Case No: A2/2008/1185
Neutral Citation Number: [2009] EWCA Civ 153
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION 
(MR JUSTICE EADY)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 3rd February 2009

Before:

THE PRESIDENT OF THE QUEEN’S BENCH 
(SIR ANTHONY MAY)
and
LORD JUSTICE RICHARDS
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Between:

	SERAY-WURIE	
Appellant	
	- and -		
	
THE CHARITY COMMISSION OF ENGLAND
AND WALES	

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
Sir Anthony May:

1.	Dr Seray-Wurie, the claimant, was a trustee and former chair of East End Citizens’ Advice Bureau, a registered charity.  On 24 August 2007 the Charity Commission (“the defendants”) published an inquiry report on the East End Citizens’ Advice Bureaux (“EECAB”), which Dr Seray-Wurie claims was defamatory of him.  He complains that the words used in the report implied that he had abused his position as a trustee and chair of the EECAB and was guilty of serious offences of fraud and dishonesty.  In particular he refers to paragraph 15 and 16 of the inquiry report, which read as follows:

“There was evidence that Dr Seray-Wurie had conducted the Charity’s interaction with its funding bodies, and the Commission, without seeking the full involvement of the other trustees.  He had taken decisions unilaterally, without at times the full knowledge or involvement of the other trustees, and these decisions had significantly undermined the funding bodies’ confidence in the Charity’s ability to deliver services.  Dr Seray-Wurie claimed that he had authority as the chair of the trustees to take these decisions, but neither he nor the other trustees could provide any evidence to support this.

The Commission found that Dr Seray-Wurie had authorised the use of the Charity’s funds to pay for legal advice that he had then failed to pass to the Charity.  Dr Seray-Wurie gave contradictory responses to the Commission about this, first claiming he passed this legal advice to the Charity and later admitting that he had failed to do so.  At the time of the closure of the inquiry, the Commission understood that he had still not passed a copy of this advice -- paid for by the Charity -- to the trustees.  Dr Seray-Wurie disagreed with the Commission’s findings concerning this legal advice.”

2.	On 5 February 2008 he issued a claim form for libel, breach of human rights, discrimination, harassment, abuse and misuse of power.  On 29 February 2008 the respondent served an application notice to strike out the claim and for summary judgment.  On 17 April 2008 the respondent’s application was heard by Eady J, who handed down judgment on 23 April 2008.  He directed that the claim be struck out and entered summary judgment for the defendants.  Dr Seray-Wurie was ordered to pay the Commission’s costs of the claim subject to detailed assessment.  

3.	On 21 May 2008 Dr Seray-Wurie filed an Appellant’s Notice.  It was out of time but not grossly out of time and I for my part would not be concerned about granting him an extension if that were his only difficulty.  On 5 September 2008 Smith LJ dismissed the application for permission to appeal on the papers.  Dr Seray-Wurie requested the decision to be reconsidered at an oral hearing.  On 16 October 2008 Smith LJ adjourned the renewed application for permission, to give the opportunity to produce documentary evidence to support the allegations of malice against the Charity Commission.  She ordered that he should file all the documents referred to in his three witness statements within 14 days.  He was again a bit out of time in doing this and on 6 November 2008 he served Particulars of Malice relied on in these proceedings.  

4.	Eady J’s judgment of 23 April 2008 may be found at [2008] EWHC 870 QB and may be referred to for details which this judgment need not contain.  Eady J held that apart from the claim in libel the causes of action including breach of human rights, discrimination, harassment, abuse and misuse of power were not made out in the Particulars of Claim.

5.	As to the libel claim he held that the publication was clearly on an occasion of qualified privilege.  Under sections 1B, 1C, 2 and 8 of the Charities Act 2006, the Charity Commissioners were, he held, under a duty to publish the information concerning its inquiry into EECAB, and the wider public had a legitimate interest in receiving that information.  The detail of the statutory background is in paragraphs 3-9 of Eady J’s judgment.  See also paragraphs 4-18 of the first witness statement of Rachel Baxter.  The claimant submitted that if the court were to uphold the defence of privilege this would amount to the granting of a blanket immunity and thus be inconsistent with his rights under Article 6 of the European Convention on Human Rights.  However, as Eady J said, qualified privilege depends on an assessment of the particular publication in its particular context and such a plea is defeasible on proof of malice.  The question was therefore whether there was a triable case for malice, which was for Dr Seray-Wurie to establish.

6.	Of this the judge said that malice is a serious allegation and is generally regarded as tantamount to dishonesty.  Lord Diplock in Horrocks v Lowe [1975] AC 135 at 149-150, the classic passage on malice, drew a contrast between malice and behaviour falling short of it, such as failing to analyse evidence correctly and arrive at a misguided conclusion.  The burden of proof is difficult to discharge and findings of malice are very rare.  The judge observed that the court should be wary of taking away an issue such as malice without its coming before a jury for deliberation.  This step should only be taken where the court is satisfied that such a finding would be perverse.  However, it was plainly a judge’s duty to prevent further time and money being expended upon a hopeless allegation and in this respect the judge referred to S v LB Newham [1998] EMLR 583 at 593 (per Lord Woolf MR) and Alexander against the Arts Council of Wales [2001] 1 WLR 1840.  The court should apply a test, he said, similar to that used in criminal cases in the light of the famous case of Galbraith [1981] 1 WLR 1039.  The judge went on to say that the facts relied upon by the claimant must be capable of giving rise to the probability of malice as opposed to a mere possibility, and he referred in this respect to Turner v MGM [1951] All ER 449 at 445.  Allegations of malice must go beyond that which is equivocal or merely neutral.  There must be some particularised allegations from which a jury could rationally infer malice.  That is that the relevant person was either dishonest or had a dominant motive to injure the claimant.  Mere assertion will not do.  A claimant may not proceed in the hope that something will turn up during the cross-examination of a witness at trial.  Here the judge referred to Three Rivers DC v The Bank of England [2001] 2 All ER 513 at 519. 

7.	The judge held that in all the circumstances there was no evidence before the court which would justify the conclusion that the material available was more consistent with the presence of malice than with its absence, and he therefore concluded that the situation was clearly covered by common law privilege and there was no reason to allow the claim to proceed as there was no realistic prospect of success.  Nor was there any compelling reason why the case should be allowed to come to trial.  Public time and money should be prevented from being wasted.  Accordingly there would be summary judgment for the defendant on the defamation claim and all the other causes of action would be struck out.  

8.	Dr Seray-Wurie’s proposed grounds of appeal are: first that the decision of Eady J was wrong; second that his decision was unjust because of serious procedural and other irregularities in the High Court proceedings; third, that the Charity Commission lacked jurisdiction and as such the defence of qualified privilege was not available; fourth, the appellant did not have a fair trial and his human rights under Article 6 of the European Convention on Human Rights were infringed.  These grounds by themselves do not address the central question which he needs to overcome.  That is to say whether there is at least a triable case that the Charity Commission were malicious.  This was the point upon which Eady J decided against the claimant in the present proceedings.  

9.	In accordance with Smith LJ’s order Dr Seray-Wurie has filed further Particulars of Malice relied upon in the proceedings and he has also, as she indicated, produced the voluminous bundles of documents which were exhibited to his three witness statements.  The Particulars of Malice can be summarised as follows:  firstly that the commission’s publication, the East End Citizens’ Advice Bureaux Inquiry Report, published on 24 August 2007 on its website, is defamatory of him for maliciously and falsely alleging that he acted unilaterally as chairman and trustee of the EECAB and that he used the sum of £950.65 of the charity’s funds for personal purposes.  Incidentally, as is indicated by paragraph 16 of the inquiry report, the publication does not assert that he used the charity’s fund for his personal purposes.  I shall come in a moment to indicate how that stands in the report as a whole.  He alleges that the entire report is defamatory of him, citing in particular the passages that I have already referred to in paragraphs 15 and 16.  He says that the respondent’s allegations regarding his alleged abuse of his position were “malicious, intentional and reckless” because the Charity Commission had copies of minutes of the EECAB trustees’ board meeting and other documents and evidence that clearly shows that the allegations were “false, unfair and untenable”.

10.	He says that evidence obtained by the defendants during the inquiry and before publication of the inquiry report clearly show that the solicitors, Dowse & Co’s bill of £950.65 had been discussed and agreed by the trustee board and it was for services rendered to EECAB and not for personal purposes of the chairman, but again, as I have indicated, the publication does not assert this in paragraph 16.  In short Dr Seray-Wurie claims that the publication can be shown to be false from documents which the Charity Commission had and the inference, he suggests, must be that they were malicious because they made false statements with material in their hands clearly showing that those statements were false.  In this context it is significant that the Charity Commission have said through counsel that they intend to plead justification if necessary in addition to qualified privilege.  Eady J noted this in paragraph 37 of his judgment, finding that there was no factual basis apart from mere assertion to support the contention that the Charity Commission knew that the publication relied on was false or were reckless as to its truth or falsity.  On the contrary they wished to stand by the substantial accuracy of what they wrote.

11.	Dr Seray-Wurie has referred in his Particulars of Malice to extended parts of his three witness statements, which I have read, and their exhibits and to many pages of documents he has now produced.  He has also reduced those documents to a relatively small file of documents selected from the larger bulk which he has gone through with us during the oral hearing this afternoon.  He says that his comments to the Charity Commission were not taken into account and that the report was inaccurate and unfair.  Miss Baxter’s statement does not excuse the Charity Commission, he says.  He makes reference in his second witness statement to other litigation in which he has been involved as a charity trustee.  See also paragraph 24 of the first witness statement of Rachel Baxter, which lists some six such other proceedings.  In his third witness statement he contended that the Charity Commission, the National Association of Citizens’ Advice Bureaux and others have been engaged in a malicious conspiracy against him.  He has asserted this again this afternoon with some detailed reference to matters largely extraneous in my view from the publication of which he complains in these proceedings.  

12.	He refers to what he calls a purported disagreement with other trustees.  Dr Seray-Wurie is particularly concerned about the allegation he says is made against him about the payment of £950.65 for the professional services of Dowse & Co.  He says this in paragraph 17 of his third witness statement:

“With regard to the malicious and false allegation made by Ms. Louise Edwards in the Statement of the results of the Inquiry into EECAB that the trustees could not recollect meeting with the Solicitors concerned and did not have a copy of the written advice, I would refer the Court to the minutes of the Trustee Board meeting held on 18-11-2005 in which it can be clearly seen that Mr Myles Hickey Senior Partner of Dowse & Co Solicitors was in attendance at the meeting and also addressed the Trustees [He refers to particular pages of the exhibit]. Furthermore, brushing aside any notion of confidentiality between Clients and their Legal Advisers Ms. Louise Edwards had obtained copies of all the relevant documents on the case from Dowse & Co Solicitors, for example Client Attendance Notes, Invoices, Instructions and Counsels’ opinion including Client Attendance Notes dated 22-11-2005, 23-11-2005 [and he refers to the page numbers].  So the Commission had already obtained the true facts and evidence but yet decided to make a malicious and defamatory statement about me.”

13.	What the Commission inquiry report actually says, in paragraphs 23 and 24, is this:

“23 In June 2006 the Commission received an allegation that the Charity’s funds were used to pay for legal advice relating to the injunction Dr Seray-Wurie sought in November 2005, but that this advice was provided to Dr Seray-Wurie personally rather than the Charity.  This raised a concern that Dr Seray-Wurie had not been entitled to use the Charity’s funds to pay for this advice.  Dr Seray-Wurie informed the Commission that the trustees had authorised him to obtain the legal advice and it had been presented to the trustees as a whole in verbal and written form.  

24. To investigate this the Commission used its powers under sections 8 and 9 of the 1993 Act to direct Dr Seray-Wurie, the trustees and the solicitors who provided the advice to furnish the Commission with copies of the legal advice and all documents pertaining to it.  It became clear that there was no evidence to support the explanation given by Dr Seray-Wurie.  The trustees could not recollect meeting with the solicitors concerned and did not have a copy of the written advice.  Neither they nor Dr Seray-Wurie could provide evidence that he had the Charity’s authority to seek or pay for the advice.  At a later date Dr Seray-Wurie confirmed that he had never given the trustees a copy of the advice.”

14.	That was the circumstances, as explained by the Charity Commission, which led to paragraph 16 of the inquiry report of which Dr Seray-Wurie complains, and it can there be seen that the suggestion that he had used funds of the charity to pay for legal advice on his own account was not an allegation which the Charity Commission themselves adopted.  What they simply said was that funds had been used to pay for legal advice that he had failed to pass to the charity.  Examination of the documents to which Dr Seray-Wurie refers in paragraph 17 of his third witness statement does not, as I read them, bear out what he says.  The minutes of the meeting of 18 November 2005 record that Myles Hickey attended and reported on advice received from John Hendy QC about the findings of a Pricewaterhouse Cooper report which, it was resolved, raised a prima facie case of gross misconduct by Sola Oyebade, the suspended chief executive officer of EECAB.  The solicitors’ account for £950.65 was for work done after that starting on 1 December 2005 (see page 214) in a different matter.  The attendance note (page 208) on 22 November 2005, again an attendance note after the 18 November 2005, describes what is called an “entirely new” case and speaks of the need to consult a junior counsel, Andrew Westwood, with whom a conference was fixed for 24 November 2005 -- see also the letter of 23 November 2005 (page 212).

15.	These documents therefore do not establish that the Charity Commission knew that what they published was false.  I interpose here to say that it is of course axiomatic that if Dr Seray-Wurie is going to get any case of malice off the ground the first thing he would have to establish in the circumstances of this case would be that documents which had been provided to the Charity Commission clearly showed that what they publish was false so that an inference might at least be invited that they must have known that it was false.  These documents do not clearly show -- indeed in my judgment they do not show at all -- that Dr Seray-Wurie had indeed passed on to the charity the advice which paragraph 16 of the inquiry report says that he had failed to establish he did.  What Eady J said, in paragraphs 38 and following of his judgment, was as follows:

“It emerges from the content of the report itself, the whole of which was put in evidence by Miss Baxter that a detailed investigation was carried into the affairs of EECAB and that it lasted from May 2006 to January 2007.  It only came to a halt at that stage because the Claimant was removed as a trustee of another charity (for reasons which have no bearing on the present case) and thereby became automatically disqualified.  

Various people provided evidence to the inquiry, including the Claimant himself but pursuant to its powers of compulsion, documents were obtained and examined.  There was also a meeting held at which there were present trustees together with representatives of funding bodies.  The Claimant was consulted and he was shown the report in draft and invited to comment.  Some account was taken of his comments, although of course those compiling the report were under no obligation to set them out in full, still less to adopt or agree with them.  My attention was drawn, however, to a table which had been sent to the Claimant carefully recording challenges he had made and the extent to which they were accepted or rejected.  This was attached to a letter from Louise Edwards of the Commission’s Compliance and Support Department dated 24 May 2007.”

Then, leaving out one paragraph, paragraph 41:

“In this case, as so often occurs, the claimant is effectively inviting an inference of malice because the conclusions in the report do not accord with his own account and/or because he claims that those involved have been participants in a conspiracy to do him down.”

16.	In my judgment Dr Seray-Wurie makes no better case in this court than he did before Eady J.  He has referred us to his selected diverse set of documents.  These include complaints about communications directly with the court in other proceedings which he says were not copied to him; material in other proceedings where he was appealing against suspension as a trustee and with reference to another charity called African Development Agencies to which Eady J had referred in paragraph 38 of his judgment as having no bearing on the present case, and I agree that it does not; complaints about attempts in other proceedings which may or may not have been successful to substitute the Attorney General as defendant in place of the Charity Commission.  

17.	In my view it is perfectly plain that malice in defamation proceedings has to be referable to the defamatory publication said to have been malicious.  The material that we have been shown today has little or no bearing on the publication said to be malicious, and in the matter of the solicitors’ bill the particular documents referred to in my view simply do not sustain the falsity, let alone the malicious falsity, of the conclusions stated by the inquiry report in paragraph 16.

18.	In my judgment Eady J was entirely right to reach a conclusion that he did: that on the material before the court the case of malice was hopeless.  In those circumstances he was correct to give summary judgment against the claimant on that issue and to give summary judgment on the defamation claim.  No suggestion has been made that he was wrong to strike out the other claims, of which there was no material justifying them being carried forward.  

19.	For these reasons I would dismiss the application for permission.

Lord Justice Richards: 

20.	I agree.

Order: Application refused