Cambridge v Makin [2012] EWCA Civ 85

Case No A2/2011/0285[2012] EWCA Civ 85
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2011] EWHC 12 (QB)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Mr Justice Tugendhat
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/02/2012
Before
LORD JUSTICE HUGHESLADY JUSTICE BLACKLORD JUSTICE TOMLINSON
Between
Jan CambridgeRespondentGuillermo MakinAppellant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr William Bennett (instructed by Kirwans LLP) for RespondentMr Hugh Tomlinson QC and Mr David Hirst (instructed by Messrs Collyer Bristow LLP) for AppellantHearing Hearing date : 3 November 2011
Judgment

Introduction

[1]At all times material to this action the Claimant held office as an unpaid non-executive director of a professional association. The Defendant was a member of that association. In a long and detailed reserved judgment delivered in January 2011 after a five day trial in November 2010, Tugendhat J decided that a statement agreed to be defamatory of the Claimant published by the Defendant in an email sent to many hundreds of persons in the profession in May 2007 was untrue and, save in respect of one of the three distinct categories of persons to whom it was sent, not published on an occasion attracting qualified privilege. The judge also decided that, in any event, the Defendant in publishing the email had been actuated by malice. The defamatory allegation was that the Claimant had abused her position as an office holder by acting on a conflict of interest to her own financial benefit. In respect of the libel, which the judge found to be particularly mean and humiliating, and which had undoubtedly caused the Claimant great personal distress, she having been in consequence regarded by her peers, quite wrongly, as having taken the opportunity afforded by her office to cause their destitution for her personal gain, he awarded damages of £30,000. This award took into account that the Claimant had already received an apology and compensation in the same amount, £30,000, from the GMB trade union on whose letter paper the libel was published, the Defendant acting in that regard as a committee member of the Interpreters and Translators Branch (ITB) of the union.[2]The Defendant, now Appellant, sought originally to challenge all of the judge’s conclusions save only his assessment of damages. Permission to appeal was granted by Smith LJ on the papers on grounds relating to qualified privilege and malice but refused in relation to the defence of justification. The application for permission to appeal in respect of the latter has not been renewed. It is said on this appeal by Mr Hugh Tomlinson QC for the Appellant that in relation both to qualified privilege and malice the judge made fundamental errors in his analysis and approach. On the former he is said to have confused traditional common law qualified privilege and Reynolds privilege, wrongly importing into the former considerations of “responsibility” which have in that context no place. His finding of malice is said to be insupportable, to have failed to take into account that the Appellant was not the author of the email and to be reliant upon two clearly incorrect findings to the effect that the allegation in the email was novel and that the Appellant had made no enquiries as to its correctness.

The facts in outline

[3]The full story is set out in the judge’s judgment, 2011 EWHC 12 (QB), to which reference may be made by those interested. Much of it is necessary only to an understanding of why the defence of justification failed. I need not cover that ground, although I would observe in passing that the attempt to justify was in my view quite hopeless, reflecting the extent to which the allegation of abuse of office for material gain transcended any legitimate difference as to the policies which should have been pursued by the Board of Directors of which the claimant was a member. I propose to do no more than to set out here such material, derived from the judge’s findings, as is necessary in order to understand and to place into context the arguments on the appeal.[4]The Claimant and the Defendant are both highly qualified professional interpreters. As the judge observed at the outset of his judgment interpreters are essential to the public service. Their role in the criminal justice system is so important that it is specifically provided for in ECHR Article 6 as follows:- “3. Everyone charged with a criminal offence has the minimum rights: . . . (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.” Within the criminal justice system interpreters may be required not only in court but also to assist with police questioning of suspects and witnesses. They must not just be competent linguists, they must have an appropriate level of understanding of the legal and administrative provisions in the context of which their services are required. I would add that interpretation is a special skill which is different from the linguistic ability which is a pre-requisite. The need for the services of an interpreter can arise at short notice, and the number of languages in which they may be required is of course large. The requirement that the assistance be free means that the cost falls to be met out of public funds. Police forces, and other public service organisations, hereinafter “PSOs”, responsible for the budgets for the criminal justice system have necessarily for some years been looking for efficiency and costs savings in relation to the provision of this as all other relevant services. Such measures can have adverse effects upon the earnings of interpreters. It is concern that the activities of the Claimant and others contributed to the destruction of the livelihoods of some interpreters which forms the backdrop to this case, but as I have already indicated the sting of the libel is that the Claimant abused her position so as to further her own financial interests in preference to those of the members of the association, or “registrants”, which it was her duty to serve.[5]At all material times the Claimant occupied positions of leadership on various professional associations and other bodies which promote the interests of linguists and interpreters and ensure the maintenance of proper professional standards amongst language practitioners. Two such bodies are the Chartered Institute of Linguists (the “CIOL”) formerly the Institute of Linguists (the “IOL”) and its wholly controlled subsidiary, National Register of Public Service Interpreters Limited (“NRPSI”), a company limited by guarantee and a not for profit organisation. The Defendant was one of a group of interpreters which became dissatisfied with the activities of NRPSI and campaigned vigorously for the removal of the Claimant, and others, from its Board of Directors. The Claimant had been appointed to that non-executive office by the CIOL.[6]In March 2007 the Defendant and others put forward a Motion of No Confidence in the Claimant and two other directors of NRPSI alleged to have implemented policies detrimental to the professional interests of interpreters whose details were registered with NRPSI. The Motion was to be debated at the forthcoming AGM of CIOL which was in the event held in May 2007. Eleven emails were then circulated as part of a campaign in support of the Motion. Critically however they were sent to persons other than those entitled to vote at the AGM. The email in question was the eighth in the sequence and as I shall describe it differed markedly from those which preceded it in that it introduced a not previously adumbrated allegation that the Claimant had abused her position as a diretor of NRPSI by acting on a conflict of interest, namely overseeing the sale of NRPSI members’ data to a commercial agency, CINTRA, in which she was privately interested and from which she stood to and did personally benefit.[7]The aims of CIOL, by which NRPSI is wholly controlled, are to promote the use and learning of modern languages, to improve the status of all professional linguists, to establish and maintain high standards of work, to serve the interests of all linguists, and to ensure professional standards amongst language practitioners through its Code of Conduct. It has about 6,500 members worldwide.[8]NRPSI maintains a register of Public Service Interpreters (“PSIs”) to enable PSOs and the agencies through which they work to obtain professional, qualified and quality-assured interpreters. The NRPSI website current as from July 2005 describes it thus:- “Like other professional registers, it comprises individuals who have satisfied selection criteria in terms of qualifications and experience, agreed to abide by a Code of Conduct … and subject to Disciplinary Procedures . . . where there are allegations that the code has been breached . . . Public Service Organisations and agencies that they work through can obtain access to the National Register via a subscription service which is available through this website . . . The Register is administered by NRPSI Ltd, a wholly owned and non-profit making subsidiary of the Institute of Linguists. The Institute of Linguists is the UK’s largest language professional body and was established in 1910.” (emphasis added)

The judge described the system as follows:

[9]- “16. The Register maintained by NRPSI (“the Register”) was established in 1994 with the support of the Home Office and the Nuffield Foundation. It was established in response to a recommendation made by the Royal Commission on Criminal Justice in 1993. This was to the effect that there should be national and local registers of qualified interpreters with the aim of “using only interpreters with proven competence and skills who are governed by nationally recognised code of conduct”. NRPSI and the Register have no statutory backing. 17. From 1996 until 2000 IOL managed and administered it. In 2005 IOL became the CIOL. Since 2000 the Register has been administered and managed by NRPSI. 18. NRPSI is funded by subscriptions from those interpreters whose names are on the Register, and from fees charged to bodies to which it grants licences. Those whose names are on the register are known as “Registrants”. Licensees are referred to as “subscribers”. PSOs pay licence fees to secure access to the information on the Register. They are thus enabled to find suitable public service interpreters. PSOs include police forces and the Home Office. The licence is to use the computer software programmes and associated documents, and the database comprising the Register, for the express purpose of commissioning interpreters for interpreting work and no other purpose. 19. The CIOL and the Institute of Translation and Interpreting (“ITI”) are the two main bodies for professional interpreters and translators. The CIOL and the ITI are private members associations. They provide professional validation, registration and support for their members. ITI runs examinations for interpreters and translators to validate a member’s professional skills. ITI has approximately 3000 members. The CIOL performs similar functions to ITI but it has a wider membership. Both the CIOL and ITI have codes of conduct and procedures. The CIOL is run by a Council (“the Council”), which is the equivalent of a board of directors of a company. The Council is elected by and from the members. 20. CINTRA Limited (“CINTRA”) is also a company limited by guarantee, and is also not run for profit. It was incorporated on 4 March 1997. It is an agency which provides interpreters and translators for the public sector. It is the successor to the Cambridgeshire Interpreting and Translation Agency, which was established in 1995 with funding from local authorities. In 2004 the Chair of CINTRA was Ms Nicola Glegg. . . . 34. There are a number of registers of interpreters maintained by different bodies. Another such body is the Association of Police and Court Interpreters (“APCI”). Interpreters often placed their names on more than one of the registers. 35. There is an order of priority of the registers set out in the National Agreement on Arrangements for the Use of Interpreters, Translators and Language Service Professionals in Investigations and Proceedings within the Criminal Justice System (“the National Agreement”). The version of this document before this court is the one revised in 2007. The National Agreement is described as issued by the Office for Criminal Justice Reform, and produced in consultation with the Interpreters Working Group (“IWG”). It includes representatives from the Association of Chief Police Officers, Crown Prosecution Service, HM Courts Service, The Probation Service, The Home Office, Magistrate’s Association, The Bar Council and the Law Society, as well as representatives of interpretive bodies. The 2007 revision replaces an earlier agreement issued by the Trials Issue Group in 2002. The National Agreement provides guidance on arranging suitably qualified interpreters when the requirements of Articles 5 and 6 of ECHR apply. It is guidance, and not legally binding. 36. The order of priority listed in the agreement for the choice of interpreters is:(1) NRPSI full status registrants;(2) NRPSI interim status registrants;(3) APCI interpreters;(4) NRPSI rare language registrant;(5) ITI members.”[10]CINTRA had held licences to access the NRPSI Register for most of the period between 1996 and 2005. In 2001 and 2002 the licence was in respect of the criminal justice system. As it happens there was a gap in coverage in 2003 and 2004. On 16 November 2004 CINTRA applied for a licence for the 2005 year. It sought a licence at the published rate applicable to PSOs, £550 per year.[11]As from July 2004 there were five members of the Board of NRPSI, the Claimant, Ms Nicola Glegg, Mrs Ann Corsellis, Mr John Dwyer and Mr Henry Pavlovich, who was also the Chief Executive of both CIOL, then in fact IOL, and NRPSI and was the only member of the Board with executive responsibility. On 29 July 2004 the Claimant was elected Chairman in succession to Ms Glegg. Prior to 2004 Ms Glegg had been the Chief Executive Officer of CINTRA. In 2004 she relinquished that role but remained on its Board as Chairman. All those concerned in the management of NRPSI knew of Ms Glegg’s relationship with CINTRA. Ms Glegg resigned from the board of NRPSI in July 2005.[12]I should add that the Claimant is a fellow of CIOL and has served on the Council thereof since 2000. She has also since 1999 been a fellow of the ITI. She has served on various advisory groups concerned with best practice and the needs of PSOs and PSIs. She has long experience both as an interpreter and in providing training for interpreters working in the public service. The Defendant/Appellant also has a distinguished record, notably in the academic field. I shall deal with it in more detail when I come to deal with malice to which it is principally relevant. Since 2004 his main occupation has been as a professional public service interpreter. In 2003 he registered with NRPSI.[13]Prior to April 2005 the East Midlands police forces, comprising the constabularies of Derbyshire, Leicestershire, Lincolnshire, Northamptonshire and Nottinghamshire, booked interpreters directly with or through NRPSI. On or about 22 November 2004 they invited tenders for the provision of such services through an agency. The invitation to tender was advertised in the Official Journal of the European Union for 22 November 2004.[14]CINTRA was one of five agencies which tendered for the contract. It is unclear precisely when CINTRA tendered. The evidence at trial went only so far as to show that as at 14 February 2005 CINTRA was preparing a submission for the tender. The contract was awarded to CINTRA in April 2005. The award of the contract then became public knowledge, or at the latest it was common knowledge by 4 May 2005. The judge found that the Claimant was unaware that CINTRA had tendered for the East Midlands Police contract until the award of the contract became public knowledge, i.e. in April/May 2005.[15]Meanwhile CINTRA had been granted by NRPSI the licence for 2005 for which it had applied on 16 November 2004. The licence was for the period 1 January 2005 to 31 December 2005. It was signed on behalf of NRPSI on 27 January 2005 and on behalf of CINTRA on 28 January 2005. The judge noted that there were references in the evidence to the licence having been granted on 1 January 2005 but made no express finding as to when precisely it was granted or agreed that it be granted. He did however record, as is the case, that in the light of his other (unchallenged) findings of fact it matters not whether it was at the beginning or the end of January 2005, or indeed before. All that is of relevance is the role played by the Claimant in the grant of the licence.[16]The Claimant’s role in that regard was minimal. The grant or renewal of licences was a routine matter which was largely dealt with by the Office Manager at NRPSI. At the Board Meeting of NRPSI on 24 July 2004 there had been a discussion as to the differential, if any, to be charged by way of fee for access to the Register as between “commercial” agencies and public service organisations. It was agreed that non-public service intermediaries would be charged a higher rate, £2,500 for the basic licence and an additional £1,000 for each PSO with which it had a contract. There was an inconsequential discussion initiated by Ms Glegg about the rate to be charged to non-public service intermediaries which worked only for PSOs. When CINTRA applied for its licence in November 2004 at the PSO rate of £550 per year Mr Pavlovich wrote back proposing a payment of £2,500 plus a payment of £1,000 for each constabulary with which it contracted. This prompted an internal discussion at NRPSI as to the tariff which CINTRA should be required to pay. The judge’s findings as to the extent and nature of the Claimant’s participation in this discussion are not entirely clear. They are to be collected from paragraphs 104, 105, 139 and 146 of his judgment. It may be that they are deliberately unclear because the judge recognised that whatever findings he could make on the basis of the vague and undocumented recollection of the Claimant and Mr Pavlovich would be of little consequence having regard to his other more positive findings. One of those clear findings was that at no time before the grant of the licence had anyone suggested that CINTRA should not be granted a licence. The judge did find that for the Claimant the level of the fee which CINTRA should pay was a secondary consideration. Her main consideration was that NRPSI should fulfil the function for which it was set up. Having regard to paragraph 146 of his judgment, the judge has I think found that the Claimant probably did, in the context of the discussion in November 2004, suggest that CINTRA as a not for profit company should be treated simply as if it were a PSO and charged accordingly. In the event it seems that CINTRA was charged the higher rate, £2,500, although not the extra £1,000 for each police force with which it contracted. The judge found in terms that the Claimant’s intervention, whatever it was, had no effect on the outcome of CINTRA’s application for a licence.[17]In June 2004 Caroline Taylor of CINTRA and the Claimant corresponded by email as to the possibility of the Claimant being involved in training for CINTRA’s interpreters. It seems that Ms Glegg first mentioned this possibility to the Claimant. Travelling presented a difficulty – the Claimant lives in Cheshire and CINTRA’s courses were to take place in East Anglia. The judge made the following findings:- “95. The only CINTRA course that the Claimant attended in 2004 was on Saturday 16 October. On that occasion she was paid her expenses, but no fee. On 19 October 2004 Ms Taylor wrote to the Claimant thanking her for giving the course. The e-mail continued:
“[Ms Glegg] mentioned to me that you might be interested in teaching some other course for CINTRA. If you are, would you mind your name appearing in a course brochure that CINTRA is about to publish. If you don’t mind your name appearing, would you be able to send me some brief biographical materials?” 96. In cross-examination the Claimant gave evidence which I accept. She said she had known Ms Glegg since about 1990, and that they had a good relationship on the occasions when they attended meetings together. But she had had no previous relationship with CINTRA before the e-mails. She had first worked for it in October 2004. She did one half day’s work then. She was never employed by CINTRA other than as a freelance trainer. She did not see the Training Manual at the time it was produced by CINTRA. At the time she gave her consent to the use of her name, she did not know what else would be included in the document. In fact the Training Manual contains no mention of the Claimant’s position with NRPSI. And the same information, appearing in the Delivery Plan, could not be described as being in a course brochure, which is the only consent for which she was asked.” “[Ms Glegg] mentioned to me that you might be interested in teaching some other course for CINTRA. If you are, would you mind your name appearing in a course brochure that CINTRA is about to publish. If you don’t mind your name appearing, would you be able to send me some brief biographical materials?”
[18]Before dealing with the Training Manual and the Delivery Plan to which the judge there refers, I should mention also that the Claimant worked for CINTRA for seven days in May 2005, giving training pursuant to CINTRA’s new contract with the East Midlands police forces. It was agreed that she should be paid but due to an oversight on her part in failing to send an invoice in fact she was not. She was reimbursed her expenses. The fact that the Claimant worked for CINTRA in May 2005 is of no relevance bearing in mind the judge’s finding that she did not know of CINTRA’s tender for the East Midlands police contract until the award of the contract became public knowledge in April/May 2005, and she was therefore unaware of it when the licence was granted by NRPSI to CINTRA.[19]Turning to the Training Manual and the Delivery Plan, the first thing to note is that the consent given by the Claimant to use her name was in relation to a course brochure. The judge found that CINTRA produced a Delivery Plan some time after the grant of the licence in January 2005 and before April 2005. It was part of the documentation to support the tender. It is not a course brochure. The judge made the following findings about its contents:- “88. To support its bid CINTRA’s Delivery Plan included a section headed “Training Provision”. In it CINTRA stated that it had a wide pool of trainers who were highly experienced and qualified. It named Ms Glegg and the Claimant, as set out in para 60 above. [In fact I set out paragraph 60 below] 60. In relation to Ms Glegg and the Claimant, the Delivery Plan stated as follows:
“Nicky Glegg is a recognised authority on the training and development of interpreters and on language service development. Her training credentials include…. Nicky Glegg was the first chair of the National Register of Public Service Interpreters and is represented on the Trials Issue Group…. Jan Cambridge has an MA in Applied Linguistics, the Institute of Linguist’s Final Diploma, DPSIs in both legal and health options, and has been working as a public service interpreter in English and Spanish since 1984. She joined the National Register in 1994…”. 61. Later in the document there is the heading “Interpreter Standards”
. The Delivery Plan contains a number of references to the Register. At p68 it stated that “CINTRA subscribes to .. NRPSI”, and another register, through which it stated that it had access to national registers throughout the UK. On p32 of the Delivery Plan it is stated that CINTRA had carried out market research to verify the interpreter capacity currently available in the East Midlands. One of the ways that it had done this was by reviewing the interpreters available via the NRPSI. At p34 it is stated that CINTRA proposed to advertise and communicate with interpreters through multiple channels, including by letters and telephone calls to all National Register interpreters. It also states that it carries out monthly reviews of NRPSI. It states it uses the on-line National Register to locate nationally registered interpreters. The document states that CINTRA’s objective would be to train 110 new interpreters in the East Midlands to the standard required by the National Register by 31 December 2005.” “Nicky Glegg is a recognised authority on the training and development of interpreters and on language service development. Her training credentials include…. Nicky Glegg was the first chair of the National Register of Public Service Interpreters and is represented on the Trials Issue Group…. Jan Cambridge has an MA in Applied Linguistics, the Institute of Linguist’s Final Diploma, DPSIs in both legal and health options, and has been working as a public service interpreter in English and Spanish since 1984. She joined the National Register in 1994…”.[20]The judge found in terms that the Claimant was unaware of the use of her name in the Delivery Plan before May 2005 and that she had not consented to CINTRA using her name in connection with its tender for the East Midlands police contract.[21]The judge found that a CINTRA Training Manual was produced in May 2005 in which the Claimant’s name (and that of Nicky Glegg) again appears in a list of named trainers. The document described them in terms similar to those used in the Delivery Plan.[22]The judge observed that his finding that this document had been produced in May 2005 was consistent with the fact that the Claimant carried out some training for CINTRA in May 2005 whereas she had not carried out any training for it since 19 October 2004. The judge again found in terms that the Claimant did not know of the use of her name in the Training Manual before May 2005.[23]In order to explain why the grant of the East Midlands police contract proved so controversial, the judge made the following findings:- “85. According to the Delivery Plan, the East Midlands Police had found that booking interpreting services directly from NRPSI created a number of constraints, primarily due to a shortage of interpreters on the Register in many languages and locations. The East Midlands Police had also referred to what they described as the high cost of service provision, particularly travel expenses, and the high hidden costs in terms of police staff time spent booking and resolving issues with individual interpreters. They were therefore looking for an alternative means to provide interpreters of the same standard and credentials as the NRPSI, but with guaranteed response times and lower costs. The contract would be for a period of five years. ”86. The aspect of the East Midlands Police proposal which later became of most concern to individual interpreters was that the lower cost was going to come, at least in part, from lower fees paid to interpreters. PSIs working for the East Midlands Police would in effect have to provide their services through CINTRA. CINTRA would not only pay at lower rates, but also itself require a fee from the East Midlands Police for their services. So the total sum available for interpreters would be reduced. The reduction was to be significant.87. In order to address what the East Midlands Police referred to as the shortage of interpreters, CINTRA proposed to train interpreters. In its Delivery Plan it stated that it had nationally recognised in-house training capacity, and a long track record in building regional interpreter capacity. It stated that every year more than sixty new interpreters took the DPSI through CINTRA’s exam centre, and that more than 250 interpreters had qualified for the DPSI through CINTRA over the previous ten years. I have already set out above paragraph 88 of the judgment in which the judge observed that in order to support its bid CINTRA’s Delivery Plan stated under the rubric “Training Provision” that it had a wide pool of highly experienced and qualified trainers including Ms Glegg and the Claimant.[24]In May or June of 2005 an NRPSI Action Group was formed to fight outsourcing contracts in general and the East Midlands police contract in particular. The Appellant was one of the one hundred and fifty or so members who started the group. Another was Dr Zuzana Windle, of whom more in due course. As the judge explained:- “31. For the period from about May 2005 (when the Defendant and other interpreters learnt of the contract between CINTRA and the East Midlands Police) until some time after May 2007, many interpreters were strongly critical of NRPSI and its directors for the grant of the Licence to CINTRA for the year 2005. They were particularly critical of Ms Glegg and, to a lesser extent, of the Claimant. The Defendant and other Registrants sought to remove the Claimant and Mrs Corsellis (and another director) from their offices as directors of NRPSI by means of a Motion of No Confidence (“the Motion of No Confidence”). Ms Glegg had resigned in July 2005. The Motion was to be moved at the Annual General Meeting (“the AGM”), not of NRPSI, but of CIOL. That had been due to be held in April 2007 and was postponed twice to 19 May 2007. The Defendant published a number of e-mails to many people in the period up to the AGM as part of a campaign to encourage those eligible to vote to do so in favour of the Motion of No Confidence. 32. After he learnt of the grant of the contract to CINTRA the Defendant first conducted his campaign through a branch of the Amicus trade union. It was the National Union of Professional Interpreters and Translators (“NUPIT”), of which he was a member. He subsequently set up a new branch within the GMB trade union, and continued the campaign through that. This was the Interpreters and Translators Branch (“ITB”).”[25]In order to place the policy differences between the Claimant and the Appellant in context, it is worth setting out the judge’s summary of the Claimant’s own position:- “39. The Claimant is in fact a PSI, but she did not use her position on the Board of NRPSI to influence the policies of NRPSI to safeguard the interests of PSIs, as the Defendant considered that she should have done.”40. The Claimant states that she is sympathetic to PSIs, because the fees that they have been able to charge have been in decline for a number of years. As a PSI herself, she has suffered from this. She attributes this decline to the growing use by PSOs of intermediaries such as CINTRA, with a view to keeping their costs down. CINTRA was not the only intermediary that had been licensed by NRPSI. But in the Claimant’s view NRPSI could not properly have refused to grant licenses to intermediaries, because that would be contrary to the reason for its existence, namely to make available to PSOs a list of suitably qualified PSIs. In her view it was not for NRPSI to use its powers as a licensor to influence how PSOs retained PSIs, that is, to influence them to retain PSIs directly, rather than through an intermediary. As she puts it: “The NRPSI was set up to help ensure that PSOs had access to properly qualified PSIs. It was not designed as a trade union like organisation. It cannot pursue the interests of PSIs at the expense of PSOs; it is stuck in the middle and must remain neutral and impartial”.41. Although the Claimant disagrees with the views of the Defendant on matters of policy relating to CIOL and NRPSI, in these proceedings she makes no complaint of the fact that the Motion of No Confidence was put forward. Nor does she complain of the terms of the Motion of No Confidence, nor of any of the other e-mails that were circulated in the course of the campaign conducted by the Defendant and others. The judge plainly accepted this evidence as an expression of the Claimant’s honest belief. I have already recorded at paragraph 16 above the judge’s acceptance that for the Claimant the level at which the fee charged to CINTRA should be set was a secondary consideration. The judge found her evidence concerning the object for which NRPSI was set up and the importance of fulfilling it “entirely convincing” (see paragraph 146) and it was consistent therewith that she should favour the grant of a licence to CINTRA. It is worth emphasising again however that there is no evidence that the grant of a licence to CINTRA was itself at any time regarded as controversial until after CINTRA had in turn been awarded the East Midlands police contract. “The NRPSI was set up to help ensure that PSOs had access to properly qualified PSIs. It was not designed as a trade union like organisation. It cannot pursue the interests of PSIs at the expense of PSOs; it is stuck in the middle and must remain neutral and impartial”.[26]The judge recorded the Appellant’s own evidence as to his activities as part of the Action Group as follows:- “189. . . .He said he first learnt about the East Midlands Police contract with CINTRA in May 2005. In May or June he learnt that the NRPSI Action Group was being formed to fight outsourcing contracts in general and this one in particular. He was one of the 150 members who started the group. He, Ms Rowlands and Dr Windle then began to investigate the circumstances in which CINTRA had acquired the contract. He does not give any details of his investigations, or how he set about them. He simply says “We acquired CINTRA’s East Midlands Delivery literature and brochure”. He does not say how, when or from whom he acquired it, or that he took any steps to verify any suspicions which he might have formed when he read it. He states that it was later (he does not state when) that he read the e-mail from Ms Taylor to the Claimant dated 19 October 2004. He does not say that he took any steps to investigate what work the Claimant did for CINTRA or when she did it.190. I have referred above to Ms Rowlands’ e-mail to the Claimant of 4 May and her reply of 6 May. Ms Rowlands did not raise with the Claimant the charge which is the meaning of the words complained of.191. The Defendant states that the Action Group expressed their concerns to Mr Pavlovich about the impact that the CINTRA contract would have. He does not say that they expressed to him any concern about the charge that he later made in the words complained of. He refers to an e-mail sent on 16 May by a Mr Newton to members of the NRPSI Action Group. It sets out the contents of a letter he had sent to Mr Pavlovich, which includes concerns about a director of CINTRA being at the same time a director of NRPSI. There is no reference to any concern about the Claimant. He then goes on to refer to his complaints to the ICO about the breach of the Data Protection Act, referred to above.” The judge then proceeded to make the following findings:- “192. On 1 August 2006 the Defendant sent an e-mail to Mr Hammond [the Chairman of IOL] in which he expressed his concern about “the continued presence as a CINTRA trainer of [the Claimant]”. On 16 August 2006 he sent an e-mail or made an internet posting in which he stated that “John Hammond does not see it” and “At least we should go for Cambridge … getting rid of her would free one position on the board”. These documents do not contain the charge which he later made in the words complained of. On 11 September 2006 the Defendant sent an e-mail to a large number of people, including to the Claimant. It attached a position paper of 15 pages setting out the views of the ITB on the policies and management of the NRPSI. It does not mention the charge that was to be made in the words complained of. On 22 September 2006 the Defendant circulated by e-mail another document prepared on behalf of the ITB concerning the 2007 Council elections. It gives notice of his intention to move a motion of no confidence in the board of NRPSI at the AGM on 12 May 2007. The ground put forward is the conflict of interest alleged to arise in the case of Ms Glegg and the failure of the board to prevent that arising. He proposed that on the passing of the motion the board should resign with immediate effect and be replaced by “a reform committee chaired by [the Defendant] and Zuzana Windle plus such colleagues as they may co-opt”.”[27]I do not propose to set out all of the emails and other documents exchanged. I shall refer to them or to their existence as may be necessary in the context of the Appellant’s arguments on qualified privilege and malice. It is said that when seen in context the allegation made in the May 2007 email was not novel. It is also said that even if the judge’s finding of novelty is correct it is relevant only to malice and not to qualified privilege, whereas the judge appears to have regarded it as relevant to both. It is also said in relation to malice that the Appellant was “frustrated by the stonewalling that had gone on for two years”.[28]I come at last to the Motion of No Confidence circulated on 24 March 2007 and the email circulated in support thereof in order, as the Appellant put it, to maintain the rhythm of the campaign. The Motion read as follows:- “MOTION OF NO CONFIDENCE: REASONS, AND SCOPE: THE WAY FORWARD IS THROUGH REFORM The ITB of the GMB has received a lot of support, even from non-members and colleagues we had never heard of, plus a few queries about the proposed vote of no confidence in the Board of NRPSI. The wording of the two parts of the motion is as follows: Part 1 This AGM has no confidence in those directors (Ann Corsellis, Jan Cambridge and Peter Melville-Smith) who implemented a series of policies which have caused registrants a financial detriment and which have led to the loss of the livelihoods of many NRPSI registrants living in East Midlands, Norfolk and neighbouring areas. These policies include: 1. An illegal sale of registrants’ data, contrary to Principle 1 of the Data Protection Act 1998, according to the final finding of the Information Commissioner’s Office (ICO) of 10-03-06. The ITB of the GMB’s position on this matter is quite clear: any company director who breaches an act of parliament must resign. 2. Allowing Nicola Glegg, Cintra’s Chief Executive at the time, to remain on the Board despite the obvious conflict of interest. 3. Allowing CINTRA to use their names as well as the connections with NRPSI/CIOL to obtain the East Midlands and Norfolk contracts which destroyed the livelihoods of our colleagues in the area and diminishes the pool of qualified interpreters. 4. Supporting outsourcing and the sale of the Register to agencies such as CINTRA Ltd and Reliance Secure Management Task which pay rates up to 60 – 70 % below the rates recommended by the ACPO and which abuse registrants’ data by using unqualified interpreters, contrary to the OCJR guidelines, despite having access to the database. 5. Not allowing registrants’ representation on the Board and a say in policies which affect their livelihood. 6. Using and refusing to change an undemocratic process to create an authoritarian Board of Directors which does not reflect the diversity of the registrants on the NRPSI and which does not safeguard their interests. 7. Not consulting with the profession on the OCJR review despite John Hammond’s promise “to sing from the same hymn sheet.” The vote of no confidence is not against Mr. Brooke Townsley, Chair of NRPSI, and Mrs. Christine Rowlands. They joined the Board after the ruling of the ICO and were not implicated in the above mentioned policies. Part ll ONCE THE MOTION OF NO CONFIDENCE IS SUCCESSFUL, THE ITB OF THE GMB PROPOSES THAT THE AGM (i.e. NOT THE CIOL COUNCIL) SHOULD ELECT THREE REFORM MINDED NEW DIRECTORS TO REPLACE THOSE FORCED TO RESIGN BY THE MOTION OF NO CONFIDENCE. SHOULD THERE BE ANY FURTHER VACANCIES AT THE TIME OF THE AGM, THEY WILL ALSO BE FILLED BY THE AGM AND NOT BY THE CIOL COUNCIL.” It was signed by the Appellant and Dr Zuzana Windle. The wording of the two parts of the motion is as follows: Part 1 These policies include:

Part ll

[29]The email complained of was circulated on 7 May 2007. It read as follows:- “We have had an overwhelming response to our correspondence and need to clarify two extremely important issues: 1) The private interests of NRPSI directors in selling our data to commercial intermediaries and the breach of the Data Protection Act 1998. Two NRPSI Board Directors, Nicola Glegg and Janet Cambridge had interests in CINTRA Ltd, an agency which obtained our data contrary to the DPA 1998. Nicola Glegg was the CEO of CINTRA and Janet Cambridge worked as a trainer for CINTRA at the time our data were sold. There is evidence in the Coventry Partnership Project, the Lincolnshire Business Case Study, the East Midlands Delivery Plan and CINTRA’s Training Manual from 2005 that CINTRA used its connections with the CIOL and NRPSI, through the two directors, to obtain a contract with five East Midlands constabularies and Norfolk. CINTRA has created a monopoly in East Midlands and Norfolk and slashed interpreters’ fees by about 60%. We cannot compete against CINTRA. We can either work through them for their rates or not at all. 2) Adequacy of the corrective measures taken by the NRPSI The remedial action taken by NRPSI came too late because CINTRA already had the contract. Following the ICO’s ruling, we asked John Hammond on many occasions to terminate the licence with CINTRA. He has refused to do so even though he admits in his letter to the MCILs that terminating the licence would frustrate the East Midlands contract. We hold that John Hammond’s explanation is incomplete, inaccurate and misleading. We can provide you with concrete documentary evidence which shows the link between NRPSI Board Directors, Nicola Glegg and Janet Cambridge with CINTRA should you request it. We ask you to consider the evidence before making an informed decision which will have an impact on our profession and livelihoods in the future. …” It was again signed by the Appellant and Dr Windle. 1) The private interests of NRPSI directors in selling our data to commercial intermediaries and the breach of the Data Protection Act 1998. Two NRPSI Board Directors, Nicola Glegg and Janet Cambridge had interests in CINTRA Ltd, an agency which obtained our data contrary to the DPA 1998. Nicola Glegg was the CEO of CINTRA and Janet Cambridge worked as a trainer for CINTRA at the time our data were sold. There is evidence in the Coventry Partnership Project, the Lincolnshire Business Case Study, the East Midlands Delivery Plan and CINTRA’s Training Manual from 2005 that CINTRA used its connections with the CIOL and NRPSI, through the two directors, to obtain a contract with five East Midlands constabularies and Norfolk. CINTRA has created a monopoly in East Midlands and Norfolk and slashed interpreters’ fees by about 60%. We cannot compete against CINTRA. We can either work through them for their rates or not at all. 2) Adequacy of the corrective measures taken by the NRPSI The remedial action taken by NRPSI came too late because CINTRA already had the contract. Following the ICO’s ruling, we asked John Hammond on many occasions to terminate the licence with CINTRA. He has refused to do so even though he admits in his letter to the MCILs that terminating the licence would frustrate the East Midlands contract. We hold that John Hammond’s explanation is incomplete, inaccurate and misleading. We can provide you with concrete documentary evidence which shows the link between NRPSI Board Directors, Nicola Glegg and Janet Cambridge with CINTRA should you request it. We ask you to consider the evidence before making an informed decision which will have an impact on our profession and livelihoods in the future. …”[30]In relation to this email the judge recorded the following:- “7. This is an allegation or charge that the Claimant did abuse her position, sometimes referred to as a Chase Level 1 meaning (Chase v News Group Newspapers Ltd [2003] EMLR 218). It is not an allegation merely that there were reasonable grounds to believe that she did, nor any lower meaning. Following a determination I made in July 2010, and an appeal to the Court of Appeal, it was agreed between the parties that the meaning of the words complained of is:
“the Claimant abused her position as a director of NRPSI by acting on a conflict of interest, namely overseeing the sale of NRPSI members’ data to a commercial agency, CINTRA, in which she was privately interested and from which she stood to and did personally benefit”. 8. The meaning is derived more particularly from the following passages from the words complained of: “The private interests of NRPSI directors in selling our data to commercial intermediaries … Two NRPSI Board Directors, … and Janet Cambridge had interests in CINTRA Ltd, an agency which obtained our data … Janet Cambridge worked as a trainer for CINTRA at the time our data were sold. There is evidence in the Coventry Partnership Project, the Lincolnshire Business Case Study, the East Midlands Delivery Plan and CINTRA’s Training Manual from 2005 that CINTRA used its connections with the CIOL and NRPSI, through the two directors, to obtain a contract with five East Midlands constabularies and Norfolk.” “the Claimant abused her position as a director of NRPSI by acting on a conflict of interest, namely overseeing the sale of NRPSI members’ data to a commercial agency, CINTRA, in which she was privately interested and from which she stood to and did personally benefit”. “The private interests of NRPSI directors in selling our data to commercial intermediaries … Two NRPSI Board Directors, … and Janet Cambridge had interests in CINTRA Ltd, an agency which obtained our data … Janet Cambridge worked as a trainer for CINTRA at the time our data were sold. There is evidence in the Coventry Partnership Project, the Lincolnshire Business Case Study, the East Midlands Delivery Plan and CINTRA’s Training Manual from 2005 that CINTRA used its connections with the CIOL and NRPSI, through the two directors, to obtain a contract with five East Midlands constabularies and Norfolk.”
[31]The allegation was completely without foundation. The Claimant did not work as a trainer for CINTRA at the time when the data was sold. She had done one half-day’s work for CINTRA on a freelance basis. She had no private or other interests in CINTRA. She did not know of the CINTRA tender or that she stood to benefit from it. The fact that the Claimant did some work for CINTRA in May 2005 does not justify the inference that before the end of January 2005 she knew that she stood to benefit from either the grant of the licence or the grant of the East Midlands police contract to CINTRA. There was no evidence in any of the documents listed to the effect that CINTRA used its connection with the Claimant, or the Claimant’s connection with NRPSI, to obtain the contract with East Midlands police. The documents did not mention that the Claimant held a position with NRPSI. The two documents which listed the Claimant as a trainer were not in existence when the licence was granted. The Claimant did not allow herself to be used by CINTRA as a selling point to East Midlands police. As the judge concluded, at paragraph 146 of his judgment:- “. . . No reasonable person looking at the relevant facts and circumstances of the particular case would think that there was a real sensible possibility that the Claimant had any private interests, or, if she did, that she was preferring them to her duty to NRPSI. At no time before the grant of the Licence had anyone suggested that no Licence should be granted to CINTRA, whether for the reasons advanced subsequently by the Defendant and others, or for any other reason. At the time of the events in question there was no reason why the Claimant should have opposed the grant of a Licence to CINTRA.”[32]The email was sent to a recipient list of many hundreds, at least nine hundred, prepared specially for the purpose of sending the campaign emails. They fell broadly into three classes:- 1) Those who were entitled to vote on the forthcoming AGM motion of no confidence for the reason that they were all members of the CIOL with the right to vote; and/or 2) Those who worked as interpreters in the criminal justice system and were affected by the issues underlying the motion of no confidence; and/or 3) Those who were members of professional associations directly affected by the award of a regional monopoly to an outsourcing agency which competed with their association. A large proportion of the recipients were also members [that is, registrants] of the NRPSI, the organisation which the underlying subject matter of the vote of no confidence was concerned with. These categories included the three hundred members of the NRPSI action group and some unidentifiable persons connected with the interpreting and translating professions.

A novel allegation?

The judge found at paragraph 197 that:

[33]- “A review of the material before the court discloses that the charge complained of in the 7 May 2007 e-mail was made for the first time in that e-mail. It had not previously been advanced. It had not been inquired into by the Defendant or by anyone else. The Claimant had not been told of the charge and had not had an opportunity of meeting it.”[34]Mr Tomlinson complains that the finding of novelty was unjustified. He says that the judge’s handling of this aspect in his judgment was perfunctory and in particular he is critical of the judge’s reliance upon a summary he had made of a number of the “contextual” emails in an interlocutory judgment given on 12 July 2010, [2010] EWHC 2084 (QB) at paragraphs 26-50. By that interlocutory judgment the judge dismissed the Defendant’s application to strike out the claim on the basis that the words complained of do not bear the meaning contended for by the Claimant or any defamatory meaning.[35]There is nothing at all in this complaint. Mr Tomlinson submitted that the essential allegations contained in the email had previously been referred to in communications to the same recipients drafted by the Appellant and Dr Windle, and in particular he relied upon the Motion of No Confidence itself and upon emails sent on 3 April and 29 April 2007. As I have already observed the real sting of the libel is that the Claimant abused her position, acting on a conflict of interest by being instrumental in, “overseeing” in the agreed meaning, the sale of NRPSI members’ data for her personal benefit, preferring her own private interests to her duty owed to NRPSI members. The Motion makes no reference either to abuse of position or to the pursuit of personal private benefit. The email of 3 April 2007 set out the text of two letters written by the Appellant to Dr Mitchell, President of the CIOL, and copied to the Privy Council Office. The second letter alleged that Ms Glegg had had a conflict of interest when the licence was granted to CINTRA because she then sat on the Board of both companies. The letter alleged that the Claimant was “one of the directors involved in the illegal sale of data”, by which was meant a sale without the knowledge and consent of the NRPSI registrants in breach of the first principle of the Data Protection Act. The email of 29 April 2007 is similarly unhelpful to Mr Tomlinson’s argument. There are only two relevant references therein to the Claimant. They are in the following terms:- “3. ALLOWING CINTRA TO USE THEIR NAMES The name of NRPSI Board Director, Janet Cambridge, appeared in CINTA’s Training Manual in May 2005, the time of the East Midlands contract. Any connection with CINTRA or any other company which causes registrants a financial detriment, constitutes a conflict of interest. . . . 5. REPRESENTATION ON THE BOARD OF NRPSI Of the six individuals currently sitting on the Board of NRPSI, only one relies on interpreting as the only source of income. None of them has been elected to the board by members of the NRPSI, as is normal in all professions with their register. We do not accept that former CINTRA trainer, Ms Cambridge, represents the interests of the profession since her actions have been detrimental to the profession and she has not been elected by interpreters listed on the NRPSI.” Manifestly there is there no reference to abuse of position for personal benefit in preference to the duty owed to NRPSI registrants.[36]The short point is that in the Motion of No Confidence the allegation against the Claimant was that she allowed CINTRA to use her name in order to obtain the East Midlands police contract. On 27 March 2007 in a letter to the Privy Council (see judgment paragraph 194) the Appellant also said, by implication, that at the time of the grant of the licence the Claimant worked as a trainer for CINTRA. No new information came to the attention of the Appellant between his sending those messages and his sending the email of 7 May 2007. That email represented not just a sharp escalation in the seriousness of the allegations made against the Claimant but a step change therein. Abuse of position for personal gain at the expense of those whose interests it was the Claimant’s duty to protect is an allegation of an altogether different order from anything that had gone before. The publishees were fellow members of the Claimant’s profession. As the judge observed, a professional person’s reputation amongst colleagues is one of the most important considerations for such a person. In my view the judge’s characterisation of the email as making a novel allegation was entirely justified.

Qualified privilege

[37]It was common ground at trial that publication of the words complained of to those who were entitled to vote at the AGM at which the Motion of No Confidence was to be moved, namely members of the CIOL, was on an occasion of qualified privilege. The argument therefore revolved around those who fell into the second and third categories identified above. The Appellant’s case essentially was that either he and the other recipients had a common and legitimate interest in the material as interpreters working in the public sector or alternatively that he and the recipients had a reciprocal duty and interest in communicating and receiving the material respectively, again derived from their shared status as interpreters working in the public sector.[38]The judge directed himself by reference to passages in the leading text books. Thus he cited the following passages from Duncan and Neill on Defamation, 3rd Edition:- 16.05 The test to be applied in every case may therefore be stated as follows: having regard to the subject matter of the communication, did the publisher have a duty or interest to make it and the publishee(s) a corresponding interest or duty to receive it? It is to be noted, however, that in some recent cases the court has had regard to some countervailing duty on the defendant to refrain from publication. . . . 16.12 With one exception, the duties and interests which found an occasion of qualified privilege must exist in fact. This is an objective question, and it is not sufficient that the person who makes the defamatory communication honestly believes that he has a legitimate duty or interest to make it or his audience to receive it. Thus in Adam v Ward, Lord Atkinson said:- “While on the question of malice the bona fide belief of the defendant that he was under a moral or social duty to make the communication is relevant and important, the existence, in fact, of this duty or interest, not merely the defendant’s belief in its existence, is the thing which is relevant to the question whether the occasion was or was not privileged.” In assessing whether the objective test has been satisfied in any particular case the court may have regard to the relationship between the publisher and the recipient or recipients of the publication. If the relationship is a pre-existing one it may often be easy for the defendant to satisfy the test. If, however, there is no existing relationship between the parties prior to the publication, the defendant may be required to plead and prove additional facts, including in some cases the result of inquiries he had made, to show that in the circumstances the publication is protected.” The judge referred also to the discussion in Gatley on Libel and Slander, 11th Edition, noting that at paragraph 14.9 the editors cite a passage in Watts v Times Newspapers Limited [1997] QB 650, 660 where Hirst LJ said:- “Where the court has to consider whether a particular occasion is privileged, it is necessary to take into account ‘every circumstance associated with the origin and publication of the defamatory matter, in order to ascertain whether the necessary conditions are satisfied by which alone protection can be obtained’: London Association for Protection of Trade v. Greenlands Ltd. [1916] 2 A.C. 15, 23, per Lord Buckmaster L.C.” “While on the question of malice the bona fide belief of the defendant that he was under a moral or social duty to make the communication is relevant and important, the existence, in fact, of this duty or interest, not merely the defendant’s belief in its existence, is the thing which is relevant to the question whether the occasion was or was not privileged.” In assessing whether the objective test has been satisfied in any particular case the court may have regard to the relationship between the publisher and the recipient or recipients of the publication. If the relationship is a pre-existing one it may often be easy for the defendant to satisfy the test. If, however, there is no existing relationship between the parties prior to the publication, the defendant may be required to plead and prove additional facts, including in some cases the result of inquiries he had made, to show that in the circumstances the publication is protected.”[39]The footnote to the last sentence in paragraph 16.12 of Duncan and Neill refers primarily to two authorities, Kearns v General Council of the Bar [2003] EWCA Civ 331, [2003] 1WLR 1557 and Downtex plc v Flatley [2003] EWCA Civ 1282. I shall return to Kearns in due course. In the latter case, Downtex, Potter LJ, with whom Chadwick LJ and Cresswell J agreed, regarded Kearns as authority for the proposition, which he thought plainly right, that qualified privilege is more easily established in a case where the communicator and communicatee have a pre-existing relationship than where that is not so – see at paragraph 28 of his judgment. Here it was accepted that the Appellant had no pre-existing relationship with any publishees other than those entitled to vote at the AGM. In such a situation, Downtex also stands as authority in my view for the proposition that it will usually be necessary to examine by factual enquiry all the circumstances surrounding the publication complained of before coming to a conclusion on the question whether the occasion attracts qualified privilege. Again, Potter LJ, with whom the other members of the court agreed, regarded Kearns as authority for this proposition and saw in Komarek v Ramco Energy [2002] EWHC 2501 (QB) an example of its application. There a company in business in Prague had sent a document defamatory of the claimants with whom they were in a business relationship to the British Ambassador in Prague and asked for his assistance. Eady J observed, at paragraph 46:- “Mr Moloney drew an analogy with the recent case of Kearns v General Council of the Bar [2002] EWHC 1681 (QB). That too was primarily a common interest case, but it turned upon the well established relationship between the Bar Council and members of the Bar and communications between them on the subject of professional rules and standards. The issue was not fact-sensitive, therefore, in the sense that it would become necessary to investigate the particular circumstances surrounding each individual publication. Here, by contrast, the common and corresponding interest contended for is not, so to speak, “off the peg” and is being tailored to the individual circumstances and people involved. There is more room therefore for factual enquiry at trial before it can be finally determined that the common interest alleged would be classified as “legitimate” by the law of defamation. I am far from saying that all communications between British citizens abroad and local embassy staff would require close scrutiny. It would, for example, be obvious that a communication between a traveller and the British consul about a lost passport would attract such privilege. Here I am prepared to accept that the situation is not so clear cut.”[40]In this regard the judge noted at paragraph 158 of his judgment, after observing that the question for decision arose only in relation to those with whom the Appellant had no pre-existing relationship:- “Nor does the Defendant rely on any other facts than those already stated. He does not, for example, rely on any contention to the effect that he or anyone else had made any inquiries as to whether the allegation complained of was true, or whether there were any grounds to believe that it was true.” It is important to note, as the judge recorded at paragraph 157 of his judgment, that Mr Tomlinson did not submit that the Appellant had a pre-existing relationship with any publishees other than those entitled to vote at the AGM of the CIOL.[41]It followed therefore that the qualified privilege here alleged was said to spring essentially from a consideration of the content of the publication and the circumstance that it concerned the provision of interpretation in the public service, both the publisher and the publishees being concerned in that important enterprise.[42]The judge also referred at paragraph 159 of his judgment to a line of authority “in support of the proposition that where a defendant volunteers charges against a claimant which may injure that claimant’s rights, then, until that claimant has been told of the charges and has had an opportunity of meeting them, the communication ought to be confined in the first instance to those whose duty it is to investigate the charges: Purcell v Sowler [1877] 2 CPD 215, 218, 221; De Buse v McCarthy [1942] 1 KB 156, 164-166, 169.” Mr Tomlinson submits that that line of authority should be regarded as concerned only with publication to the world at large – Purcell v Sowler was a newspaper case and De Buse v McCarthy concerned notices posted on or near the door of the town hall and in public libraries throughout the borough affected. If that was not quite what would now be regarded as Reynolds territory it was, as he put it, proto-Reynolds territory.[43]The judge concluded that it was in the circumstances immaterial that there was probably incidental publication to a small number of persons who on no showing had the necessary interest in receiving the communication. No point now arises on this.[44]The judge’s overall conclusion was however that publication to those in categories 2 and 3 as identified above was not shown to be on an occasion of qualified privilege. He expressed his conclusions in this way:- “198. In all the circumstances, there was in my judgment no duty on the part of the Defendant to publish the charge which the Claimant complains of to those who did not have a right to vote at the AGM, and such people had no interest in receiving that publication. It was simply an accusation made by the Claimant and Dr Windle, without any proper factual basis, and without any inquiry and without giving the Claimant the opportunity to rebut it. 199. There is a comparison to be made between the allegation in the e-mail of 7 May about the breach of the Data Protection Act, which the Claimant does not complain of, and the allegation about preferring her private interests, which she does complain of. In his submissions Mr Tomlinson couples them together saying:
“As a member of CIOL, an NRPSI registrant and a PSI, the Defendant had a moral and social duty to report policy failures which were underpinned by breaches of data protection and company law and conflicts of interest…” 200. The fallacy in this submission is that the charge of a breach of the data protection law stands on a wholly different footing from the charge of breach of company law and conflicts of interest. The breach of the first data protection principle had been investigated by the ICO, which is the statutory body responsible for such investigating such allegations, and the ICO had found a breach to have been established. If the Claimant had complained of that part of the e-mail of 7 May, it may well be that different considerations would have applied. But she did not sue on that, as was her right. And I reach no view on that. But I mention it to demonstrate the fallacy in Mr Tomlinson’s submission. 201. If the charge that the Claimant abused her position by preferring her private interests to her duties as a director had been found to be established by an appropriate investigating body, then I would have reached a different conclusion in relation to the charge the Claimant does complain of. I would have held that the Defendant and the persons on the Defendant’s list, selected as he describes in his witness statements, did have the required reciprocal interests. The registrants were not required to be members of CIOL. But if a director responsible for the Register was abusing her position by preferring her private interests, then in my judgment that would have been of legitimate interest to those interpreters who might consider being registrants, as well as those who actually were registrants. It would have been of interest to interpreters who practised in the public service. It would have had a potential financial impact upon all of them.” “As a member of CIOL, an NRPSI registrant and a PSI, the Defendant had a moral and social duty to report policy failures which were underpinned by breaches of data protection and company law and conflicts of interest…”
[45]It is paragraph 201 of the judgment of which Mr Tomlinson is critical as demonstrating, in his submission, that the judge had wrongly adopted an approach which had regard to the quality of the publication. In particular, he submitted, in no case other than those governed by Reynolds principles had the quality of the publication been used “to remove the privilege”. In no case outside the Reynolds area of media publication to the world at large had it been held that an absence of verification of the allegation is relevant to the existence of traditional common law qualified privilege. Furthermore, in no case had it previously been held, he submitted, that qualified privilege would attach to a publication if the defamatory allegation therein had first been verified. The judge had, he suggested, overlooked the vital point that qualified privilege is only needed where an allegation is in fact untrue and that the traditional common law privilege arises out of the relationship between the parties by whom the communication is sent and received rather than out of the quality of the information imparted. In this regard he relied heavily upon the following passage from the judgment of the Lord Justice Clerk (Aitchison) in Hines v Davidson, 1935 S.C. 30 at 37, cited at paragraph 16.14 of Duncan and Neill:- “The privilege arises not from the truth of the words complained of or the knowledge of their truth, but from the relationship in which the party making the allegation stands to the party to whom the allegation is made, and from the whole circumstances in which the allegation comes to be made. If the communication relates to a matter which the person making it would be justified in communicating, if it were true, to the person to whom the communication is made, in virtue either of an interest or of a duty, legal or moral, the occasion is deemed to be privileged and the privilege is not displaced by an averment that the communication was in fact untrue and known to be untrue.” By the same token, submitted Mr Tomlinson, Hirst LJ in the passage cited above from Watts was not to be taken as including within “every circumstance associated with the origin and publication of the defamatory matter” circumstances relating to its reliability.[46]I do not consider that the judge fell into error in his approach to the question of qualified privilege. The starting point of the discussion should in my view now be that part of Lord Nicholls’ speech in Reynolds, Reynolds v Times Newspapers Ltd [2001] 2 AC 127, in which he discussed common form situations falling short of publication to the world at large to which the common law has traditionally attached qualified privilege. Thus at page 195 he said this:- “The requirement that both the maker of the statement and the recipient must have an interest or duty draws attention to the need to have regard to the position of both parties when deciding whether an occasion is privileged. But this should not be allowed to obscure the rationale of the underlying public interest on which privilege is founded. The essence of this defence lies in the law’s recognition of the need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source. That is the end the law is concerned to attain. The protection afforded to the maker of the statement is the means by which the law seeks to achieve that end. Thus the court has to assess whether in the public interest, the publication should be protected in the absence of malice. In determining whether an occasion is regarded as privileged the court has regard to all the circumstances: see, for example, the explicit statement of Lord Buckmaster LC in London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15, 23 (“every circumstance associated with the origin and publication of the defamatory matter”). And circumstances must be viewed with today’s eyes. The circumstances in which the public interest requires a communication to be protected in the absence of malice depend upon current social conditions. The requirements at the close of the twentieth century may not be the same as those of earlier centuries or earlier decades of this century.”[47]As already adumbrated above, Kearns was a case where, as a result of unverified information received from a member of the Bar, the Bar Council, the governing body of the Bar, mistakenly believed that the claimant firm, Kearns, which had been instructing counsel, was not in fact a firm of solicitors entitled so to act and it promptly wrote to members of the Bar so to inform them, without undertaking any independent attempt to verify the information which it had received. Kearns was in fact a firm of solicitors entitled to instruct counsel. It sued for libel, but Eady J dismissed the claim, entering summary judgment for the Bar Council on the basis that the letter was written on an occasion of qualified privilege. Kearns appealed to the Court of Appeal. Its argument was that qualified privilege could not attach where there had been no attempt by the publisher to verify the allegation made. Simon Brown LJ in his judgment in Kearns also adverted to the passage in the speech of Lord Buckmaster which had been cited by Hirst LJ in Watts and by Lord Nicholls in Reynolds. Ironically in Kearns that passage was relied upon by a claimant for the proposition that qualified privilege could never attach unless the publisher had taken steps to enquire into and to attempt to verify the defamatory communication. If that were right it would follow that the concession here to the effect that publication to those entitled to vote at the AGM was on an occasion of qualified privilege was wrongly made. At paragraph 34 of his judgment Simon Brown LJ said:- “. . . All that Lord Buckmaster was saying was that every circumstance has to be considered which bears on the question whether the necessary conditions for invoking privilege are satisfied. Where the communication is made within an established relationship and is relevant to it, the necessary conditions are satisfied. Lord Buckmaster was certainly not suggesting that verification is a relevant consideration in all qualified privilege cases; indeed, he was in part emphasising the importance of keeping distinct matters going to malice and those going to the existence of the privilege. . ”[48]In an earlier passage in his judgment Simon Brown LJ had explained the significance in this context of identifying an established relationship. Thus at paragraph 30 he said this:- “The argument, as it seems to me, has been much bedevilled by the use of the terms “common interest” and “duty-interest” for all the world as if these are clear-cut categories and any particular case is instantly recognisable as falling within one or other of them. It also seems to me surprising and unsatisfactory that privilege should be thought to attach more readily to communications made in the service of one’s own interests than in the discharge of a duty - as at first blush this distinction would suggest. To my mind an altogether more helpful categorisation is to be found by distinguishing between on the one hand cases where the communicator and the communicatee are in an existing and established relationship (irrespective of whether within that relationship the communications between them relate to reciprocal interests or reciprocal duties or a mixture of both) and on the other hand cases where no such relationship has been established and the communication is between strangers (or at any rate is volunteered otherwise than by reference to their relationship). This distinction I can readily understand and it seems to me no less supportable on the authorities than that for which Mr Caldecott contends. Once the distinction is made in this way, moreover, it becomes to my mind understandable that the law should attach privilege more readily to communications within an existing relationship than to those between strangers. . . ”[49]In this regard Simon Brown LJ also cited the following passage from the judgment of Eady J at first instance in Kearns:- “. . . Mr Price asks rhetorically why should one evaluate the quality of information for a social or moral duty case, as in Reynolds or Stuart -v- Bell for example, but not in cases of a common and corresponding interest? The answer to that question is, it seems to me, that it has long been the policy of the law to protect persons in certain kinds of relationship with one another, and indeed to encourage in such cases free and frank communications in what is perceived to be the general interest of society. In those cases, one does not need to assess the interest of society afresh in each case. We all need to know where we stand. In this area the law was thought to be settled, on the basis that the balance would fairly be struck if liability in such situations was confined to those cases where the occasion of communication was abused - in the sense that malice could be established. Nothing short of malice would undermine the law’s protection.” Subject only to his own preference, shared by the other members of the court, for a distinction between cases depending on whether they do or do not involve an existing relationship rather than a distinction between common interest cases and those involving duty-interest, Simon Brown LJ agreed with Eady J’s approach. Mantell and Keene LJJ agreed with the judgment of Simon Brown LJ[50]Where then in the present case was the need in the public interest for those not entitled to vote at the AGM to receive the Appellant’s email of 7 May 2007 in which he made an allegation concerning the Claimant’s personal integrity in the discharge of her office which he had made no attempt to investigate or to verify? The reason for sending the email was said to be to garner votes for the motion of no confidence in the Claimant and the other directors of NRPSI. As Mr Bennett pointed out, that in itself militates against there being any need for receipt in those not entitled to vote. The fact that many of the recipients were, like the Appellant, registrants of the NRPSI, is insufficient. They were not entitled to vote and they did not need to receive the Appellant’s views. That is no doubt why the shared membership of NRPSI was not alleged to give rise to a relevant pre-existing relationship. As Simon Brown LJ pointed out at paragraph 34 of his judgment in Kearns, the necessary conditions for invoking qualified privilege are satisfied when the communication is made within an established relationship and (my emphasis) is relevant to it. The Appellant pointed to no circumstances militating in favour of such a need in the public interest for receipt save that all the recipients were interpreters in the public service. That might, as Mr Bennett pointed out, have justified communications concerning the topic of bulk contracts in the sector, but the words here complained of allege abuse of position as an office-holder. The fact that the contextual background is bulk contracts such as that entered into between CINTRA and the East Midlands police is surely not of itself sufficient to demonstrate a shared concern about the Claimant’s integrity as the holder of an office at NRPSI nominated by CIOL. The documents relied upon by the Appellant did not make good his allegation and the Appellant had, in my judgment, pointed to nothing which could properly have prompted him to make the allegation which he did. He had no legal, social or moral duty to pass on to persons outside the confines of those entitled to vote on the motion his own unjustified views as to the Claimant’s personal integrity in the discharge of her office. The simple fact that the other recipients happened also to be public service interpreters created no necessity in the public interest that they should be able to receive such a communication provided only that it was not actuated by malice. In my view that is the conclusion which the judge expressed rather more economically at paragraph 198 of his judgment. It is not unusual for those who are very familiar with a certain area of the law or other discipline to express their conclusions with a succinctness which presupposes the same level of familiarity in the reader. The Appellant’s argument failed before the judge for the essential and simple reason that the libel concerned abuse of office, not contracting arrangements or rates of pay in public service interpreting.[51]If paragraph 198 of the judgment had stood alone Mr Tomlinson’s appeal on qualified privilege would, in my view, have been simply unarguable. It is paragraph 201 upon which he relies as demonstrating that the judge had fallen into error. However it is important to see the context in which paragraph 201 was written. The judge noted that Mr Tomlinson had sought to couple together two charges of a wholly different nature. The charge relating to data protection reported a published finding by the statutory body responsible for investigating such allegations, whereas the charge of abuse of position reported the Appellant’s (and Dr Windle’s) unresearched and unverified private opinion. The judge did not say that absence of verification by the Appellant or an absence of an attempt on his part to verify necessarily involved that the defence of qualified privilege must fail. Nor did the judge say that had the Appellant made an attempt to verify his allegation that would have ensured the success of his qualified privilege defence. What he did say was that a report of the outcome of an investigation by an appropriate investigating body to the effect that the Claimant had abused her office would have attracted qualified privilege if sent to interpreters practising in the public service.[52]I do not consider that in giving that indication the judge was saying anything controversial or unorthodox. It seems to me that the judge’s approach is consistent with that of this court in Kearns. In Kearns, as I have already observed, the argument which the court rejected was to the effect that qualified privilege could never attach, even within an established relationship, unless there had been an attempt at verification. Here the argument is rather that the judge was wrong to deny qualified privilege because there had been no attempt to verify. As I have already pointed out that is not in fact what the judge did. But Kearns is at least persuasive authority, even if strictly it did not decide, that outside the confines of an established relationship such as that between members of the Bar and the Bar Council, which plainly requires the flow of free and frank communications in both directions on all questions relevant to the discharge of the Bar Council’s functions, the question whether there has been an adequate investigation of the allegation may be relevant as one of the circumstances associated with the origin and publication of the defamatory matter which bears on the question whether the public interest requires its publication to be protected absent malice. One cannot be prescriptive because “the law of qualified privilege deals with so many situations in which a balance has to be struck between protection of reputation and freedom of speech that it would be idle to hope for it to be reduced to a set of simple mechanical rules” – see Gatley, paragraph 14.3. But given the width of the spectrum between an established relationship where “everyone must know where they stand” and the Reynolds territory of media publication to the world at large, it would be illogical to rule out of consideration as a relevant factor the nature of any attempt at verification or its absence. It would also, in my view, be contrary to the learning binding on this court, as set out in the judgment of Simon Brown LJ in Kearns. In that regard I would finally refer also, as did Simon Brown LJ, to Watt v Longsdon [1930] 1 KB 130. There, as here, albeit in a very different context, Scrutton LJ had to deal with publication both to someone with whom the publisher had an existing relationship as a fellow director of a company and to someone with whom the publisher had no pre-existing relationship, the company chairman’s wife. Dealing with publication to the latter, Scrutton LJ said at pages 149-150:- “The communication to Mrs Watts stands on a different footing. I have no intention of writing an exhaustive treatise on the circumstances when a stranger or a friend should communicate to husband or wife information he receives as to the conduct of the other party to the marriage. I am clear that it is impossible to say he is always under a moral or social duty to do so; it is equally impossible to say he is never under such a duty. It must depend on the circumstances of each case, the nature of the information and the relation of speaker and recipient.”

Malice

[53]I turn finally to malice. The judge directed himself by reference to the classic statement of the law by Diplock LJ in Horrocks v Lowe [1975] AC 135 at 150:- “. . . . what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, "honest belief." If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be "honest," that is, a positive belief that the conclusions they have reached are true. The law demands no more.”[54]The judge accepted that the Appellant held no personal ill-will towards the Claimant and that his campaign to have her removed from the Board was with a view to furthering his own policies and to prevent the implementation of her policies for NRPSI.[55]The judge also recorded that the Appellant is a highly intelligent and educated man. He has a Ph.D awarded by Cambridge University and has held a professorial chair at the Universidad del Belgrano, Buenos Aires. In 2001 he also became an associate of Cambridge University Latin American Faculty. He gave his evidence with great confidence, firmness and persuasiveness. Yet the judge disbelieved his evidence. Mr Tomlinson submits that he was wrong to do so.[56]I have already dealt with Mr Tomlinson’s suggestion that the judge’s finding was informed by his incorrect view that the allegation made in the 7 May email was novel. The judge was quite right so to regard it. For essentially the same reasons there is in my view nothing in the complaint that the judge should not have found that the failure to make enquiries was a basis for inferring malice. It is true that the Appellant said that he had been frustrated by the stonewalling that had gone on for two years. The enquiries which the Appellant had directed to the IOL/CIOL, which he said had been met by stonewalling, did not relate to alleged abuse of office. They were concerned with conflict of interest, particularly on the part of Ms Glegg. As the allegation of consciously acting on a conflict of interest was novel, so by definition there had been no enquiry and no stonewalling in relation thereto.[57]Equally there is in my view nothing in the point that the email of 7 May 2007 was in fact drafted by Dr Windle. It was the Appellant’s evidence that he had checked the email and satisfied himself that the contents were true and that he was content to send it. He described himself as the co-author and he did not suggest that he was no more than a mere conduit for passing on Dr Windle’s views. In these circumstances I do not understand the complaint, which appears not to have been made at the trial, that the judge should not have made a finding that the Appellant did not believe the allegation complained of to be true in the absence of any cross-examination of Dr Windle as to her belief. Dr Windle gave oral evidence at the trial as to her belief in the truth of the allegation. She was not cross-examined on that evidence. I am not surprised. Dr Windle was not a defendant and her evidence on this issue was irrelevant save to the extent that the Appellant was of course entitled to rely upon the circumstance that she believed the allegation to be true. The question however was whether he believed it to be true.[58]On this issue it is important to bear in mind that an essential element in the allegation was that the documents referred to in the email bore it out. The Appellant’s evidence was to the effect that he had carefully satisfied himself that the allegation was true. His evidence therefore necessarily imports that he had studied the documents in order to satisfy himself that they bore out the allegation. Indeed he said in terms that he had read the documents. But as a highly intelligent man he cannot have believed that the documents bore out the charge of abuse of office by the Claimant because they do not come within hailing distance of so doing. Indeed, when pressed with the documents in cross-examination the Appellant accepted that as at 24 March 2007 all he could surmise from them was that the Claimant was listed by CINTRA as a trainer. He learned nothing different thereafter.[59]However confident, firm and persuasive the Appellant may have been in the witness box the judge was entitled to find his evidence unimpressive. His suggestion that the content of the Training Manual and the Delivery Plan imposed upon the Claimant a duty to issue a correction or alteration, without which she could have been taken to have given her consent or assent to whatever was written about her, was particularly unimpressive, and was relevant to and supportive of the judge’s finding of recklessness. In my view the judge would also have been entitled to describe the Appellant’s evidence as in important part evasive, particularly with regard to the shortcomings in the documents as a source of evidence of abuse of office. In my judgment the Appellant’s evidence read as a whole shows a clear reluctance to engage with the fact that the email of 7 May makes an allegation of an altogether different kind from anything that had gone before and the reality that he had, since formulating his earlier allegations, received no new material or information which would justify that escalation of the seriousness of the charge.[60]Mr Tomlinson complains that the judge was inconsistent in accepting on the one hand that the Appellant was campaigning to further his policies and finding on the other hand that his evidence that the email of 7 May was criticising policies was not frank. But that criticism, with respect, misses the judge’s point, which is essentially the same as that which I have just made. As the judge observed, the email of 7 May “obviously crosses the line from a debate about policies to a personal charge”. There is no inconsistency in, on the one hand, the judge’s approach to the campaign up to that point and, on the other hand, his refusal to accept that the Appellant honestly believed that the email of 7 May was more of the same.[61]The judge gave careful consideration to the question whether the untrue statement about the Claimant could be attributable simply to carelessness, impulsiveness or irrationality. Although not discussed in argument on the appeal, one should not in my judgment overlook the judge’s reference, at paragraph 213 of his judgment, to the Appellant’s evidence to the effect that the email of 7 May was sent in order to maintain rhythm in the campaign. In fact the transcript of evidence, of which the judge did not have the benefit, shows that the Appellant’s full answer was that “we tried to maintain a rhythm so as to sustain interest . . .”. In my judgment that answer is of particular importance to the judge’s evaluation, and that is no doubt why he highlighted it as he did. It ties in with the judge’s observation that if the Appellant honestly believed what was contained in the email of 7 May 2007, there is no reason why he should not have written and circulated it earlier. The judge plainly acceded to the submission that, as the date of the AGM approached, and as he found himself, as he thought, faced by desperate attempts by the CIOL to avoid the motion being considered, so the Appellant lost any remaining sense of propriety and lost any restraint of scrupulous honesty in his determination to achieve his ends.[62]We were naturally reminded of the need for appellate caution before reversing a judge’s evaluation of the facts – see the well-known passage in the speech of Lord Hoffmann in Biogen Inc v Medeva plc [1997] RPC 1 at page 45. Lord Hoffmann’s warning as to the inexactly expressed impressions which necessarily surround and support a judge’s findings is, I think, particularly apposite in a case of this sort where the judge had the benefit of assessing at first hand the dynamics of an emotionally charged situation. However my conclusion is not simply that the judge’s conclusion should be upheld because he was well-placed to reach it. In my judgment there was plainly material upon the basis of which the judge could conclude that the Appellant simply threw caution to the winds. There was in my view ample material upon the basis of which the judge could conclude that the email of 7 May obviously crossed the line from a debate about policies to a personal charge and that the Appellant so realised at the time. There is no basis upon which the Appellant could have believed this new and unheralded allegation to be true. He did not reach a careless, impulsive or irrational conclusion simply as a result of a flawed process of reasoning. He reached no conclusion that it was true. He was content to put forward the allegation whether it was true or not in order to sustain interest in the campaign. The judge expressed his conclusions in these succinct words:- “. . . The Defendant did not believe the allegation complained of to be true. He did not care whether it was true or false.”[63]There was some discussion before us whether in this context indifference to the truth is the touchstone or whether the necessary concept is better expressed as wilful blindness. If those are two different concepts the distinction is in my judgment of no consequence in this case. The Appellant’s conduct can properly be characterised as wilful blindness. He had in his hands the documents upon which he relied as substantiating his charge and he closed his eyes to that which had been obvious to him two months earlier, that they did no such thing.[64]I would dismiss this appeal.[65]I agree.[66]I also agree.