Underhill v Corser & Anor [2010] EWHC 1195 (QB)

[2010] EWHC 1195 (QB)

Case No TLJ/09/1291

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 27/05/2010

Before

MR JUSTICE TUGENDHAT

Between

Stephen UnderhillClaimant

(1) Richard CorserDefendants

(2) Timothy WatsonDefendant

Mr Stephen Suttle QC (instructed by Taylor Hampton) for Claimant

Mr David Price (of David Price Solicitors & Advocates) for Defendants

Hearing Hearing dates: 10, 11, 12, 13 May 2010

Judgment

[1]The Claimant sues for libel on the Editorial (“the Editorial”) written by the Second Defendant (“Mr Watson”) and published in the magazine “King’s Messenger” (“KM”) dated Autumn 2007. KM is the magazine of the 6024 Preservation Society Limited (“the Society”). The Society is a charity. Its objects are to exhibit for the advancement of the education of the public locomotive ex-Great Western Railway King Class 6024 King Edward I (“the locomotive”), and other items of equipment literature and documents of a Great Western Railway origin, and to pursue other related objects, including the publication of KM. The parties to this action are all members of the Society.

[2]On 3 November 2009 I ordered the trial by judge alone of the following questions as preliminary issues: i) Save as admitted by the Defendants, whether publication of the words pleaded in paragraph 3 of the Amended Particulars of Claim took place in any and if so which of the ways pleaded in paragraph 4(1)-(3) of the Amended Particulars of Claim; and the extent of any such publication (“the issue of publication”). ii) Whether any, and if so which, of the publications complained of that are admitted or proved took place on an occasion of qualified privilege (“the issue of qualified privilege”). iii) Whether the First Defendant is responsible in law for any of the publications complained of that are admitted or proved; and if so which (“the responsibility issue”).

[3]There is no dispute that the Editorial was written by Mr Watson. So far as Mr Corser is concerned, the first issue in the action is whether he bears responsibility in law for the publication (issue (iii) above). The issues of publication and qualified privilege (issue (i) and (ii) above) are the same for both Defendants.

[4]The issues as to publication and qualified privilege have been considerably narrowed, and now relate only to publications which are now admitted to have been made by the distribution of KM to 16 individuals who were not members of the Society. They were on the “non-members mailing list”. In the light of recent witness statements for the Defendants, the Claimant has abandoned a claim for publication by hard copy to non-members other than the 16 on the non-members mailing list. He has also abandoned a claim that online publication of the Editorial was made to non-members.

[5]Mr Watson admits that he published the Editorial to the members, both in hard copy and online. The Claimant admits that those publications were on occasions of qualified privilege, but have pleaded that this defence is defeated by malice. This hearing is not concerned with publications to members.

[6]In addition to the Editorial, the Claimant also sues Mr Watson (but not Mr Corser) on three letters dated respectively 3 October and 12 December 2007 and 27 February 2008. All of these are addressed to a Mr Lugg who is a member of the Society. It is accepted that these were made on occasions of qualified privilege, which the Claimant contends is also defeated by malice. This hearing is not concerned with publications to Mr Lugg, except indirectly, to the extent that those are relevant to the issues that do arise.

[7]The Claimant was, until his resignation on or about 3 October 2007, the Chairman and Engineering Manager of the Society. He had been involved with Society for some 30 years. The Claimant was elected to his position in 1991 and at each Annual General Meeting until his resignation. He is by trade a boilersmith and fitter.

[8]He was also and at the same time an employee of the Tyseley Locomotive Works (“TLW”). TLW provided engineering services to customers which included the Society. TLW provided some of its services through the Claimant. The fact that the Claimant acted in both of these two capacities gave rise to potential conflicts of interest. The Society was aware of the position, and arrangements were in place with the Claimant and TLW which were designed to ensure that the interests of the Society were properly safeguarded, and that the Rules of the Society and the law relating to charities were complied with. But it is the fact that the Claimant acted in these two capacities which has given rise to the dispute in this action.

[9]The Society is an independent, all volunteer exempt charity regulated by the Financial Services Authority and the Charity Commissioners of England and Wales. It is an incorporated body registered under the Industrial and Provident Society’s Act 1965. At all relevant times there were some 430 members of the Society. The membership subscription was one source of revenue for the Society. A small proportion of the members provided their time on a voluntary basis and without charge for the management of the Society and the operation of the locomotive. The Claimant was one of those who provided many hours of time on a voluntary basis in addition to the time he provided as an employee of TLW.

[10]In 1963 the Society bought the locomotive and restored it from scrap condition back to working order in 1989. The locomotive returned to use in mainlines in 1990 and has continued to operate on Network Rail. The Society earns additional revenue from arranging tours using the locomotive.

[11]The Society is managed by a Management Board whose members are the society’s trustees. Mr Corser was at all material times the Treasurer of the Society and a member of its Management Board (“the Board”). The Society also had a Management Team consisting of persons who were not members of the Board. Mr Watson was at all material times a member of the Management Team with the title of Publications Editor.

[12]Mr Corser is a chartered accountant in his late thirties. He became a member of the Society about sixteen years ago. In 2001 Mr Nagle had stepped down as the Society’s General Manager and Commercial Manager, and Mr Corser took over responsibility for the Society’s financial affairs. In 2002 he became a member of the Board. He became responsible for rail tour planning in October 2004. He is also a Responsible Officer assisting with the running of the locomotive during tours. His work for the Society is entirely voluntary. At all times he was working full time in his professional capacity as an employee.

[13]Mr Watson is retired. He was formerly an architect. He has been a member of the Society for about twenty five years. He became an active volunteer, carrying out basic tasks such as cleaning the locomotive. Since 1996 he has been the Society’s Publicity Officer, and then its Publications Editor. He is responsible for editing and compiling KM. There are usually three issues a year. There are no meetings to discuss its contents: he worked very largely alone, with some help from Richard Abbey. Between December 1998 and April 1999 he was a member of the Board.

[14]Mr Abbey is not a defendant, but he did give evidence. He assisted Mr Watson with the preparation of KM. He is a chartered surveyor by profession. He joined the Society in 1982, became an active member in 1985 and the Membership Secretary in 1989. In 2001 he took over the position of General Manager. I understood that he too was engaged full time in his profession. Another member of the Board is Mr Lines, the Operations Manager. He did not give evidence but is referred to below.

THE WORDS COMPLAINED OF AND THE PARTIES’ CASES

[15]The Autumn 2007 issue of KM consisted of twenty four pages. Of these fifteen pages consisted only or mainly of text and the remainder of photographs. Articles include reports by Mr Abbey, an Engineering Report, a Railtour Review, a piece about the King class locomotives in the 1950s and another about steam locomotives in Poland.

[16]The Editorial covers most of the first page of text. The passages from the Editorial of which the Claimant complains are as follows:

“… Some argue that the Society should turn a blind eye because of Mr Underhill’s role and his time with 6024. We might agree, except for one relevant concern: in understanding the Rules and signing up to the principles, how can a Trustee, for whom we’re told 6024 has been everything, then effectively damage the loco and members by disgracing the Society and knowingly deprive it of funds? The reality is that, leaving aside the loss of our funds and the possible loss of our maintenance facility, this has had a massively detrimental impact on every Member’s interests. It is untenable to ignore the magnitude of this. Furthermore the law is clear and for the Society to condone wrong-doing for pragmatic or personal reasons is indefensible. The plain truth is that we all have an equal stake; this cannot co-exist with anyone believing that they have rights above other members. Despite this major setback we have to adopt “zero-tolerance”

. It is that serious. Members will ask how this could happen. Further investigations may provide answers. In fairness, a Board colleague’s involvement being so markedly at odds with the common interest and values shared with the others is unthinkable. Would it not be a fair assumption that all Board members could trust each other to be above reproach? Do we not expect all - especially Society Trustees – to demonstrate the basic virtues of honesty, openness, mutual trust and respect and personal integrity? It seems these qualities get abandoned early and without warning when someone consciously transgresses…” It seems these qualities get abandoned early and without warning when someone consciously transgresses…”

[17]It is the Claimant’s case that the Editorial accused him of dishonest misappropriation of the Society’s funds. There is some difference between the parties as to what the Editorial means, but it does not affect any issue that arises in this hearing.

[18]The non-members mailing list in the form in which it existed at the time of distribution no longer exists. A form of list dating from Spring 2009 is all that is available. This was disclosed at the trial.

[19]Meanwhile, in the Amended Defence the Defendants identified in Schedule 3 fourteen individuals to whom they say a copy of KM was probably sent. Some of these have given statements but others have not. In respect of some of them it is common ground that they read the words complained of. But in respect of others there is an issue as to whether they read it or not. In respect of some of them there is also an issue as to whether they did in fact receive a copy of KM, as the Defendants allege. The significance of that issue is that if any individual on the list in Schedule 3 did not receive a copy, then to that extent there remains unaccounted for one of the 16 copies which was admittedly sent to a non-member. In so far as the Defendants are able to identify a person who received one of the 16 copies, they can advance a specific case as to why publication to that person was on an occasion of qualified privilege. For those recipients whom the Defendants cannot identify, they advance the general case that no one was put on the non-member’s mailing list unless they had some existing relationship with the Society.

[20]The plea of qualified privilege is in the following terms, so far as material to publication to non-members: “Further or alternatively the Editorial was published on an occasion of qualified privilege … 13.3 As regards any mailing list recipient, the Defendants will rely on the following additional matters:13.3.1 The King’s Messenger is the Society’s definitive publication. It is sent to all members. There are usually three issues a year. The aim is to include in each issue all relevant news and information about the Society and the locomotive within the relevant time period.

13.3.2 As pleaded at paragraph 9.2 above the decision in July 2004 to create a mailing list and for it to be maintained by the Second Defendant was made by the Management Board on the basis that it was in the interest of the Society to send the King’s Messenger to selected non-members and for one person to maintain the list and for that person to be the Second Defendant. It had been the long standing practice of the Society to send the King’s Messenger to selected non-members.

13.3.3 The mailing list recipients of the Issue were all in existing and established relationships with the Society, other than Peter Kerslake, and the Issue was sent to them pursuant to that relationship.

13.3.4 All the recipients had a legitimate interest in receiving the issue and/or it was for the benefit of the Society that they received it and were kept up to date with the Society’s news.

13.3.5 The operation of the list by the Second Defendant was carried out in good faith in accordance with his duties as Publications Editor. 13.4 Further, the subject matter of the Editorial was already in the public domain and was a matter of considerable significance to the Society. The fact and circumstances of the Claimant’s resignation from the Society had been published in a number of specialist steam locomotive magazines. The Claimant had made statements for publication to at least one of these magazines in which he had made accusations of a “witch-hunt” against him and had expressed strong public criticism about the circumstances of his departure… 13.6 In the circumstances, the Second Defendant had a duty to publish or a legitimate interest in publishing the Editorial (as did the First Defendant in so far as he is held to be responsible for its publication) and readers had a corresponding interest in read it or duty to do so. 13.7 In relation to any publishee who did not have an interest or duty, such publication was reasonably incidental to publication to those who did and is equally protected by qualified privilege”.

[21]In the list of fourteen individuals in Schedule 3 to the Amended Defence the interest of five of them is stated to be, or to include, the fact that they were photographers. They had taken photographs which had been published in KM, for the most part in the Autumn 2007 issue, but in some instances also or alternatively in previous issues. Other individuals are identified as having other interests, such as working for tour promoters with whom the Society did business and from whom it earned some of its revenues. It will be necessary to refer to each of these in more detail below.

[22]Although it is of no direct relevance to the issues I have to decide, I record that the Amended Defence also includes a plea of justification with fifty-six sub paragraphs of particulars, and a plea of fair comment. The Reply covers fifty five pages. There are extensive pleas in rebuttal of the plea of justification and pages of particulars of malice. The Claimant’s case in summary is that all hours charged for by TLW in relation to his services were charged for pursuant to arrangements agreed or ratified by the Society.

[23]As to the defence of qualified privilege, the Reply includes the following in relation to non-members:

“12. As to sub-paragraphs 13.3 – 13.6 of the Defence (in respect of publication of the Editorial to non-members): 1) It is admitted that the circumstances of the Claimant’s resignation were discussed in articles in the magazines Railway Herald, Steam Railway, and Heritage Railway. No admissions are made as to whether such articles are likely to have been read by non-members of the Society. These articles were however, published in consequence of allegations (which were themselves false and defamatory) made by the First Defendant to Steam Railway on 24 October 2007 and of a press statement (again in false and defamatory terms) which was subsequently issued by the Society and the Defendants on 31 October 2007 and to which the Claimant legitimately responded by saying that it amounted to a ‘witch-hunt’ against him. A further false and defamatory press statement was issued by the Society and the Defendants on 19th November 2007. These matters did not give either the Defendants or the Society itself any legitimate interest in publishing the Editorial to non-members let alone any duty to do so; nor did they give non-members (whether or not they were locomotive enthusiasts) any legitimate interest (let alone any reciprocal interest) in the Editorial, its subject matter or contents. 2) The Editorial was not in any event directed to members of the public, as is clear from the text 3) Sub-paragraphs 13.5 and 13.6 of the defence is denied”

THE LAW ON RESPONSIBILITY FOR PUBLICATION

[24]Mr Corser was originally joined as a Defendant by virtue of his membership of the Board. Mr Suttle accepted at trial that that of itself was not a sufficient basis for holding him liable. But he was also joined on the basis that the court should infer (and the Claimant explained that he would have expected) that an issue of KM which was to contain something as serious, and as unprecedented, as the Editorial would have been discussed in advance by all of the members of the Board. At trial the case advanced against him depended on information which came to light in response to requests for further information and by disclosure of documents. In response to a request for further information Mr Corser admitted that he was aware of the contents of the Editorial before publication, although he added that he did not approve it.

[25]Mr Suttle’s primary case that Mr Corser is responsible for the publication thus became that, on his own admission, he read a draft of the Editorial in advance, but did nothing to stop its publication. Mr Suttle QC submits that on these facts he must be taken to have consented to or authorised its publication.

[26]Mr Suttle’s alternative case on Mr Corser’s responsibility for publication is his submission as to what I should infer from the documents. He submits that I should infer that Mr Corser did intervene and expressly authorise the publication. Mr Corser’s case is that he did nothing.

[27]The principle governing responsibility for publication of a libel is broad. As summarised by the editors of Duncan & Neil on Defamation 3rd ed para 8.10:

“Every person who knowingly takes part in the publication of defamatory matter is prima facie liable in respect of that publication”

. According to the editors of Gatley on Libel and Slander 11th ed para 6.4: “… liability extends to any person who participated in, secured or authorised the publication (even the printer…)…” subject to what is now the Defamation Act 1996 s.1. Examples are given in para 6.6. Mr Suttle QC relies on the statements in Byrne v Deane

[1937] KB 818

and Bunt v. Tilley

[2006] EWHC 407 (QB)

;

[2007] 1 WLR 1243

[28]The passages in Byrne v Deane

[1937] KB 818

are:

“The two defendants are the lessees of the club and they are the occupiers of the club premises, and the walls are their walls, and in my judgment they allowed a defamatory statement to be put up on their walls and to remain on their walls in a position in which it could be read by anybody who came into the club.... (Greer LJ p829) It is said that as a general proposition where the act of the person alleged to have published a libel has not been any positive act, but has merely been the refraining from doing some act, he cannot be guilty of publication. I am quite unable to accept any such general proposition. It may very well be that in some circumstances a person, by refraining from removing or obliterating the defamatory matter, is not committing any publication at all. In other circumstances he may be doing so. The test it appears to me is this: having regard to all the facts of the case is the proper inference that by not removing the defamatory matter the defendant really made himself responsible for its continued presence in the place where it had been put? (Greene LJ p837-8)”

[29]In Bunt v. Tilley

[2006] EWHC 407 (QB)

;

[2007] 1 WLR 1243

Eady J said: “21 In determining responsibility for publication in the context of the law of defamation, it seems to me to be important to focus on what the person did, or failed to do, in the chain of communication. It is clear that the state of a defendant's knowledge can be an important factor. If a person knowingly permits another to communicate information which is defamatory, when there would be an opportunity to prevent the publication, there would seem to be no reason in principle why liability should not accrue… 22 I have little doubt, however, that to impose legal responsibility upon anyone under the common law for the publication of words it is essential to demonstrate a degree of awareness or at least an assumption of general responsibility, such as has long been recognised in the context of editorial responsibility. As Lord Morris commented in McLeod v St Aubyn

[1899] AC 549

, 562: "A printer and publisher intends to publish, and so intending cannot plead as a justification that he did not know the contents. The appellant in this case never intended to publish." In that case the relevant publication consisted in handing over an unread copy of a newspaper for return the following day. It was held that there was no sufficient degree of awareness or intention to impose legal responsibility for that "publication". 23 Of course, to be liable for a defamatory publication it is not always necessary to be aware of the defamatory content, still less of its legal significance. Editors and publishers are often fixed with responsibility notwithstanding such lack of knowledge. On the other hand, for a person to be held responsible there must be knowing involvement in the process of publication of the relevant words. It is not enough that a person merely plays a passive instrumental role in the process. (See also in this context Emmens v Pottle

(1885) 16 QBD 354

, 357, per Lord Esher MR.)”.

[30]Mr Price submits that I should bear in mind the observations of Slade LJ in C Evans & Sons Ltd v Spritebrand Ltd

[1985] 1 WLR 317

, 329B “The authorities, as I have already indicated, clearly show that a director of a company is not automatically to be identified with his company for the purpose of the law of tort, however small the company may be and however powerful his control over its affairs. Commercial enterprise and adventure is not to be discouraged by subjecting a director to such onerous potential liabilities. In every case where it is sought to make him liable for his company's torts, it is necessary to examine with care what part he played personally in regard to the act or acts complained of. Furthermore, I have considerable sympathy with judges, particularly when dealing with commercial matters, who may be anxious to avoid or discourage unnecessary multiplicity of parties by the joinder of directors of limited companies as additional defendants in inappropriate cases. As Mr Watson emphasised, the very fact of such joinder could in some cases operate to put unfair pressure on the defendants to settle.”

[31]Mr Suttle QC has made clear that he does not submit that Mr Corser is responsible for the publication merely by reason of his being a member of the Board.

THE LAW ON QUALIFIED PRIVILEGE

[32]The classic statement of one basis at common law for qualified privilege is Adam v Ward

[1917] AC 309

, 334 where Lord Atkinson said: “a privileged occasion is … an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential”.

[33]But Mr Price relies on the passage in Kearns v General Council of the Bar

[2003] EWCA Civ 331

;

[2003] 1 WLR 1357

at [30]: “30 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 contended. 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”.

[34]In that case the relationship in question was between the Bar Council and members of the Bar. As Mr Suttle QC submitted, the significance of that relationship was set out at para [39]: “What matters is that the relationship between them is an established one 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”.

[35]The editors both of Gatley and of Duncan & Neill have continued to adhere to the broad classification of duty and interest. In Duncan & Neill para 16.12 the editors simply state, in relation to Kearns that “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”. As explained in Gatley para 14.8, it was not suggested in Kearns that that approach was wrong.

[36]The editors of Gatley state that the idea of an “existing relationship” has problems of its own. The examples given of difficulties are different from the difficulty that arises in the present case: it is pointed out that the common law test can be satisfied in cases where there is no existing relationship. The difficulty in the present case is determining what is to count as a relevant existing relationship. As Mr Suttle QC submitted by way of example, there is an existing relationship between a newspaper publisher and readers who take out a subscription to the newspaper, but that cannot be a sufficient relationship to make it unnecessary to enquire whether the subscribers have an interest in receiving a particular defamatory article.

[37]Where the publication is to publishees who have the interest required, by the principle in Adam v Ward questions may also arise as to incidental publications to others who do not have that interest: Duncan & Neill para 16.17-16.19. Examples are where publication to is to some person to whom publication is reasonably necessary for the ordinary conduct of business (such as a secretary) or because the urgency of the occasion is such that a wider publication than is strictly necessary to achieve the purpose of the occasion is justified.

[38]Publication to the world at large can sometimes be protected by qualified privilege. Examples are reply to public attack, where the defendant is concerned to vindicate his own reputation: Duncan & Neill para 16.20. Para 13.4 of the Defence refers to the publications quoting the Claimant in the specialist press, but this basis for qualified privilege was not advanced by Mr Price in his submissions as an independent basis for qualified privilege. The Editorial was drafted before any comments by the Claimant about his resignation were published in the press, and the Editorial does not purport to address the comments of the Claimant that were reported in the press. And this is not a case in which Reynolds privilege is or could be relied on.

FACTS MATERIAL TO THE PRELIMINARY ISSUES

[39]I need to say something about the background to the dispute. In view of the outstanding issues, if the case proceeds to trial, it is desirable that I should say as little as possible. Some of this narrative is directly relevant to the issues that I have to decide. Some of it is relevant only to the credit of the witnesses.

[40]The first appearance of the non-members mailing list in the evidence was at the July 2004 meeting referred to in para 13.3.2 if the Amended Defence, set out above (para 20). The Minute contains a detailed record of the meeting covering five pages. The reference to the non-members mailing list comes at the end of half a page devoted to publications, including a flyer to be included in KM, an article in the forthcoming issue of Steam Railway and a proposed new book. It is in one line: “[Mr Watson] has created a mailing list of non-members to whom the KM is sent”.

[41]Mr Watson explained that before this meeting it had been his practice to post copies of KM to selected members, in particular photographers. But these non-members on his list were not the only non-members to whom KM was supplied. It had been the long standing practice of the Board to take copies of KM which were printed over and above the number required for members, and to send or hand these overruns to non-members. The print run ordered for each issue is 500 copies, and there are usually a number of copies in addition to the 500 which the printers produce and deliver to the Society. The number of members is 422members. The purpose of the non-members mailing list was not to limit the non-members to whom copies of KM were to be sent, but to ensure that non-members thought to be of interest to the Society should not be overlooked. The list was updated for each issue, and Mr Watson had no reason to keep a record of the list in the form in which it was prepared for each individual issue.

[42]Each of the parties to this action is recorded as having been present at the meeting, together with Mr Abbey, Mr Lines and the former secretary Mr Hargreaves. I heard some oral evidence on what happened at the meeting, but I find that such limited recollection of that meeting as the witnesses retained was of little relevance to the issue of qualified privilege. The Claimant had no recollection of the meeting. I do not doubt that those present understood, or at least assumed, that the list included non-members who Mr Watson believed had some interest in the affairs of the Society, and that it was in the interest of the Society to send KM to those non-members. That is as far as it goes. There is no suggestion that KM had in any issue prior to that containing the Editorial contained anything comparable to the contents of the Editorial. The purpose of sending copies of KM to photographers, for example, was to encourage them to send photographs in the future and to foster the Society’s relationship with them.

[43]As set out in the first paragraph of the Editorial, the Society’s Secretary of fifteen years, Colin Hargreaves, had retired by October 2007. It appears that he was much regretted.

[44]Mr Watson wrote a number of e-mails and letters in the period August to December 2007, some of them lengthy. Very little written by anyone else is included in the bundles. So this summary is derived largely from what Mr Watson wrote. The Claimant does not accept that what Mr Watson wrote is true. But I do not have to decide that issue at this stage of the proceedings.

[45]It appears that there was ill feeling between Mr Watson and the Claimant from early August. On 19 August Mr Watson sent to the Claimant, with copies to the Board members, a long e-mail referring to two phone conversations which Mr Watson had had with Mr Corser on 13 July. He refers to the Claimant’s “mistaken perception that I’m plotting to remove you”, he accuses the Claimant and the Claimant’s partner of lying, and driving others away from the Society.

[46]On 21 August 2007 Mr Watson wrote to Mr Lugg. Mr Lugg was apparently a friend of all those concerned in this action. Mr Watson told Mr Lugg that he had “had to retire from all current Society activities for the moment”. He referred to his attendance at a meeting of the Board on 30 June, and to what he said was the Claimant’s perception that Mr Watson was starting a plot against him. On 23 August Mr Lugg wrote back expressing dismay and sympathy.

[47]However, Mr Watson did not give up his responsibilities for KM. On 10 September he wrote to Mr Abbey and Mr Corser asking for material for KM.

[48]On 17 September Mr Watson sent an e-mail to the Claimant in strong terms. He accused the Claimant of “picking on” Mr Corser and said the Claimant was responsible for his own and his wife’s withdrawal from the Society’s activities. He then forwarded this e-mail to Mr Abbey, Mr Corser and Mr Lines saying: “I regret there is yet more unscrupulous character assassination and mischief making going on, this time against Richard C. Will there be no end to the number of people who get driven away from 6024 by this scoundrel? He is totally out of control”.

[49]On 20 September Mr Corser received from TLW invoices for the services provided by the Claimant as their employee. He decided to investigate them. He asked TLW for time sheets, and received them on 28 September.

[50]On 2 October 2007 in the evening there was a meeting of the Board attended by Mr Abbey, Mr Lines and Mr Corser. Mr Abbey prepared a two page Minute. It included the following:

“2. Purpose of the Meeting To discuss the findings of Richard Corser in analysing [TLW] time sheets for August 2007 in respect of work charged to 6024 PS by [TLW] following time booked by [the Claimant]. 3.Findings … 3.2 From the analysis of the time sheets it was clear that normal volunteer support crew work was being undertaken by [the Claimant], booked to [TLW] and the Society charged accordingly. For August the cost to the Society was £1,100 for the month… 3.3 … the August 2007 bill being so large has raised suspicions… 3.4 It was noted with some surprise that [TLW] had given freely the copy time sheets of [the Claimant] their employee)… 5. Decision taken The decision taken was to request [the Claimant]’s attendance at an emergency board meeting to be called [the next day], present him with the facts, asked him for his explanation and hopefully he would resign voluntarily without having the humiliation/ embarrassment of a vote of no confidence…”

[51]During the course of the next day, 3 October, Mr Watson wrote to Mr Lugg in reply to Mr Lugg’s letter of 23 August. He included the following: “… For good effective relationships amongst Society volunteers, we rely totally on basic, crucial rules: honesty; openness; decent conduct; mutual trust and respect; personal integrity; no personal private agendas. It appears – and I fear that there may be other issues as well which will ultimately get revealed – that S Underhill is working to a completely different set of rules. We do not expect to have to deal with bad conduct and dishonesty. Other members have also now been lighted upon and I suspect that nothing less than ‘lancing the boil’ will be required… Were the ‘boil’ to be ‘lanced’, of course I would be back like a shot”.

[52]At 7.30pm that evening the Claimant attended a Board meeting with Mr Abbey, Mr Corser and Mr Lines. During the course of that meeting the Claimant signed a letter, drafted for him by Mr Abbey, by which he resigned his positions as Chairman and Engineering Manager of the Society with immediate effect. The Minutes include the following: “When presented with the facts [the Claimant] stated that he had only booked time to cover money that he would have earned at work if he had not been working on the locomotive and that he had not hidden a ‘pot of gold’. [Mr Lines] requested that [the Claimant] did not force a vote. [Mr Abbey] stated that if [the Claimant] did not resign then it would leave no option but to invoke Rule 41, involving the service of a 14 day notice on him”.

[53]Rule 41 provides that the Board may remove a member from office, provided that the office holder shall have received at least fourteen days notice of the meeting with a concise statement of the grounds upon which removal is sought and that the member shall be entitled to make a statement in explanation and defence of his conduct.

[54]On 4 October 2007 the Board sent a notice to members informing them that the Claimant had resigned “due to conflicts of interest that had arisen between his employment and his role and obligations as a Management Board Member and Trustee of the Society”. The letter gave notice of a meeting to be held on 20 October 2007, but not what the business of the meeting was to be. The letter also informed members that the locomotive was unavailable for service and was likely to miss services advertised to take place on 14 and 27 October.

[55]The drafting of the documents of 4 October 2007 is in a very different style from that of any preceding documents. An e-mail chain starts on Friday 5 October with one from a lawyer, Miranda Davies, addressed to Mr Corser. This confirms the advice she had given to the Society that day by telephone (the advice itself being redacted). On the Sunday afternoon Mr Corser forwarded that message from his work e-mail address to a number of people whose identity cannot now be read. They were probably the members of the Board and the Management Team. So one of those addressees was Mr Watson. In any event Mr Watson knew that Miranda Davies had been engaged to advise the Society.

[56]On Monday 8 October at 09:11 Mr Watson replied to Mr Corser. This is one of the documents at the centre of Mr Suttle’s cross-examination and submissions. Mr Watson asked Mr Corser “Should the KM Editorial below be run past Miranda, just in case?” There then follows twelve paragraphs of text which is a draft of the Editorial. It includes the words “honesty; openness; decent conduct; mutual trust and respect; personal integrity” which appeared in Mr Watson’s letter of 3 October. The same words (omitting “decent conduct”) were in due course published in the Editorial.

[57]Mr Corser did not respond to that e-mail in writing. He accepts that he would probably have skim read it. But his evidence is that he did not speak to Mr Watson about, did not respond to Mr Watson’s question (should it be run past the lawyer) and that he did not pass it to any lawyer, or do anything else about it.

[58]There is no evidence to contradict what Mr Corser states on this point. But Mr Suttle QC pressed Mr Corser hard in cross-examination. In the light of the preceding events, summarised above, and some subsequent events, Mr Suttle QC submits that Mr Corser’s evidence is not credible on this point. He submits that I should infer from the circumstances that Mr Corser did speak to Mr Watson, and did authorise the publication of the Editorial.

[59]On Thursday 11 October Mr Watson sent an e-mail to Mr Abbey (but not to Mr Corser). In this e-mail he thanked Mr Abbey for his Report and then wrote:

“Your GM report refers to ‘trials and tribulation that the Society has suffered’, without giving any background or detail. As far as I can tell none of the members know what that means as we are all a bit in the dark. As you know it’s some weeks since I drafted my Editorial; if you can recollect it, does that still give an up to date and accurate account of the ‘trials and tribulation’ you’re referring to because if it does not, I should re-write parts of it? You also make no mention of Colin and the vacant post of Secretary…”

You also make no mention of Colin and the vacant post of Secretary…”

[60]The General Manager’s Report as it was sent to Mr Watson (and as it was published) contains a sentence:

“After the recent trials and tribulations the Society has suffered, I hope that we can emerge stronger ….retain and train younger members….”

But it does not explain what the trials and tribulations were, or give any background or detail. Nor has there survived any version of the Editorial earlier than, or different from, the version set out in the e-mail to Mr Corser on 8 October.

[61]On 20 October the meeting was held, but the Claimant did not attend. I have heard little evidence as to what transpired at the meeting.

[62]On 24 October Mr Corser received an unsolicited call from a journalist, Mr Wilcock of Steam Railway magazine. Such information as was known to Mr Wilcock had probably reached him from someone, not a party to this action, who had attended the meeting on 20 October. Mr Wilcock asked questions about the Claimant’s resignation. Following that conversation, at Mr Corser’s request, Mr Wilcock sent to Mr Corser a draft of an article. The draft article records that fellow trustees had accused the Claimant of “misappropriating group funds … by claiming payments for his weekend hours”. It attributes words to Mr Corser, in which Mr Corser confirmed that the Claimant had been given “a ‘resign or be sacked’ ultimatum”. It also records that Mr Corser denied that there had been a “witch hunt”. The draft article does not say that it was the Claimant who had used the word “witch hunt”.

[63]The Claimant subsequently received an unsolicited call from Mr Wilcock. He had not expected to make any statement to the press. He understood that Mr Wilcock had already spoken to Mr Corser. The Claimant denies that he used the word “witch hunt”, or at least that he was the first to use that word, and he said that he has been misquoted in other respects. But he accepts that he was critical of the way he had been treated by the Society. The draft article attributes to him a response to the accusations made by his fellow trustees. His comments included that he was “utterly disgusted at what has happened … nothing underhand has gone on at all… there are perhaps four people in the Society who wanted me out… this is a very personal vitriolic attack against me…”. I accept the Claimant’s evidence on this and on other matters.

[64]On 31 October the Society issued a Press Release. Mr Watson states that this was in response to the comments of the Claimant which are in the draft article. It records that the Society had accepted the Claimant’s resignation, explaining that:

“this was due to conflicts of interest that had arisen between his employment and his role” as Trustee. It states that: “This has constituted a very serious breach of the Society’s Rules, and did not involve an inadvertent infringement that could be overlooked”

. It mentioned “a possible substantial five figure loss as a consequence of [the Claimant’s] activity”. Figures of the order of £10,000 to £15,000 have been mentioned in the subsequent documents. The Press Release also refers to the disruption to the Society’s activities resulting from the breakdown of the locomotive and its need for repair and re-assembly of the inside motion.

[65]On 2 November the Society sent a letter to members in terms similar to those of the Press Release, and including other information about the state of the locomotive.

[66]In the issue of Steam Railway dated 2 to 29 November 2007 there appeared an article about the Claimant under the heading “‘King’ Steve’s surprise departure”. It describes him as “the driving force” behind the Society for more than thirty years. It contains the Society’s case that he had broken the rule that trustees should receive no remuneration, and Mr Corser’s denial that there had been a “witch hunt”. It does not attribute that word to the Claimant, but does attribute to him expressions of disgust at what had happened, including: “I’ve never tried to conceal anything. I’ve worked untold thousands of hours on that engine over thirty-odd years, and they’re making an issue of me charging for four hours work on a weekend”.

[67]It is the words “for four hours work on a weekend” which the Claimant states are misquotations. He stated that he had received an unexpected call from a journalist, but had answered Mr Wilcock’s questions. What he had said was “for hours worked on weekends”.

[68]Mr Wilcock sent to Mr Corser a draft of his article. The article as published omits a number of quotations attributed to the Claimant which are contained in the draft article. The Claimant does not accept that the purported quotations from himself in the draft article are all accurate, but nothing turns on any words that were included in the draft article, but not included in the published article.

[69]At about the same time Railway Herald published an article setting out the substance of the Society’s Press Release of 31 October. It contains nothing of the Claimant’s case.

[70]At about the same time Heritage Railway also published an article setting out the substance of the Society’s Press Release of 31 October. It does contain quotations attributed to the Claimant. They are similar to those published by Steam Railway, and include:

“Yes it does amount to a witch hunt”

. That was probably said in response to a question which included the word “witch hunt”.

[71]On 4 November Mr Watson sent an e-mail to the printers which he copied to Mr Abbey and Mr Corser. The Editorial was sent as an attachment. He wrote:

“The Editorial explains the delay”

. Mr Abbey responded that he would read it through that night, but Mr Corser did not respond.

[72]On 5 November Mr Lugg wrote a three page letter to Mr Corser, with a copy to Mr Abbey and to the Claimant. He expressed dismay and disbelief at what he had read in Steam Railway. He referred to the letter of 3 October that he had received from Mr Watson, which he said “was couched in most unfortunate and unpleasant terms”. He had not replied to it. He asked for the return of the interest free loan of £5,000 that he had made to the Society. He said he had received notice of the meeting of 20 October only on 23 October and assumed that the Claimant had not been given an opportunity to present his case at that meeting. Whether or not he was right about that, what he said at the end of his letter remained relevant, so Mr Suttle QC submits:

“… I am very disappointed with the Society’s Management’s actions; which I believe to be precipitate, probably unfounded in their substance and personally defamatory in respect of [the Claimant]… To publicly deny, apparently, the ‘accused’, of an opportunity and right to reply and rebuff the allegations is unwarranted. I sincerely hope that it is not too late to rectify the parlous situation …”

[73]On 19 November Mr Abbey sent on behalf of the Board a circular letter to members. On the same day it issued a Press Release in similar terms. Both documents informed readers of the repairs that had been carried out on the locomotive. It said legal advice was being sought on the recovery of its losses from TLW. It then went on to state:

“Recent reports in the Press and elsewhere quote [the Claimant]’s unsubstantiated allegations that he has been the target of a ‘witch hunt’. The Society’s Management Board rejects this claim totally, and reiterates that the only reason for requesting [the Claimant]’s resignation …. was solely because of serious breaches of both the Society’s Rules and … charity law relating to the conduct of trustees. As a direct result of these breaches, there has been a considerable monetary cost to the Society…”

[74]On 12 December Mr Watson wrote to Mr Lugg with a copy to Mr Corser. The letter included the following: “With the exception of two occasions, I had no contact whatsoever with Board Members from the middle of July until the beginning of October. … The second was in mid September when I wrote to the Board in support of Richard Corser whom I heard had become the focus of aggressive bullying by [the Claimant], much as I had been. At the end of September I received news that people OUTSIDE THE SOCIETY were openly talking about serious financial misconduct by [the Claimant]. Horrified, I broke my silence and pressed a couple of Board members for some verification and on the 1st October received informal corroboration of ‘misappropriation’ and confirmation that the Board would be meeting on the 3rd October to address this”.

[75]In cross-examination Mr Watson said that it was a member who told him that it was being discussed outside the Society, and he identified the member as Mr Nagle. As to the two Board members, he said he believes that he spoke to Mr Abbey and Mr Corser. Mr Corser in cross-examination agreed that on 1st or 2nd October Mr Watson had spoken to himself and to Mr Abbey, and that he had told Mr Watson that the Board would meet on 2 October. Mr Corser said that he had given no details to Mr Watson. But he said he had spoken to Mr Nagle, who was his predecessor, and a chartered accountant, because he wanted a second opinion, and it was Mr Nagle who had recommended Miranda Davies as a lawyer.

[76]On 28 December 2007, when the locomotive was in service for a tour Mr Watson and Mr Abbey state that 67 excess copies were given by Mr Watson to Mr Abbey. It is not surprising that the Claimant assumed that they were supplied to the public on that occasion. But he now accepts that they were not. They were retained in Mr Abbey’s office and are now with the Defendant’s solicitors.There was a new issue of KM when tours resumed in July 2008.

[77]On 15 June 2008 there was held an Extraordinary General Meeting of the Society. The Minutes record the following:

“The Secretary of the Society set out the position of the Board of the Society. It was explained that in simple terms, it was considered by the Board that a conflict of interest had arisen in respect of [the Claimant] between his role as Society Chairman and Engineering Manager and his position as an employee of [TLW]. [The Claimant] had consequently tendered his resignation … unbeknown to other members of the Board, routine work had … been recorded by [the Claimant] and consequently charged by his employer. It had been understood by the Society that this routine work was being done on a voluntary capacity… It was emphasised that [the Claimant] had not directly received Society money and it was not alleged that he had taken Society money. It was not in dispute that the time recorded is accurate or the work recorded has been undertaken. The issue was whether routine work recorded (which included travelling on a Railtour) had been undertaken as a volunteer or as a paid employee of TLW. TLW have taken the view that it was undertaken as their employee and charged accordingly. It was explained that this had led to a dispute with TLW involving Solicitors but this had been settled after the Society had taken Counsel’s advice. CONCLUSION After full and open discussion, the view was expressed by the Society members present that no legal action should be taken against [the Claimant] in view of his many years service to the Society. It was however emphasised that this was an indicative view only and that the final decision would be taken by the Board having due regard to this and any other relevant circumstances”

CONCLUSION

[78]On 7 July 2008 solicitors for the Claimant wrote to Mr Corser and to Mr Watson. They complained that Mr Corser had made defamatory allegations against the Claimant, accusing him of fraud. They said that the Defendants were responsible as the Society’s Treasurer and a member of its Management Board and as the Society’s Publications Editor and a member of its Management Team.

[79]The publications complained of were five in number, the last being the Editorial. The other publications, which are not sued upon, were the Press Statements of 31 October and 19 November and the letters to members of 2 and 19 November. The solicitors set out the Claimant’s case that he had acted in accordance with an agreement between the Society and TLW made on 12 December 2002, in which Mr Corser had participated amongst others for the Society and Mr Meanley for TLW. The letter stated that Mr Corser had regularly authorised payment of invoices submitted in accordance with this arrangement. The solicitors asked for a retraction and apology, damages and costs.

[80]The letter, and for that matter the Claim Form and Particulars of Claim, contained no mention of the non-members mailing list. These were introduced by amendment with my permission in November 2009. The Claimant had forgotten about this list until reminded of it late last year after his partner had gone through the file and found the Minute of the meeting of 3 July 2004.

[81]The reply dated 28 July 2008 was by the solicitors then acting for the Defendants. They were not at that time Mr Price or his firm. The letter raised a defence of qualified privilege claiming that the duty of informing members was “through statements and letters to members, as both are necessary means of updating all members of the Society promptly”. The letter said it was an “internal matter” that in any event the readership was so limited that to take the matter further would be an abuse of process. The letter raised no basis for a plea of qualified privilege in respect of publications to non-members other than one ancillary to the plea in respect of the publications to members.

[82]On 7 August 2008 solicitors for the Claimant wrote again. On this occasion they complained of additional publications, namely letters to Mr Lugg dated 3 October and 12 December 2007 and 27 February 2008. As to the Editorial they said that it was on sale to the public and posted on the Society’s website, and so to that extent not published on an occasion of qualified privilege. And in so far as they were published on occasions of qualified privilege, the Claimant alleged malice. It is to be noted that on the issue of the extent of publication, the letter asked for the circulation and readership of KM.

[83]On 28 August 2008 the then solicitors for the Defendants replied. It is a five page letter, setting out again their case on qualified privilege, and the case in justification that they intended to rely on, if sued.

[84]Mr Suttle QC makes these criticisms of that letter. i) It does not address the question what was the circulation and readership of KM. It should have stated that KM was sent out to “all 430 members or so members and selected non-members”. As became apparent at the trial, that is what Mr Watson had instructed the solicitors on 15 July 2008 (although the precise figure was in fact 422).. ii) Nor does the letter state what had happened to the extra copies that the Claimant’s solicitors had stated were normally on sale to the public. It should have done, because in the witness statements of Mr Watson and Mr Abbey dated 5 March 2010 they revealed for the first time that for the issue in question these had been kept in Mr Abbey’s office. iii) The letter ends by referring to the Society’s claim against the Claimant for monies owed by him to it, saying:

“it is now the decision of the Board that it would be in the Society’s interest to pursue this claim”

. But this was not true: no such decision had in fact been taken.

[85]The Defendants had not seen the letter before it was sent, but they and Mr Abbey did see it very soon after it was sent. Mr Corser said in evidence that “We did not see fit to correct any of [their solicitor’s] letters”. In so far as the letter was untrue (para 84 (iii)), then in my judgment they should have caused this letter to be corrected when they saw it. I accept that Mr Watson did not attend Board meetings, but I do not accept that he was unaware of what the Board did and did not decide. It is clear from the events that I have described that he was well informed of matters relating to the Claimant. I consider below Mr Suttle’s first two criticisms of the letter.

[86]The Claim Form was issued on 30 September 2008, and the Particulars of Claim served on 14 January 2009. The Defendants changed solicitors in January 2009, and it was a member of Mr Price’s firm, not himself, who served the Defence on 13 March 2009. A member of his firm also signed the statement of truth on behalf of the Defendants.

[87]In the Particulars of Claim it is pleaded that the Editorial was published to, amongst others, “members of the public attending the Society’s trips or other events”.

[88]In the Defence that paragraph is denied and the Defendants go on to state: “If, which is denied, the Editorial was published to any non-members, as apparently alleged in the Particulars of Claim” the Defendants would rely on a defence of qualified privilege based on the alleged interest of the members of the public in question.

[89]Mr Suttle QC submits that this denial was false, or at least misleading, because the Defendants knew that the Editorial had been published to non-members. Mr Watson had so informed the previous solicitors on 15 July 2008. Mr Watson said that this was “an error”. Mr Price submits that the pleading is not false because the denial is qualified by the words “as apparently alleged in the Particulars of Claim”, and the Particulars of Claim do not include a reference to the non-members mailing list.

[90]Whether the Editorial had been published to any non-members, and if so to whom, was a very important point in these proceedings. I am sure that that was fully appreciated by the solicitors acting for each party, all of whom are specialists in defamation litigation. It is well known that the malice required to defeat a defence of qualified privilege is difficult to prove. If all the publications were on occasions of qualified privilege, then the prospect of the Claimant achieving vindication (assuming that he would be entitled to that) would be significantly diminished. If a publication is on an occasion of qualified privilege, but there is no malice, then a claimant may fail to achieve vindication, even if he is innocent of the accusations made against him. Whereas if there is a defence is justification, he may achieve vindication, if he is entitled to it.

[91]The letters exchanged between the solicitors were written in the light of the Pre-Action Protocol for Defamation. The Protocol states that it is “1.3 … intended to encourage exchange of information between the parties at an early stage and to provide a clear framework within which the parties to a claim in defamation, acting in good faith, can explore early and appropriate resolution of the claim… Aims of the Protocol 2. This protocol aims to set out a code of good practice which parties should follow when litigation is being considered. ... It aims to encourage both parties to disclose sufficient information to enable each to understand the other’s case and to promote the prospect of early resolution.... It sets standards for the content of correspondence... Letters of claim and responses sent pursuant to this Protocol are not intended to have the same status as a Statement of Case in proceedings. It aims to keep the costs of resolving disputes subject to this protocol proportionate. Defendant’s Response to Letter of Claim 3.4 The Defendant should provide a full response to the Letter of Claim... 3.5 The Response should include the following:- … if the claim is rejected, then the Defendant should explain the reasons why it is rejected, including a sufficient indication of any facts on which the Defendant is likely to rely in support of any substantive defence;…” Aims of the Protocol

Defendant’s Response to Letter of Claim

[92]I accept the submissions of Mr Suttle QC set out in para 84 i) and ii) to the extent that I find that the letter of 28 August did not comply with the Pre-Action Protocol.

[93]The requirement of para 3.5 of the Pre-Action Protocol is set out in the CPR as an obligation, once proceedings have been started. CPR Part 16.5(2)(a) provides that where a defendant denies an allegation(a) he must state his reasons for doing so and

(b) if he intends to put forward a different version of events from that given by the claimant, he must state his own version. CPR Part 22 requires that a Defence be verified by a statement of truth. The purpose of requiring a statement of truth is explained in the White Book (2010) at 22.0.2: “… it provides some guarantee that the statement is made with an honest belief as to the accuracy of its contents… if a party is required to certify his belief in the accuracy and truth of the matters put forward the statement of case is less likely to include assertions that are … designed to obfuscate”.

[94]It has always been the duty of legal representatives to be careful to ensure that their clients’ cases are not advanced on the basis of inaccurate or misleading statements. The consequences of that happening can be an increase in costs and in some cases even an unjust outcome to the case. The use of conditional fee agreements has greatly magnified the costs of proceedings, and so the implications of inaccurate and misleading statements.

[95]In the letter of 28 August, and again in their Defence, the Defendants failed to state their reasons for denying that the excess copies of KM containing the Editorial had been supplied to members of the public. And the denial that any copies had been supplied to members of the public was misleading at the very least. The Defendants were reluctant to give the Claimant information as to the extent of publication to non-members of the words complained. Even after I had permitted the Claimant to amend the Particulars of Claim to plead the non-members mailing list (in November 2009), the Defendants withheld disclosure of the non-members mailing list in the form in which it then existed. The effect of their not explaining until March 2010 that the overrun copies of KM containing the Editorial had been retained in Mr Abbey’s office was to lead the Claimant on to pursuing a part of his claim which could not succeed. And the effect of denying that the Editorial had been published to non-members, when they knew that it had been sent to those on the non-members mailing list was to withhold from the Claimant information upon which he could (and now does) advance a claim which could in principle succeed without his having to prove malice.

[96]The explanations given by Mr Watson for this state of affairs are these. It is said that the Claimant knew that the locomotive had not been going on trips because of its breakdown, and so he should have known that copies of KM were not supplied to members of the public. This is not correct. The locomotive did go on one tour at the end of December 2007. As to the non-members mailing list, it is said that the Claimant knew of the non-members mailing list. It is true that he did know of it, albeit that he had forgotten. But that is not a good explanation for the misleading denial in the Defence. The explanation for not producing the non-members mailing list was that the form in which it was extant had been altered since the Editorial had been sent out. I do not accept that that is a good explanation. Mr Corser’s response when cross-examined about the letters and the Defence is set out in para 85 above. He offered no explanation.

[97]These points are relied on by Mr Suttle QC as to credit. Mr Price submits that it is unrealistic to cross-examine lay witnesses as to credit on the basis of letters written and statements of case drafted by specialist lawyers. That cannot be right. If the parties to litigation could be absolved from responsibility for the statements and omissions in letters and statements of case, that would tend to defeat the aims for which the Pre-Action Protocols, CPR 16 and the requirement of verification of statements of case were all introduced. There is nothing technical in the inaccuracies and omissions that the Defendants and Mr Abbey had any difficulty in understanding.

[98]The letter of 28 August and the Defence were obfuscations. The untrue statement in the letter, and the misleading statement in the Defence do not reflect well on the Defendants and Mr Abbey. I have taken them into account in considering whether I can accept their evidence.

FINDINGS ON RESPONSIBILITY FOR PUBLICATION TO NON-MEMBERS

[99]Mr Suttle’s most far reaching submission is that I should infer that the version of the Editorial referred to in the e-mail of 11 October to Mr Abbey is the same as the draft set out on 8 October to Mr Corser, and that it was drafted “some weeks” before. It is to be noted that even two weeks before 11 October would be about 27 September. So “some weeks” before would be earlier than that date. What Mr Suttle QC is suggesting is that the Editorial about the Claimant was therefore written before Mr Corser had made the discoveries he reported to his colleagues on 2 October, and before anyone had discussed them with Mr Watson. The case is that Mr Watson drafted the Editorial in anticipation of the resignation of the Claimant, and that he knew in advance that that was going happen.

[100]Mr Suttle QC has three submissions on this point. That was the first. The second, and alternative, submission is that Mr Corser responded to the e-mail of 8 October by authorising the publication of the Editorial. Mr Suttle’s third and lowest submission is that, even on what Mr Corser admits, namely that he read the draft article and did not stop its publication, he is responsible in law.

[101]Mr Abbey, Mr Watson and Mr Corser all deny that Mr Corser did anything other than what he admits.

[102]Mr Abbey said he had no communication with Mr Corser about the Editorial. The earlier draft referred to in the e-mail of 11 October did not refer to the Claimant’s resignation.

[103]Mr Corser states that he has never had any editorial role in relation to KM. He did normally receive from Mr Watson e-mails about draft issues of KM, but that was because the printers charge between £1,000 and £2,000 per issue, and as Treasurer he needs to plan for the invoice he will receive. He spoke to Mr Watson after the meeting of 3 October 2007, because, as a member of the Management Team, Mr Watson was entitled to know what had happened. But this was not for the purpose of Mr Watson writing anything in KM. Mr Corser’s concern was compliance with requirements of the FSA and the Charity Commissioners. He told the Management Team that he had instructed Miranda Davies to advise the Society. He did not discuss the draft of 8 October with Mr Watson before or after he received it. He believed he would have skim read it and would obviously have been aware that it related to the Claimant’s resignation. When he received the e-mail at his work address he was extremely busy both at work and in dealing with the fall out of the Claimant’s resignation. He did not consider the draft Editorial was his responsibility. He is not good at e-mail management. His employer had a policy that all its e-mails had to be responded to within 24 hours, and he had hundreds of e-mails in his inbox at any one time.

[104]Mr Watson stated that he discussed the contents of KM with Mr Abbey, and that Mr Corser had no regular involvement in KM, and no involvement in any Editorial. He sent to Mr Corser a copy of the draft for the reasons Mr Corser gave. They did not discuss the contents of it. Mr Watson spoke to Mr Corser about the departure of the Claimant, but that was not directed to publication of the Editorial. He received no response to the e-mail of 8 October. He was not expecting any approval from Mr Corser. He sent it to Mr Corser because he knew that Mr Corser was the person who was in contact with the solicitor, and he was concerned that what he wrote should be accurate in so far as it referred to the duties of trustees and charity law. In cross-examination Mr Watson said that the information which he referred to in his letter of 3 October came from Mr Nagle, and Mr Corser said that he had spoken to Mr Nagle.

[105]In the light of the e-mails and letters written by Mr Watson I did not regard as fanciful Mr Suttle’s suggestion that Mr Watson was a party to a plan to remove the Claimant from his positions in the Society, and that the Editorial might have been written in advance with information provided by Mr Corser. But the burden of proving Mr Corser’s involvement in the publication of the Editorial lies on the Claimant.

[106]Having heard all the evidence I accept Mr Corser’s explanation of what occurred in relation to the Editorial. His evidence is consistent with the contemporaneous documents. The suggestion that there was a version of the Editorial referring to the resignation of the Claimant, but written before that had happened, is not supported by the contemporaneous documents.

[107]There is force in Mr Suttle’s suggestion that in the light of the letters written on and after 8 October, Mr Corser might have been expected to be alert to the danger of publishing the Editorial, and to have addressed his mind to the question whether or not he should approve its publication. It is surprising that he did not act on the suggestion that it be sent to the lawyer, given the involvement of Miranda Davies in the matter at that stage, and the controversy that it was arousing with Mr Lugg. Nevertheless, I accept his evidence that he did not address his mind to the point. There is no evidence that he did. And I accept that he was heavily committed to his work for his employer, and to the other matters arising in connection with the resignation of the Claimant.

[108]In case I am mistaken as to the law, I find that Mr Corser could have prevented publication, had he chosen to do so. I do not make this finding simply on the basis that he held the office of Treasurer. He might have sent the draft to the lawyer. If he had done that, I think it probable that the Editorial would not have been published in the form in which it was. I have already noted the difference in style and content between the documents which were drafted by Mr Abbey and Mr Watson, and other documents which came into existence after the lawyer was instructed. Alternatively, Mr Corser might have queried with a colleague whether the expense of passing the Editorial to a lawyer, or the risk involved in publication without doing that, were expenses or risks that the Society ought to be incurring. Thirdly, Mr Corser could also have authorised publication of the Editorial, even though that was not normally his role. If Mr Corser had addressed his mind to the point and decided to do something, I think it is probable that he would have deliberately allowed publication to proceed. He agrees in substance with the meaning the Editorial conveys. Mr Corser stated in his plea of justification and in his evidence that he believes that the Claimant has been dishonest. If Mr Corser had deliberately chosen not to intervene when he received the draft on 8 October, or when he was told Mr Lugg’s views about the matter in general, then I might have inferred that he consented to the publication of the Editorial. However, as already stated, I accept that he did not address his mind to the point.

[109]It follows that the case must be decided only on the basis that Mr Corser knew in advance of the publication, but he did not address his mind to whether or not the Editorial should be published, and he then did nothing more about it.

[110]Mr Price submits that Byrne v Deane is distinguishable. It was material to that decision that the defendants were the proprietors of the club: as such they were entitled to remove the trespassing article from the walls of the premises see [1937] KB at pp829 and 837. Mr Corser was not the proprietor. He was a member of the Board. I accept that submission. The inaction of Mr Corser is not comparable to that of the two defendants in Byrne v Deane. I cannot infer consent in this case. Of course, if the Claimant had sued the Society or Mr Abbey, their positions might well have been very different from that of Mr Corser.

[111]In my judgment what Mr Corser did and did not do is not sufficient to make him liable as a publisher.

THE INDIVIDUAL PUBLISHEES

[112]While it is admitted that copies of the Editorial were sent to 16 non-members, that does not, of itself, amount to publication for the purposes of the law of libel. The Claimant has to prove that the recipients read the words complained of. He can do that either by direct evidence specific to each of them, or by persuading the court that, as a matter of inference, it is more likely than not that someone did read the Editorial. If the court is persuaded that it is more likely than not that a non-member did read the Editorial, then the burden is upon Mr Watson to prove that any such reader had the interest in receiving the information, or such other attributes, as may in law suffice to make the occasion one of qualified privilege. This is one of the rare cases where some issues could turn on the burden of proof.

[113]The substance of the cases for the parties is outlined in para 19 above. In my judgment, it is not necessary for me to decide the facts in relation to each of the 16 non-members to whom the Editorial was sent. The reason is twofold.

[114]First, there is no dispute that some non-members did read it. And I think it probable that some others did too. Second, while I accept that non-members were only included on the list because they had some existing relationship with the Society, in none of the cases where the relationship is identified does it appear to me that it was an existing relationship such as to attract qualified privilege to the occasion of the publication of the Editorial.

[115]On the issue of whether any non-member read the Editorial, it is not in dispute that three did so: Mr Bishop, Mr Paget and Mr Kennington. The evidence of the first two was in the form of statements and they were not required to attend. Mr Kennington the only person identified in Schedule 3 to the Amended Defence was called to give evidence. That was because he had given apparently inconsistent witness statements. In evidence he explained that when first asked on behalf of the Defendants, he had not read it. But he did then read it, and so he said that he had read it when, later, he was asked to make a statement on behalf of the Claimant. But the Claimant does not rely on that reading by Mr Kennington, which arose in the course of the proceedings.

[116]Mr Whitehouse did not give a statement or attend to give evidence. But in Schedule 3 to the Amended Defence it is pleaded that he believed that he would have received the Editorial and that he would have read it, although he could not recollect. Mr Whitehouse is a journalist who works for Railway Herald. He had read a Press Release issued by the Society. Mr Watson agreed in evidence that Mr Whitehouse probably had read it. In my judgment it is probable that Mr Whitehouse did read the Editorial.

[117]The following gave statements that they had received the Editorial, but do not say whether or not they read it: Mr Kerslake, Mr Cogan and Mr Hughes. Mr Cogan passed his copy to Mr Hughes. Mr Cogan said he did not wish to see a copy of the Editorial to refresh his memory. Mr Hughes did not remember reading it when he first received it. In a second statement served for the Claimant, Mr Hughes said that he had read the Editorial (that is to say, when he was approached by the Claimant’s solicitors) and could not remember reading it at the time. So now he has read it as a result of these libel proceedings, but I find that he probably had not done so when it was first supplied to him. The Claimant does not rely on that reading by Mr Hughes, which arose in the course of the proceedings.

[118]Thus, on the basis of the direct evidence I find that three people (Mr Bishop, Mr Paget and Mr Whitehouse) received and read the Editorial when it was sent to them.

[119]Mr Tyack stated that he received the Editorial, but did not read it. That is accepted for the Claimant. He is the only one in that category. So one of the 16 is thus excluded as a publishee.

[120]It follows that there is no direct evidence in relation to the remaining ten non-members to whom a copy of the Editorial was admittedly sent. The Claimant can only succeed, if at all, in proving that any of these ten non-members read it by persuading the court that, as a matter of inference, it is more likely than not.

[121]Mr Rumbelow first gave a statement to the Defendants in which he said that he could not recollect receiving the Editorial, and did not have a copy of that issue of KM. He later made a statement to the Claimant’s solicitor saying that he definitely did not receive it. That statement was unsigned. Mr Heath, gave evidence that that is what Mr Rumbelow had stated to him. I therefore allowed in evidence under the Civil Evidence Act 1995, s5, Mr Rumbelow’s first statement. It is for Mr Watson to prove that he did send a copy to Mr Rumbelow, and he has failed to persuade me that that is more likely than not. So the copy which Mr Watson attributes to Mr Rumbelow is one of those which were admitted by Mr Watson to have been sent out, but the non-member to whom it was sent has not been identified.

[122]The position of the following witnesses is the same as that of Mr Rumbelow, except that they gave written statements: Mrs Burkinshaw, Mr Robertson, Mr Watts, Mr Spencer, Mr Tait and Mr Brian Bane.

[123]In my judgment it is more likely than not that some, but not all, of the ten did read the Editorial. It is common in libel actions for the court to infer that it is more likely than not that there will be more than one reader for each copy of a printed publication. KM is a glossy publication with attractive photographs. The photographs are what would attract most people to look at it, if they were not themselves interested in the Society. But I think it likely that there were at least one or two readers of the Editorial, in addition to the addressee.

[124]Accordingly, the number of unidentified non-members who read the Editorial is about ten, in addition to the three referred to above who did read it, making a total of about thirteen non-member readers.

FINDINGS ON QUALIFIED PRIVILEGE

[125]Next I must consider the relationship of each such reader to the Society. The non-members list included photographers who had contributed photographs which were published in the same issue as the Editorial, or some other issue. Of the publications where the publishee is identified the photographers are Mr Bishop and Mr Whitehouse (in addition to his being a journalist). In case it should matter in the future, I record that other photographers included Mr Tyack, Mr Kerslake, Mr Spencer and Mr Brian Bane.

[126]Mr Kennington carries out Fitness to Run examinations on the locomotive on behalf of the main train operating company, now called DB Schenker. Mr Tait also works for DB Schenker with responsibility for rostering crews for the locomotive (as well as being a photographer). This is a safety check. Mr Paget is operations director for a rolling stock provider that acts on behalf of DB Schenker. He provides coaches for use on tours.

[127]Mr Rumbelow is a supporter who manufactures head boards for the locomotive which he provides free of charge, which are auctioned after use to raise funds for the Society.

[128]Others named worked for tour promoters: Mr Robertson, Mr Watts and Mrs Burkinshaw. Mr Hughes writes a newsletter for a trade association of owners of steam locomotives.

[129]Mr Suttle QC submits, and I accept, that none of the people identified by Mr Watson had any interest in the financial affairs of the Society.

[130]In my judgment none of those on the non-members mailing list had an interest to receive the information in the Editorial. Further, in so far as they were in an existing relationship with the Society, in my judgment that relationship was not such as to give rise to an interest in receiving any information relating to the financial affairs of the Society.

[131]I also find that the Society had ready means (otherwise than through KM) of informing members of its financial affairs. Examples are the letters which it sent to members on 2 and 19 November. KM had not in the past been used to communicate such information. In this respect the Editorial was unique as an item in KM.

[132]I note that it was merely by the chance that the Editorial was not supplied more widely to members of the public in the usual way. That was because the locomotive happened to be out of service for most of the time, and not operating rail tours in the usual way. In my judgment publication to non-members through the non-members list was not ancillary, or a reasonable risk to take, or incidental to the publication to members.

[133]Mr Price submits that the fact that some of those on the non-members mailing list were, and were expected by Mr Watson to be, aware of what had been published in the press gives rise to an interest, or supports a finding of there being an interest in those persons in receiving the Editorial. I reject this submission. Where there is a public interest in the subject matter of the communication, a defendant may be able to rely on Reynolds privilege, subject to persuading the court that the publication was responsible journalism. No case of Reynolds privilege is advanced in this case, nor could it be. Nor is there advanced any privilege on the basis that the Editorial was a reply to an attack. The Claimant did not attack the Defendants. In so far as he is reported in the press to have made comments about his resignation, he did so in reply to what had already been said about himself by Mr Corser.

[134]For these reasons, in my judgment the publication to those on the non-members mailing list was not on an occasion of qualified privilege.

ABUSE OF PROCESS

[135]In para 13.8 of the Amended Defence it is pleaded that: “…it would be wholly disproportionate and an abuse of process for the claim to proceed in relation to publication to … publishees … who did not have such an interest or duty [as to make the publication to them subject to qualified privilege]”.

[136]Since qualified privilege is admitted by the Claimant to be a defence to all the 430 or so member publishees (subject to his plea of malice), Mr Price submits that, in the event that I make the findings I have just made, that pursuit of this action on the basis of publication to the thirteen is an abuse of process.

[137]He links his submission on this point with the defence of qualified for ancillary publications referred to in para 37 above, and which I have rejected.

[138]In so far as it is a separate argument, the argument on abuse of process is based on the principle set out in Jameel (Yousef) v Dow Jones & Co Inc

[2005] QB 946

. In that case the court expressed the principles as follows: “40 We accept that in the rare case where a claimant brings an action for defamation in circumstances where his reputation has suffered no or minimal actual damage, this may constitute an interference with freedom of expression that is not necessary for the protection of the claimant's reputation. In such circumstances the appropriate remedy for the defendant may well be to challenge the claimant's resort to English jurisdiction or to seek to strike out the action as an abuse of process. We are shortly to consider such an application..... 55 There have been two recent developments which have rendered the court more ready to entertain a submission that pursuit of a libel action is an abuse of process. The first is the introduction of the new Civil Procedure Rules. Pursuit of the overriding objective requires an approach by the court to litigation that is both more flexible and more proactive. The second is the coming into effect of the Human Rights Act 1998. Section 6 requires the court, as a public authority, to administer the law in a manner which is compatible with Convention rights, in so far as it is possible to do so. Keeping a proper balance between the article 10 right of freedom of expression and the protection of individual reputation must, so it seems to us, require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant's reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged…. 69 If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and the vindication will be minimal. The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick”.

[139]Mr Price accepts that in the present case the court must also have regard to the right of the Claimant to his reputation. In this case, I hold that be a right protected by

Art 8 of the Convention

. The allegation of dishonesty in this case is a very serious one.

[140]Mr Price submits that relevant considerations in this case are: i) The thirteen non-member publishees are a small number relative to the 430 or so member publishees; ii) The absence of any evidence of harm having been caused; iii) The fact that the non-member publishees were aware of the issues through the press or perhaps by other means, to which the Editorial adds nothing; iv) The time and costs that would be involved in an action where justification is the defence, and where all parties are represented on conditional fee agreements; v) The means of the parties, and the fact that the Claimant would not be able to meet the costs of the defence of justification, if it succeeded.

[141]Mr Price also refers to the proposal put forward in correspondence for the Defendants to the effect that they “are prepared to forego their defences of justification and fair comment on the basis that …. the court decides that publication of all mailing list recipients was on an occasion of qualified privilege”. But this point seems to me to be one that favours the Claimant rather than the Defendants. On the findings I have made the proposal will not arise. But the word “forego” is inapt. Whether the proposal is a threat or a promise depends on whether it is looked at through the eyes of a claimant or a defendant. As noted in para 90 above, a claimant faced with a defence of qualified privilege which he cannot defeat by his plea of malice can achieve no vindication, even if he is innocent. By withdrawing the defence of justification, Mr Watson would deprive the Claimant of that possibility of vindication, as well, of course, as relieving him of the risk of a finding that he had been dishonest. Seen through the eyes of a claimant, a defendant’s offer to rely only on the defence of qualified privilege, and to withdraw a defence of justification, is a threat, not a promise.

[142]As to the matters relied on by Mr Price in para 140 above, Mr Suttle QC submits that the number of non-member publishees, and the absence of evidence as to actual damage is relevant only to damages. The aim of these proceedings is vindication. That is the proper purpose of libel proceedings, and can be achieved in a claim based on publication to thirteen publishees, whether or not it is available in a claim based on 422 other publishees. Where the claimant is an individual, as here, damages also include some compensation for the distress and humiliation a claimant has suffered.

[143]In my judgment the allegation complained of in this case is so serious that it is a proportionate step for the Claimant to proceed with this claim in respect of the thirteen or so readers of the copies sent to those on the non-members mailing list. The Editorial does not merely repeat the allegations that had been published in the specialist press in November (and even if it did simply repeat it, that would be no reason for striking out this claim). The fact that a claimant may not be able to pay the costs of a case if he loses is not of itself a reason why he should be denied access to justice. I have no hesitation in rejecting the argument based on abuse of process.

CONCLUSION

[144]The answers to the questions posed in the order for the trial of the preliminary issues (as subsequently narrowed by agreement between the parties) are: i) Publication of the words pleaded in para 3 of the Amended Particulars of Claim was made to about 13 non-members through the non-member mailing list; ii) None of these publications were on occasions of qualified privilege; iii) The First Defendant is not responsible in law for any of the publications complained of.

Underhill v Corser & Anor [2010] EWHC 1195 (QB)

THE WORDS COMPLAINED OF AND THE PARTIES’ CASES

THE LAW ON RESPONSIBILITY FOR PUBLICATION

THE LAW ON QUALIFIED PRIVILEGE

FACTS MATERIAL TO THE PRELIMINARY ISSUES

CONCLUSION

Defendant’s Response to Letter of Claim

FINDINGS ON RESPONSIBILITY FOR PUBLICATION TO NON-MEMBERS

THE INDIVIDUAL PUBLISHEES

FINDINGS ON QUALIFIED PRIVILEGE

ABUSE OF PROCESS

CONCLUSION

Cited in 6 later judgments