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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		11 March 2010

Mr Justice Eady :

1. The Claimant in these proceedings is Mr Peter Hughes, who has worked for British Airways Plc ("BA") for more than 20 years. From 1993 until the events with which the court is now concerned he was employed in a cabin crew position at the senior purser grade. The First Defendant, Mr William Risbridger, served for over 30 years with the Metropolitan Police, retiring with the rank of detective sergeant. He is now employed by BA in a division known as "Asset Protection Group: Corporate Security". In that capacity he is responsible for investigations and security matters. In particular, he has a responsibility for investigating any crimes which may be committed against BA including, on occasion, any offences committed by its own employees.
2. The Claimant sues both Mr Risbridger and BA for libel in relation to an email sent to various BA employees on 14 December 2007. This was an internal report by the First Defendant on what is known as a stop-and-search operation the day before (i.e. 13 December 2007) which had been mounted jointly by officers of the Metropolitan Police and of HM Revenue & Customs at Heathrow. Such operations are for the specific purpose of detecting any criminal offences or customs infringements that may have been committed by flight or cabin crew. This practice, as I understand, commenced in the autumn of 2007 following intelligence reports that airline crew were involved in criminal activities. The object of the exercise was to determine whether those stopped were in possession of stolen or contraband goods.
3. Mr Hughes returned to Heathrow on an overnight flight (BA 028) from Hong Kong, which arrived at about 7 a.m. on 13 December. He and his colleagues were searched on arrival, and it is common ground that a dozen miniature bottles of whisky were found in his bag. He had not paid for them and was, therefore, not in possession of a receipt. His explanation was, and has remained, that he had made an error and had no intention of stealing the items (which, apparently, he could have purchased at staff rates for a total of £6). When he first attempted to pay on board the aircraft, he found that the bar he approached had already been closed (somewhat earlier than usual) and he would therefore have to pay for them at one of the other points on the aircraft. He then became busy with serving breakfast and simply forgot to do so.
4. The material words in the email of 14 December were as follows:

"Unfortunately, the only crew members found in possession of suspected stolen goods or dutied items in excess of the allowance were BA crew, the breakdown of which is as follows:

BA 028 HKG-LHR

…

C[abin] C[rew] Member Peter HUGHES S/M694971 was found to be in possession of 12 miniatures for which he could [not] provide a receipt. Arrested and taken to Uxbridge Police Station. In police interview he stated that he took the miniatures on the return flight to LHR and as the bar had already closed he did not have the opportunity to pay for them and then forgot to do so. He was released by the police with no further action to be taken. In my view HUGHES can count himself as extremely lucky not to have received a police caution at the very least as he admitted to theft in the interview ... "

The report was not confined to Mr Hughes' situation and covered a number of other staff members.

5. The natural and ordinary meanings pleaded on the Claimant's behalf are to the effect that he:

a) had admitted to theft at his interview with the police and as a consequence was guilty of theft from his employers, the Second Defendant;

b) was culpable of a theft from his employers to such a degree that he ought to have at the very least received a police caution;

c) though he had admitted to and thus committed a theft from his employers he had escaped a police caution by sheer extreme luck and/or by a fluke;

d) was a thief and, as such, was a disgrace to the Second Defendant's cabin crew profession and, consequently, was not worthy of holding or being given any position of trust and honesty with the Second Defendant or any other employer.

6. It is accepted by the Claimant that the publications of the email, as pleaded, were the subject of qualified privilege. This is because each of the limited number of recipients, by virtue of his or her responsibilities within BA, had a legitimate interest in seeing the report. The primary issue in the case is whether or not the Claimant can prove on a balance of probabilities that the First Defendant, Mr Risbridger, was actuated by malice in communicating the contents of that email.
7. It is important to note that the Defendants accept that at no stage, either when he was originally stopped and searched or later in Uxbridge Police Station, did Mr Hughes admit that he had stolen the items or that he had in any way been dishonest. His case has been consistently throughout that he made a mistake. Nevertheless, the defamatory sting is the allegation that he had stolen the items; whether or not he admitted to it is not of central importance.
8. In addition to qualified privilege, there are pleas of justification and fair comment. These defences are, unusually, pleaded compendiously on the basis that the words were true, alternatively honest comment, in respect of the meaning that " … as the Claimant had effectively, or had almost certainly, committed a criminal offence of theft, he was extremely lucky not to have received a police caution at the very least". Against the background of the particulars set out in paragraph 6 of the defence, it is the Defendants' case that:

" … for the Claimant to have been found with as many as 12 miniatures of whisky (which he must have known was twice the permitted maximum under the [Crew Purchase Scheme], and for which he had not paid and obtained the required receipt) is more consistent with an opportunistic theft than an honest mistake."

9. A further remedy sought by the Claimant is in accordance with the Data Protection Act 1998. He told me in the witness box that his primary reason for bringing these proceedings is to set the record straight. Since it is accepted that he never admitted theft, at any stage, he argues that BA's employment records should have been corrected in this respect. On the other hand, there was evidence from his line manager, Mr Ford, to the effect that the email forms no part of his record or employment file. Mr Barca submits, on behalf of BA, that there simply is no evidence that the email has been retained or that it is accessible. The Data Protection Act claim is confined to one for damages under s.13 (in respect of an alleged breach of s.10). There is no claim for rectification. I shall return to this later.
10. It is important to understand the rules governing cabin crew purchases since, if it was Mr Hughes' intention to pay for the items, he would have to do so in accordance with that framework.
11. The relevant Crew Purchase Scheme ("CPS") was that updated on 1 August 2007. It contains the following provisions:

"1 Purchases from the Consumable Bar

…

(iii) You may purchase up to SIX alcohol based items (but no more than FOUR quarter bottles of wine within the six) in any operating duty day.

(iv) You may only purchase and take into a slip station and/or your base six alcoholic items, six mixers and 2 waters. You must comply with local Customs regulations and never take alcohol into a 'dry' country.

(v) The prices are:-

Spirits – miniatures 50p each

…

(vii) It is important that you retain all receipts for your purchases. All transactions must be made using Barplus.

(viii) On flights where there is no Barplus, the Crew Purchase Scheme is not available for alcohol purchases.

…

4 Reminders

(i) All items purchased on board, all other alcoholic drinks and all duty free purchases from non-BA outlets, must be supported by the correct receipt.

(ii) Alcoholic items, wherever purchased, must have the original seal intact whenever they are in the cabin of the aircraft. Any container where the seal on the cap of a bottle is broken may not be brought into the cabin.

(iii) Reasonable amounts of opened tobacco, cigarettes, perfume or aftershaves that are clearly for personal use may be carried in the cabin or elsewhere without a receipt.

…

5 Removal of items from the Aircraft

Only the following items may be removed from an aircraft:-

(i) Items purchased under the Crew Purchase Scheme or from the Duty Free Bar, provided they are supported by the correct receipt. These items, which are for your personal use, must leave the cabin of the aircraft with the original seal intact. Once removed, they may not be brought into the cabin of any BA aircraft (except in 4(iii) above).

… "

12. There is also a Crew Checks Procedure which contains a number of provisions, including an obligation on staff to submit to searches when required to do so. It includes this passage in particular:

"Any Flight Crew found in possession of an unauthorised item(s) must be suspended from duty by the Captain and the management at base informed that this has been done. Any Cabin Crew member found in possession of an unauthorised item(s) must be suspended from duty by the S[enior] C[abin] C[rew] M[ember] after consultation with Fleet Management at base and having informed the Captain."

13. It is also necessary to take into account some of the provisions of the Flying Crew Orders ("FCO"). Those that are particularly relevant for present purposes are as follows:

"1317 CREW PURCHASE SCHEME

Full details of the Crew Purchase Scheme are on the Intranet.

1318 Responsibilities

All members are responsible for complying with, and preventing breaches of, the Crew Purchase Scheme regulations.

1319 Crew purchase receipts should be retained as proof of purchase. Manual receipts must be issued if 'Barplus' receipts are not available..

1320 Purchases from the Consumable Bar

Operating crew may purchase items from the Consumable Bar on all routes except those between EU countries.

Within any operating day, the following may be purchased for personal use only:

Up to six alcohol based items (but nor more than four quarter bottles of wine within the six) and/or

Up to six mixers, including canned mineral water.

No other size bottle is included in the scheme and neither is champagne.

Note: Purchases from previous days may (only) be carried in hold loaded luggage."

14. I should also refer to an electronic message (on BA's intranet system) sent by a Cabin Crew Manager called Garry Bird on 6 September 2006, since Mr Hughes places considerable reliance upon its contents. It was in these terms:

"CREW PURCHASE SCHEME

An article was recently placed into the C[abin] C[rew] News after a number of crew asked for clarification on the Crew Purchase Scheme. In the article written, it stated that crew were not permitted to make an additional crew purchase when carrying an allowance purchased on a previous day, this was incorrect. I can confirm that you can make additional purchases on the following days regardless if you still have your original purchase, however, as FCO 1320 states purchases from previous days may only be carried in the hold loaded luggage. For details of the Crew Purchase Scheme please refer to FCO 1317 to FCO 1321."

15. The Defendants argue that those rules are clear and that there is little room for misunderstanding or confusion. Mr Risbridger, in particular, gave evidence to the effect that he had those rules well in mind when he concluded on 13 December 2007, as he did, that Mr Hughes had not intended to pay for the twelve miniatures found in his possession. As he points out, he would only have been allowed to bring six miniatures from the aircraft, according to the CPS, and since his miniatures exceeded that allowance, he cannot have intended to pay for them. Had he attempted to do so, it is to be presumed that the member of staff in charge of the relevant bar would have refused to permit a purchase in excess of allowance.
16. Mr Hughes believes that he was entitled to bring twelve bottles with him, and indeed that there was a general understanding to this effect among flying crew, because the relevant flight was from Hong Kong. I understand that crew members would be allowed normally to make a purchase of six miniatures on an outward journey and another six miniatures on the return journey, although the items purchased on the outward journey would have to be stored in the hold within the person's luggage on the return flight. When he or she emerged from the return flight, therefore, it would be possible to have six miniatures in hand luggage and six miniatures stored in luggage from the hold. That would be consistent with the Garry Bird email quoted above. Hong Kong, however, represents a special case. The local rules do not permit crew members to bring miniatures into Hong Kong. According to the rules, therefore, a crew member would only be permitted to emerge on return with any miniatures he had purchased on the return flight. He would not have been permitted to bring six miniatures into Hong Kong and, it follows, he would not be able to store them in his luggage in the hold on the return journey.
17. Mr Hughes' belief was, apparently, that because of this special rule in Hong Kong, there was an understanding that crew members could purchase double their allowance on the return flight (so as to compensate for not having been able to purchase any on the outward journey). There is nothing in the rules to support this special rule or exemption, and it was not supported in evidence by any of the witnesses apart from Mr Hughes himself. It is clear that the Garry Bird memorandum has nothing to do with this particular problem. If there was any such understanding among crew members, it was informal and unauthorised.
18. Mr Hughes had an obligation to familiarise himself with the rules, and in particular to acquaint himself with them so as to be able to ensure compliance by those crew members for whom he was responsible in his supervisory capacity. Despite this, he appears, both in December 2007 and now, to have an imperfect or muddled understanding of the CPS and FCO.
19. I turn to consider the plea of justification. What is sought to be proved is that " … the Claimant had effectively, or had almost certainly, committed a criminal offence of theft". This is a slightly curious formulation, since the burden on any defendant seeking to prove justification is to establish the charge on a balance of probabilities. It is easy to understand the burden of proving theft to that standard. What is a little more puzzling is the concept of proving on a balance of probabilities that someone has "almost certainly committed a criminal offence". In practice, however, it makes little difference.
20. Essentially, the Defendants rely upon the rules governing crew purchase and the fact that Mr Hughes had ample opportunity to purchase any miniature bottles in accordance with the scheme during the course of the flight from Hong Kong. What is more, he put in his bag twice the permitted number of miniatures. It is on this basis that the inference is invited that it is more likely than not that he committed an opportunistic theft.
21. I am to an extent puzzled by Mr Hughes' apparent failure to understand the rules, which are clear enough, and by his reliance upon the Garry Bird memorandum, which seems to me to have nothing to do with the situation in which he found himself. It is true that it refers to apparent confusion or misunderstanding among staff members, but this only appears to relate to the matter he specifically addressed. It is concerned with crew members who have purchased part of their legitimate allowance under the CPS on one day and wish to make additional purchases on a later flight. It is clear that this is permitted, provided that the previous purchases are stored in the hold. This is completely irrelevant to Mr Hughes' position, since it neither addresses the supposed special exception in relation to Hong Kong nor gives any support to the notion that one can purchase double the usual quantities on any one flight.
22. Nevertheless, on a balance of probabilities, I have come to the conclusion that Mr Hughes did genuinely believe that he was entitled to bring in twelve miniatures to compensate for the fact that he had had no real opportunity to make a purchase on the flight out to Hong Kong (because of the local restrictions). I am also prepared to accept, on a balance of probabilities, that he found that the bar managed by Mr Benzedira was closed when he went to make his purchase originally and thereafter forgot to go to another bar to do so. It is of some interest that Mr Hughes told Police Constable Burke, after he had been searched at Heathrow, of his earlier conversation with Mr Benzedira and invited her to go and check with him. She did so and gave evidence that he did indeed recollect such a conversation. That is some confirmation of Mr Hughes' account, although Mr Barca understandably makes the point that less weight should be attached to it because Mr Benzedira himself had been caught with an excess of cigarettes in his possession on the same occasion.
23. In conclusion, I find in Mr Hughes' favour on the defence of justification.
24. The only issue for me to resolve on the defence of qualified privilege is whether or not Mr Hughes has proved, again on a balance of probabilities, that Mr Risbridger was malicious in communicating what he had to say about the circumstances in which the twelve miniatures had been found in Mr Hughes' possession. Findings of malice are extremely rare, in my experience, not least because they are tantamount to findings of dishonesty. It is clear from the exposition of the law by Lord Diplock in Horrocks v Lowe [1975] AC 135, 150-151, that malice is to be carefully distinguished from other states of mind such as carelessness, excessive zeal, pig-headedness, stupidity, or a failure to arrive at rational conclusions. In practice, a claimant has to demonstrate that the words were published without any honest belief in their truth or that the defendant was genuinely indifferent to their truth or falsity.
25. It was acknowledged by Lord Diplock that it might be possible to make a finding of malice, even where a defendant genuinely believed in the truth of the words in question, provided it could be shown that he had the dominant motive of injuring the claimant in making the communication complained of. I am unaware, however, of any cases in which such a finding has been made over the intervening years. In any event, it is important to focus on the particulars of malice as pleaded.
26. The most important point is, of course, that Mr Hughes did not at any stage admit that he was guilty of theft: quite the contrary, he always denied it. Mr Risbridger accepts, therefore, that he was wrong about this and recognises that he would not have expressed himself in these terms with the benefit of hindsight. On the other hand, he genuinely believed then, and indeed still does, that Mr Hughes had no intention to pay for these twelve miniatures. As I have already indicated, his belief was buttressed, as he confirmed in evidence, because Mr Hughes was simply not allowed to purchase twelve miniatures. Had he attempted to do so, he should have been told by the relevant barperson that such a purchase was not contemplated by the CPS or the FCO.
27. Mr Risbridger explained that he took what Mr Hughes had said to the police as being tantamount to an admission of guilt. He believed, in particular, that someone in Mr Hughes' relatively senior position would know and understand the limits of the CPS and that, accordingly, he could not legitimately have taken twelve miniatures from the aircraft. Thus, the fact that he was caught with the excessive quantity suggested to Mr Risbridger that he was trying to take them surreptitiously.
28. It is alleged that Mr Risbridger was not telling the truth in his email, in the sense that he was attempting to convey to readers that he was giving an account of the interview at Uxbridge Police Station (at which he had not been present). It is submitted on Mr Hughes' behalf that what took place in the customs hall at Heathrow, when Mr Risbridger was standing a few yards away, could not be classified as an "interview". In practice, however, it makes little difference, since Mr Hughes' account of events was to all intents and purposes the same. He made the point about having forgotten to pay, despite his initial intention to do so, and that he would be allowed to have twelve miniatures on his return to Heathrow (even though, as he put it, he should "technically" have had two receipts). He did not make the point, on the other hand, that Hong Kong was a special case for the reasons I have mentioned.
29. I cannot accept that Mr Hughes has proved malice on Mr Risbridger's part. It is clear to me, having seen him in the witness box, that Mr Risbridger believes to this day that Mr Hughes took those twelve miniatures without any intention to pay for them. He had no reason to be spiteful or malicious towards Mr Hughes in particular. He was reporting on a number of BA staff who had been found with various items on them when searched. It is true that he thought that Mr Hughes had been extremely lucky to have been released without either charge or caution, but there is no reason to suppose that this led him to make any false defamatory allegations against him. He wrongly stated that there had been an admission but, as I have already said, the sting of the libel was the allegation of dishonesty rather than the admission itself. The Claimant's case on Mr Risbridger's motive is pleaded at paragraph 31(viii) of the Reply:

"It is averred that the real motive for the First Defendant in asserting that the 'interview' referred to in the E-mail was what was said in the Customs Hall is an attempt to find a 'hook' on which to hang a false allegation and is evidence of a malicious attempt to mislead, as to when and what admissions were made, at the expense of the truth, and to the distress of the Claimant."

I do not accept that Mr Risbridger was prompted by a motive to find a "hook" on which to hang a false allegation. The material allegation he made, that of theft, was one which he genuinely believed at the time to be true. He did not understand how Mr Hughes could have genuinely intended to pay for items which exceeded the limit and for which, therefore, he would not have been permitted to pay.

30. As Lord Diplock made clear in Horrocks v Lowe, the protection afforded by the defence of qualified privilege would be illusory if it could be forfeited by the use of inaccurate language or by sloppy reasoning. In these circumstances, it seems to me that the inaccurate attribution of an admission and the lack of clarity as to where the "interview" took place should not be regarded as undermining the defence.
31. As to the defence of fair comment, I have my doubts as to whether the subject-matter of this email was a genuine matter of public interest. Furthermore, as I have said in a different context, the sting of the libel was the allegation of dishonesty, which is essentially factual in character rather than comment. The expression of opinion as to whether or not Mr Hughes was fortunate to have been treated so lightly by the police is by the way. As it happens, however, it is unnecessary for me to come to a final conclusion on this defence. On the other hand, I should make clear that I would acquit Mr Risbridger of malice in the context of fair comment also. It is only necessary to say this because, as Mr Barca has pointed out, there would now appear to be a somewhat narrower test for malice than in the case of qualified privilege: see the observations of Lord Nicholls in Cheng v Paul [2001] EMLR 777 and the discussion in Duncan & Neill on Defamation (3^rd edn) at 18.15 and 18.16.
32. Finally, I need to address the claim formulated under the Data Protection Act 1998. Mr Barca described this as "parasitic" upon the defamation claim; in other words, he suggests that it has no independent existence of its own. Nevertheless, I should address it on its merits. It is founded upon an alleged breach of the provisions of s.10. BA does not accept that any valid data subject notice was served upon it but, in any event, responded to the letter of claim on 17 September 2008, stating that it did not consider any such notice to be justified:

"We regard the Data Subject Notice as unjustified and do not intend to comply with it. We do so on the basis that the processing of such data for the purposes that would be required is unlikely to cause substantial damage or substantial distress to Mr Peter Hughes in that it sets out clearly Mr Hughes['] explanation of the events in question and that such processing is, in any event, justified."

33. Mr Barca makes two important points. First, it is said that the transient email published by Mr Risbridger on 14 December 2007 was not part of any filing system. The evidence of Mr Ford makes clear that it has not been retained as part of any database and there is no evidence that it is any longer retrievable. He argues, therefore, that the claim does not get past "first base". It is important to bear in mind the definition of "data" contained in s.1(1) of the Act. The email in question was neither "recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system": nor does it "form part of an accessible record".
34. Secondly, it is clear that Mr Hughes cannot bring himself within the terms of s.13(2)(a), which would be essential if he were to recover damages. It is not sufficient that he has suffered distress. He would also need to establish that he had suffered damage, in the sense of special damage or identifiable financial loss: see e.g. Johnson v Medical Defence Union Ltd [2007] 3 CMLR 9 at [75], CA. There is no evidence of any pecuniary damage suffered by Mr Hughes as a result of Mr Risbridger's email. It is true that he was subjected to disciplinary sanctions. Having originally been dismissed, he was reinstated on appeal in front of Mr Whittaker. Nevertheless, he lost rank and income. That was not in any way attributable to Mr Risbridger's email, however, but rather to his admitted breach of the rules. As a matter of fact, Mr Whittaker came to the conclusion that Mr Hughes had intended to pay for the miniatures, as I have now done also. That is immaterial in one sense, although it does highlight the distinction between Mr Risbridger's allegations and the grounds which led to the disciplinary sanctions. Mr Whittaker's conclusions were different from those of Mr Risbridger and independent of them. At all events, what matters is that the email itself led to no pecuniary loss on Mr Hughes' part.
35. In those circumstances, I would uphold both of Mr Barca's primary submissions in relation the Data Protection Act claim, and it must therefore also fail.
36. In the result, the Defendants are entitled to judgment.