Fraser-Armstrong v Hadow & Ors [1993] EWCA Civ 33 (26 November 1993)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM: QUEENS BENCH DIVISION
FROM: MR. JUSTICE POPPLEWELL

Royal Courts of Justice
Strand
London WC2
26th November 1993

B e f o r e :

LORD JUSTICE STAUGHTON
and
LORD JUSTICE SIMON BROWN

____________________

JAMES FRASER-ARMSTRONG
 
– v-
 
RUPERT HADOW
LISA NELSON
(T/A PR UNLIMITED)

HAYMARKET MARKETING PUBLICATIONS LTD

 

____________________

(Computer Aided Transcript of the Stenograph Notes of John Larking, Chancery House, Chancery Lane, London WC2
Telephone No: 071-404 7464 Fax No: 071 404 7443 Official Shorthand Writers to the Court)

____________________MR. S. SUTTLE (instructed by Peter Carter-Ruck & Partners, 75 Shoe Lane, London EC4) appeared on behalf of the Appellant.
MR. J. PRICE (instructed by Messrs. Farrar & Co., 66 Lincoln’s Inn Fields, London WC2) appeared on behalf of the Respondent.

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HTML VERSION OF JUDGMENT
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    1. LORD JUSTICE STAUGHTON: This is an appeal from Popplewell J made on an interlocutory application in a libel action.
    2. The facts are that the 2nd Defendant, Miss Lisa Nelson, traded as PR Unlimited. The Plaintiff, Mr. Fraser-Armstrong, was, between May and October 1991, employed by that concern as group accounts director. He was then summarily dismissed. Mr. Hadow, the 1st Defendant, was an employee of the 2nd Defendant working at PR Unlimited. The 3rd Defendant, Haymarket Publications Limited, published a magazine called PR Week.
    3. The Plaintiff says that he was libeled in three ways. Firstly, that the 2nd Defendant, Miss Nelson, wrote to a journalist with PR Week, saying that the Plaintiff had been dismissed because he was incompetent, had subsequently waged a wide ranging personal vendetta against PR Unlimited and had harassed and made personal threats against the present and former staff and associates of that concern. It is said there was a further libel in the issue of that magazine on 12th December 1991 to the same effect, or the first part of it. Furthermore, that article quoted some words of Mr. Hadow, the 1st Defendant, which are said to have been libelous too.
    4. The defences of the three defendants are first, justification; secondly, consent and thirdly, qualified privilege. In the particulars of qualified privilege, the defence of the 1st and 2nd Defendants sets out at some length how Mr. Fraser-Armstrong, the Plaintiff, had been commenting to the journalist about staff problems in PR Unlimited. It sets out at some length how Mr. Fraser-Armstrong had been putting those stories about. The same is to be found in the Defence of the 3rd Defendant.
    5. There were then replies to the Defences served and an application to strike out part of the replies. Popplewell J struck out some parts and left others. Mr. Fraser-Armstrong now appeals, asking that some of the parts struck out should be reinstated.
    6. Mr. Fraser-Armstrong pleads that there is no qualified privilege here, even if the Defendants honestly believed what they were saying to be true, because their motive for publishing it was improper that would amount to malice. He says that their motive was to distract attention from the staff moral problems that PR Unlimited was suffering and that that was an improper motive.
    7. The judge evidently thought that that was not a proper plea. His brief reasons were:

“There is nothing in the article itself dealing with the morale of the staff. Accordingly, it does not seem to me that that allegation of malice should be any part of the pleadings and I shall accordingly strike out paragraph 3 (iii).”

  1. For some reason, which has not been fully explained, the judge treated the two replies inconsistently. In both of them he deleted lengthy particulars of staff moral problems. In one, he deleted the conclusion that was drawn from those particulars, that is to say that the Defendants tried to conceal the problems, which was an improper motive and therefore malice. In the other pleading he did not delete the passages which drew the conclusion, which is a fairly unsatisfactory result.
  2. Mr. Price submits that the judge was quite right to delete those passages. He says that the Defendants in this publication were defending themselves from attacks made by Mr. Fraser-Armstrong. He submits that it is not an improper motive to defend yourself, it is perfectly proper to do so. He points to the case of Horrocks v. Lowe (1975) AC 135, particularly the speech of Lord Diplock at page 149. That, he says, does not suggest that there was an improper motive here.
  3. In my judgment it would not be an improper motive to seek to defend oneself if the attacks that were being made by the Plaintiff were untrue. It would be perfectly proper to do that, as appears in Gatley on Libel & Slander, paragraph 514. It does not seem to me to be a proper motive to seek to defend oneself if the attacks which are made by the Plaintiff are true.
  4. In those circumstances it is not a proper motive for publishing defamatory material about the Plaintiff. It seems to me that Mr. Fraser-Armstrong is entitled to make the allegations that he does, that staff morale was in a bad way at PR Unlimited, and to go a good deal further than is already in the pleadings of the Defendants. If it was the motive of the Defendants in publishing to distract attention from their problems, then there has not been an occasion of qualified privilege because it would have been actuated by malice.
  5. Accordingly, I would restore those passages in the pleadings to which the appeal relates.
  6. Mr. Price has taken other points. First, he says that some of the particulars relate to matters that happened after the libel was published. There may be some force in the suggestion that that is all irrelevant. But there is nothing to show that the judge’s attention was drawn to that, it did not feature as part of his reasons, and there is no Respondent’s notice. Similarly, Mr. Price says that the matters of which particulars are given cannot have been known to Mr. Hadow, the 1st Defendant, or to the 3rd Defendant or perhaps even to the 2nd Defendant, and that there ought to be allegations of knowledge by those people. That did not feature in the judge’s reasons, and again there is no Respondent’s notice. So I would not give effect to either of those points.
  7. I would allow the appeal to the extent of the order that is sought in the Notice of Appeal, save for that part of it which Hirst J said was not arguable, that is to say, paragraph 1.1 and 1.2.
  8. LORD JUSTICE SIMON BROWN: I agree that this appeal should be allowed and the result which my Lord proposes.
  9. I cannot accept that anyone enjoys a privilege to protect himself against a justifiable attack upon his own character or conduct. If, therefore, the Plaintiff can show that he was defamed by the Defendants for the purpose of undermining what they knew to be his perfectly valid criticism of the 1st and 2nd Defendant’s business, that would seem to me to destroy any question of privilege. It would either demonstrate that no such privilege properly arises in the first place or it would defeat the defence by a successful reply of malice, it matters not which.
  10. The Defendants complain that allowing all this pleaded material to go before the court will prejudice and embarrass them at the imminent trial. One solution open to them seems to me to be to accept that no question of qualified privilege arises here or accept that the criticisms leveled against them by the Plaintiff were true. They say that the material is irrelevant. Let them then accept it. Certainly the Plaintiff should not be shut out from justifying the truth of what he was asserting about the Defendant’s business and what found its way into the 3rd Defendant’s published article in that regard. I may add this, what he pointed out about the Defendant’s business seems unlikely to be untrue, nor was it such that the Defendants could sensibly have been in ignorance about it. I too would allow the appeal.
  11. MR. SUTTLE: Can I ask for the costs of the appeal?
  12. LORD JUSTICE STAUGHTON: The judge below made them costs in the cause and you did not do too well there.
  13. MR. SUTTLE: The costs below, of course, were plainly regarded by the judge, in my submission, as a draw because some matters were struck out and some were not.
  14. Once these fairly substantial matters are put back, that, in my submission, converts the result below to a substantial win on points to Mr. Fraser-Armstrong and I have won today with a knock-out.
  15. LORD JUSTICE STAUGHTON: What do you say?
  16. MR. PRICE: I cannot resist the costs of the appeal. Although quite a lot of what the learned judge took out has now gone back, in my submission the judge’s orders should stand.
  17. LORD JUSTICE STAUGHTON: Quite right. Plaintiff to have the costs of the appeal.

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