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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Maccaba v Lichtenstein  EWHC 1577 (QB) (02 July 2004)
Cite as:  EWHC 1577 (QB),  EMLR 206,  EWHC 1577,  EMLR 9
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Mr Brian Yosef MACCABA
|- and -
|Dayan Yisroel Yaakov LICHTENSTEIN
(instructed by Addleshaw Goddard) for the Claimant
David Price, Justin Rushbrooke (instructed by DPSA) and John Samson (of DPSA)
(instructed by David Price Solicitors & Advocates) for the Defendant
Hearing dates: 20 April - 18 June 2004
Crown Copyright ©
Mr Justice Gray:
i) English law recognises that, in certain circumstances, words which are both defamatory and untrue may nonetheless be defensible. One such circumstance is where the defence of qualified privilege is available. The issue whether such privilege is available is ultimately one of public interest. As Baron Parke put it in Toogood v. Spyring  1 CM & R 181 at 191 publications which are "fairly warranted by any reasonable occasion or exigency … such communications are protected for the common convenience and welfare of society".
ii) There have subsequently evolved a number of situations where the publication of words will be held to be protected at common law. Of these situations the relevant one for the purposes of this case is where the publisher has a duty or a legitimate interest in publishing the words and those to whom the words are published have a corresponding and/or common interest in receiving them.
iii) The duty may be a legal or social or moral one. In deciding whether there was a social or moral duty to publish the court will consider by whom it was published, to whom, when, why and in what circumstances: see Stuart v. Bell  2 QB 341 at 350.
iv) A material consideration is whether there existed at the time of publication an existing relationship between the publisher and the publishee(s): see the judgment of Simon Brown LJ in Kearns v. General Council of the Bar  1 WLR 1457. It is, however, doubtful if this is a necessary condition for the existence of the privilege.
v) The protection of the privilege attaches to the occasion of the publication.
"This again was a case which turned upon duty rather than upon an established personal or business relationship. This, submits [counsel for the Defendant], in my judgment correctly, is why the court was concerned to evaluate the quality of the information. It was relevant to go into the specific information, rather than confining the enquiry to the broad subject of the conversation, in order to decide whether a specific duty had arisen".