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
		20 February 2012

Mr Justice Eady :

1. In this libel action Swansea University, as the Defendant, seeks an order striking out the claim under CPR 3.4(2) or that summary judgment be entered in its favour pursuant to CPR 24.2. It is necessary to consider first the unusual factual background.
2. The Claimant, Mr Samuel Andilile Ibrahim, was formerly a postgraduate student of the University. His course began in September 2009. Unfortunately he missed two examinations in May 2010 and arranged for his studies to be suspended formally between August of that year and February 2011. He then sought a further six-month suspension from March 2011. According to the rules, however, it was a requirement that the course should be completed within two years of its commencement. Thus, in order to obtain a further suspension from March 2011, Mr Ibrahim also needed to make an application to extend the period of candidature for his degree.
3. Such an extension was sought and supported by the School of Business and Economics. This was considered by the University's Student Cases Committee, as was appropriate, at a meeting held on 3 May 2011. The Committee's decision was to refuse the extension and it was determined that Mr Ibrahim should be required to withdraw from his course. He was notified of this by letter dated 9 May 2011 and he also received a copy of the relevant minutes of the Committee meeting by email on 24 May of that year.
4. It is clear that the Committee took into account two documents in the course of its deliberations. There was the statement in support of the application and a letter dated 17 March 2010 stating that the person to whom it related "suffers from Chronic Fatigue Syndrome and Anxiety". It was also said that he had been under the care of a psychiatrist for those reasons and that he had been on medication since 2007. It recorded that his concentration and sleep were affected and that it was likely that he would require extra time to complete his academic tasks. The letter was signed by Dr R C Lloyd of the University Health Centre.
5. Most unfortunately, this medical letter related to someone other than Mr Ibrahim. That person had a similar name, but it is unnecessary for me to identify him in the course of this judgment. It is said that this document was placed before the Committee as a result of "an administrative error".
6. An "academic appeal" was initiated against the Committee's decision and it was only in the course of this process that the error was brought to the attention of the University. The appeal was accordingly upheld.
7. In the light of this development, a Mr Huw Morris, acting on the University's behalf, met Mr Ibrahim and apologised to him. He also discussed the possibility of his being reinstated in the University but, not surprisingly, Mr Ibrahim told him that he was not interested. Nevertheless, an offer was made to him to assist with a transfer to another university and to reimburse him for the full amount of tuition fees paid in respect of the uncompleted course. That offer has not so far been taken up.
8. A further complaint was made by Mr Ibrahim about what were described as "procedural irregularities" within the School and accusations were made of misconduct against specific members of the University staff. This was rejected in due course following a full internal investigation and the relevant staff were exonerated.
9. Thereafter Mr Ibrahim pursued these matters with the Office of the Independent Adjudicator for Higher Education ("the OIA"). This body has the jurisdiction to review student complaints. Although Mr Ibrahim made his application on 29 July of last year, it seems that it was not formally set in train for two months. It is not clear how far matters have progressed with the OIA, but Mr Ibrahim has stated that he is frustrated by the time it has taken.
10. It is against this background that Mr Ibrahim decided to seek redress from the court. The present proceedings were accordingly launched on 16 November of last year. The nature of the claim has remained somewhat obscure, although it does appear to include an allegation of defamation. An order was made by Master McCloud on 21 December of last year requiring Mr Ibrahim to clarify the nature of his case and, in so far as the complaint was of defamation, to set out the words complained of and the occasions of publication relied upon. He purported to comply with these requirements by serving a document called a "supporting statement" which identified two categories of words relied upon for the purposes of the defamation claim. The first appears to derive from the School's letter of support and consists of the allegation that " … Mr Ibrahim has suffered with mental health difficulties". The second quotes (slightly inaccurately) from the medical letter of 17 March 2010 concerning the other student.
11. The supporting statement also appears to rely upon three occasions of publication. First, there is the publication to the Committee for the purposes of its meeting on 3 May 2011. It is common ground that the two documents, containing the words complained of, were indeed published to the Committee at that time.
12. Secondly, complaint is made of publication to Mr Ibrahim himself. Obviously, that cannot survive as a claim in defamation, since a communication that is only made to the claimant is not treated by the law as an actionable publication.
13. Thirdly, it is suggested that the information was on some occasion "forwarded to the Home Office". This has been denied by the University and Mr Ibrahim has produced no evidence of any such publication. Mr Ibrahim's misapprehension about this matter may derive from a standard document dated 19 October 2010 concerning his enrolment and which referred generally to the fact that sometimes the UK Border Agency is informed of a student's withdrawal from a course, but only "if relevant". It has been confirmed by Mr Aled Phillips on behalf of the University, in an email dated 15 December 2011, that no communication with the Home Office or the UK Border Agency has taken place regarding Mr Ibrahim and his departure. It would not be appropriate to do so since his visa recorded that he had indefinite leave to remain. There would be no need to notify the Border Agency in those circumstances.
14. It is thus already clear that two of the publications apparently relied upon by Mr Ibrahim in his supporting statement are incapable of giving rise to any cause of action in defamation. There is no evidence of publication to the Home Office and there could be no claim in respect of publication limited to himself. Those claims should accordingly be struck out.
15. The publication to the Committee in May 2011 is challenged by Ms Kissin, on behalf of the University, on a number of grounds. First, she submits that no reasonable person would nowadays think any the worse of someone who had suffered from either "mental health difficulties" or from "chronic fatigue syndrome and anxiety". No such allegation, whether made against Mr Ibrahim or anyone else, would be capable of lowering the relevant person in the eyes of "right-thinking members of society". That must be right, in my judgment, and accordingly no claim in defamation can arise in respect of these publications either.
16. Alternatively, Ms Kissin argues that the communications to the Committee would be protected by qualified privilege at common law. There would be a common and corresponding interest, she submits, between the members of the Committee and the person(s) who supplied the information in its subject-matter. It is said to have been relevant to the task the Committee had to discharge.
17. While that is no doubt true of the School's statement in support of Mr Ibrahim's extension, I am very dubious as to whether the same can be said for the medical letter from Dr Lloyd. It related to a different person. It contained confidential information about a third party: whoever it was who made the "administrative error" had no business providing it to the Committee concerned. It is often said that where the protection of qualified privilege applies, it attaches to the occasion of publication. If the student to whom the medical letter actually related had himself brought a claim, there could plainly be no defence of qualified privilege. I cannot see that it makes any difference that Mr Ibrahim is the Claimant. Assuming for the moment, contrary to my earlier conclusion, that the contents of the document are capable of being defamatory, there could be no defence of qualified privilege in either case. There simply would be no common and corresponding interest in its subject-matter between the Committee members and the person who supplied it through an "administrative error".
18. Another limb of Ms Kissin's argument was that any defence of privilege could not be defeated by establishing malice. It is elementary that malice is qualitatively different from incompetence or negligence. It is tantamount to dishonesty.
19. As is well known, it is not sufficient merely to plead that a defendant has acted maliciously. The plea must identify a case which is more consistent with the presence of malice than with its absence. Generalised or formulaic assertions will not be permitted as a matter of pleading practice: see e.g. Duncan & Neill on Defamation (3^rd edn) at 18.21 and Gatley on Libel and Slander (11^th edn) at para 30.5.
20. A claimant who wishes to defeat an arguable defence of qualified privilege must plead and prove that the person alleged to have been malicious abused the relevant occasion of privilege for some purpose other than that for which public policy accords the defence. A claimant may not proceed simply in the hope that something will turn up if the defendant chooses to go into the witness box or that he will make an admission in cross-examination.
21. Had it been relevant to plead malice, therefore, such a plea could not survive on the facts I have described.
22. Thirdly, Ms Kissin submits that the claim in libel would fall to be struck out in accordance with the recently developed doctrine of abuse of process deriving from the Court of Appeal decision in Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946. She submits that these proceedings have been brought as an alternative means of airing Mr Ibrahim's complaint now pending before the OIA, but that would not be an appropriate use of the court's process. There is no evidence that any damage was occasioned to Mr Ibrahim's reputation by the publication to the Committee and, in any event, it has been pointed out to the members of the Committee that the content of the medical letter had been placed before them through error. The legitimate purpose which defamation proceedings are intended to serve is that of obtaining vindication or compensation for injury to reputation. There is no reason to suppose that any such objective could be achieved by the present proceedings. Accordingly, to adopt the language used by the Court of Appeal in Jameel, "the game is not worth the candle".
23. In his submissions to me, and in the course of the written material submitted prior to the hearing, Mr Ibrahim emphasised that the claim was not intended to be limited to defamation. His claim form includes the words:

"The Claimant's claim is to include the damages resulted on infringement of the convention rights of Human Rights Act 1998: Convention protocols – Article 2 – Right not to be denied education. In addition, the Claimant's claim is including the damages resulted on an infringement of the convention rights of Human Rights Act 1998: Convention Articles – Article 10 – Right to freedom of expression."

This was supplemented by a further document which included these words:

"Swansea University like other Universities in the UK is classified as a public authority as if perform duties of a public nature. The Freedom of Information act 2000 section 3(1), 4, 5 & 6 and the royal charter granted in the year 1920 by His Majesty King George the Fifth are basis of this application in classifying Swansea University as a public authority and therefore as to any public body the human rights must be adhered."

24. Unfortunately, despite the Master's order, no further clarification of these claims has been communicated and there is thus no basis upon which I can hold that an arguable cause of action has been formulated. In particular, there is no indication as to how the Claimant's Article 10 rights could be said to have been infringed. Moreover, so far as education is concerned, no information has been given as to how it is said that the provisions of the relevant protocol have been infringed by the United Kingdom or by the University. Vague allegations of this kind cannot be permitted to survive and it is appropriate to make orders with a view to preventing any further unnecessary expenditure of costs.
25. Accordingly, I shall grant the relief sought and strike out the relevant statement(s) of case, since (a) no reasonable grounds for bringing the claim have been disclosed; (b) the claim is an abuse of the court's process; and (c) there has been a failure to comply with the Master's order.