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    Where there was undisputed evidence that a complainant had never admitted to theft it could not be said that a fact-finding tribunal would be perverse to find that the maker of an allegation of theft against him had acted maliciously, despite the fact that the maker of the allegation claimed that he had made the allegation in honest mistake.


    The applicants applied for summary judgment that a claim brought against them by the respondent (H) for libel was bound to fail. H was employed by the second applicant airline (B) in a senior cabin crew position. After an overnight flight, a routine stop-and-search operation by the police and Revenue and Customs found H to be in the possession of 12 miniature bottles of whisky. H admitted that he had not paid for the miniatures, but claimed that the bar had been shut, and he had put the bottles into his bag and then forgotten to pay. At no stage did he admit to theft. H was arrested and cautioned on suspicion of theft, but no further action was taken.

    The events were witnessed by the first applicant (R), who was employed by B within the corporate security division, having retired from the police with the rank of detective sergeant. R was responsible for investigations and security, and had been invited by the police to attend the stop-and-search against the possibility that any persons found to be in possession of stolen or contraband goods were employees of B. R informed the relevant managers by email about the events, which stated that H had been lucky not to receive a caution as he had admitted to theft.
    There was no dispute that those publications were the subject of qualified privilege. However, H claimed that the attribution to him of an admission of theft must have been dishonest, and therefore amounted to malice. In evidence, R admitted that he had made an honest mistake in stating that H had admitted to theft, and would instead have stated that he admitted to not paying for the miniatures. H submitted that there was more than mere assertion or speculation that R acted maliciously. He argued that there was the undisputed fact that he had never admitted to theft, and that as R would or should have known that he would only receive a caution if he had confessed to an act of intentional dishonesty, a jury would not be perverse to infer that R must had included in the email something he knew to be false.


    HELD: A successful application for summary judgment would involve a conclusion that there was no possible basis for the contention that R had been dishonest, and that a jury would be perverse to draw such an inference, Seray-Wurie v Charity Commission of England and Wales (2008) and Somerville v Hawkins 138 ER 231 CCP applied, Telnikoff v Matusevitch (1991) 1 QB 102 CA (Civ Div) and Turner v Metro Goldwyn Mayer Pictures (1950) 1 All ER 449 HL followed. It could not be said that a fact-finding tribunal would be perverse to arrive at the conclusion that R had made an allegation about H that he knew to be false. It could well transpire, if the mater went to trial, that R had been merely careless in his use of language and that a jury would conclude that he was in no way abusing the occasion of privilege. Nevertheless, it was not appropriate to stop H from exploring the matter at a full hearing in due course.


    Application refused


    [2009] EWHC 3244 (QB)



    QBD (Eady J) 9/12/2009


    “Lawtel”: 21.9.09