David v Hosany [2017] EWHC 2787 (QB)

“In defamation proceedings a person has a defence if he shows that…”

“Hi Mason Can I just report that he turned up to the meeting tonight and Dean just said Hi to him. He walked straight past empty chairs to the end of the room where I sat, removed a piece of paper in the seat, sat down and handed it to me. I moved seats. He followed me into the next room after the meeting. I left the room. He signed in as a governor on the register which Dean has. My number is ……. Best wishes. Zara”

“There shall be no interference by a public authority with the exercise of this right except such as if in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the protection of health or morals, or for the protection of the rights and freedoms of others”. 4.7. In the present case, Written Complaints I and II contain allegations about Mr David’s sexual behaviour and his personal relations with Ms Hosany. Their publication to third parties, therefore, engages his Article 8 rights. (This is not so in respect of the 30 June email, which does not deal with such matters but with allegations about his conduct at a public meeting). 4.8. If this action had been brought against the Trust itself or one of its officers acting on its behalf, it would be clear that the defendant was a public authority and the Clift restriction on qualified privilege would apply. But can the same be said when, as here, the defendant is an individual Governor of a public authority and the publications were made in relation to a complaint about another Governor’s conduct towards her? 4.9. Subsections 6 (3) and 6 (5) of the Human Rights Act 1998 address this question. “(3) In this section “public authority” includes: a. a court or tribunal; and b. any person certain of whose functions are of a public nature. but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament. (5) In relation to a particular act, a person is not a public authority by virtue only of subsection 3(b) if the nature of the act is private”. a. a court or tribunal; and b. any person certain of whose functions are of a public nature. but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament. (5) In relation to a particular act, a person is not a public authority by virtue only of subsection 3(b) if the nature of the act is private”. 4.10. Although the point was not fully argued before me, I am prepared to accept that there may be circumstances in which an individual member of the governing body of a public authority, such as a councillor or governor, might meet the test of having certain functions of a public nature, and might therefore be categorised as themselves being a public authority. This might be the case if, for example, the individual held a leadership role or was vested with some decision-making power. The terms of the statement complained of, and the circumstances in which it was made, might well themselves provide a clear indication as to whether they had been published as part of the exercise of a function of a public nature. 4.11. But, as s.6 (5) makes clear, even if a human being has the character of a public authority when exercising a public function, it does not follow that all their acts are done in that capacity. If “the nature of the act is private”, then the person is not a public authority subject to s.6 (1) in respect of that act. 4.12. The issue thus becomes whether, in relation to each act of publication for which Ms Hosany is responsible, that act should be characterised as one done in the exercise of a public function, or as a private act. 4.13. The circumstances of each act of publication are analysed below from the standpoint of the common-law tests of duty and interest. What that analysis demonstrates is that, on Ms Hosany’s part, the interest in question is primarily the private one of protecting her own security and well-being from Mr David’s alleged sexual harassment. This private interest has a link to her public functions as a Governor, since that is the context in which the alleged harassment is occurring; but that does not make the act of publication one done in the discharge of a function of a public nature. (I note that under the Trust’s Code and Procedure anyone affected may make such a complaint against a Governor; the complainant themself does not need to be a Governor.) 4.14. For the above reasons, my conclusion on this issue is that in relation to the acts of publication for which Ms Hosany is responsible, they are all acts of a private nature within s.6 (5) of the Human Rights Act 1998 so that s.6 (1) and the Clift principle have no application to them. The general principles of common law qualified privilege apply to this case without the addition of the Clift factor. 4.15. Although it is not strictly necessary to decide how Clift - type Article 8 considerations would have influenced the outcome in this case, it is self-evident that there is a considerable overlap between the common law principles underlying qualified privilege and the Convention principles underlying Article 8. It is easy to see how the recognition of the right of an individual to make an honest complaint about alleged harassment to a limited and appropriate group of responsible persons could equally be justified in Convention terms as a proportionate and lawful interference with the claimant’s Article 8 rights in the interest of the protection of health and morals and for the protection of the rights and freedoms of others. C. The Written Complaints 4.16. The key documents here are the Terms of Reference of the Nominations and Conduct Committee and its Appendix A, the Procedures for Conduct Hearings. The specific provisions most relevant to the defence of qualified privilege in this case are the following: “A. TERMS OF REFERENCE 2. MEMBERSHIP 2.1 The Committee shall be appointed by the Council of Governors and shall be composed as follows: * Trust Chairman * Deputy Chair of the Council of Governors (ex officio) * two council members representing the public constituency * one council member representing the staff constituency * one council member representing staff organisations. 2.2 … The Senior Independent Non-Executive Director will also be a member of the Committee in respect of its duties pertaining to Governors Standards. 2.3 A quorum shall be three members, one of whom must be the Trust Chair or Deputy Chair of the Council of Governors. 3. ATTENDANCE AT MEETINGS 3.1 Only members of the Committee have the right to attend meetings. Other individuals, such as the Chief Executive, Director of Human Resources or external advisors may be invited to attend for all or part of any meeting, when appropriate. 3.2 The Trust Secretary shall act as the Secretary to the Committee. 6. DUTIES OF THE COMMITTEE The duties of the Committee can be categorised as follows: 6.5 Governors Standards 6.5.2 Receive reports from the Trust Chairman on issues of governor conduct, eligibility and removal. 6.5.4 Provide recommendations to the Council of Governors on issues of governor conduct, eligibility and removal in accordance with the Trust Constitution following the process as set out in Appendix A. 6.5.5 Provide recommendations to the Council of Governors about the process for dealing with any reports of breaches of the Code of Conduct or Trust Constitution following the process as set out in Appendix A.” “APPENDIX (A) PROCEDURES FOR CONDUCT HEARINGS 1. Process on Receipt of Complaint/Allegation 1.1 A written complaint is received and the Chair is notified. The Chair, in consultation with the Lead Governor, will initially attempt to resolve the issue with the governor(s) in question before involving the Committee. 1.2 If the desired outcome is not achieved, or it is not possible to reach a resolution, the Chair calls a meeting of the Nominations and Conduct Committee. 1.5 All evidence relating to the complaint/allegation (including an initial statement from the governor(s) in question) is collated and provided to members of the Committee by the Trust Secretary. 1.10 The Committee is authorised to obtain outside legal or other independent professional advice and to secure the attendance of outsiders with relevant experience and expertise if it considers this necessary…”

“(a) The motive with which a person published defamatory matter can only be inferred from what he did or said or knew. Evidence of the defendant’s state of mind can therefore be tendered by either or both sides. (b) The defendant is entitled to be protected by the privilege unless the claimant proves that the defendant had an improper motive for publishing the words and that the improper motive was the sole or dominant motive. (c) If the defendant did not believe that when he published was true this fact is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interest can justify a man in telling deliberate and injurious falsehoods about another. (d) If the defendant made the publication recklessly, being indifferent to the truth of what he published and neither considering nor caring whether it was true or not, he will be treated as if he knew it to be false. But carelessness or impulsiveness or irrationality in arriving at a positive belief in the truth of what was published does not amount to indifference to the truth. (e) Even where the defendant did believe the words to be true the claimant may still be able to prove that the publication was actuated by an improper motive, for example, a desire to injure the claimant or to achieve some personal advantage unconnected with the duty or interest which constitutes the reason for the privilege. But in such a case, that is, where the defendant believed the words to be true, judges and juries should be very slow to draw the inference that the sole or dominant motive for publication was the improper motive.” (b) The defendant is entitled to be protected by the privilege unless the claimant proves that the defendant had an improper motive for publishing the words and that the improper motive was the sole or dominant motive. (c) If the defendant did not believe that when he published was true this fact is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interest can justify a man in telling deliberate and injurious falsehoods about another. (d) If the defendant made the publication recklessly, being indifferent to the truth of what he published and neither considering nor caring whether it was true or not, he will be treated as if he knew it to be false. But carelessness or impulsiveness or irrationality in arriving at a positive belief in the truth of what was published does not amount to indifference to the truth. (e) Even where the defendant did believe the words to be true the claimant may still be able to prove that the publication was actuated by an improper motive, for example, a desire to injure the claimant or to achieve some personal advantage unconnected with the duty or interest which constitutes the reason for the privilege. But in such a case, that is, where the defendant believed the words to be true, judges and juries should be very slow to draw the inference that the sole or dominant motive for publication was the improper motive.” 5.3. If the defamatory meaning which the Court has found the words to bear is not the same as the meaning which the Defendant intended to convey, then in considering the question of honest belief, which is entirely subjective, the Court should apply the Defendant’s intended meaning. (Duncan & Neill, above at 19.0). 5.4. Here, Mr David’s case on malice in respect of the Written Complaints may be summarised as follows: a. On the evening of 20 January 2015, the only physical contact that took place between himself and Ms Hosany was an obviously innocent touch on her back when he offered her his umbrella. There was no grabbing round the waist, no whispering in the ear or suggestion of a sexual relationship, and consequently no express refusal by Ms Hosany or reference by her to him being married with children. b. She could not possibly be mistaken about this or honestly believe that anything of the sort took place. c. What did happen was that, in the course of a conversation about whether they liked each other (platonically) he told her that he liked working with her but that he thought she could be rather controlling. When he said this she seemed upset, and shortly afterwards they left the bar. d. When he messaged her to say he was sorry for spoiling the evening, he was referring to this awkward remark, not to anything physical. e. At the QI group next day, there was a bona fide disagreement between them about their respective roles in conducting an upcoming public meeting, which led to a heated exchange of emails. f. In order to strengthen her hand in that dispute, Ms Hosany decided to make an official complaint against him, and to reinforce it with a deliberately false allegation of sexual harassment (what Mr David described as the “magic bullet” which would render his position untenable). g. In addition to making a wholly false sexual allegation, Ms Hosany also exaggerated and distorted her account of his behaviour towards her at meetings in a further deliberate attempt to discredit him. 5.5. If this case, or even just the part about the falsified sexual allegation, were true, then plainly Mr David’s argument for a finding of express malice would be very strong. Equally, if in fact Ms Hosany was telling the truth about the sexual allegation, and Mr David was falsely denying it both to the Trust and to the Court, then his case on malice would be fatally weakened. It is therefore necessary for the Court to determine, as a factual matter, what if anything did happen between the parties that evening, because in the circumstances that will in practice determine whether and to what extent Ms Hosany honestly believed in the truth of her complaints. 5.6. Before moving to that inquiry, I should deal with two preliminary matters raised by Mr David. The first is a pleading point. In his Amended Particulars of Claim, Mr David set out at Paras (7) to (52) a “Fact Chronology” which included at (12) an account of events on 20 January 2015 and the words “we parted ways without incident”

“The relevance or purpose of the paragraphs under the heading “Fact Chronology” and “Key Procedural Chronology” (paragraphs 7 to 65) is not understood. For reasons of proportionality, the Defendant declines to plead to these paragraphs but does not admit the facts therein”. 5.7. Mr David relies on the provisions of CPR 16.5 as to the contents of a Defence. Sub-rule 5(1) requires a defendant to state which allegations in the Particulars of Claim she denies, which she admits, and which she is unable to admit or deny but requires the claimant to prove. (There is no provision for the old practice of “non-admission”.) 5(5) says that a defendant who fails to deal with an allegation shall be taken to admit it. 5.8. Mr David therefore contends that Ms Hosany has admitted that nothing happened on the evening of the 20th. For this reason, he did not even deal with those events in his Witness Statement (though fortunately he had already done so at some length in his submissions to the Capsticks inquiry). 5.9. The Defendant’s response is as follows: a. By CPR 16.4(1)a, the Particulars of Claim should include “a concise statement of the facts on which the Claimant relies”. b. In a defamation claim, the claimant has no need to prove any facts beyond those of publication of the words complained of. The nature of the Defence will determine the factual issues in dispute. c. The “Chronology” was therefore irrelevant and vexatious and it was a proper course to decline to plead to it. Its allegations were expressly not admitted and cannot be turned into admissions by an over-literal application of CPR 16.5. 5.10. In support of these propositions, Ms Hosany relies on the observations of Tugendhat J. in the case of Ontulmus v Collett [2013] EWHC 980 (QB). In that case, the libel claimant had pleaded several paragraphs of “Background” analogous to the “Chronology” here. On an application to strike the Background Particulars out, Tugendhat J. stated (at para. 27) as follows: “Pleading matters which are not those on which a claimant relies is contrary to the overriding objective. If the matters in those paragraphs become relevant to any defence that is raised, then they should be pleaded in a reply. The claim can be understood without any background other than that which is pleaded in paras (1) to (6). If the remaining “background” is relevant, for example, to aggravation of damages, then that should be stated. But a history of previous matters in dispute between the parties has no place in a claim for libel, unless it is relevant to a constituent of the cause of action”. 5.11. It appears to me that those observations are plainly correct as a matter of defamation practice and are of equal application in the present case. (Although here Mr David does plead aggravated damages, he does not rely on any part of the “Chronology” to do so). Mr David’s contention that Ms Hosany has admitted the principal matter in dispute between them is artificial and without merit and for the reasons given by Tugendhat J. I dismiss it. (Indeed, Mr David should count himself fortunate that I permitted him to give oral evidence about the 20 January incident even though it was not dealt with in his Witness Statement). 5.12. Mr David’s other preliminary point has more weight. It is that the Code of Conduct relates only to the conduct of Governors in that capacity. As Capsticks accepted, the events of 20 January, whatever they might have been, took place off Trust premises and not in the course of Trust business; they were personal between Mr David and Ms Hosany. If so, Mr David submits, then for Ms Hosany to include the “precursory incident” in her complaint was not merely irrelevant to it, but intended to prejudice the inquiry against him, and hence malicious. 5.13. As a matter of law, it is correct that if irrelevant defamatory matter is incorporated into a privileged publication, it will still be protected by the privilege, but its inclusion may be taken into account in deciding whether, in all the circumstances, the defendant was malicious. (See Horrocks v Lowe (above) at p.151, where Lord Diplock cites with approval Lord Dunedin’s words in Adam v Ward [1917] AC 309 at 326 to that effect). 5.14. But here, it is clear, especially from Ms Hosany’s express reference to the Sex Discrimination Act in Written Complaint I, and from her very use of the term “precursory incident”, that her complaint to the Governors does not relate to the 20 January incident itself, but rather to its aftermath, the hostile behaviour of Mr David towards her which she attributes to sexual rejection. On her case, the 20 January incident is necessary background to her real complaint, which cannot be understood without it. It follows that if her account of the incident is true (or is honestly believed by her, which in this case is likely to be the same thing), then it would plainly not be malicious for her to include it in her complaint. If on the other hand, her account is false/not honestly believed by her, then she will plainly be malicious whether or not the allegation was relevant. In short, this point when correctly analysed adds nothing to Mr David’s case on malice one way or the other. 5.15. In deciding a dispute of fact between two people in respect of a private incident to which they were the only witnesses (what is sometimes described as “one person’s word against another”), the Court should not, or not initially, base its judgment on an assessment of the parties’ respective personal credibility. Rather, it should consider systematically: a. the admitted or undisputed facts relevant to the incident; b. any objective evidence bearing on it, such as contemporary or near-contemporary texts and messages between the parties; c. all the surrounding circumstances, including the general probability or implausibility of their respective accounts, and whether they have been consistently maintained. The decision which person to believe should so far as possible be the product of that inquiry; such matters as character and demeanour will seldom be decisive in themselves. 5.16. It is fortunate that in this case there is an extensive body of contemporaneous messages (texts, WhatsApp and the like) and emails, as well as the parties’ own formal statements in the course of the Committee’s inquiry fairly soon after the incident. 5.17. The nature of the relationship between the parties prior to the evening of 20 January 2015 is relevant in two principal respects: a. it may indicate which version of events is more consistent with that relationship; b. if there is a marked difference between their relationship before and after that evening, that change may cast some light on what took place. 5.18. The evidence includes a large number of WhatsApp chat messages (similar to texts) passing between them during the month before 20 January 2015. This period includes Christmas and New Year, so it would not be surprising to see friendly or even affectionate messages between colleagues at that time. However, in number and content, these messages are consistent with a warm and perhaps growing friendship between them, rather stronger on his side. 5.19. Examples include: a. his use of the nicknames “poshy” and “posh eyes” (because she lived in a smarter part of Hackney than he did); b. her use of affectionate terms for him such as “hun” (for honey) though she says this is not uncommon for her; c. the increasing frequency of the messages – about 60 on 13 January 2015 for example; d. occasional moves on his part towards closer contact with her. For example, on 13 January 2015, in response to her simple statement that she was making lunch for a friend, he messaged that he hoped to test her culinary skills some time, and followed it with a “personal looks like” emoji. (She made no response). 5.20. On one occasion (18 December 2014), after going out, they sat in her car outside her house talking for so long that her car battery ran out. Later that evening, he messaged her to say sorry and she replied “No need to apologise, silly”. 5.21. Their messages continue in this way up to 20 January 2015, combining businesslike discussions of Trust business with lighter messages. At 10.15pm on 19 January 2015, for example, they discuss how they could both put themselves forward for the participation committee, and Ms Hosany says “We could do it together. That would be cool”. (There is no sign of rivalry or competition at this point). 5.22. On the evening of the 20th January itself, there are of course no messages during the fairly lengthy period they are together. But immediately afterwards, there is an important exchange which I should set out in full. KD. 2207 Are you home safe? ZH. 2218 Yep. All in thanks. Let me know when you get in too. KD. 2221 I’m just getting in. Sorry for spoiling the night. KD. 2225 But thanks for everything. ZH. 2237 That’s cool. Glad you’re in safe. See you tomorrow. KD. 2244 Night …… dream good dreams. (The parties give different explanations of this to which I shall return after reviewing all the evidence). 5.23. The 20th January was a Tuesday. The rest of that week, up to and including Sunday 25th, is a crucial period during which the parties’ previously good personal and professional relationship suffered an almost complete breakdown. 5.24. Wednesday 21 January 2015 a. The principal relevant event on this day was a meeting of the QI group to plan a forthcoming presentation to the Borough Members on Thursday 29 January (the BMM). Prior to that meeting, at 1508, Ms Hosany sent Mr David a message about a Governors’ email, which led to a friendly though not intimate exchange of messages between them. (Mr David says this shows nothing serious can have happened the previous night; Ms Hosany says she was trying to be business-like and put matters back on their previous footing). b. The QI Group meeting did not go well. According to Ms Hosany, Mr David arrived late and was disruptive, joking about the refreshments and challenging her proposals about the BMM, in particular as to their respective roles in leading the meeting. Ms Hosany says he behaved in the same manner as usual and that a vigorous discussion on business matters was appropriate. c. In the absence of third party witnesses, it is difficult to reach a conclusion about whether and to what extent Mr David’s behaviour at this meeting went beyond acceptable limits and can be attributed to sexual rejection as Ms Hosany contends. Subsequent communications cast more light on this. d. Mr David and Ms Hosany spoke after the meeting. Later that night, Ms Hosany sent Mr David a message which is a fairly clear indicator that they had parted on bad terms but that she was still trying to restore good relations. ZH 0049 I think it would be useful if we met to speak before the CoG [Council of Governors] meeting). Seems we both got heightened and misunderstood perhaps. KD 0900 Hiya. I would try to get there a few minutes early because of that. 5.25. Thursday 22 January 2015 a. At 0956 Ms Hosany emailed Amar Shah, a senior Trust colleague, saying she was feeling disheartened and undermined (about her role as QI Lead). She stated that: - “Kofo seems to have an issue with overlap of roles (at the BMM)”. - “He, therefore, could not accept that as the QI Lead, I was able to make decisions independent of the group”. b. Mr David also emailed Mr Shah, at 1324 asking him for confirmation of the role of the QI Lead and whether the QI Lead had “a voting power that nullifies all of the other Governors on the QI Project”. (It was a formally-worded request which included references to the Trust’s statutory basis). c. At 1404, Ms Hosany emailed the QI Group members with a summary of the previous day’s meeting and a draft agenda for the BMM. In her covering email, without naming Mr David, she asked: “… that we continue to treat each other with respect and as part of a team. Everyone’s contributions are valid, however, we do have a framework to work in and it is my job to ensure that we stick to it”. (In context, this was clearly a reference to Mr David’s conduct the previous day and her fear that he might behave similarly at the BMM). d. The proposal was that Mr David should chair the BMM Meeting, but that Ms Hosany should be the “compere”, opening the meeting and summarising the debate. e. Mr David responded at 1515, challenging Ms Hosany’s proposals: “Hi Zara. Well done on that, it’s falling into place nicely. Just to clarify the point you raised about the “compere” setting the parameters of the meeting and ground rules of what questions would be allowed, my understanding is that it’s supposed to be the role of the Chair …. A compere is more suitable at events with multiple speakers and segments”. f. The Chair, Marie Gabriel and Amar Shah were concerned at this growing dispute between two Governors and its possible effects on the upcoming BMM. Ms Gabriel contacted both Mr David and Ms Hosany in an attempt to conciliate. At 1454, Ms Hosany emailed Ms Gabriel asking if they could find “a confidential space to speak” before the Council of Governors meeting due to start at 1700. g. The Council of Governors meeting passed off without incident. 5.26. Friday 23 January 2015 a. At 0910, Ms Hosany emailed Ms Gabriel asking if they could meet on Monday (26th). Ms Gabriel replied, agreeing to do so and telling her not to think about CoG or QI for the rest of the weekend. In turn, Ms Hosany replied that she had to respond to “Kofo’s antagonistic email” and that he had been “disrespectful and undermining” and had questioned her role as the QI Lead. b. Ms Gabriel replied at 1037, urging Ms Hosany to leave matters to her. Ms Hosany replied at 1100, saying: “I think we’re getting into a power/control battle and something happened this week which I wanna confide in you confidentially. I’m not sure who else to speak to about it. Would have been better face to face but would rather speak about it sooner than later”. (This is clearly a reference to her allegations about the night of the 20th; on Mr David’s case it is the beginning of the malicious false allegation). c. Ms Hosany did not take Ms Gabriel’s sensible advice to “leave it”

“….. Just to be clear, I will not have any patronising speeches made to the meeting beforehand, it just won’t be happening ….. I can’t have someone make a speech that might upset the tone of the meeting and be expected to take the flak afterwards”. (He also indicated his willingness to refer people who raised their own health problems at the meeting to Councilllors. This is capable of being interpreted as blurring the boundaries between Trust and party-political activity). e. At 1505, Ms Hosany replied (to the whole group) in equally strong terms: “…. I feel a lot of what you have said is inappropriate, rude and patronising … If you don’t feel able to perform this duty, we can place another Chair for the meeting next week ….”. f. At 1658, Marie Gabriel intervened, asking that no further emails be sent and stating that she would meet both Mr David and Ms Hosany on Monday 26th to find a way forward. g. (At some point, Ms Hosany spoke to Ms Gabriel privately and gave her an oral account of what she said had happened on the night of the 20th). 5.27. Sunday 25 January 2015 a. At 1752, Marie Gabriel sent both Mr David and Ms Hosany a long carefully-considered email aimed at delineating the boundaries between their respective roles at the BMM meeting. b. At 2034, Mr David replied to both in a reasonably conciliatory manner, accepting their dual roles but continuing to argue his case. c. At 2047, however, Ms Hosany replied to Ms Gabriel alone, stating: “I too have given this much further thought and unfortunately, I have come to the conclusion that due to Kofo’s disregarding physical actions of infringing my personal space and propositioning me in such an uncomfortable manner, I don’t feel able to work with him. I have tried, however, the way he conducted himself in Wednesday’s meeting and his nonchalant attitude after both events where he was not able to recognise that he had done anything wrong and I, therefore, don’t feel I should have to be subjected to being around him any further than I need to. In a work situation, touching someone inappropriately would be taken really seriously and is a sackable or disciplinary offence… I am, therefore, asking that due to his poor conduct both in meetings, in public correspondence, his personal tirade against me and most importantly, his inappropriate gesture towards me that he be asked to leave the QI group …”. 5.28. Monday 26 January 2015 a. Ms Gabriel met Mr David and Ms Hosany separately at about 10am, and reached the conclusion that they would not be able to present the BMM together and that a third Governor should chair that meeting. (Her email of 1705 on 27 January 2015 refers). b. At 1030, Mr David and Ms Hosany attended a meeting with Trust staff at which the breakdown in their working relationship continued to be apparent. c. That afternoon, Ms Hosany sent Ms Gabriel two emails (1524 and 1555) in which she stated her intention of making a formal written complaint. 5.29. Tuesday 27 January 2015 At 1148, Ms Gabriel emailed Ms Hosany requesting her to submit a formal written complaint giving details of the incidents complained about, at least in bullet point form. 5.30. From this point, so far as the question of malice in respect of Written Complaints I and II are concerned, the essential events have occurred and matters move on to the complaint and investigation stage. 5.31. At set out in the Chronology at 1.4 above, Ms Hosany submitted Written Complaint I on Monday 2 February 2015 and redrafted it in conjunction with the Secretary, Keisha Ehigie, producing Written Complaint II on 3 March 2015. 5.32. Subsequent Events The main focus shifted to the arrangements made to separate Ms Hosany from Mr David in relation to Trust business, and the further action taken against him in that regard. These are of little relevance to the malice issue since they are equally consistent with Mr David being the innocent and indignant victim of what he would have known to be a false and malicious complaint. 5.33. The parties made their statements to the Capsticks investigation and the Conduct Committee; but since the focus of those inquiries was not so much on the 20 January incident as its aftermath, and since I have had access to the same original material as those inquiries and have heard the parties for myself, they add little to the matrix of evidence on which the malice issue turns. (I should say that Mr David sought to demonstrate, by painstaking analysis of Ms Hosany’s various statements, that there were material inconsistencies which went to show that her account to the Court was not to be believed. For my part I did not find anything in those alleged inconsistencies that went beyond the ordinary variability of human recollection and narration, and certainly nothing so powerful as to displace the positive considerations, set out below and largely based on the contemporaneous material, which have led me to my conclusions on the malice issues.) 5.34. The 20 January Incident; Discussion and Conclusions a. From the above evidence, which is largely drawn from the contemporary words of the two parties themselves, one thing emerges with stark clarity. Between the afternoon of 20 January and the afternoon of 21 January, something happened which completely transformed the personal and working relationship between them. All jokes and affection cease, and they become locked in a “turf war” over Trust business in which they had been allies. b. What was that event (or series of events)? Mr David says it was his remark that Ms Hosany was rather controlling, which so angered her that she decided to make up a false sexual allegation against him. Ms Hosany says it was his “pass” at her and her rejection of it, which led in turn to his increasing hostility to her in Trust meetings and correspondence. c. The former version is very difficult to reconcile with the actual events of the 21st and 22nd. If Mr David did make a remark about Ms Hosany being “controlling” and was so aware that it had upset her that he felt the need to apologise to her immediately for spoiling the evening, it is improbable and inexplicable that the very next day he would return to that subject at the QI meeting and challenge her leadership role at the Group and in relation to the BMM. It is almost equally improbable and inexplicable that Ms Hosany, a woman of good character, a health professional engaged in voluntary public duties, would respond by escalating this dispute with a fabricated sexual allegation. d. The latter version is entirely consistent with the nature of the parties’ pre-20 January relationship as expressed in their messages. Two people of the same age and with many interests in common meet in a work context and become friends. They begin to see each other after work. Mr David begins calling her nicknames, complimenting her on her appearance, trying to get an invitation to dinner at her flat. Ms Hosany goes along with this to a certain extent, not rebuffing him or avoiding him. One night he goes too far for her, and he immediately apologises for “spoiling the evening”