Case No: A2/2008/0156
Neutral Citation Number: [2008] EWCA Civ 593
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION, BRISTOL DISTRICT REGISTRY
(HIS HONOUR JUDGE BURSELL QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 6th May 2008

Before:

LORD JUSTICE KEENE

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Between:

	HAYTER	Appellant
	
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FAHIE	
Respondent

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(DAR Transcript of 
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THE APPELLANT APPEARED IN PERSON.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment
Lord Justice Keene:

1.	This is a renewed application for permission to appeal, permission having been refused on the papers by Buxton LJ.  The applicant seeks permission to appeal from a decision of HHJ Bursell QC, sitting as a judge of the High Court at Bristol, and dated 19 December 2007.  By that decision the judge found certain words in a letter written by the applicant, who was the defendant in the proceedings, to be defamatory of the claimant and he gave summary judgment for the latter with damages to be assessed.  He also made a declaration embodying his findings.  

2.	The parties were former business partners who had fallen out and between whom litigation had ensued.  The claimant was also a Justice of the Peace and in late 2004 the applicant, Mr Fahie, complained to the Department of Constitutional Affairs that the claimant had been misusing his status as a JP.  After investigation that complaint was rejected and a letter sent by the DCA to the applicant to that effect.  However, the applicant then responded with a letter dated 18 April 2005 in which he stated, amongst other things, that the claimant had:

“paid a fraudulent cheque of £6,200 into his private account, for this he was arrested and bailed.”

Those words gave rise to the claim in libel.  

3.	Neither the Particulars of Claim nor the defence are pleaded as they should have been.  The Particulars of Claim do not expressly plead as to the meaning of the words complained of but it would seem from paragraph 11 of them that it was being said that they meant that the claimant had been guilty of fraudulent conduct.  Before the judge, counsel for the claimant advanced a further meaning, referred to at paragraph 16 of the judgment, namely that the claimant was still under investigation by the police for the alleged crime.  That was said to be a meaning by inference from the words stating that the claimant had been arrested and bailed.  Those words were literally true in the sense that the claimant had been arrested and had been bailed but the police had subsequently concluded that the investigation should be discontinued.  The applicant was told of that by a police officer on 12 April 2005 six days before the letter was written by him to the DCA.  

4.	The defence settled by counsel did not plead justification.  It advanced a meaning, namely that the words meant that there had been reasonable grounds for suspecting the claimant of being guilty of fraudulent conduct and that he had been arrested and bailed as a consequence.  The defence which was raised on the pleadings was one of qualified privilege.  

5.	In the reply the claimant alleged malice.  The judge found that the occasion was one protected by qualified privilege but he also found malice on the basis that the applicant acted recklessly, without considering or caring whether what he said to the DCA in his letter was true or false.  That was based on a finding that the applicant must have known at the time of writing the letter that the investigation by the police had ceased.  The judge set out at length in his judgment the passages from the judgment of Lord Diplock in Horrocks v Lowe [1975] AC 135, one of the leading cases on qualified privilege and malice.  There is no doubt that a reckless indifference to the truth or falsity of a statement will normally be treated as amounting to knowledge of its falsity and so will establish malice.  However, the main point made by Mr Price this morning is that the judge here has elided the issues of meaning and truth.  Mr Price points out that the judge seems to have accepted that the applicant may never have realised the implied meaning which objectively was found in his words, namely that the police investigation was still continuing.

6.	The applicant had said in his submissions before the judge  -- he acting in person at that stage -- that the “half-truth”, as it was described, had never occurred to him and the judge observed that that may have been the case (see paragraph 18).  Mr Price contends that one cannot be indifferent as to the truth or falsity of a proposition unless one is aware of it, that is to say aware of the meaning that is in question.  Recklessness is not something to be applied to meaning but only to truth if one is considering malice.  If the applicant had been unaware of this particular implied meaning how could he be indifferent to its truth or falsity?  The judge, says Mr Price, never applied his mind properly to that issue.  It seems to me that there is a properly arguable point here and I propose to grant permission to appeal on that particular ground.  

7.	Two subsidiary points are also argued.  First, that the judge failed to deal with an abuse of process defence raised on the pleadings and in the defence skeleton.  I am bound to say that I have some sympathy for the judge given the state of the pleadings to which I have already referred but since permission to appeal is being granted anyway I will grant permission for this point to be argued also.  The other subsidiary point advanced goes to meaning.  Mr Price asks, was it not open to a reasonable tribunal to find a meaning that the claimant had been on bail and not that he was still under investigation, which was the meaning which the judge found?  I am not prepared to grant permission to appeal on this.  It seems to me that the implied meaning which the judge found was plain and clear-cut and I can see no prospect of any court taking a different view.

8.	Finally Mr Price also seeks permission to amend his Notice of Appeal and presumably also the defence to raise a defence of absolute privilege.  He says that this is required to give protection to proceedings such as this where a body such as the DCA is investigating a complaint about a judicial officer in order that there should be no fear of a challenge based upon an allegation of malice.  He points out that it would be open to him to seek to amend if this matter goes back for a full hearing, rather than the summary judgment proceedings which have taken place so far, but in case he does not ultimately succeed before the full court on the issue of qualified privilege, he wishes to be able to argue absolute privilege.  This is a defence which was not pleaded in the applicant’s defence nor was it raised before the judge below.  In addition it was not put before Buxton LJ in the Grounds of Appeal that were lodged in this matter nor in the skeleton argument.  To apply such a defence in these circumstances would, in any event, require an extension of the common-law categories of absolute privilege, which seems to me to be unnecessary.  The public interest in the conduct of the investigation of complaints about JPs is adequately protected in my view by the existence of the defence of qualified privilege.  In the circumstances to which I have referred and lateness of the attempt to raise this as an issue, I am not prepared to allow the amendment and I refuse that particular application.

9.	But, to the extent indicated, permission to appeal is granted.  I would nonetheless urge the parties, and I know that someone is here for the other side’s solicitors, to seek to settle this matter out of court.  The costs of an appeal in this case will be substantial and if the appeal succeeds there would then have to be a further and full hearing of the matter.  The costs are likely to be greatly in excess of any sum that would be awarded by way of damages.  If Mr Fahie did not realise how his statement would be interpreted he may feel able to apologise to that extent and to pass that on to the Ministry of Justice as it now is.  I do not suggest that this would necessarily suffice.  That is a matter for the parties to try to agree but it might.  I would also remind the parties of the availability of mediation.  This is a matter which ought not to go to a full hearing.  Nonetheless I grant permission to appeal.

Order: Application granted