Case No: A2/2008/2728
Neutral Citation Number: [2009] EWCA Civ 272
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION 
(MR JUSTICE EADY)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 24th February 2009

Before:

LORD JUSTICE KEENE
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Between:

	HUGHES	
Applicant	
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ALAN DICK COMPANY LIMITED	

Respondent	

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(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

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Mr A Khan (instructed by Messrs VLS Solicitors) appeared on behalf of the Applicant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment

Lord Justice Keene:

1.	This is a renewed application for permission to appeal from a decision of Eady J made on 23 October 2008, permission to appeal having been refused on the papers by Sir Richard Buxton.  

2.	The applicant is the claimant in proceedings brought by him for slander against his former employer in respect of words spoken by one of their employees, a Mr Tom Corke.  The words were said to have been spoken to an officer of the Border and Immigration Agency, a Mr Bartholomew, and then communicated to a police officer.  It is claimed that in a telephone call Mr Corke alleged that the claimant had been embezzling from the company in Nigeria and that his wife, who had just arrived at Heathrow that morning, might be carrying £100,000 in cash in her baggage.  The claim form and the particulars of claim were sent to the defendant company on 5 June 2008, and in the absence of any response from the defendant judgment in default was entered on 25 June.  Subsequently the defendant applied to set aside the default judgment, and it was this application which principally came before Eady J.  

3.	He set aside the default judgment and he did so on two grounds: first, that the defendant has a real prospect of successfully defending the claim; and secondly, that there is another good reason for setting it aside, namely the fact that a response pack was not served upon the defendant with the particulars of claim.  Those two grounds referred to the terms of CPR 13.3(1).  On the first of those the judge held that there was a realistic prospect of the defendant establishing a defence of absolute privilege, qualified privilege and/or justification, the first two of those relying upon the fact that publication was to an immigration officer.  As the judge recognised, the scope of the defence of absolute privilege has undergone some enlargement in recent years, especially in respect of the reporting of possible crime, but he observed at paragraph 13 of his judgment that:

“…it is manifest that on any view there would be a realistic prospect of establishing qualified privilege in relation to the publications complained of on the basis of common and corresponding interest and the wish to communicate to appropriate authorities the suspicion of a crime having been committed, whether inside or outside this jurisdiction.”

4.	The claimant had argued that there was malice so as to defeat qualified privilege, but the judge took the view that that would have to be tested at a trial, as would the defence of justification.  He declined, however, to accede to an application by the defendant to strike out the claim as an abuse of process, as he did to a further application by the claimant to proceed to summary disposal.  He ordered therefore that the matter proceed to trial, and he ordered the claimant to pay the costs of the hearing before him.  

5.	The grounds of appeal to this court take a large number of points but Mr Khan, who appears for the applicant this morning, has confined himself to two principal matters and put it very concisely.  First of all, he contends that there is a reasonable prospect of success in relation to the judge’s order on costs.  It is submitted on that issue that the judge should have made a reduction in the award of costs to the respondent because the respondent was not entirely successful.  What Mr Khan is there emphasising is that the respondent sought to strike out the claim and that that was an application which failed.  Reference has been made in the course of submission to a decided case where a reduction was made.  The failure to do so in this case, submits Mr Khan, amounted to an error of law.

6.	Let me deal with this issue before I turn to the second matter which has been advanced this morning.  I cannot accept that there is any realistic prospect of success on the costs order.  Costs are par excellence a matter for a judge’s discretion.  This court will be slow to interfere with that exercise.  The judge here was dealing principally with an application to set aside a judgment by default.  That application was resisted by the claimant.  He lost.  It is true that in the course of all of that there was an unsuccessful application by the then defendant to strike out the claim as an abuse of process, just as there was an unsuccessful application by the claimant to proceed to summary disposal.  It may well be that the judge took the view that those two clearly ancillary and subsidiary matters more or less cancelled each other out.  There was in my judgment nothing wrong with the order that the claimant should pay the costs of that hearing.  

7.	The other matter which is raised as meriting the attention of this court is that the case raises issues of public importance.  Mr Khan, in dealing with this, has referred to a number of issues.  He, to begin with, focuses on what the judge said about the availability of a defence of absolute privilege.  The question is posed: does that defence apply to a complaint made to an immigration officer, as opposed, for example, to a police officer?  In addition there is an issue about the possibility of malice as sometimes providing a defence to absolute privilege.  In addition it is sought to argue that there is an important issue as to whether in defamation one can have reckless malice as a defence both to absolute and qualified privilege, and submissions are made about the meaning of the concept of dishonesty and whether that is the appropriate test of malice as the judge described it.  On that basis it is argued that this court ought to deal with those issues on appeal.  

8.	I say straight away I find this argument quite unpersuasive.  The situation here is one where, as yet, these matters have not been dealt with properly at first instance.  There has been no final judgment on these matters.  As Sir Richard Buxton pointed out, and I quote from his reason for refusing permission to appeal when he dealt with this on paper:

“The objections raised to the judge’s approach seek to argue out all the points of law and fact as if this were a final judgment.  That is quite inappropriate, as the judge said in his paragraph 16.”

That in my view is entirely right.  The judge here was not dealing finally with these matters, he was dealing with whether there was some potential for the defence and these matters would have to be properly investigated at trial.  The points which are raised by Mr Khan this morning could be important matters, but they have not yet been determined in a final judgment at first instance.  The judge here was simply dealing with these matters as a potential defence.  

9.	Having said that, I would just comment on some of the detailed points Mr Khan makes.  It is right that the judge referred in paragraph 22 of his judgment to the claimant having to establish “in effect dishonesty” in order to show malice.  That clearly was the judge’s own shorthand for the well known and more detailed exposition of malice in the case of Horrocks v Lowe [1975] AC 135.  But on whatever basis it is sought to show malice, the judge was right to conclude that the matter would need to be investigated through oral evidence at trial.  If Mr Corke honestly believed in the truth of what he said even if it was untrue, the plea of malice in my judgment could not succeed.  Mr Khan has cited both in his written skeleton and orally this morning a number of cases in an attempt to show that the test of malice is an objective one.  But none of the authorities relied on are dealing with malice in the defamation context.  One simply cannot transfer the views that courts have expressed about the concept of dishonesty in other areas of law to this particular area that we are dealing with in the defamation field.  

10.	I do not propose to go through the various other matters which Mr Khan has raised in detail because it seems to me that the fundamental flaw in his second point is the one which I have already referred, namely that these matters have not yet been dealt with finally by a judge at first instance.  They may or may not be important issues but they are not matters which merit coming to this court at this particular stage in the proceedings.  Whether they ever do remains to be seen.  

11.	There is therefore no realistic prospect of a successful appeal, and this application must therefore be refused.

Order: Application refused