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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Alexander v Arts Council Of Wales  EWCA Civ 514 (9 April 2001)
Cite as:  EMLR 27,  1 WLR 1840,  EWCA Civ 514,  4 All ER 205,  WLR 1840
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HON. MR JUSTICE EADY
Strand, London, WC2A 2LL
Monday 9th April 2001
B e f o r e :
LORD JUSTICE MAY
LORD JUSTICE JONATHAN PARKER
| JANEK ALEXANDER
| - and -
| (1) THE ARTS COUNCIL OF WALES
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Thomas Shields QC and Timothy Atkinson (instructed by Edwards Geldard for the Respondents)
Crown Copyright ©
LORD JUSTICE MAY :
"In this case we were asked to make a commitment in principle by the administrator/administrators of Chapter to a very large sum of money, and it was without that request being supported by a detailed development and business plan and all of the details that we always ask for before making a commitment to a large capital sum. It simply would not be a priority use of public money or accountable to make that commitment in principle. We have never done so, did not do so in this case and would not in the future."
"In making such an application the plaintiff has shown himself to be reckless and/or negligent and/or incompetent in the performance of his job at Chapter and also as an arts administrator. Furthermore, it demonstrates that his attitude to the use of public funds is cavalier making him an unworthy custodian of them in his role as Director of Chapter."
"However, the Arts Council say that they won't contribute because the grant application wasn't submitted properly."
"What they were asking the Council to do was to make a commitment in principle to an amount of £3.8m. Now it would not be a proper use of public funds for the Arts Council to say "In principle we'll give you nearly four million pounds, and then come back and tell us what you're doing with it"."
The Judge's decision
"It seems to me that the matter can be put on both bases, that is to say the general duty/interest test and the "reply to an attack" test. I prefer to place the matter on the more general footing by saying that this was a matter concerning public funding and decisions made in relation to it which were likely to have a considerable impact on the arts in South Wales. It seems to me to be clear that someone in Miss Weston's position had a duty to explain, as far as she could, the nature of the decision and, if pressed upon it, the reasons for the decision. That is particularly so in a case where the matter had been placed in the public domain very recently and had thereby become a matter of legitimate interest."
"It is to my mind manifest that Miss Weston was saying that at least one reason why the request could not be accepted was that the ACW did not have the information that usually accompanies a commitment to funding of this order; i.e. in the case of an application. There is no evidence from which it could be inferred that she was intending to convey the idea that Mr Alexander had failed to provide what he was asked for.
There are three messages contained in the words alleged to have been spoken and I will identify them as follows: (1) that ACW were being asked to make a commitment "in principle" to a very large sum of money; (2) the request was made without being supported by a detailed development and business plan and all of the details that ACW always ask for before making a commitment to a large capital sum; (3) it would not be a proper use of public money to make a commitment in principle and, what is more, ACW had never done so and was unlikely to do so in the future. It is possible always to criticise ex tempore words on the basis that they could have been better drafted or expressed. It may be, for example, that if Miss Weston had inserted after the words " … the details that we always ask for …" an additional phrase along the lines of "on a standard application." It might have been clearer to listeners unfamiliar with ACW procedures, but what matters in this context is what she intended to convey" (The judge's emphasis)
Grounds of appeal and submissions
"Here, it is very important to contrast the test for meaning on the one hand and the test for malice on the other. Meaning is an objective test, entirely independent of the defendant's state of mind or intention. Malice is a subjective test, entirely dependent on the defendant's state of mind and intention. Thus, in a case where words are ultimately held objectively to bear meaning A, if the defendant subjectively intended not meaning A but meaning B, and honestly believed meaning B to be true, then the plaintiff's case on malice would be likely to fail."
"I think that this passage requires some qualification by the addition of a further exceptional case. Since, as Lord Diplock emphasised, the public interest essentially requires protection for freedom of communication honestly exercised, what matters is that the publishers shall believe in the truth of what he intends to say. If, from his viewpoint his remarks are misconstrued, he would be likely to be the first to say "I never believed in the truth of that" or "I never considered whether or not that was true". If such an answer would take him outside the protection of qualified privilege, its purpose would on occasion be wholly undermined. Putting it another way, in such circumstances the defamer cannot be said to be "telling deliberate and injurious falsehoods". At worse, he is doing so unintentionally."
"Plaintiff must adduce probability of malice at least. In order to enable the plaintiff to have the question of malice submitted to the jury, it is necessary that the evidence should raise a probability of malice and "be more consistent with its existence than with its non-existence." "It is not sufficient if it falls short of that and is consistent only with a mere possibility. To direct a jury to consider mere possibilities in such a case would be practically to destroy the protection which the law throws over privileged communications.""
Discussion and conclusions
LORD JUSTICE JONATHAN PARKER:
LORD CHIEF JUSTICE:
i) "Trial by Jurya) 69 (1) were, on the application of any party to an action to be tried in the Queens Bench division, the court is satisfied that there is in issue -
i) the action shall be tried with a jury, unless the court is of opinion that the trial requires any prolonged examination documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury."
i) "Grounds for summary judgment.
ii) The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if -
(a) it considers that -
(i) that claimant has no real prospect of succeeding on the claim or issue; or
(ii) that defendant has no real prospect of successfully defending the claim or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial.
b) (Rule 3.4 makes provision for the court to strike outGL a statement of case or part of a statement of case if it appears that it discloses no reasonable grounds for bringing or defending a claim.)
i) "I am satisfied that an application under part 24.2(a) can properly be made in order to determine certain questions which fall within the jurisdiction of the judge in a libel action. These include, for example, whether the words complained of were published on an occasion of absolute privilege. On the other hand, the Rule does not permit a judge alone to determine questions of fact which parliament has determined should be decided by a jury, and in particular, whether the words complained of are defamatory of the claimant."
i) "The issue of whether a verdict is perverse can only be raised after a jury's verdict has been given. The decisions cited by counsel in support of his proposition are all decisions in the Court of Appeal. None is authority for the proposition which he states or that the judge is entitled to take away an issue of fact from the jury merely because he considers that the jury might reach a perverse verdict."