damage it is pleaded that 'The actions of DCI Mulligan constituted a gross abuse of police powers the consequence of which was that an innocent citizen's livelihood was unjustly jeopardised and destroyed'.
10. For the Defendant it is denied that the words refer to, or are defamatory of, the Claimant. The Defence as re-amended on 28 May 2003 no longer pleads that the words are true, as it did in its original and amended forms. The plea of qualified privilege in paragraph 9 is as follows:

9. The publication of the said letters occurred on occasions of qualified privilege.

PARTICULARS

i. DCI Mulligan, on behalf of the Defendant, had a duty to detect and prevent crime. He had been investigating offences concerning the disposal of stolen cars and stolen car parts. The main victims of such offences are motor insurers.

ii. On 20 March 1999 anonymous information was received by West Midlands Police to the effect that somebody called Gary working at premises near to Cradley railway station was involved in the theft of motor vehicles. Enquiries revealed that Mr Gary Hart was working at the premises of Vehicle Salvage Group in Chester Road, Cradley Heath. On 8 June 1999 Police Officers found stolen vehicles and stolen vehicle parts at premises in James Scott Road, where they had been taken by Mr Gary Hart to be crushed. On 21 June 1999 stolen vehicle parts were recovered by Police from the home address of Mr Gary Hart at Six Ashes, Alverley, Bridgnorth, Mr Gary Hart was arrested and charged with handling stolen goods and then released on bail.

iii. DCI Mulligan believed that further offences were likely to be committed if the insurance trade were not warned about Mr Gary Hart's dealings, and he therefore had a legal or moral duty to give information about Mr Gary Hart to the insurers who might be adversely affected by his illegal dealings. They might be so affected either directly by having to meet insurance claims in respect of stolen vehicles, or indirectly by selling "salvage" (vehicles damaged beyond economic repair) to a person who then used the vehicles or parts of them to disguise stolen vehicles and prevent them from being recovered.

iv. Some offences investigated by DCI Mulligan concerned cars belonging to companies in the Tarmac group of companies, and DCI Mulligan was informed by the Tarmac group that their vehicles were insured through there own "in-house" insurance brokers, Markfield Insurance Brokers, which was managed by Mr N Simpson. DCI Mulligan therefore spoke to Mr N. Simpson concerning his suspicions of illegal activities by Mr Gary Hart. Mr N Simpson confirmed that Markfield Insurance Brokers had a continuing business relationship with Mr Gary Hart and advised him to inform Mr John Wagstaff, who is the manager of the Crime Fraud Prevention Bureau ("the Bureau").

v. The Bureau was at the material time a department of the Association of British Insurers ("ABI") of 51 Gresham Street, London. It was set up to prevent fraud against insurers by collecting information about potential fraud, and distributing it to members of ABI. The duty of Police Forces to provide information to insurers, and the interest of insurers to receive such information, are recognized by a Memorandum of Agreement made between the Association of Chief Police Officers ("ACPO") and ABI in 2002 which replaced the Guidelines on the Exchange of Information Between Police and Insurers first issued by the Crime Committee of ACPO in 1978.

vi. Mr Jim Arnold is an independent Insurance Engineer who acts in the Midlands area on behalf of most major insurance companies to advise them concerning motor loss claims. DCI Mulligan knew that Mr Jim Arnold was likely to have dealings on behalf of his clients with Mr Gary Hart, and was concerned that he should be aware of the charges against Mr Gary Hart.

vii. DCI Mulligan therefore had a duty to publish the information contained in the said letters to the recipients of those letters, and the recipients had a legitimate interest to receive such information.

11. Certain admissions are made by the Claimant in his Reply, and these have been supplemented by further admissions made by Miss Page QC in her written submissions, following disclosure and exchange of witness statements. In his oral submissions Mr Perks made clear that, as to para 9(iv), it will not be the Defendant's case that any of the offences investigated concerned cars belonging to companies in the Tarmac group of companies, nor will it be alleged that any vehicle the subject of the investigation was registered in the name of VSG.
12. The Reply alleges malice. It is not necessary to set out that plea. The importance of it at this stage is that if the plea of qualified privilege is struck out before the trial, then only such parts of it (if any) as might be material to damages will need to be opened to and considered by the jury. On the other hand, if the plea of qualified privilege is withdrawn from the jury only after the case has been opened and the evidence heard, then the jury will have to be directed to ignore what they have heard as to malice and much time will have been wasted. Those are the arguments of Miss Page QC for my determining the issue now. Of course, if Mr Perks is correct, and the issue is fact sensitive (in the sense defined below), then the plea cannot be determined now.
13. Miss Page QC refers me to the decision of the Court of Appeal in Downtex v Flatley [2003] EWCA Civ 1282, where the following guidance is given as to the exercise of the jurisdictions which she invokes:

'[20] Miss Addy relied upon the observation of Lord Woolf MR in Swain v Hillman [2001] 1 All ER 90 at 95, in relation to the power of the court to dispose summarily of defences which have 'no real prospect' of being successful.

"Useful though the power is under Pt 24, it is important that it is kept to its proper role. It is not meant to dispense with the need for a trial where there are issues which should be investigated at the trial … The proper disposal of an issue under Pt 24 does not involve the judge conducting a mini-trial, that is not the object of the provisions; it is to enable cases, where there is no real prospect of success either way, to be disposed of summarily." …

[31] As already quoted at paragraph 20 above, the summary procedure should not involve the conduct of a mini-trial in a case where the defence advanced is 'fact sensitive' and there is reason to think that further facts may emerge or require investigation at trial before a fair and/or final conclusion can be reached. However, where there is sufficient material before the court on the pleadings or in evidence to allow the court to form a confident view upon the prospects of success for the defence advanced and the case is not fact sensitive in the sense that the essentials have all been deployed and there is no reason to think that the defendant will be in a position to advance his case to any significant extent at trial, then the court should not shy away from careful consideration and analysis of the facts relied on in order to decide whether the line of defence advanced is indeed no more than fanciful.'

14. Having read the Skeleton Argument of Miss Page QC I considered that I was bound to conduct the careful consideration and analysis of the facts to decide whether the plea of qualified privilege is no more than fanciful, and so whether or not her application should succeed at this stage, or whether the matter should be left for decision next week at the trial. Having done that exercise, and if I find that the submission is correct, I shall return to the question whether in all the circumstances the issue of qualified privilege should be decided now, or whether it should be left for disposal at the trial.
15. The plea of qualified privilege set out in para 9(vii) is on the basis of Mr Mulligan's duty and the legitimate interest of the recipients of the letters. Mr Perks submits that the Claimant cannot invite the court to decide the issue of privilege only in relation to the named addressees, and then seek damages (as he does) on the basis of a wider publication, since the issue of qualified privilege might depend on different facts in relation to different publishees. Miss Page QC submits that if the Defendant cannot establish this defence in respect of the publications to the named addressees, then he cannot establish it in relation to anyone else. No other facts are pleaded, such other publications are denied, and, she submits, the facts cannot be more favourable to Defendant in relation to any that may be proved at trial. I accept Miss Page QC's submissions on this point.

The law relating to qualified privilege

16. Mr Perks developed his case on qualified privilege more fully than the plea in paragraph 9(viii). He submits, correctly, that occasions may be privileged where there is an existing relationship between the publisher and the recipient (Kearns v General Council of the Bar [2003] EWCA Civ 331). He cited a number of authorities on qualified privilege where the Defendant has a legal moral or social duty to publish, where the Defendant has an interest in making the publication and where the recipient has a reciprocal interest in receiving it. Some of these related specifically to police officers, and were clearly the result of some extensive research, for which I am indebted. Such cases go back at least to Kine v Sewell (1838) M&W 297. He submits that, just as a person whose property has been stolen has an interest in recovering it and identifying the thief, so a person who might be the subject of an offence has an equal interest in being made aware of that risk and of preventing the loss. So too, a person who witnesses what they believe to be the commission of an offence may owe a duty to the victim to give information as to the identity of the suspect. In particular he submits that qualified privilege may attach to an occasion when a police officer gives information about the commission of an alleged offence even though there has been no conviction of the alleged offender: Halford v Chief Constable of Hampshire [2003] EWCA Civ 102.
17. Para 9(v) of the Defence refers to the Memorandum of Understanding ('the 2000 Memorandum') made in 2000 between the Association of Chief Police Officers ('ACPO') and the Association of British Insurers (of which the Crime Fraud Prevention Bureau was a part in 1999), which in turn replaced the Guidelines on the Exchange of Information Between Police and Insurers first issued by the Crime Committee of ACPO in 1978 ('the 1978 Guidelines'). As to these, the 2000 Memorandum postdates the publication complained of, and the 1978 Guidelines are not referred to by Mr Mulligan in his witness statement. The submission made by Mr Perks in relation to these documents is that they recognise that the duty contended for may exist. It is not submitted that either document is the source of any duty.
18. The 1978 Guidelines are headed 'Supply of Information to Insurance Companies', and are said to represent 'advice that is being given to Chief Officers by the Association of Chief Police Officers Crime Committee'. The 2000 Memorandum has a long title 'Guidelines on the exchange of information between the Police and Insurance Companies and Loss Adjusters' and is put before me in the form marked 'Revised March 2003'.
19. Miss Page QC starts her submission on the law by noting that it is a duty that is pleaded by the Defendant, and that the Defendant is a public authority. She submits that the duty (if any) must be a public law duty. She draws attention to the fact that it is the wider public interest that lies at the root of the common law qualified privilege, citing Kearns [23]-[27]. She also accepts, of course, that in Kearns [41] the court expressed a preference 'for the emphasis to be placed on whether or not the communication is made in the context of a recognised existing relationship rather than on whether it is to serve a common interest or to discharge a legal, social or moral duty when deciding whether privilege attaches'.
20. Whichever way the case is put, so Miss Page QC submits, the duties of the police to the public, and the relationship between the police and the public, in so far as the giving of information is concerned, are now set out in a number of authorities, most notably R v Chief Constable of North Wales Police, ex parte Thorpe [1999] QB 396, and R (on the application of Ellis) v The Chief Constable of Essex Police [2003] EWHC 1321 Admin She submits that the duty or relationship to be considered in the law of qualified privilege must be governed by the same principles as the public law on the duties and rights of the police in relation to disclosure of information about crimes, or alleged crimes.
21. On this there seems to me to be some common ground between the parties. By invoking the 1978 Guidelines and the 2000 Memorandum, Mr Perks himself relies on documents, which were brought into being to guide the police generally in giving information to the public. The documents are clearly not focussed specifically on the law of qualified privilege, relevant though they may be to it.
22. It is important to bear in mind that the present case, like Thorpe, is one in which the publication or disclosure complained of occurred before the coming into force of either the Human Rights Act 1998 or the Data Protection Act 1998. Had the publication occurred after the coming into force of either or both of those Acts a claim might have been advanced under ss.6 and 7 of the Human Rights Act 1998, and s.13 of the Data Protection Act 1998. Nothing in this judgment is intended as an observation on whether such claims would be well founded or not. I must apply the law as it stood at the date of the publications in September 1999.
23. Any reference to the 2000 Memorandum must also be made with caution. It refers in terms to the Data Protection Act 1998 in its Section 5, and I do not doubt that the draughtsman would also have had in mind the Human Rights Act 1998. Having read it, I do not think that it gives the Defendant any assistance which cannot as well be derived from material which was available in September 1999 and to which I have been referred.
24. I turn then to the law as stated in Thorpe. The facts of Thorpe, so far as material, are these. The applicants sought to challenge the policy of the North Wales Police ("the NWP") in relation to the release of information about paedophiles in their area and the decision of Wrexham Police on 27 March 1997 to inform the owner of a caravan site at Ruabon of the applicants' presence at the site. The applicants had been convicted of serious sexual offences against children. The NWP policy had been drawn up over a period which was longer than one year. It reviewed the statutory and common law provisions thought to affect disclosure. It included the following:

'In essence, where an officer acts in the honest belief that his/her disclosure of certain information is necessary for the protection of an individual who may otherwise become the victim of crime that disclosure would be defensible. The disclosure must only be made on a need to know basis. The police have an obvious duty to protect the public and would no doubt be subject to adverse publicity were they to fail to do so.'

It referred to Home Office Circular 45/1986 concerning disclosure of police information, which emphasises the general rule that such information should not be disclosed. It required submission of a report Headquarters CID (Detective Superintendent) prior to any disclosure, and agreement by the force solicitor.

25. In his judgment Lord Bingham of Cornhill CJ (with whom Buxton J agreed) noted that the case illustrated the tension that may arise between the interests of convicted criminals (in this case sex offenders) and the interests of the community, the former to renew their normal lives, the community to be protected against the risk of becoming victims of further offences.
26. At p409H-410G Lord Bingham CJ said:

'When, in the course of performing its public duties, a public body (such as a police force) comes into possession of information relating to a member of the public, being information not generally available and potentially damaging to that member of the public if disclosed, the body ought not to disclose such information save for the purpose of and to the extent necessary for performance of its public duty or enabling some other public body to perform its public duty. This principle would not prevent the police making factual statements concerning police operations, even if such statements involved a report that an individual had been arrested or charged, but it would prevent the disclosure of damaging information about individuals acquired by the police in the course of their operations unless there was a specific public justification for such disclosure. This principle does not in my view rest on the existence of a duty of confidence owed by the public body to the member of the public, although it might well be that such a duty of confidence might in certain circumstances arise. The principle, as I think, rests on a fundamental rule of good public administration, which the law must recognise and if necessary enforce

It is, however, plain that the general rule against disclosure is not absolute. The police have a job to do. That is why they exist. In Glasbrook Brothers Ltd. v. Glamorgan County Council [1925] AC 270, 277, Viscount Cave L.C. said:

"No doubt there is an absolute and unconditional obligation binding the police authorities to take all steps which appear to them to be necessary for keeping the peace, for preventing crime, or for protecting property from criminal injury; . . ."

Lord Parker C.J. spoke to similar effect in Rice v. Connolly [1966] 2 Q.B. 414, 419:

"It is also in my judgment clear that it is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police, but they are at least those, and they would further include the duty to detect crime and to bring an offender to justice."

It seems to me to follow that if the police, having obtained information about an individual which it would be damaging to that individual to disclose, and which should not be disclosed without some public justification, consider in the exercise of a careful and bona fide judgment that it is desirable or necessary in the public interest to make disclosure, whether for the purpose of preventing crime or alerting members of the public to an apprehended danger, it is proper for them to make such limited disclosure as is judged necessary to achieve that purpose.'

27. Lord Bingham CJ went on to observe at p 411A:

'in a situation such as the present, where the potential damage to the individual and the potential harm to members of the community are so great and so obvious, it could never be acceptable if decisions were made without very close regard being paid to the particular facts of the case. The consultation of other agencies, assuming that time permits, is a valuable safeguard against partial or ill-considered conclusions.'

He found no legal flaw in the NWP policy, particularly having regard to the fact that it required clearance at the highest level before disclosure was made.

28. On appeal to the Court of Appeal, the appellants challenged the conclusion of the Divisional Court on the basis of a new argument that NWP had treated them in a procedurally unfair manner. Counsel for the police and counsel for the Home Office did not dispute that the police had a duty to act fairly. In the delivering the judgment of the Court, Lord Woolf MR said at p428B:

'Disclosure should only be made when there is a pressing need for that disclosure. Before reaching their decision as to whether to disclose the police require as much information as can reasonably practicably be obtained in the circumstances. In the majority of the situations which can be anticipated, it will be obvious that the subject of the possible disclosure will often be in the best position to provide information which will be valuable when assessing the risk'.

29. In that case the applicants had not been consulted. However, the appeal was nevertheless dismissed on the ground that if they had been given an opportunity to comment, no information that they could have given would have altered the outcome.
30. Importantly Lord Woolf MR added the following, at p428F-429H:

The Convention is not yet part of our domestic law, but all parties were agreed that the actions of the NWP. had to be judged against the background of the requirements of article 8. Article 8 provides:

"(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

In general, the guidelines issued by the NWP. and the approach adopted by the Home Office circulars both reflected the need to maintain the balance between the interests of the individual and the needs of the public which article 8 requires. We endorse the views expressed by Buxton J. in the Divisional Court. The issue here is not the same as it would be in private law. The fact that the convictions of the applicants had been in the public domain did not mean that the police as a public authority were free to publish information about their previous offending absent any public interest in this being done. As Lord Bingham C.J. stated, before this happens it must at least be a situation where in all the circumstances it is desirable to make disclosure. Both under the Convention and as a matter of English administrative law, the police are entitled to use information when they reasonably conclude this is what is required (after taking into account the interests of the applicants), in order to protect the public and in particular children….

… both so as to accord with the principles of good administrative practice and to comply with the requirement that a public authority should act "in accordance with the law," Miss Presiley Baxendale accepts on behalf of the N.W.P. that the authority should have made the policy which it was applying available to the public. To do so provides a safeguard against arbitrary action.

31. Mr Perks accepts that Thorpe illustrates the need to balance competing public interests, which was the first principle accepted by Lord Bingham CJ in that case in relation to paedophiles. But he also submits that each case must be considered on its own facts.
32. All that is said in Thorpe was said in the context of information about convicted paedophiles. But in my judgment:

i) As a matter of principle, the same principles apply to disclosure of information concerning individuals convicted of other offences, albeit that the application of the principles may differ in such cases;

ii) The same principles also apply, but with greater force, to disclosure of information concerning individuals who have not been convicted of any offence, but who are on bail awaiting trial, or who are not currently facing any charges at all;

iii) Each case does fall to be considered on its own facts, both by the police officer making, or proposing to make, a disclosure, and by a court asked to decide an issue as to whether a disclosure was lawful or not, or made on an occasion protected by qualified privilege or not.

33. Miss Page QC supports her submissions by reference to other material. She refers to the Police (Conduct) Regulations 1999 SI 1999 No 730 which were in force in September 1999. Schedule 1 para 2 is headed 'Fairness and Impartiality'. It provides that 'police officers have a particular responsibility to act with fairness and impartiality in all their dealings with the public and their colleagues'. The passages cited from Thorpe show that the courts in that cases proceeded on the basis that the police were under an obligation to act fairly.
34. Miss Page QC further supported her submissions by reference to Home Office Circular No 45/1986, which was cited by Lord Bingham CJ in Thorpe at p408D-E and is still in force. The circular is not confined to convictions or related information about offences involving children, and envisages separate guidance for such cases. Paragraph 2 provides:

"The general principle governing disclosure remains that police information should not be disclosed unless there are important considerations of public interest to justify departure from the general rule of confidentiality. The three areas in which the exceptions are made are the protection of vulnerable members of society; the need to ensure probity in the administration of law and national security. Annex A to this Circular sets out specific groups within these areas on which the police are asked to provide information about relevant past convictions and other background information in connection with pre-employment and other checks (Schedule 1), and those groups whose convictions the police are asked to report as they occur.

35. Insurers are not on the lists in the Schedules to this Circular. The Circular, at paragraph 4, encourages chief officers to review their procedures for disclosing information, including adopting a means of recording in each case that the question whether to report a conviction or caution in accordance with the circular has been addressed. The circular goes on to note that the bodies listed in the Schedules have undertaken to treat reports on a confidential basis, subject to certain exceptions, and recommends that the police obtain an indemnity in regard to any liability that may arise as a result of the provision of information. Paragraph 8 of the circular relates to the provision of information outside the scope of the circular, concerning a person's suitability to hold a position of trust. It provides: 'Such information may be passed on to the employer or professional body on the authority only of an officer of ACPO rank. Cases of doubt should be referred to the Home Office (F7 Division)'. Although the circular deals primarily with information about convictions, paragraph 8 contains specific provision about 'cases pending'. There is guidance for the police on providing such information at their discretion on the groups in Schedule 1 to specified public authorities. None of the groups or authorities identified has anything to do with insurance or car theft and fraud.
36. I accept these submissions. They fortify the conclusion that the principles that are established in Thorpe are ones that are applicable to the present case.
37. The case of Halford is an illustration, as it seems to me, of a disclosure which is consistent with these principles. The claimant was a senior Education Welfare Officer employed by the Hampshire County Council. His job had two main elements, child protection and education welfare. The police officer who made the publications complained of had received a complaint from the claimant's stepson alleging an assault by the complainant causing the stepson actual bodily harm. A child protection conference was held with regard to the claimant's three step-children. The words complained of were published to the council's senior personnel officer. The council had commenced consideration of an investigation to determine whether the claimant should be suspended from his duties or otherwise disciplined. The council's senior personnel officer made an enquiry of the police officer as to the status of any criminal proceedings arising out of the complaint. It was in this context that Simon Brown LJ said at paragraph 39: 'It seems to me nothing short of absurd to suggest that communications made here by [the police officer] to [the council's senior personnel officer] on behalf of those concerned with his suitability for continued employment as and EWO were not made on an occasion of qualified privilege'.

The facts

38. It is common ground that, in addition to the pleading, I should now have regard to the witness statement dated 11 September 2003 signed by Superintendent Mulligan (as he now his).

1. "As a result of anonymous information received during late May/early June 1999 local enquiries were commenced into a man called Garry Hart. He had been using his salvage vehicle to convey stolen vehicles to a breakers yard in James Scott Road, Cradley.

2. On 8 June 1999 a further telephone call was received which was very specific and detailed concerning the breakers yard stating that there was a vehicle owned by Hart, at the yard. The vehicle owned by Hart`s company had a suspected stolen vehicle thereon and was awaiting disposal. Officers attended and recovered a vehicle in a state of being broken up. This vehicle shell was subsequently examined and found to be a stolen vehicle.

3. Prior to any arrests being made Hart was checked on the Force Intelligence system. He was found to be flagged to Operation Laconia at the West Midlands Police Force Intelligence Unit.

4. On 17^th June 1999 I attended a meeting, regarding the activities of Hart, at the Force Intelligence Unit where I spoke with other Detective Officers. At that meeting we were requested to carry on with the local investigation and arrest Hart. He was subject of an ongoing Force investigation, Operation Laconia, which was still at the intelligence stage and no real evidence as such had been uncovered.

5. Police Stolen On 18 June 1999 I arranged to carry out the arrest of Hart from his home address near Bridgnorth on Monday 21 June 1999. I did this in liaison with West Mercia Police, West Midlands Police Financial Investigations, West Midlands Vehicle Squad and the local J2 Operational Command Unit (OCU) Vehicle Team. I briefed the officers at Stourbridge Police Station and left the officers to carry out the arrest and subsequent search of his premises.

6. Hart was arrested and approximately 17 stolen vehicles were found at his home address in various states of being `cut up`. Hart was later charged with various vehicle related and burglary offences.

7. Unfortunately it was decided to call the J2 OCU Investigation Operation Laconia, as per the Force Operation and that of West Mercia Police. This decision caused some problems, which later materialised as a disclosure issue.

8. The case against Gary Hart came to trial on 14 May 2001 where the case was dismissed due to abuse of process due to the disclosure problems.

9. I was aware from local enquiries that Hart was salvaging vehicles for the Tarmac group of companies Carillion. I was also concerned that a large amount of salvage work carried out by Hart would involve Motor Insurers. I therefore believed it necessary the Insurers World should be aware of Hart's criminal activities. I was advised that a man who could help me with knowledge in this respect was Jim Arnold and Independent Insurance Assessor. He could also advise me of the right persons to circulate information to achieve this purpose. I believed I would have been neglectful if I had not done this.

10. I spoke to Jim Arnold on the telephone. He said he could not assist in the matter. After further enquiries I established two people who may be able to assist. They being John Wagstaff and Neil Simpson.

11. I spoke to Neil Simpson by telephone. After discussing the situation with him he asked me to put it into writing and send it to him.

12. On 6 September 1999 prior to the trial I wrote a letter (Exhibit PM1 Reference PM/1 to John Wagstaff of the Crime Fraud Prevention Bureau, London who work for the Motor Insurance Industry. I also wrote a letter (Exhibit Reference PM/2) to Neil Simpson of Markfield Insurance Brokers, Wolverhampton who represents Carillion Construction (Previously Tarmac PLC). Hart had the main contract with this company to dispose of their vehicle fleet. These letters were sent to alert the insurance industry regarding Harts activities and involvement in crime from a crime reduction stance. I also sent similar correspondence by fax (Exhibit Reference PM/3) to Mr Jim Arnold.

13. The two letters and the one fax were the only correspondence of this nature that I sent. The letter to Mr Wagstaff mentions also British Gas did not write to that company.

14. I believe the contents of these letters complied with the PM/4 memorandum of Understanding (Exhibit Reference PM/4) between the Association of Chief Police Officers and the association of British Insurers. These are guidelines drawn up regarding the exchange of information between the Police, Insurance Companies and Loss Adjusters.

15. I wrote these letters and the fax in good faith and in the honest belief that they would assist in the prevention and possibly the detection of further crimes of the nature committed by Gary Hart and therefore was in the public interest. The letters were sent only to be aware of Hart's activities.

16. In no way would I gain financially from writing these letters and in doing so neither used nor implied any malice or spite towards the Claimant, Ben Wood. At that stage I did not know he existed.

17. The terminology in the letters used the words `veil of legitimacy`. My intention here was to express the understanding that VSG was a legitimate business, which Gary Hart used to mask his criminal activities.

18. I had not heard of the Claimant until I was informed of the civil action.

19. I have been asked if I was aware of any directors, other than Gary Hart who were involved with VSG. I was not and it was a surprise to me that there was for two reasons. Firstly in my opinion and experience, Black Country scrap yards are owned or controlled by individuals and not partnerships. More importantly Gary Hart is not the sort of person to set up with someone else. He is a one-man band in my experience.

20. Gary Hart was the only person to whom police activity was directed and I honestly believed he was the sole person behind VSG. I have been asked if I considered carrying out checks with `Companies House`. The answer is no as I believed Gary hart was the sole director of this company.

21. Although I did not know the Claimant I find it hard to believe he had no knowledge of Gary Hart's criminal activity. After Hart was arrested at his home address Police Officers went to the premises at Chester Road and carried out a search. Even if the Claimant was not present I would have thought staff working there would have told him of the search.

22. At no stage in the investigation of Operation Laconia and the activities of Gary Hart was the Claimant suspected of being or known to be criminally involved.

23. The allegations regarding the said letters/fax have been investigated by West Midland POLICE Professional Standards Department. As a result of this investigation the Deputy Chief Constable of West Midlands Police gave me advice.

24. The Trial Judge stopped the trial of Gary Hart. This was mainly in relation to disclosure issues. However he levelled criticism at me for writing the letters prior to the man being convicted. The information contained in the letters was in my opinion already in the public domain as information about VSG and documentation relating to the movement of stolen vehicles to its premises was produced at Harts committal.

I believe that the facts stated in this witness statement are true."

39. For the purposes of this application it is also common ground that I should assume that the contents of Mr Milligan's witness statement, and of paragraph 9 of the Defence are true, except in so as they have been qualified or explained by Mr Perks in oral argument. I also have to assume that the issues of meaning and reference are decided in favour of the claimant, for otherwise the issue of qualified privilege would not be reached at all. That assumption is purely formal. I express no view one way or the other as to whether those issues will be decided by the jury in favour of the claimant.
40. Mr Perks submits that the following questions of fact must be established before I can decide whether the plea of qualified privilege has any prospect of success:

i) The nature of the relationship between the Defendant and the publishees, and so, the extent and identity of the publishees other than the three already named;

ii) The interest of the publishees in receiving the information.

41. The difficulty with this submission is that it is for the Defendant to adduce evidence of his relationship with the persons to whom publication is admitted. Qualified privilege is his defence and it is for him to establish it. Moreover, as a practical matter, it is the Defendant who would be expected to have information relating to the publishees' relationship with the Defendant, rather than the claimant. Mr Mulligan's witness statement sets out what he has to say on this topic in paragraphs 9 to 15. It does not appear to me that he is suggesting that the relationship between the police and these addressees was anything other than that of any persons concerned with motor insurance and the police, save to the extent that Mr Simpson's principals, the Tarmac group, might be one of a number of suppliers to VSG of cars which required lawful salvage.
42. Mr Simpson has given a witness statement, and it has been disclosed by the Claimant. He says he was responsible for dealing with the insurance claims of what had been the Tarmac group. If any cars were written off, he was predominantly responsible for determining which salvage companies dealt with them. He had given salvage business to VSG, and to another company with which Mr Hart had been associated before the formation of VSG. He had had experience of salvage companies where problems arose with cars sent for destruction subsequently being put back on the road. He had had no such problems with VSG, which he regarded as a well run operation. He recalls a communication from Mr Mulligan by telephone which was essentially in the terms of the letter addressed to him. Apart from that his evidence goes mainly to damages. He says nothing at all about his relationship with Mr Mulligan, or the police in general, which might bear on the issue of qualified privilege. He says nothing about his interest in receiving Mr Mulligan's information other than that on receipt of it he did divert future salvage business from VSG to other providers. I have also seen a draft, unsigned, witness statement for Mr Simpson disclosed by the Defendant. It adds nothing material.
43. There is a witness statement from Mr Wagstaff. He has no recollection of the particular communication from Mr Mulligan complained of in this action. He says that during his time at the Bureau he received many items of intelligence and request for information from Police Forces covering all types of suspected crime which had a possible insurance element. He recalls that in the late 1990s some salvage companies caused problems by putting back on the road damaged vehicles which were still in a dangerous condition. His Bureau was instrumental in getting the salvage trade to raise its standards. He states: 'It is my belief that in view of the role of the Bureau that not only was it right and proper of Mr Mulligan to advise as he did but that I and the Bureau had a legitimate need for this type of information so as to protect the concerns of the insurance trade and the public'. I assume all that to be true, in so far as it is fact, and to be genuinely held belief, in so far as it is opinion.
44. There is a witness statement from Mr Arnold disclosed by the Defendant. He says that in a telephone call Mr Mulligan asked him what was the best course of action in order put the insurance world on notice about Mr Hart's activities, that is to say his involvement in the disposal of stolen vehicles and parts under cover of his legitimate business VSG. He says nothing about his relationship with the police in general, or with Mr Mulligan in relation to any other fact or matter.
45. I have read the Claimant's witness statement. Neither counsel invited my attention to any other witness statement. I do not find in any of the witness statements anything which leads me to think that there is any real prospect of any of the witnesses giving any evidence that will bear on the issue of qualified privilege, over and above what is pleaded and set out in the witness statements which I have read.
46. In the light of the pleading and evidence I am left without an explanation as to the mechanism by which the publication of the words complained would achieve the purpose pleaded in paragraphs 9(i) and (iii) (essentially the prevention of crime), which I do not need to repeat here. Mr Hart was charged with handling stolen goods (para 9(ii)). If Mr Mulligan believed that VSG was being used for the purpose of disguising the resale of stolen goods, then depriving it of legitimate business from companies such as Tarmac might well make it more difficult for it to disguise the resale of stolen goods. But it is not alleged that Mr Mulligan believed that. The most that is alleged (in para 9(iv), and that mistakenly, as is now admitted) is that some offences being investigated concerned cars belonging to Tarmac – that is offences in relation to cars recovered from Mr Hart's home address. That explanation, such as it is, supports the communication to Mr Simpson.
47. So far as this is dealt with in Mr Mulligan's witness statement, he says at paragraph 2, that on 8 June 1999 he had received information (which I assume he believed) that a 'vehicle owned by Hart's company [which I assume to be a reference to VSG] had a suspected stolen vehicle thereon and was awaiting disposal'. It is now accepted that the vehicle referred to in this paragraph was not registered to or owned by VSG, but I shall assume that at the time of the publication Mr Mulligan believed that it was.
48. The communications to the other two addressees, or to anyone else in the insurance business, or for that matter any member of the public, seems to me to be unexplained. Many members of the public are affected, or potentially affected by car theft. I follow the argument that any measure that reduces the number of handlers, and so the number of thieves, will serve the public interest in some degree. But I can see no room for further evidence being adduced at trial as to how the communications complained of would lead to the detection or prevention of crime.
49. Mr Perks submits that if Mr Mulligan had not warned the individuals to whom he did write, and had insurers paid claims later found to be fraudulent, it is likely that the insurers would have complained or taken action. He did not support this submission with citation of any cases where claims have been brought against the police. This does not seem to me to be a separate point. If I find Mr Mulligan was entitled to do what he did, that suffices for the Defendant's purpose. There is no need to consider whether, in addition, Mr Mulligan had a duty to do so, breach of which sounded in damages.
50. That persons charged with, but not yet convicted of, handling stolen goods should be deprived of their businesses on the recommendation of a police officer who personally believed that person to be guilty is a matter which was described by His Honour Judge Tonks, the judge before whom Mr Hart was tried, as a chilling and daunting thought. He called for the matter to be investigated. The impositions of sanctions is a matter for the courts, after conviction, and never for the police. Mr Perks made clear that the Defendant does not rely on any such justification for the publications complained of in the present case.
51. Miss Page QC points to potentially relevant evidence which she submits might have been, but is not, available in this case. She submits that in the present case there is no pleading or evidence (whether in the form of a witness statement or document) which discloses that:

i) what Mr Mulligan did was anything other than a personal initiative of his own, made without the benefit of any policy, or prior consultation with, or authorisation of, any other person;

ii) there was any emergency or other reason why Mr Mulligan should have resorted to such a personal initiative;

iii) any regard was paid by Mr Mulligan to the potential harm to Mr Hart, or to anyone connected to or dependent upon VGA, such as the Claimant;

iv) any publication had been made to the effect that a police officer might ever make such an initiative.

52. So far from Mr Mulligan receiving any support for his actions after the event, Miss Page QC points to the following new information disclosed in the judgment of Conrad Seagroatt QC (sitting as a Deputy Judge of the High Court) on 3 November 2003. Mr Seagroatt QC had heard an application by Miss Page QC for further disclosure which was resisted on grounds of public interest immunity. Having upheld the application in part, Mr Seagroatt QC included in his judgment extracts from a relevant document which were not protected by public interest immunity. The document is a report of an investigation into the conduct of Mr Mulligan. The passages include the following:

'He (Superintendent Mulligan) agrees that the two letters subject of the trial judge's criticism [that is the judge in the trial of Mr Hart at which he was acquitted] were written by him. He offers no explanation why he did so prior to Hart being convicted'

'CONCLUSIONS – LETTERS WRITTEN BY SUPERINTENDENT MULLIGAN The letters were written (by him) prior to Hart being convicted and clearly (imply) that the recipients of the letters should consider whether or not to cease doing business with Hart. As identified by the judge, this has left the West Midlands Police open to a civil action'.

'There is therefore evidence to substantiate a misconduct charge under Fairness and Impartiality against Superintendent Mulligan contrary to the Police (Conduct) Regulations 1999, regulation 4 and 11, Schedule 1 No 2'.

'RECOMMENDATIONS Superintendent Mulligan should receive advice regarding the letters that he wrote in view of the likely repercussions of his having done so'.

53. Mr Seagroatt QC also records in his judgment that he had been informed in writing that no record exists of the advice given to Superintendent Mulligan. The relevance of this disclosure is that it supports the view that there is no likelihood of what Miss Page QC submits are the lacunae in the evidence in this case being filled to the Defendant's advantage. The view taken by the draughtsman of the report is not itself an additional reason or support for the view of the law which I form.
54. Mr Perks has not submitted that if Mr Hart and the Claimant had had prior warning of the intended publications it would have made no difference (as was found to be the case in Thorpe in the Court of Appeal). It is clear that they would have been entitled to make representations and, if necessary seek an injunction, (cf Marcel v Commissioner of Police for the Metropolis [1992] Ch 225).
55. In relation to the 1978 Guidelines, Miss Page QC invites me to note that they specifically address what police forces should do in response to enquiries, and give no support for the view that a police officer might volunteer information Further, the 1978 Guidelines at paragraph 1 provide that 'Police forces will take no action in respect of letters or any other enquiry from insurance companies adjusters or claims assessors requesting: … (d) information regarding the arrest of offenders;…' Para 2 provides: 'Any enquiry from an insurance company or other similar organisation relating to non-routine matter, or any matter where there is reasonable cause to believe a claim may be fraudulent will be dealt with as necessary'. She submits that paragraph 1 supports the view that no action should have been taken at all by way of informing insurance companies or others of the arrest and charging of Mr Hart. She invites me to note that there is no pleading or evidence that Mr Mulligan regarded this as a non-routine matter, and no claim is identified, whether fraudulent or otherwise, to which his letters might relate.
56. On the basis of the evidence and facts that I am assuming to be true, and absent evidence of the kind which might have been, but is not, to be adduced, I am satisfied that there is no prospect of the Defendant establishing the defence of qualified privilege. In my judgment there was no lawful justification, still less any duty, on Mr Mulligan disclosing the information that he did disclose in so far as it concerned Mr Hart. In so far as I assume that the information related to the Claimant, there can be even less justification.
57. I summarise my reasons, and feel able to form a confident view, as follows:

i) Mr Mulligan was acting in his capacity as a police officer;

ii) The information he disclosed was not generally available to the publishees (otherwise he would not have thought it necessary to write to them);

iii) The disclosures were potentially damaging not only to Mr Hart but also to any other person, such as the Claimant who might be involved in or dependent upon the business of VSG;

iv) The disclosure of the information was neither necessary nor, in my view materially effective, in preventing crime or enabling the detection of crime;

v) No careful judgment was exercised before publication as to whether it was necessary or desirable to make the publication for the purpose of preventing crime or alerting the publishees to an apprehended danger;

vi) There were no safeguards, such as consultation with more senior police officers, other agencies, or a written policy applying to such disclosures which was being complied with;

vii) No attempt was made before disclosure to enquire of those potentially affected, namely Mr Hart and the Claimant, to enable Mr Mulligan to assess the risk of damage;

viii) There was no urgency;

ix) The public had not been warned that the WMP might consider themselves free to make disclosures otherwise than in accordance with the 1978 Guidelines or the Home Office Circular;

x) The person to whom Mr Mulligan has admitted he wrote had no interest in receiving the information which materially distinguished them from any other member of the public who is interested in the prevention and detection of crime, in particular because it is not explained how those publishees might have been expected to act on the information.

58. Having formed the confident view that the plea of qualified privilege has no real prospect of success, I turn to consider whether there is any reason why I should not give summary judgment as sought by the Application Notice. There are a number of reasons advanced by Mr Perks. He submits that the Claimant could and should have made such an application earlier, if they were minded to make it at all, and that some earlier exchanges between the parties can be understood as indicating that they were not minded to make it.
59. I do not need to consider these arguments in detail. Given the view I have formed, if I were to defer the matter to the trial, Miss Page QC would no doubt make an application at an early stage of the trial. She has already reminded me of the duties of a trial judge as set out in much cited passages from Alexander v Arts Council of Wales [2001] 1 WLR 1840 [37] and subsequent cases. The duty of the judge to withdraw an issue from the jury if he comes to the conclusion that the evidence, taken at its highest is such that a jury properly directed could not properly reach a necessary factual conclusion. The judge must be very careful not to usurp the function of the jury, but if there is nothing for the jury to decide then time must not be wasted, and the jury must not be distracted by irrelevant evidence and speeches. No useful purpose would be achieved by not giving summary judgment that the plea of qualified privilege be struck out, and I so order.