Case No: A2/00/2885
Neutral Citation Number: [2001] EWCA Civ 514 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HON. MR JUSTICE EADY
Royal Courts of Justice
Strand, London, WC2A 2LL

Monday 9th April 2001

B e f o r e :

THE LORD CHIEF JUSTICE
LORD JUSTICE MAY
and 
LORD JUSTICE JONATHAN PARKER
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	                    JANEK ALEXANDER		Appellant	
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	     (1) THE ARTS COUNCIL OF WALES	Respondents	
			                   (2)  JOANNA WESTON

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
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Patrick Milmo QC and William Bennett (instructed by Reynolds Porter Chamberlain for the Appellant)
Thomas Shields QC and Timothy Atkinson (instructed by Edwards Geldard for the Respondents)

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Judgment
Lord Justice May : 

Facts
1.	The Arts Council of Wales (“ACW”), the first defendant, is a non-departmental public body which distributes National Lottery grants and other funding from public sources to arts organisations in Wales.  The second defendant, Joanna Weston, was until September 2000 ACW’s Chief Executive.  The claimant, Jan Alexander, is the Director of Chapter Limited (“Chapter”), a charity which owns and runs the Chapter Arts Centre in Cardiff. Chapter is chiefly concerned with the promotion and performance of contemporary art.  The claimant’s position is equivalent to that of a chief executive.  Over a number of years, ACW has made substantial grants of public money to Chapter both towards the cost of particular projects and also for revenue funding. 
2.	In about 1996, Chapter formulated plans to build a new arts centre on a new site in Cardiff Bay.  The estimated cost of this project was in excess of £5m.  The claimant and Chapter were hoping to obtain a lottery grant to meet most of the cost.  In September 1996, Chapter made a formal application to ACW for funds in the order of £60,000 for a feasibility study into this proposed project.  The application was not promptly dealt with, but was deferred for various reasons.  After more than a year without progress, the claimant in exasperation appealed under the ACW code of practice and sought a finding of maladministration. This complaint was rejected in April 1998, but the hope was expressed that it might be possible for an urgent decision to be made by ACW in July 1998 at least as to its priorities.  The hope was also expressed that ACW’s strategy for lottery funding might soon be in place.
3.	The Lottery Act received the royal assent at the beginning of July 1998 after which ACW received its detailed instructions from the Government in relation to the distribution of lottery money.  They had to develop a strategy for this.  At one stage it was apparently envisaged that the strategy might be in place by the Autumn of 1998.  It was in fact finally in place by early 1999.
4.	From September 1997, ACW had introduced a three stage process for grant applications.  This was well publicised in a document which stated that ACW would not consider large applications for grants towards construction projects until design plans had reached RIBA stage D. It was usual for applications for large projects to have three stages: (1) feasibility; (2) development; and (3) main project.
5.	Chapter had sought additional funds from elsewhere and by March 1998 had obtained conditional offers of funding in excess of £1m.  The main source of these funds was to be the European Regional Development Fund (ERDF).  These funds would not be available indefinitely and the ERDF offer would lapse unless Chapter could be assured by the Autumn of 1998 that lottery funds would be available. 
6.	In June 1998, Chapter withdrew its original application for money to support a feasibility study.  Instead it made a request in correspondence for ACW’s Capital Committee to approve a commitment in principle to Chapter’s project. The request was for a commitment in principle to a grant of £4.1m towards an estimated project cost of £5.8m, or £3.6m if the eventual total cost was £4.8m.  Chapter’s request meant that ACW were being asked to commit an amount that would be well in excess of half the funds available to it for the year for spending on the arts in Wales.  It was also an unusual, if not unique, request because it asked for a commitment in principle in advance of the three stage process to which I have referred.  It appears, however, that Chapter may have received some encouragement to make a request of this kind.
7.	The request was considered by the Capital Committee of ACW on 25th June 1998.  The second defendant was present at the meeting.  The request was in effect rejected although, since it was not a formal application, it was not dealt with in the same way as other applications.  The minutes of the meeting record that members did not feel able to make the requested commitment in advance of an agreed strategy giving a clearer indication of the priority to be given to Chapter’s request.  The recommendation of the Capital Committee was considered at a meeting of ACW itself at Llandudno on 17th July 1998, at which the recommendation of the Capital Committee was accepted.  The second defendant was present at that meeting also.  The claimant was told about this on 20th  July 1998 and was clearly upset.  One consequence of the decision was that the conditional ERDF funding would be lost.
8.	On 21st July 1998, the claimant issued a press release strongly critical of ACW’s decision.  This led to an article in the Western Mail of 22nd July 1998 under the headline “Anger as Arts Centre bid for Lottery cash rejected”.  The article said that ACW had turned down a £3.6m lottery application; that it meant that more than £1m of European money would be lost and hundreds of jobs could be put at risk; that the claimant had described the decision as “crazy” and accused members of living in a world of their own; and that it was understood that the application was rejected because ACW had decided to put a freeze on lottery applications from arts organisations based in Cardiff.  
9.	The second defendant regarded this article as misleading, in particular because it gave the impression that ACW had turned down a normal application rather than an unusual request to commit funds in principle; and because it did not say that ACW were being asked to commit well over half its annual available funds.  The second defendant was giving a press briefing, as it happened, on the morning of 22nd July 1998.  She expected to be asked questions on the subject, and she was.  She spoke for several minutes and some of those present took notes.  There were subsequent press and broadcast publications of what she said.  
The proceedings
10.	In these proceedings, ACW and the second defendant are sued for slander and libel contained in those publications.  There is a dispute as to precisely what she said and as to the accuracy of the reports of what she said.  In his amended statement of claim, the claimant complains of the following words spoken by the second defendant at the press briefing:
 “In this case we were asked to make a commitment in principle by the administrator/administrators of Chapter to a very large sum of money, and it was without that request being supported by a detailed development and business plan and all of the details that we always ask for before making a commitment to a large capital sum.  It simply would not be a priority use of public money or accountable to make that commitment in principle.  We have never done so, did not do so in this case and would not in the future.”
11.	The claimant attributes two possible meanings to that passage.  The first is essentially innocuous and was scarcely supported at the trial as capable of carrying a serious defamation claim.  The second meaning was as follows:
 “In making such an application the plaintiff has shown himself to be reckless and/or negligent and/or incompetent in the performance of his job at Chapter and also as an arts administrator.  Furthermore, it demonstrates that his attitude to the use of public funds is cavalier making him an unworthy custodian of them in his role as Director of Chapter.”
12.	The claimant also relies on five further press or broadcast publications deriving from the press briefing.  The content of the reports vary somewhat in detail and in some instances have additional material from an interview of the second defendant by a BBC journalist, Nick Palit; and from Emyr Williams,  Press Officer of ACW.  For present purposes, these publications are, with one qualification, essentially the same and essentially the same meanings are attributed to them.  
13.	The qualification relates to a television broadcast on BBC Wales on 22nd July 1998.  The claimant by amendment alleges that, after the press briefing, the second defendant spoke with a BBC interviewer, Nick Palit, and that she said words to the effect that Chapter had not been given the money because they did not fill out the forms properly.  The broadcast began with an introduction, written by Mr Palit, which ended with the words:
 “However, the Arts Council say that they won’t contribute because the grant application wasn’t submitted properly.”
14.	This sentence is relied on as conveying what the second defendant had said and consequently as being a defamatory publication by her.  The broadcast continued with Mr Palit saying that the Arts Council of Wales had refused to contribute, as they said they had received no formal application.  The second defendant then said:
 “What they were asking the Council to do was to make a commitment in principle to an amount of £3.8m.  Now it would not be a proper use of public funds for the Arts Council to say “In principle we’ll give you nearly four million pounds, and then come back and tell us what you’re doing with it”.”
15.	In their defence, the defendants deny that the claimant has accurately recorded the substance of what the second defendant said.  They deny the meanings contended for by the claimant.  They plead that the publications were on occasions of qualified privilege.  By his reply, the claimant disputed that the occasions were privileged and contended in the alternative that the second defendant, and therefore the first defendant, were actuated by express malice.  
16.	The action came for trial before Eady J and a jury and the hearing lasted for about eight days.  At the end of the evidence, the judge heard submissions as a result of which, on 20th July 2000, he withdrew the case from the jury and gave judgment for the defendants.  This is the claimant’s appeal against that decision.  Simon Brown LJ gave permission to appeal.  
The Judge’s decision
17.	It was submitted to the judge that none of the words relied on were capable of  bearing a defamatory meaning.  The judge considered that there were powerful arguments to that effect and to the effect that the second defendant would not be held responsible for any inaccurate summaries in subsequent publications of what she had said.  However, since what she had said was in a number of respects in dispute, the judge did not think that it would be right for him to preempt the jury’s decision on what she did say and as to the meaning of what she said.  He observed that he was not the judge of fact in the case.  He reached a similar conclusion on a contention that there was no evidence capable of establishing that what the second defendant said referred to the claimant.  But he  concluded, without any hesitation at all, that the occasion on which the second defendant was speaking on 22nd July 1998 and the subsequent publication did attract the defence of qualified privilege.  He gave extended reasons for this, which it is not necessary to rehearse in detail since the finding is not challenged on this appeal.  In short summary, he concluded that the second defendant was speaking on a topic of public interest and that she had a duty to communicate a response to a published attack that the claimant had made on ACW; and that the media recipients of what she said and the public generally had an interest to receive her response.  The judge expressed his conclusion in these terms:
 “It seems to me that the matter can be put on both bases, that is to say the general duty/interest test and the “reply to an attack” test.  I prefer to place the matter on the more general footing by saying that this was a matter concerning public funding and decisions made in relation to it which were likely to have a considerable impact on the arts in South Wales.  It seems to me to be clear that someone in Miss Weston’s position had a duty to explain, as far as she could, the nature of the decision and, if pressed upon it, the reasons for the decision.  That is particularly so in a case where the matter had been placed in the public domain very recently and had thereby become a matter of legitimate interest.”
18.	The judge then turned to the issue of malice.  He said that this had to be seen against the background that ACW had supported Chapter very substantially over a number of years.  The allegation was that the second defendant was malicious in what she said at the press briefing.  The judge referred to long established principles and particularly the exposition of the law by Lord Diplock in Horrocks v. Lowe [1975] AC 135, from which it was clear that malice is a very serious allegation and generally tantamount to dishonesty.  The case was either that the second defendant had no honest belief in the words she spoke or that she had ulterior dominant motives to blame the claimant and thus to divert critical attention away from herself and ACW.  The judge understood the main case to be the first of these, that is that the second defendant told the assembled journalists on the 22nd July 1998 something which she knew to be false.  
19.	The judge cited very well known passages from the speech of Lord Diplock in Horrocks v. Lowe.  He said that it was rare for malice to be found at all, but that he had never known a case in which malice had been found without there being dishonesty on the part of the defendant.  
20.	The essence of the claimant’s case, as advanced by Mr Milmo QC on his behalf, was that the second defendant was saying that “the grant application was not submitted properly”.  The judge emphasised the word “application” because Chapter had not in fact made a formal application, only a request for a commitment in principle.  The form of expression derived from Nick Palit’s introduction to a BBC Wales broadcast – one of the subsequent publications relied on.  Mr Milmo relied on the fact that the second defendant had admitted that, if she had said that the grant application was not submitted properly, it was not true and she would have known that it was not true.  It was, of course, her evidence that she had not said this.  Mr Milmo’s submission was that there was substantial evidence that the reasons given at the press briefing, according to the evidence of the claimant and Mr Palit, were not the true reasons for ACW’s decision nor for the decision of its Capital Committee.  The minutes of the Capital Committee meeting only record as a reason the absence of a finalised funding strategy.  The judge regarded this as an artificial division into watertight compartments.  The fact that this was a unique request for commitment of funds in principle was obviously a factor that would have been in the minds of those considering it.  Mr Edge, Mr Roberts and the second defendant had all given evidence to that effect.  The judge considered evidence which in his view made it clear that there was no attempt by ACW to hide the fact that the lottery capital strategy was not in place in the summer of 1998 and he did not see how the omission by the second defendant to mention this at the press briefing on 22nd July 1998 was capable of amounting to malice.
21.	The judge referred to submissions by Mr Shields QC on behalf of the defendants to substantially the same effect as those which he advances in opposition to this appeal.  The judge reminded himself of the important distinction between his role and that of the jury in relation to malice.  He observed that only the second defendant remained in contention in the context of malice.  He said that for his present purposes he had to make certain assumptions.  The first was that the claimant succeeded in proving that the second defendant spoke the words attributed to her at the press briefing.  The second assumption was that a jury might possibly infer that there was an implication in those words to reasonable listeners that the claimant had failed to supply all the information for which he had been asked.  The judge also assumed that the words were free standing, in the sense that they were not prefaced by a detailed explanation emphasising the distinction between the unique request for a commitment in principle and the usual circumstances in which a formal application is made to ACW for funding.  He reminded himself that he was concerned with the second defendant’s state of mind – he had previously referred to what Hirst LJ had said in Loveless v. Earl (1999) EMLR 530 at 538 - 539 – this in contrast with the objective test to be applied in determining what a publication means.  The judge then said:
 “It is to my mind manifest that Miss Weston was saying that at least one reason why the request could not be accepted was that the ACW did not have the information that usually accompanies a commitment to funding of this order; i.e. in the case of an application.  There is no evidence from which it could be inferred that she was intending to convey the idea that Mr Alexander had failed to provide what he was asked for.
There are three messages contained in the words alleged to have been spoken and I will identify them as follows:  (1) that ACW were being asked to make a commitment “in principle” to a very large sum of money; (2) the request was made without being supported by a detailed development and business plan and all of the details that ACW always ask for before making a commitment to a large capital sum;  (3) it would not be a proper use of public money to make a commitment in principle and, what is more, ACW had never done so and was unlikely to do so in the future.  It is possible always to criticise ex tempore words on the basis that they could have been better drafted or expressed.  It may be, for example, that if Miss Weston had inserted after the words “ … the details that we always ask for …” an additional phrase along the lines of “on a standard application.”  It might have been clearer to listeners unfamiliar with ACW procedures, but what matters in this context is what she intended to convey”  (The judge’s emphasis)
22.	The judge said that if there was evidence to justify any other intention, he should obviously leave it to the jury.  Mr Milmo had placed considerable reliance on what the second defendant was supposed to have said to Mr Palit after the conclusion of the press briefing. The judge said that, on the face of it, this would appear not to be relevant to what the second defendant was saying at the press briefing.  Mr Milmo’s submission, however, was that this demonstrated and the jury might conclude that what she said to Mr Palit was her state of mind throughout.  It was submitted that the effect of that evidence was that the second defendant had been telling Mr Palit that Chapter’s request had been rejected simply because Chapter did not fill out the forms properly.  The judge referred in detail to Mr Palit’s written and oral evidence.  He emphasised that the written statement was made just over 18 months after the events in question and that the evidence was at a number of points imprecise as to what the second defendant had said.  The judge observed that, if the second defendant had actually said that the forms had not been filled out properly, that would have been an astonishing lie because there were no forms for the unique situation of a request for a commitment in principle.  He said that, if there was evidence upon which a reasonable person could conclude that she had spoken such a lie, then he should obviously leave it to the jury for their consideration.  He set alongside Mr Palit's evidence the evidence given by the second defendant, which he referred to in detail.  He said that the passages to which he had referred from Mr Palit’s evidence, when set alongside her clear denials, were so unclear and equivocal that they could not be relied on for the purpose of concluding that the second defendant said anything to the effect that the forms had not been filled out properly.  
23.	The judge accordingly concluded that there was no evidence upon which a reasonable jury, properly directed, could hold that the second defendant was malicious in either of the senses for which Mr Milmo contended.  On this basis he withdrew the issue of malice from the jury.
Grounds of appeal and submissions
24.	The grounds of appeal are limited to contending that the judge was wrong not to leave the issue of malice to the jury.  It is said that the judge should not have concluded that Mr Palit’s evidence was unclear and equivocal.  It is said that an issue relevant to malice was what words the second defendant actually spoke at the press briefing, their context and their meaning; and that the judge had correctly decided that these questions were for the jury to decide.  In concluding that there was no evidence from which it could be inferred that the second defendant was intending to convey the idea that the claimant had failed to provide what he was asked for, the judge contradicted one of his own assumptions and made a decision of fact which ought to have been left to the jury.  The judge was wrong to conclude that the fact that no mention was made at the press briefing of the only recorded reason for rejecting Chapter’s request was not capable of contributing to a finding of malice.  Further, the judge was wrong to rely on his own experience that an allegation of malice very rarely succeeds.  
25.	Mr Milmo submits that, although the claimant’s case on ulterior motive was not withdrawn, his primary case was that the second defendant had no honest or positive belief in the truth of what she said.  The suggested ulterior motive – to divert attention from the embarrassing true reason for rejecting Chapter’s request – supported and explained the primary case.  Mr Milmo submits that the strongest evidence in support of this came from Mr Palit’s evidence.  In both his written statement and oral evidence, Mr Palit said that the second defendant had told him in the course of the conversation preceding her filmed statement to be shown on television that “Chapter did not fill in the forms correctly”.  From this, Mr Palit derived the introductory words which he spoke on the BBC Wales programme that ACW would not contribute “because the grant application wasn’t submitted properly”.  The second defendant had admitted that, if she had said this, it would have been untrue and she would have known it to be untrue.  If the jury had accepted Mr Palit’s evidence, there would be direct and conclusive evidence of malice for the BBC Wales broadcast and a strong inference of malice for what she had said at the press briefing.  There was an issue of fact as to what she had said to Mr Palit and the judge was wrong to withdraw this question from the jury.  The critical facts were (a) the statement to Mr Palit, which was according to his evidence untrue; (b) the part of the BBC Wales broadcast deriving from this spoken by the introducer, which was the most serious libel; and (c) the second defendant’s concealment of the only or principal reason for ACW’s decision to reject Chapter’s request.  Mr Milmo submits that if these facts were proved, they were capable of amounting to malice.   
26.	Mr Milmo submits that the judge’s reasons for concluding that Mr Palit’s evidence was unclear and equivocal were sparse and unsound.  He ignored the fact that the introductory words to the broadcast were written within hours of the conversation.  The judge had concluded that issues as to what was said and as to meaning should be left to the jury.  Yet when it came to the question of malice, he withdrew from the jury what was in effect an issue as to what was said which, on the claimant’s case, found its way into Mr Palit’s introduction to the broadcast and contained the alleged sting of the defamation.  Further, the judge made conclusions as to what the second defendant intended to say, but in the course of doing so himself made a finding about what she said which ought to have been left to the jury.  In  Loveless v. Earl, the Court of Appeal said that the subjective intention of a defendant was an issue for the jury.  The judge concluded that there was no evidence from which it could be inferred that the second defendant was intending to convey that the claimant had failed to provide what he was asked for.  But Mr Palit’s evidence would, if it were accepted, be cogent evidence that she was intending to give a false and misleading reason for the rejection by ACW of Chapter’s request for funding in principle.  Mr Milmo further submits that, in failing to include at the press briefing the sole reason recorded in the minutes for the decision of ACW’s Capital Committee, it was open to the jury to conclude that the second defendant had intended to mislead and misinform the public.  In summary, the submission is that the case of malice depended on findings of fact which the judge ought not to have withdrawn from the jury.  
27.	Mr Shields submits that the claimant’s essential case on malice depended on establishing that the second defendant gave dishonest reasons at the press briefing for ACW’s decision to reject the request for funding in principle.  He submits that the case on malice advanced by the claimant at trial fell apart for the reasons given by the judge at pages 33E to 43A of his judgment, and that it is a travesty to suggest that the whole case of malice depended upon Mr Palit’s evidence.  Mr Shields submits that the crux of the claimants original case on malice was that the second defendant, on behalf of ACW, published or caused to be published the words complained of as part of a dishonest scheme, in which others participated, to promote a cynical agenda of misinformation designed to divert criticism from ACW in relation to its rejection of Chapter’s request and the reasons for it.  In essence, this case fell apart because the facts supporting the ulterior motive – that is, that ACW did not have in place a strategy for lottery funding – were made known publicly and known to Chapter before the events giving rise to the publications complained of; and because a case of dishonesty by anyone other than the second defendant was not maintained.  Mr Shields submits that the claimant has attempted to construct an artificial case of malice where none existed.  He refers to Broadway Approvals Ltd v. Odhams Press Ltd [1965] 1WLR 805 at 815, where Sellers LJ said that malice was not to be established by forensic imagination however eloquently and subtly expressed.  The claimant had accepted that there was no previous history of animosity or ill will by the second defendant towards the claimant.  
28.	Mr Shields submits that there was no case based upon improper motive.  Instead the claimant attempted to rely on the assertion that the second defendant had no honest belief in the words she is alleged to have spoken at the press briefing by elevating the evidence of Mr Palit to a status which it did not deserve.  Mr Palit did not sign a written witness statement until nearly 18 months after the press briefing.  The claimant’s reliance on the conversation which was said to have taken place before the press briefing was not pleaded as a particular of malice until 4 months after that.  Mr Palit admitted that he knew almost nothing about Chapter’s request before the press briefing.  As a busy journalist he was inherently unlikely to have any reliable memory of a short conversation with the second defendant immediately following the press briefing.  There was no indirect corroboration of the conversation because Eleri Morgan, the Welsh speaking BBC Wales journalist who accompanied Mr Palit and was present throughout, was not called to give evidence.  Mr Shields submits that the judge’s approach towards Mr Palit’s evidence was both careful and consistent with authority and that his decision that the evidence was unclear and equivocal was correct.  The judge correctly applied the principles in Loveless v. Earl.  He accepted for the purpose of his ruling that the appellant’s version of the publication of the press briefing was established and to be taken as free standing.  He analysed the words complained of against the evidence properly capable of establishing directly or by inference the second defendant’s state of mind and he then applied the proper test.  He correctly found in the light of all the evidence that it would be utterly fanciful for a jury, properly directed, to conclude that the second defendant had any dishonest intention. 
29.	As to the law, Mr Shields submits that it was for the judge to decide whether there is any evidence of express malice fit to be left to the jury – that is, whether there is any evidence on which a reasonable man could find malice (see Adam v. Ward [1917] AC 309 at 318).  He submits that it is not enough, in order to prove malice, for the claimant to show that the defendant published words which objectively bore a meaning which the defendant did not believe to be true, if the defendant did not subjectively intend to convey that meaning.  As Hirst LJ said in Loveless v. Earl at page 538 – 539:
 “Here, it is very important to contrast the test for meaning on the one hand and the test for malice on the other.  Meaning is an objective test, entirely independent of the defendant’s state of mind or intention.  Malice is a subjective test, entirely dependent on the defendant’s state of mind and intention.  Thus, in a case where words are ultimately held objectively to bear meaning A, if the defendant subjectively intended not meaning A but meaning B, and honestly believed meaning B to be true, then the plaintiff’s case on  malice would be likely to fail.”
30.	Hirst LJ then referred to the judgment of Lord Donaldson MR in the unreported case of Heath v. Humphreys (May 21st, 1990), in which Lord Donaldson quoted from the speech of Lord Diplock in Horrocks v. Lowe, and then continued:
 “I think that this passage requires some qualification by the addition of a further exceptional case.  Since, as Lord Diplock emphasised, the public interest essentially requires protection for freedom of communication honestly exercised, what matters is that the publishers shall believe in the truth of what he intends to say.  If, from his viewpoint his remarks are misconstrued, he would be likely to be the first to say “I never believed in the truth of that” or “I never considered whether or not that was true”.  If such an answer would take him outside the protection of qualified privilege, its purpose would on occasion be wholly undermined.  Putting it another way, in such circumstances the defamer cannot be said to be “telling deliberate and injurious falsehoods”.  At worse, he is doing so unintentionally.”
31.	Mr Shields submits that the present is a paradigm case of inducing the second defendant to accept that, if she had said what she denies saying, it would have been untrue; and then constructing a case of malice, based on forensic ingenuity but no substance, on the contention that the jury might find that she said that which she denies saying.  Mr Shields submits that the essential question is what subjectively she intended to say. 
32.	Mr Shields submits that the correct legal test is that a case of malice should be withdrawn from the jury if the evidence does not raise a probability of malice.  He refers to  paragraphs 794 and 795 of the 8th edition of Gatley.  He relies in particular on paragraph 795, which stated as follows:
 “Plaintiff must adduce probability of malice at least.  In order to enable the plaintiff to have the question of malice submitted to the jury, it is necessary that the evidence should raise a probability of malice and “be more consistent with its existence than with its non-existence.”  “It is not sufficient if it falls short of that and is consistent only with a mere possibility.  To direct a jury to consider mere possibilities in such a case would be practically to destroy the protection which the law throws over privileged communications.””
33.	There is now a 9th edition of Gatley, which, at paragraph 34.18, states the law in slightly different terms.  But the two paragraphs from the 8th edition were referred to with approval by this court in Telnikoff v. Matusevitch [1991] 1 QB 102 at 120, with reference to Somerville v. Hawkins (1851) 10 CB 583 at 590 and Turner v. MGM Pictures Limited [1950] 1 AER 449 at 455; and see also Colchester Oyster Fishery Limited v. Purslow (unreported 10th June 1997, Eady J at pages 10 - 13 of the transcript).
Discussion and conclusions
34.	The classic passage from the speech of Lord Diplock in Horrocks v. Lowe at page 149B - 150G, in which he enunciates the law relating to malice in libel cases, is too well known to require extended citation.  For present purposes the essential features are as follows.  To entitle a person to the protection of qualified privilege, he has to have a positive belief in the truth of what he published.  Such a belief is presumed unless the contrary is proved, and so the burden of establishing malice lies on the person who asserts it, in this instance the claimant.  What the claimant has to establish is a dominant and improper motive on the part of the defendant comprising a desire to injure the claimant.  This dominant motive can only be inferred from what the defendant did or said or knew.  If it is proved that he did not believe that what he published was true, that is generally conclusive evidence of express malice.  But a person may have an honest belief in what he publishes despite imperfection of the mental process by which the belief is arrived at.  To this may be added the important clarification that, to establish malice, what has to be inferred is the defendant’s subjective state of mind and intention (see the passage from the judgment of Hirst LJ in Loveless v. Earl, to which I have already referred).  There is also the point made by Lord Donaldson MR in Heath v. Humphreys that malice is not to be inferred from the hypothetical untruth of a proposition derived from a misconstruction of a publication.  In my view, it is important to emphasise in the present context that the essential question is necessarily one of inference; and that the motive which the claimant has to establish relates to the defamatory publication. In the present case, as I shall indicate, the evidence which Mr Milmo relies on as containing an issue of fact fit to go before the jury did not directly relate to the publications which the claimant had to rely on.
35.	The respective functions of judge and jury in libel actions have recently been considered by this court in Safeway Stores plc v. Tate (unreported 18th December 2000).  In that case, there was a boundary dispute between the parties.  Arising out of this, the defendant placed placards in the garden of his house and elsewhere containing the words “Safeway Where Fraud Ideas Come Naturally”.  Safeway brought libel proceedings.  Mr Tate represented himself.  A defence of justification was struck out.  The remaining defence only put the claimant to proof that the words bore a defamatory meaning and were published as alleged.  Mr Tate had never denied publication, and so the only question was whether the words published were defamatory.  The judge gave summary judgment for the claimant under CPR Part 24.  The defendant appealed.  It was submitted that, under section 69 of the Supreme Court Act 1981, a defendant in a libel action had a statutory right to have the material question determined by a jury and that Part 24 of the Civil Procedure Rules either had not removed that right or, if it purported to do so, had no power to remove it.  
36.	The leading judgment was given by Otton LJ with whom Mantell LJ and Sir Ronald Waterhouse agreed.  Otton LJ considered the historical antecedents of section 69 of the 1981 Act and the extent to which, under the former Rules of the Supreme Court, it was open to the judge to determine questions of law or abuse of process.  He observed that  the court had formerly no power to give summary judgment in favour of a plaintiff; although by contrast the court did have power under RSC Order 18 rule 19 and Order 82 rule 3A to make determinations which could have the effect of giving summary judgment for the defendant.  He was satisfied that under the Civil Procedure Rules, an application under Part 24.2(a) could properly be made in order to determine questions which fall within the jurisdiction of a judge in a libel action.  On this basis, therefore, it is now possible in an appropriate case for a claimant to obtain summary judgment in a libel action under Part 24 – in addition to the possibility of doing so under the special provisions of the Defamation Act 1996.  This would be so if there were no issues other than those which fall within the jurisdiction of the judge.  Otton LJ considered, however, that it was beyond the power of the Civil Procedure Rule Committee to limit the right to trial by jury or the right to have the question “libel or not libel” determined by the jury.  He also declined to anticipate the possibility that the verdict of a jury on this or other matters within the province of the jury might be perverse and such that it would be reversed on appeal.
37.	There is of course a variety of possible circumstances in libel cases in which issues of law may arise for decision by the judge.  In so far as questions of this kind properly depend on an evaluation of evidence so as to determine material questions of disputed fact, these are matters for the jury.  But, as Mr Milmo accepted in the present appeal, it is open to the judge in a libel case to come to the conclusion that the evidence, taken at its highest, is such that a jury properly directed could not properly reach a necessary factual conclusion.  In those circumstance, it is the judge’s duty, upon a submission being made to him, to withdraw that issue from the jury.  This is the test applied in criminal jury trials (see R v. Galbraith [1981] 1WLR 1039 at 1042C).  In my view, it applies equally in libel actions.  It is in substance the test which the judge set himself to apply in the present case.  
38.	Mr Milmo also drew our attention to the judgment of Bingham LJ in Kingshott v. Kent Newspapers Limited [1991] 1QB 88 at 99D.  In that case, a question arose under section 7 of the Defamation Act 1952 whether a newspaper article was a fair and accurate report of proceedings at a local public enquiry.  The judge ruled that no reasonable jury properly directed could conclude that the words complained of were other than a fair and accurate report of the proceedings.  Bingham LJ accepted that this was the correct test, but was not persuaded that the jury could not attach decisive weight to any of the plaintiff’s points or to those points cumulatively.  Relevantly for present purposes, he asked himself whether, if the issue were left to the jury and the jury found for the plaintiffs, that verdict would be set aside as perverse.  His answer in that appeal was that he did not think it would.  His judgment, however, shows that, if in a libel action a party’s case depends on a finding of fact by the jury which, if it were so found, is bound to be set aside on appeal as perverse, the judge should withdraw that issue from the jury in the first place.  In my view, this is not, as was suggested in Safeway v. Tate, speculating that the jury might reach a perverse decision: rather that the only jury decision capable of supporting the case in question would be bound to be set aside on appeal.
39.	As is evident from Otton LJ’s judgment (page 4 of the transcript), the first instance judge had decided that Mr Tate had no real prospect of success on the question whether the words complained of were defamatory.  He had held that the power to give summary judgment was discretionary.  He had accordingly made an evaluative decision on an issue which Otton LJ held should have been left to the jury.  Safeway v. Tate is thus a decision binding on this court to the effect that, if there is a material issue of fact in a libel case, section 69 of the Supreme Court Act 1981 entitles a party to have that issue decided by the jury.  It is, however, for the judge to decide whether there really is such an issue.  In my view, just as it is open to the judge to decide that a publication is not capable of bearing a defamatory meaning, so it is open to the judge to decide in an appropriate case that a publication is not capable of not bearing a particular defamatory meaning and that a jury’s verdict to the contrary would be perverse.  In those circumstances, there would be nothing “in issue” on which section 69 of the Supreme Court Act 1981 could operate.
40.	I agree with Mr Milmo that the principles to which I have just referred apply to questions of primary fact.  I agree with Mr Shields that the crucial question in this case of the second defendant’s subjective state of mind is a matter of inference.  It was a question  for the judge to decide whether available primary facts were capable of supporting the necessary inference.  The authorities to which Mr Shields referred overlay this question with a further question whether the evidence raises a probability of malice, rather than a mere possibility.  But I do not think that it is necessary, in order to resolve this appeal, to extend the inquiry that far.
41.	In my judgment, the claimant’s case on malice is an unsound and artificial one, forensically constructed without any proper evidential basis.  The artificiality starts with the meanings of the publications for which the claimant contends.  Although the judge decided, with evident lack of enthusiasm, that what the second defendant said at the press briefing and subsequently was in issue, and that the terms of the publications, their meanings and whether they were defamatory should be left to the jury, I am far from convinced that this was a correct decision.  Mr Milmo correctly points out that this part of the judge’s decision is not subject to appeal.  But it is necessary to explain briefly how, in my view, this contributes to the artificiality of the claimant’s case on malice.  I leave aside disputes as to what the second defendant said at the press briefing.  It is sufficient to concentrate on the publications for which the claimant contends.  These are set out in paragraph 7 of the amended statement of claim, which I have set out earlier in this judgment, and the relevant parts of the transcript of the BBC Wales broadcast which, assuming they are correctly transcribed, are not amenable to dispute.  As to the publication contended for in paragraph 7 of the amended statement of claim, it seems to me that this means what it says – an expression which libel pleaders never seem to use – and that the meaning attributed to it in paragraph 9.2 of the amended statement of claim, which I have already set out, is scarcely capable in any context of being its meaning.  The fact that the judge was persuaded to assume that this was its meaning contributed to the artificial submission that the second defendant may have intended that meaning and that, if she did, she knew that it was untrue.  The same essentially applies to the terms of the transcript of the BBC Wales broadcast.  The sentence at the end of the announcer’s introduction, taken by itself, is a much modified version of that which Nick Palit said in evidence the second defendant had said to him.  But that single sentence, taken together with and in the context of what the second defendant herself said in the broadcast almost immediately after it (which Mr Milmo accepts was not defamatory), is scarcely capable of supporting the defamatory meaning contended for.
42.	The critical question for the judge was whether there was any evidence, taken at its highest, on which a jury properly directed could properly infer that the second defendant subjectively did not honestly believe that what she intended to say in the publications relied on was true.  In substance, what she may or may not have said to Nick Palit was not part of the publications relied on other than to the extent that it may have found its way into the BBC Wales broadcast itself.  (Mr Milmo did not suggest that oral publication to Nick Palit alone would sustain a serious defamation case).  Thus, although there may have been a vestige of a case that the publications contended for might objectively have had the meanings contended for, there was no proper inferential case that the second defendant subjectively intended that meaning.
43.	This was essentially what the judge decided.  He understood the case to be primarily that the second defendant told the assembled journalists on the 22nd July 1998 something she knew to be false in order to deflect criticism from ACW.  He was thus, correctly in my view, concentrating on her state of mind as to the publications relied on.  He examined the case for ulterior motive, which he found to be insubstantial for reasons which I have already described.  He referred to the reason recorded in the minutes of the Capital Committee meeting of the 25th June 1998.  He was entitled, in my view, in the light of the uncontradicted evidence of Mr Edge, Mr Roberts and the second defendant to conclude that the fact that it was a unique request for commitment of funds in principle was obviously a factor that would have been in the minds of those considering it.  Importantly, the judge was correct to conclude that there was no evidence from which it could be inferred that the second defendant was intending to convey the idea that the claimant had failed to provide what he was asked for.  He was correct to conclude that there was no alternative interpretation than that the second defendant was intending to point out the contrast between the information sought when there was a formal application and that which was provided on this unique occasion.
44.	Mr Milmo concentrated his submissions in this appeal on the divergent evidence of Mr Palit and the second defendant in relation to what she may have said to him after the press briefing.  This tends to overlook the fact that the judge introduced his consideration of this evidence by saying that, on the face of it, it would appear not to be relevant to what she was saying at the press briefing.  In my view, the judge was correct here.  As I have already indicated, the critical first question was to determine what subjectively the second defendant intended to convey by the publications relied on.  In the circumstances of this case, where the objective meaning contended for is scarcely supportable, a subjective dishonest intention is not in my view reasonably capable of being sustained by what she is alleged to have said on another occasion, but which she denies saying.  The claimant’s artificial case on malice is yet further undermined by the critique of Mr Palit’s evidence which the judge undertook.  As a matter of objective fact, Chapter’s request was not rejected because they did not fill in forms properly, and the judge was correct to conclude that the second defendant cannot have intended to say this in the publications relied on.  I am satisfied that, if the judge had left the issue of malice to the jury and they had found in the claimant’s favour, this court would have set that decision aside as being perverse.
45.	For these reasons, in my judgment the judge reached an entirely supportable conclusion which I would not disturb on appeal.  I would, however, wish to add a note of caution.  The judge made his ruling after about 8 days of evidence in what must have been a very expensive trial.  As has appeared, there was a risk of his decision being overturned on appeal, in which event this court would probably have had to order a new trial.  On the face of it, that would have been disproportionately expensive but may have been unavoidable.  The word of caution is simply to draw attention to the possibility in cases such as this of leaving questions to the jury, notwithstanding a judge’s view on matters of law, to obviate or mitigate the risk of an expensive new trial.  That possibility was discussed by Bingham LJ in Kingshott v. Kent Newspapers Limited at page 101D.  Having said that, I acknowledge that the possibility was not debated before this court and that there may have been complications in the present case arising from the judge’s other decisions which would have made the course there suggested inappropriate. 
Lord Justice Jonathan Parker:
46.	I agree with both judgments of My Lords.
Lord Chief Justice:
47.	I have read the judgment of May LJ and I agree with it and the result he proposes. In those circumstances I would not normally have given a judgment. However, I do so because of the case of Safeway’s Stores Plc v Tate [18 Dec 2000] (unreported) to which May LJ refers. The result of the judgment of Eady J in the court below was to withdraw from the jury the issue as to whether the second defendant was malicious in making the publication complained of. His view as to malice, that a jury could not make a finding that the second defendant made the publications maliciously, was fatal to the claimant’s case since unless she was malicious, the claimant could not succeed in his action. 
48.	The decision in Safeway v Tate was concerned with the circumstances in which it would be appropriate for a court to give summary judgment to a claimant under CPR 24.2 in a defamation action bearing in mind the provisions of s69 Supreme Court Act 1981 which provides:
i)	“Trial by Jury
a)	69 (1) were, on the application of any party to an action to be tried in the Queens Bench division, the court is satisfied that there is in issue - 
49.	a claim in respect of libel, slander, malicious prosecution or false imprisonment;
i)	the action shall be tried with a jury, unless the court is of opinion that the trial requires any prolonged examination documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury.”
50.	CPR 24.2 provides:
i)	“Grounds for summary judgment.
ii)	The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if -
(a)	it considers that -
(i)	that claimant has no real prospect of succeeding on the claim or issue; or
(ii)	that defendant has no real prospect of successfully defending the claim or issue; and
(b)	there is no other compelling reason why the case or issue should be disposed of at a trial.
b)	(Rule 3.4 makes provision for the court to strike outGL a statement of case or part of a statement of case if it appears that it discloses no reasonable grounds for bringing or defending a claim.)
51.	The terms of CPR 24.3 make clear that the CPR intended to give the court power to grant a summary judgment in defamation actions. This is because CPR 24.3 specifically states “the court may give summary judgment against a claimant in any type of proceedings”. (The power is then expressly excluded in relation to a limited group of proceedings against a defendant and CPR 24.1 recognises that summary disposal is also available in the case of defamation claims in accordance with the Defamation Act 1996.)
52.	The fact that summary judgment can be given in defamation proceedings distinguishes the position under the CPR from that which existed under Order 14 of the Rules of the Supreme Court. As the White Book 2000 points out, Vol. 1 24.4.2,  “the question whether summary judgment should be granted may be raised at trial”. 
53.	The relevance of the case of Safeway v Tate to the present proceedings is that, in Safeway v Tate, this court, in a decision which is binding upon us, decided that the circuit judge in that case had been wrong to give summary judgment to a claimant under CPR 24 since this would deprive a defendant of his right to trial by jury. In a judgment, with which the other members of the court agreed, Lord Justice Otton concluded “that 24.2 is ultra vires s1 (3) of the 1996 Act in so far as it purports to deprive or impinge upon the right to trial by jury. If 24.2 is not ultra vires then it has to be read, as suggested by the editors of the White Book, to mean that the fact that the respondent may have a right to trial by jury may, of itself be a reason for a trial. Extreme caution is appropriate before removing such a fundamental right.” [I believe the reference to s1(3) of the 1996 Act is a misprint for 1(3) of Civil Procedure Act 1997.]
54.	The problem arises because in Safeway v. Tate the Circuit Judge had previously struck out Mr Tate’s purported defence of justification. This left whether the words were defamatory as the only issue which remained to be determined. As to this, a different Circuit Judge who, as Lord Justice Otton points out had to reach a decision in difficult circumstances, came to the conclusion that he was entitled to give summary judgment under CPR 24. Lord Justice Otton’s judgment explains why the judge was not entitled to reach this decision. 
55.	The reasoning of Lord Justice Otton could be interpreted as indicating that the right of a judge to withdraw a decision from a jury was not as wide as hitherto had been thought to be the case. Prior to the CPR there were well-recognised situations where a judge was entitled to withdraw issues from the jury because a jury could not properly come to a decision in favour of a claimant. This would be the situation if the proceedings were vexatious or an abuse of process or for some other reason they could not succeed. An example would be where the words relied on were not capable of being defamatory or as here, where it was not possible for the defendant to rely on malice in a case where the claimant is entitled to qualified privilege.
56.	In the course of argument Mr Milmo, who appears on behalf of the appellant, was referred by the court to the decision in Safeway v. Tate but he did not rely upon it. In my judgment he was right not to do so. To have relied on Safeway v Tate would have been to misunderstand that decision in the way some litigants have misunderstood it since it was decided. 
57.	In considering Lord Justice Otton’s judgment, it is important to have in mind that, in Safeway v Tate, the judge did not expressly ask himself the question whether the words complained of were only capable of having a defamatory meaning.  Instead he appears to have given judgment having evaluated the issue himself.  If the judge had asked himself that question and properly come to the conclusion that the words were only capable of having a defamatory meaning, then it is difficult to see what objection there could be to his giving summary judgment on an issue on which there was no room for argument. The judge would have been doing no more than what the trial judge could have done if the action had proceeded to trial. The court, that is the judge, would not be “satisfied that there is in issue”, whether the words were defamatory, as required by s69 Supreme Court Act 1981. So here the trial judge was entitled to rule on the question of whether it was possible to make a finding of malice. In so doing he would not be interfering with a parties’ right in a defamation action to have a jury trial.
58.	In Safeway v Tate, the counsel appearing for Safeway in the Court of Appeal, so far as can be gathered, sought to justify the decision of the judge without suggesting the case was one where the words were only capable of having a defamatory meaning. Unless the words were only capable of having a defamatory meaning then the issue of whether they are in fact defamatory must be left to the jury. If the words were capable of being defamatory or not defamatory, the decision is for the jury and a judge should not himself perform the task of evaluating the evidence so as to decide that the “defendant has no reasonable prospect of defending the claim or issue”. Instead the judge should conclude that there is “compelling reason why the case or issue should be disposed of at a trial”.
59.	CPR 24 does not and should not be regarded as giving a right to summary judgment in a defamation case where there are issues fit to be placed before a jury. In saying this, I am reflecting what Otton LJ said in Safeway v Tate. In his judgment, Lord Justice Otton made this clear. He said:
i)	“I am satisfied that an application under part 24.2(a) can properly be made in order to determine certain questions which fall within the jurisdiction of the judge in a libel action. These include, for example, whether the words complained of were published on an occasion of absolute privilege. On the other hand, the Rule does not permit a judge alone to determine questions of fact which parliament has determined should be decided by a jury, and in particular, whether the words complained of are defamatory of the claimant.”
60.	The only passage in the judgment of Otton LJ to which I would draw attention is a passage which was not necessary for the decision of the court. Otton LJ said:
i)	“The issue of whether a verdict is perverse can only be raised after a jury’s verdict has been given. The decisions cited by counsel in support of his proposition are all decisions in the Court of Appeal. None is authority for the proposition which he states or that the judge is entitled to take away an issue of fact from the jury merely because he considers that the jury might reach a perverse verdict.”
61.	I have no problem with what Lord Justice Otton stated in so far as he is indicating (which I believe was all that he was doing) that in a case in which a jury can come to a proper verdict you cannot assume they are going to come to an improper verdict. Lord Justice Otton’s statement does not, however, mean that in determining an issue on which the judge is entitled to rule, a judge cannot consider whether a particular conclusion would be perverse. If it would be perverse then that would indicate the way the judge should rule as a matter of law on that issue. To take an obvious example, if the jury could not come to the conclusion that the words were defamatory then it would inevitably be perverse for them to do so. It would be an indication that the words were not capable of being defamatory.
62.	Properly understood the decision of this court in Safeway v Tate has not altered what has hitherto been regarded as the proper role of the CPR.
ORDER: Appeal dismissed with costs.
(Order does not form part of approved Judgment)