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Cite as: [2008] EWHC B22 (QB)

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Neutral Citation Number: [2008] EWHC B22 (QB)
Case No: 7CH50085


Manchester Civil Justice Centre,
1 Bridge Street West,
Manchester. M60 9DJ
28 November 2008

B e f o r e :

His Honour Judge Stephen Davies
sitting as a Judge of the High Court in Manchester





The Claimant in person
Mr. Jonathan Crystal (instructed by Hill Dickinson LLP, Liverpool) for the Defendant

Hearing dates: 11 November 2008



Crown Copyright ©

    His Honour Judge Stephen Davies:


  1. On 31 October 2008 the Defendant made an application seeking the following relief:
  2. 'The Claimant's action against the Defendant be struck out and alternatively that judgment be entered for the Defendant because the letter which is the subject of the claim was published without malice on an occasion of qualified privilege and as such provides a full defence to any claim which the Claimants may have against the Defendant.'

  3. The Defendant's solicitors requested that the application should be heard on the first day of the trial, which had been fixed for four days commencing 11 November 2008. The Defendant had indicated at a case management conference on 27 October 2008 that it intended to make this application, and Silber J. accordingly directed that the jury would not be required until 12 November. Having heard argument on 11 November, I reserved judgment and therefore adjourned the trial.
  4. The letter the subject of the claim is a letter written on 27 June 2007 by Mr. Tony Hindle, a Traffic Manager in the employment of the Defendant, and at that time the Claimant's line manager, to the Claimant's General Practitioner, a Dr. Wilson. It is a short letter which reads as follows:
  5. 'Re: Your Patient
    Mr. Gregson has submitted the attached Form Med 3 claims for sick pay.
    We have evidence from the Police that Mr. Gregson has been working as a kitchen installer whilst claiming statutory sick pay and company sick pay. As an employer we have a duty to report any instances of fraud and, therefore, we are returning the original Form Med 3 forms to you for your attention.'

    The pleaded cases

  6. In his Particulars of Claim, endorsed on the Claim Form issued on 28 August 2007, Mr. Gregson (who has throughout acted in person) complained that:
  7. 'The letter implied that the Claimant had committed this offence and that the police were involved with it. This information was not true and the Defendant is liable for providing this defamatory remark.'

  8. In its Defence, dated 11 October 2007, the Defendant pleaded justification, both in relation to the meaning contended for by Mr. Gregson (although it does not accept that the letter implied that the police were investigating this matter) and in relation to the meaning for which it contended, namely that:
  9. 'The Claimant was, alternatively there were strong grounds for believing the Claimant was, fraudulently claiming sick pay.'

  10. Importantly however for present purposes the Defendant also pleaded a defence of qualified privilege. In paragraph 4.10 it pleaded as follows:
  11. 'In the circumstances the Defendant was under a duty and/or it was its proper and legitimate interest to communicate to the doctor signing form Med 3 its belief as to the Claimant's right to statutory sick pay and the doctor had a corresponding and legitimate interest in receiving such communication. Further the communication by the Defendant was reasonable in all the circumstances being no wider than was necessary in order to inform those interested.'

  12. On 11 October 2007 the case came before His Honour Judge Halbert, the Designated Civil Judge for Chester, who gave directions with a view to a trial in February 2008. Following disclosure, however, Mr. Gregson made an application for summary judgment on his claim, seemingly on the basis that the Defendant had no real prospect of proving that he had been fraudulently claiming sick pay. On 10 March 2008, by which time witness statements had been exchanged, Judge Halbert dismissed the application and gave further directions for trial.
  13. By this stage Mr. Gregson had still not served any Reply. It is unfortunate that Judge Halbert's attention was not drawn to the provisions of CPU 53PD9 paragraph 2.9, which provides that:
  14. 'If the defendant contends that any of the words or matters are fair comment on a matter of public interest, or were published on a privileged occasion, and the claimant intends to allege that the defendant acted with malice, the claimant must serve a reply giving details of the facts or matters relied on.'

  15. Judge Halbert did, however, order Mr. Gregson to serve his witness statement (it appears that Mr. Gregson had overlooked the need to serve a witness statement from himself). Mr Gregson's witness statement, made on 12 March 2008, included the following paragraphs:
  16. '28. I believe that Mr. Hindle acted with malice the reason for this is as such:- when he wrote to Dr. Wilson he was not the proper person to write to. Mr. Hindle knew that the police were not investigating any such claim for working while sick as no complaints had been made. It is accepted that if Mr. Hindle was intending to dispute the validity of sickness he would have an obligation to notify the statutory payments department at the Inland Revenue and Customs, and he would have made a complaint to the police. However he took the law into his own hands becoming judge and jury and administered his own procedure to attempt to discredit me or put doubt with Dr. Wilson in order to attempt to get Dr. Wilson not to sign me unfit for work, in order to bring about the disciplinary interview that he was so desperately trying to get me to attend.
    34. ... I would agree under normal circumstances that if the company did have correct information that was a true suspicion of fact they would ordinarily have had a qualified privilege to supply the information to the police or the Inland Revenue benefit department. Mr. Hindle should have passed this to the financial director or wages department to contact the benefit department. However he did not do this and took it upon himself to write to my doctor. In this respect I submit that there would be no qualified privilege to send the information to the doctor as it did not concern him as he does not pay statutory sick pay.'

  17. In July 2008 the case was listed for trial in Manchester to commence on 11 November 2008, and in August 2008 the case was listed for a case management conference hearing on 27 October 2008. It was on 16 October 2008 that the Defendant's solicitors wrote to the court to advise it that it intended to make an application to strike out the claim on the first day of trial, on the basis that the Defendant had pleaded qualified privilege and Mr. Gregson had not pleaded malice in response.
  18. On 27 October 2008, in addition to giving the direction to which I have referred in paragraph 2 above, Silber J. ordered Mr. Gregson to serve a Reply by 12 noon on the 29 October 2008. Mr. Gregson duly did so, and the Reply contained the following relevant paragraphs:
  19. '13. The claimants will argue the points made by the defendant in paragraph 4.10 of the defence and argues that the defendant did not have any duty or have any proper or legitimate reason to contact the doctor signing the sickness form Med3. Simply it was not a fact that the doctor needed to know about. The claimants will argue that the defendant's employee Mr. Hindle had received a communication by letter dated 26 June 2007 from the claimant in response to a letter sent by Mr, Hindle on 25 June 2007 informing for the first time that the claimant's sick pay had been suspended. Subsequently the letter of the 26 June 2007 sent by the claimant had given no reason or facts by the defendant to say why his claim for statutory sick pay have been suspended and the letter of 26th requests that the defendant clarifies his reasons for suspending sick pay.
    17. The claimant will argue that Mr. Hindle was so obsessed with trying to get the claimant to attend a disciplinary hearing that knowing that the facts of his obligations (working whilst claiming sick pay) and in the knowledge this was disputed and that he was fully intending to refuse to provide the claimant with any information about such a claim until the claimant attended the disciplinary hearing that he had scheduled. The claimant argues that as the defendant knew that he had not made any other inquiries to substantiate any of the facts were true, and that he had deliberately exaggerated the allegations, the claimant argues that Mr. Hindle deliberately wrote to the claimant's doctor with an ulterior motive and that motive was to discredit to the claimant with the doctor to prevent the claimant from being signed off by the doctor.
    18. The claimant argues that the letter written by Mr. Hindle to the doctor was an act of malice and the comments to the HMRC about working whilst sick and the use of a van were again written with malice. The" reason I give is that the defendant whilst knowing that the claimant disputed his allegation claiming that the claimant had been working and was being reported for an instance of fraud relating to the sickness. The defendant had not been told by the police that the claimant was working as a kitchen installer but had according to the defendant been told he was on his way to fit a kitchen.'

  20. In his skeleton argument and in his oral argument the essential thrust of Mr. Crystal's submission was that;
  21. (1) It was plain that the publication of the letter was on an occasion of qualified privilege.
    (2) There was no proper basis for alleging malice, nor was there any evidence from which a jury could properly find malice, because there was no basis or evidence for alleging dishonesty, and because the motive alleged, to contest a sick note which the Defendant genuinely believed ought not to have been issued, could not be said to be improper.

  22. The essential thrust of Mr. Gregson's oral argument was that:
  23. (1) For the reasons contained in his Reply and in his witness statement, qualified privilege did not attach to the letter.
    (2) Although he made it clear that he was not alleging dishonesty against Mr. Hindle or the Defendant, he was alleging an improper motive and, thus, malice.
    (3) In relation to both issues he had a valid case, which should go forward and be fully investigated at trial.

    The basis of the application

  24. The application notice made by the Defendant did not state whether it was intended to be made under rule 3.4 of the CPR or rule 24 or both. It was plainly intended to be an interim application to be made before the trial commenced and before evidence was heard. Whatever the precise basis for the application, it was accepted by Mr. Crystal, and I am quite satisfied in any event, that my role in hearing the application is not to conduct a mini-trial, and therefore that I must assume, for the purposes of the application, that Mr. Gregson has a reasonable prospect of establishing his factual case at trial.
  25. I should however record that Mr. Crystal also submitted to me that since there were no relevant facts in dispute about which I needed to hear evidence before ruling on the issue of qualified privilege, I was in a position to make a determinative ruling on the issue of qualified privilege and should do so. He referred me to paragraph 34.15 of the current (10th) edition of Gatley on Libel and Slander, reminding me that if the facts are not in dispute the question whether the occasion is privileged is a question of law only for the judge. During the course of the hearing Mr, Gregson submitted that I should not determine the question of privilege until the evidence had been heard, although he could not point me to any particular facts or facts about which there was a dispute on which the decision was dependent. It is also worth noting that after I had indicated that I was reserving judgment there was some further discussion as to further case management directions in the event that I declined to strike out the claim, during which both parties expressly stated that they wished any trial to be before a judge alone, rather than with a jury.
  26. The relevant facts

  27. It is necessary for me to make some further reference to the relevant facts, in particular identifying the particular facts and matters relied upon by Mr. Gregson, and any facts which are in dispute which may be relevant to the issue of qualified privilege and malice.
  28. It is common ground that on 15 May 2006 Mr. Gregson commenced employment with the Defendant as a bus driver. Mr. Gregson accepts that in his application form, which he signed under a declaration that the information given by him was true, accurate and complete to the best of his knowledge, he falsely stated that he did not have any points on his driving license.
  29. 18 It is not in dispute that as a result of a disciplinary interview conducted by Mr. Hindle on 22 March 2007 Mr. Gregson was given a final written warning for gross misconduct arising from an allegation that he had failed to operate a particular bus service in accordance with instructions. It is also not in dispute that as a result of a further disciplinary interview conducted by Mr. Hindle on 29 May 2007 Mr. Gregson was issued with a further final written warning for misconduct arising from an allegation of bullying or harassment of a fellow employee. Furthermore, it is not in dispute that on 8 June 2007 Mr. Hindle required Mr. Gregson to attend a further disciplinary interview on 13 June 2007 in relation to an allegation that he had failed to issue a ticket to a customer and failed to pay in the money he had received from that customer. On 9 June 2007 Mr. Gregson wrote to Mr. Featham, the managing director of the Defendant, referring to the recent history of events. In that letter Mr. Gregson, having set out his version of events in relation to the current allegation, expressed his concern that Mr. Hindle regarded him as dishonest and a liar, and advised Mr. Featham that he was suffering from stress to such an extent that he was unfit for duty and would be consulting his doctor. He said that he would be unable to attend the disciplinary interview that had been arranged.

  30. On 12 June 2007 Dr. Wilson, who it will be recalled is Mr. Gregson's doctor, signed a form Med 3 confirming that, having examined Mr. Gregson, he had advised him that he should refrain from work for two weeks, his diagnosis of the disorder causing the absence from work being stress related to work. As relevant, form Med 3 provided that:
  31. (1) It was to be used for 'social security and statutory sick pay purposes only'.
    (2) Under the heading 'notes to patient about using this form', if it was to be used for statutory sick pay purposes, then the completed form should be given or sent to the patient's employer.
    (3) The employee was to provide his details, under a declaration including the following statements:
    'I understand that if I knowingly give information that is incorrect or incomplete, I may be liable to prosecution or other action.'
    'I declare that because of incapacity I have not worked since the date of my last claim.'
    'I declare that the information I have given on this form is correct and complete as far as I know and believe.'
    'I agree that the Department for Work and Pensions or a doctor acting on their behalf may get in touch with my doctor so that they may give the Department for Work and Pensions any information which is needed to deal with this claim and any request to look at the claim again.'

  32. Although neither party addressed detailed submissions to me in relation to the statutory framework governing statutory sick pay and the role which the employee's GP has in the process, there was no real dispute about the way in which the system operated. In order however to understand certain of Mr. Gregson's submissions in relation to qualified privilege it is necessary to refer to certain aspects of the statutory sick pay system and the role which the GP has in it. I have therefore referred to the section on statutory sick pay in Halsbury's Laws of England 4th edition Volume 16(1A). The position is as follows:
  33. (1) The regime for statutory sick pay is to be found in Part XI of the Social Security Contributions and Benefits Act 1992, and in regulations made thereunder. In summary, the employer is liable to pay the employee statutory sick pay, which is treated as remuneration, in respect of each day of incapacity for work in respect of which certain specific conditions are satisfied. A day of incapacity for work means a day on which the employee is incapable by reason of some specific disease or other bodily or mental disablement of doing work which he can reasonably be expected to do under that contract. The employee must give the employer notification of his incapacity for work.
    (2) Under s.14 of the Social Security Administration Act 1992 the employer may require the employee to provide such information as may reasonably be required to determine whether a period of entitlement exists, and if so the duration of that period. This may include medical information, once the initial 7 day self certification period has expired, which is to be provided in a prescribed form as required under the Statutory Sick Pay (Medical Evidence) Regulations 1985. The use of form Med 3 is prescribed by these Regulations.
    (3) There are provisions enabling the Secretary of State to require a claimant to provide information in support of his claim, and entitling the Secretary of State to disclose information held by him to an employer.
    (4) The employer may recover the greater part, if not all, of any statutory sick pay paid by him to his employee from the relevant government department, which appears now to be HM Revenue & Customs (HMRC).
    (5) Any dispute as to the employee's entitlement to statutory sick pay is to be determined by an adjudication officer, with a right of appeal to the relevant appeals tribunal.

  34. Mr. Featham responded to Mr. Gregson's letter by a letter dated 12 June 2007, in which he notified Mr. Gregson that he treated the letter as raising a grievance which would be considered at a hearing on 18 June 2007, and also advised that in the meantime the disciplinary interview would be postponed. Mr. Gregson attended the grievance meeting, which was not conducted by Mr. Hindle, and complained about the conduct of Mr. Hindle.
  35. On 22 June 2007 Mr. Gregson saw his doctor again, who issued a further Med 3 form, signing him off work for a further 2 weeks for work related stress. Mr. Gregson handed this in to the Defendant on 25 June 2007, but omitted to sign it.
  36. In the meantime, at around 8:30am on Sunday 24 June 2007 four police officers attended Mr. Gregson's home address and, according to Mr. Gregson, advised him that the Defendant had made a complaint to the effect that he had failed to declare the true position so far as his driving licence was concerned when he had applied for a position with the Defendant. (In his witness statement Mr. Hindle confirms that he had indeed made a complaint, and had made a statement to the police about this matter on 22 June 2007.) The police asked to see Mr. Gregson's driving licence and, as a result of what they discovered, arrested Mr. Gregson and took him into custody. Mr. Gregson says that he had been planning that day to visit a Mr. Edwards, a work colleague and friend to advise him on the fitting of a new kitchen which Mr. Gregson had previously given him advice about buying. Mr. Gregson says that he was not planning physically to install the new kitchen for Mr. Edwards, nor was this in any sense a commercial relationship, and this version is confirmed by evidence contained in witness statements provided by Mr. Edwards and by Mr. Gregson's mother, who was staying with him at the time. The Defendant does not accept this, and in support of its plea of justification relies on a number of matters, including Mr. Gregson's own pleading in paragraph 3 of his Particulars of Claim that at the relevant time he was working as a sole trader as well as an employee of the Defendant. However, it is not suggested that I am in a position to resolve this factual dispute, and it is evident that I can not and should not seek to do so in the context of this application.
  37. Crucially, so far as this case is concerned, Mr. Gregson says that when the police officers arrived at his house he made a passing comment to the effect that he was just about to go to a friend's house to advise him on a kitchen. Although there is no suggestion that this was taken up by the police at the time, when PC Naylor attended Mr. Hindle on the next day to obtain a further statement from him in relation to the driving licence allegation it is apparent that he made mention of this remark. There may be a dispute about exactly what was said by Mr. Gregson to the police, because the contemporaneous note which Mr. Hindle made of his meeting with PC Naylor records that 'PC Naylor said that Mr. Gregson had told him that he was on his way to fit a kitchen when the police arrived at Gregson's house'. Mr. Gregson observes however that even if Mr. Gregson accurately recorded what PC Naylor told him, even that is different from a suggestion that Mr. Gregson had told the police that he was working as a kitchen installer which, it will be recalled, is what Mr. Handle's subsequent letter to the GP said. Again, I am not in a position to make any finding as to what Mr. Gregson said to the police or what PC Naylor said to Mr. Hindle. The Defendant intends to call PC Naylor to give evidence at trial, but it appears that on advice PC Naylor has refused to give a witness statement, so that there is only a witness summary served and no detail as to what PC Naylor will say. I should however also remind myself that Mr. Gregson has specifically disclaimed any allegation of dishonesty against Mr. Hindle, so that there is no basis for any possible conclusion that Mr. Hindle deliberately (whether intentionally or recklessly) produced a false note of what was said by PC Naylor, although that still leaves open of course the possibility that Mr. Hindle simply misunderstood what he was told by PC Naylor, and failed to check before relying on his understanding.
  38. Mr. Hindle's immediate response to this information was to write and deliver a memorandum to Mr. Gregson on 25 June 2007, returning the unsigned form Med 3 because it had not been signed or dated by Mr. Gregson, and adding this:
  39. 'Your current period of sickness absence is being investigated by the company and, until this has been completed, your sick pay has been suspended.'

  40. On the next day (26 June 2007) Mr. Gregson wrote a letter in response to that letter. He enclosed the form Med 3 duly signed and dated and he asked for clarification about the investigation, specifically whether or not the Defendant was disputing the diagnosis contained in and the validity of the Med 3 form. He also complained about the suspension of his statutory sick pay. On the same day Mr. Hindle sent a memorandum to Mr. Gregson, advising him that since the grievance procedure had been concluded (as it had) he required Mr. Gregson to attend a disciplinary meeting on 2 July 2007 to discuss three allegations of gross misconduct, namely;
  41. (1) The original 'ticket' allegation from 8 June 2007.
    (2) An allegation that Mr. Gregson had fraudulently submitted a job application (i.e. the driving licence allegation).
    (3) An allegation that Mr. Gregson had been working whilst claiming sick pay during his current absence from duty

  42. On the following day (27 June 2007), as well as writing the letter to the GP which is the subject of this case Mr. Hindle also wrote in response to Mr. Gregson's letter of the previous day. He said that 'an investigation into your claim for sick pay has been undertaken', and that Mr. Gregson could raise the issue of the suspension of his sick pay at the disciplinary interview. Although this is not specifically addressed in the Defendant's witness evidence, it appears that it was on this day that photographs were taken of a van outside Mr. Gregson's property which advertised a business known as Super Care undertaking property maintenance and bathroom installations, and at some stage it was discovered that Mr. Gregson was a director of a company known as Trade Sure Property Services Limited. Mr. Gregson says that the van was obviously not being used and that the company was a non-trading company.
  43. On 27 June 2007 Mr. Gregson wrote to Mr. Hindle stating that he would be unable to attend the disciplinary interview unless his GP had advised that he was fit to return to work. He also made it clear that he was disputing the allegation that he had been working whilst claiming sick pay, and that if the Defendant was to allege that he had made a fraudulent claim in that regard that could lead to civil action. In his letter in response on 29 June 2007 Mr. Hindle said that the Defendant had 'been presented with firm evidence that you have been working as a kitchen installer whilst claiming statutory sick pay and company sick pay', and that the Defendant would not re-instate payments unless Mr. Gregson attended the disciplinary interview and convinced the Defendant that its evidence was wrong. He made it clear that the interview would proceed on 2 July, if necessary in Mr. Gregson's absence.
  44. On 2 July 2007, Mr. Gregson having not attended the interview, Mr. Hindle wrote to a Dr. Zacharias, a consultant occupational physician, asking him to examine Mr. Gregson and give an opinion as to whether he was fit to attend a disciplinary interview. The examination took place the next day. On that day (3 July 2007) Dr. Zacharias reported, concluding that 'it is clear that [Mr. Gregson] is in a very anxious state', but essentially offering no positive opinion one way another as to his fitness to attend an interview. On the same day Mr. Gregson attended his GP again, and a further Med 3 form was issued with the GP signing Mr. Gregson off for a further 3 weeks on the same diagnosis.
  45. There was further correspondence, which I need not mention, and in the event Mr. Gregson resigned on 23 July 2007. I should note that the Defendant engaged in correspondence with HMRC, seeking to persuade them that Mr. Gregson was not entitled to statutory sick pay, but although it was successful in relation to reducing the period of entitlement, it was unsuccessful in seeking to persuade them that Mr. Gregson was not entitled to any statutory sick pay because he was not incapable of work. It is apparent that HMRC considered that there was no basis for them not to accept the Med 3 forms produced by Mr. Gregson's GP. I should also record that Mr. Gregson commenced proceedings in the Employment Tribunal, claiming constructive dismissal, but that on 6 June 2008, after a hearing, that claim was dismissed, with the tribunal ordering Mr. Gregson to make a contribution towards the Defendant's costs on the grounds of unreasonable behaviour. Mr. Crystal referred me to the written decision and submitted that the decision relating to costs evidenced how the Defendant had, in his words, been 'vexed' time and time again by Mr. Gregson. Mr. Gregson objected to this being referred to, and I mention it only to re-assure him that it has played absolutely no part in the decision which I make on the current application.
  46. As I have said, it is necessary to refer to the circumstances in some detail because Mr. Gregson, understandably, considered it important that I should be aware of the background so as better to understand his case and, in particular, the context of his submissions that:
  47. (1) Even if Mr. Hindle's contemporaneous note of his meeting with PC Naylor is accurate, there was still no proper basis for Mr. Hindle to leap from what he was told to a firm conclusion that Mr. Gregson was actually working as a kitchen installer and that therefore he was committing a fraud by claiming statutory sick pay whilst not being incapable of work.
    (2) There was no justification for Mr. Hindle not informing Mr. Gregson of what he had been told, and giving him an opportunity of responding, before he contacted Mr. Gregson's GP, especially when he was aware that Mr. Gregson was disputing the allegation against him. Had he done so, Mr. Gregson could have given him the explanation which he has subsequently given, and thus demonstrated that he was not seeking to mislead or defraud anyone.
    (3) There was no justification in any event for Mr. Hindle writing to the GP, either at all or in the trenchant terms in which he in fact wrote. If the Defendant was genuinely concerned, by reason of what PC Naylor had said, that Mr. Gregson had been working as a kitchen installer and thus was not incapable of work nor entitled to statutory sick pay, that was something which the Defendant ought to have communicated to HMRC as the relevant government department. If the Defendant was genuinely concerned that Mr. Gregson was making a fraudulent claim to statutory sick pay, that was something which the Defendant ought to have communicated to the police. The Defendant had no justification for corresponding with Mr. Gregson's GP, who was his confidential adviser, and who was simply providing a medical diagnosis. The Defendant had no basis for communicating with his GP its belief that Mr. Gregson was guilty of benefit fraud. Any communication with the GP should have been left to HMRC or the police. That was particularly so when in reality the Defendant would be able to reclaim any statutory sick pay from HMRC, so that it is not as if it was being asked to foot the ultimate bill should it transpire that Mr. Gregson was not in fact entitled to statutory sick pay.

    (4) It is apparent from the previous employment history that Mr. Hindle was out to 'get' Mr. Gregson, and that the true reason for his writing to the GP in the way that he did was to discredit Mr. Gregson in the eyes of the GP, with a view to persuading the GP either to revoke the existing Med 3 form or not to issue another. The true reason or motive for Mr. Hindle communicating with the GP as he did, and with the haste that he did, was because it was only by revoking the Med 3 or preventing another from being issued that Mr. Gregson could be forced to attend the disciplinary interview (or at least to remove any excuse for his not attending) which would then enable the Defendant to complete the procedural steps necessary before being able to dismiss him.

    Qualified privilege - relevant legal principles

  48. So far as qualified privilege is concerned, Mr. Crystal referred me to the classic statement of the law contained in the judgment of Baron Parke in Toogood v. Spyring (1834) 1 CrM & R 181, 193. He also referred me to the other classic statements of law in the authorities, gathered together in the judgment of Simon Brown LJ in Kearns v. The General Council of the Bar [2003] EWCA Civ 331. I do not need to lengthen this judgment by setting out all of those statements here, but I shall refer to those which may be regarded as particularly relevant to this case. First, it is apparent from what Baron Parke said in Toogood that what is required is that the person making the communication should be acting in the discharge of a public or private duty, whether legal or moral, or in his own interest, and that the communication should be fairly warranted and honestly made, Second, it is apparent from what Lord Atkinson said in Adam v Ward [1917] AC 309, 334, that the person receiving the communication must have a corresponding interest or duty to receive the communication, and that this reciprocity of interest or duty is essential. In Watt v. Longsdon [1930] 1 KB 130, 147 Scrutton LJ distinguished between cases of common interest (of which Kearns itself is an example) and other cases, where there must be a correspondence between the duty or interest in the communicator and the interest or duty in the recipient. In Horrocks v, Lowe [1975] AC 135, 150 Lord Diplock stated that where the privilege existed it should not be lost merely because some part of the content of the communication could be shown on logical analysis to be irrelevant to the fulfilment of the duty or the protection of the right.
  49. Kearns is also of assistance in that it suggests that it may often be helpful to consider whether or not the communication is made in the context of an existing and established relationship or as between strangers, In the latter category of case particular problems are more often presented, and in such cases it is important to conduct a careful analysis of the particular duty or interest which is relevant. The answer will often depend upon the particular circumstances of the case, the nature of the information, and the relationship between the parties: see in particular paragraph 31, referring to Watt v. Lonsdon and paragraphs 38 and 39, referring with approval to the approach of the judge at first instance,
  50. Applying these principles to the facts of this case:
  51. (1) It is apparent that this is not a common interest case.
    (2) It is also apparent that this is not a case involving communications in the course of an existing and established relationship.
    (3) Instead, it is a case of a communication between strangers, and therefore it is necessary to examine all of the relevant circumstances before the court is able to reach a conclusion as to whether qualified privilege applies. These relevant circumstances may include the nature of the information communicated, the degree of urgency, the relationship between the communicator and the recipient, and whether or not the communicator should have sought to verify the information before communicating it to the recipient (which was of course the very point in issue in Kearns).
    (4) Nonetheless, one should not adopt an overly-analytical approach as to the relevance of every individual element of the communication, so long as the communication is in good faith in compliance with a legal or moral duty or protection of a legitimate interest.

  52. Mr. Gregson referred me to that part of the judgment of May LJ in Wood v. Chief Constable of the West Midlands Police [2004] EWCA Civ 1638 which addressed the defendant's unsuccessful appeal against the decision of the judge at first instance to the effect that the defence of qualified privilege had no real prospect of success. Much of that judgment, with which both other members of the court agreed, related to the particular role of the police forces and the ambit of their public duty to communicate information, but it does contain some more general assistance. In particular:
  53. (1) So far as procedural issues are concerned, it is apparent that the Court of Appeal considered that the judge was perfectly justified in resolving this issue on a summary basis, in the week before trial, when there was no reason to think that the evidence given at trial could advance the defendant's case in any material respect
    (2) In cases outside recognised existing relationships and common corresponding interests, each case depends on a careful consideration of its own facts, including an analysis of whether or not the necessary reciprocity of duty and interest was made out.

    Qualified privilege - discussion and conclusions

  54. In my judgment a significant feature of the present case is that although, as I have said, there was no recognised existing relationship or common corresponding interest as between the Defendant and Mr. Gregson's GP, there were not - at least in legal terms -completely strangers to one another. That is because by the time Mr. Hindle came to send the letter to Mr. Gregson's GP, the GP had already been asked to and had completed, signed and given to Mr, Gregson two completed Med 3 forms, which as he knew Mr. Gregson would give to his employer. The GP also knew, or again must be taken to have known, that by virtue of the statutory sick pay regime his role in producing the Med 3 forms extended beyond the usual role of medical adviser to his patient. His role under the statutory sick pay regime involved him giving a professional opinion as to whether or not his patient was fit for work, and if not for how long and by reason of what medical condition, This opinion was akin to a certificate, which was liable to affect the relationship between his patient as employee and his patient's employer, in particular as to whether or not the employee was entitled to be absent from work and to receive statutory sick pay. He clearly, in my judgment, had a duty as a professional man to give a proper medical opinion, and an interest in receiving all relevant information which would enable him to discharge that duty. Although the statutory sick pay regime did not render his opinion conclusive as to whether or not his patient was incapable of work, because that would in case of dispute be decided by the adjudication officer or the appropriate tribunal, nonetheless he knew, or must be taken to have known, that considerable weight would likely be placed on his opinion - as indeed occurred when the Defendant challenged Mr. Gregson's entitlement to statutory sick pay in this case
  55. Furthermore, in my judgment, the Defendant as Mr. Gregson's employer clearly had an interest in ensuring that the GP reached a proper professional opinion after being acquainted with all relevant information, They had that interest because, as I have already stated, his certified opinion could and probably would affect their relationship with their employee. In my judgment it is not decisive that the Defendant would, it appears, have been entitled to recover most if not all of the statutory sick pay they paid back from HMRC. They nonetheless had a legal and a substantial interest in ensuring that the certified opinion was properly arrived at. I also consider that they had a moral duty as the employer of the patient to communicate information which they honestly believed to be relevant to the GP's professional opinion. It does not seem to me to be correct that the only way in which they could properly discharge that duty would be to communicate information which they honestly believed to be relevant to either HMRC or to the police. Indeed, during the course of argument, Mr. Gregson suggested that he could not have complained if the Defendant had written to his GP simply stating that it believed that he appeared to be able to work. Whilst that concession is not necessarily binding on Mr. Gregson, it does in my judgment reflect the reality.
  56. The further question, however, is whether the particular circumstances of this particular communication are such as to demonstrate that, in the words of Baron Parke in Toogood, the communication was arguably not fairly warranted by reasonable occasion or exigency or not honestly made.
  57. So far as the question of honesty is concerned, I have already recorded Mr. Gregson's concession that he is not suggesting that the Defendant or Mr. Hindle acted dishonestly. Indeed, I regard that concession as rightly made because in my judgment the evidence is really overwhelming that whatever his motive (and I will address that in due course when dealing with the issue of malice) Mr. Hindle clearly genuinely believed from what he had been told by PC Naylor, whether rightly or wrongly, that Mr. Gregson was installing kitchens whilst signed off sick and thus was able to work. This is not one of those cases where it has been argued, or could be argued, that the evidence shows that Mr. Hindle was completely indifferent to the truth of what he was alleging.
  58. What however about Mr. Gregson's argument that the communication did not attract qualified privilege because it went beyond merely communicating information about his ability to work, and included or amounted to an express accusation of fraud? As I understand the speech of Lord Diplock in Horrocks v. Lowe 147 at 151E-H, this appears to be an issue which is more relevant to the existence or otherwise of malice (where the law applies a subjective test) than to whether or not the communication would otherwise attract qualified privilege (where the law applies an objective test). If, however, I am wrong about that, then I should deal with it at this point as well. The significant communication in the letter, in my judgment, was the statement that there was evidence from the police that Mr. Gregson had been working as a kitchen installer whilst signed off sick. I accept that the letter went further, and additionally conveyed the clear impression that as a result the Defendant believed that Mr. Gregson was guilty of fraud. I also accept that it is well arguable that, given the limited extent of the information available to Mr. Hindle at that stage, given that he had made little or no attempt to verify the information by other means, and given that he had made no attempt to ask Mr. Gregson for an explanation, the communication of this belief was unfortunate and unnecessary. However, as I have already recorded, it is not suggested that Mr. Hindle did not honestly believe this, nor that he was reckless as to its truth. Holding this belief based on what he had been told by PC Naylor is, in my judgment, entirely consistent in my judgment with the kind of honest but logically deficient process of reasoning which Lord Diplock so vividly described in Horrocks. It has not been argued in this case, nor could it sensibly be argued in my judgment, that even though Mr. Hindle believed what he wrote to be true, nonetheless he decided to throw in the allegation of fraud into the letter, even though he realised that it had nothing to do with the reason why he was writing to the GP in the first place, and did so to ventilate his personal spite or for some other improper motive.
  59. What then about Mr. Gregson's argument that there was no justification for writing the letter at that time and without undertaking a proper investigation and without giving him the opportunity to answer the charge? Again, it seems to me, the primary answer to this lies in the observations of Lord Diplock in Horrocks. Since it is not suggested that this absence of investigation demonstrates that Mr. Hindle did not believe that what he wrote was true, it is of limited relevance to the question of qualified privilege. Further, since the true justification for writing the letter was to bring to the attention of the GP a matter which might be relevant to his professional assessment, it is not to be supposed that the GP would simply take the assertion made in the letter at face value. It is to be expected that he would not take this into account without first raising it with Mr, Gregson, and giving him the opportunity either to deny the truth of the information or to explain how it was that he was able to do whatever it was that he agreed that he had done.
  60. What about Mr. Gregson's argument that it was improper to correspond with his GP as someone with whom he (Mr. Gregson) had a confidential relationship? In my judgment that does not assist Mr. Gregson, because the existence of the confidential relationship does not prevent a third party from corresponding with one of the parties to that relationship in relation to matters in which that party has an interest. The existence of that relationship would certainly restrict the GP's freedom to disclose details of what he had been told in confidence by Mr. Gregson, but that is nothing to the point. Indeed, the point may be made that because of the nature of the doctor / patient relationship, communicating with the doctor did not carry with it any risk of further dissemination to the wider world outside the GP's practice.
  61. In conclusion, in my judgment, on examination of all of the relevant circumstances it is clear that this was a communication on an occasion of qualified privilege. The contrary, in my judgment, is not reasonably arguable. This is not one of those cases where it may be supposed that any factual evidence at trial is likely to assist or to improve Mr. Gregson's case. Indeed, I have considered the issue on the assumption that Mr. Gregson will be able to establish his factual case at trial. There is, therefore, nothing to be gained by refraining from grasping the nettle and not deciding the case now. I am not prejudicing Mr, Gregson's right to a fair trial on this issue, since it has been fully argued (extremely well, if I may say so) by both sides before me.
  62. Malice - relevant legal principles

  63. I was referred by Mr. Crystal to the decision of the Court of Appeal in Alexander v. The Arts Council for Wales [2001] EWCA Civ 514 in relation to malice.
  64. The starting point, as Mr. Crystal accepted, is that malice is a question of fact for the jury (where the trial is to be by judge and jury), so that the function of a judge when hearing an application such as this is limited to considering whether or not the evidence, taken at its highest, is such that a jury properly directed could not properly reach the factual conclusions necessary to support a charge of malice: see paragraph 37 of the judgment of May LJ, with whose judgment Jonathan Parker LJ and the then Lord Chief Justice agreed.
  65. In his written and opening oral submissions Mr. Crystal rightly drew my attention to those passages in that judgment in which it was emphasised that the burden of proving malice lies upon the claimant, that malice is a very serious allegation, generally tantamount to dishonesty, that it depends on proof of the defendant's subjective intentions, and that evidence which is as consistent with the non-existence of malice as with its existence is not sufficient. Given, however, Mr. Gregson's concession - which is consistent with his pleaded case and his witness evidence and which as I have already recorded I consider to have been realistically and rightly made - that he is not asserting dishonesty against the Defendant or Mr. Hindle, the issue in this case has a narrower focus.
  66. As May LJ said in paragraph 34 of his judgment, it is necessary for the claimant to establish a dominant and improper motive on the part of the defendant comprising a desire to injure the claimant. In that case, it was contended that the defendant had an ulterior dominant motive to blame the claimant and to divert critical attention away from itself. In this case, the dominant improper motive contended for is to discredit Mr. Gregson in the eyes of his GP so as to procure the revocation of form Med 3 (or the refusal to issue a further form Med 3) in order to enable the Defendant to overcome the procedural hurdle of convening a disciplinary interview which Mr. Gregson could not justify not attending, before proceedings to dismiss him.
  67. Mr. Crystal also drew my attention to paragraph 19 of the judgment, where May LJ recorded the observation of the trial judge, Eady J., who of course has extensive experience in the field, that whilst it was rare for malice to be found at all he had never known a case in which malice had been found without there being dishonesty on the part of the defendant. Whilst such observation naturally carries great weight, coming as it does from a judge of such experience of libel actions, it cannot of course be determinative of the issue in this case.
  68. It is also helpful, given the issue which arises on this aspect of this case, to refer to the very helpful summary of the speech of Lord Diplock in Horrocks v. Lowe in relation to the issue of malice to be found in Gatley 10th ed. paragraph 16.3. Under the subheading 'positive belief the editors say this:
  69. '(a) Positive belief in the truth of what is published will usually protect the defendant unless he can be proved to have misused the occasion. Judges and juries should be slow to draw the inference that he had misused the occasion, and the defendant's desire to use the occasion for its proper purpose must be shown to have played no significant part in his motives if malice is to be found.
    (b) Where the defendant believes in the truth of what he has published and conduct extraneous to the privileged occasion is not relied upon, the claimant can only succeed if he shows that the publication contains irrelevant matter, and that it can be inferred that the defendant did not believe it to be true or realised that it was irrelevant, and brought it in for some improper motive. Judges and juries should be slow to draw this inference, too.'

    Malice - discussion and conclusions

  70. Mr. Crystal's simple point was that even if I were to accept, as I think he was inclined to accept I should for the purposes of this application, that Mr. Gregson has a reasonable prospect of establishing that the Defendant's dominant motive in writing to the GP was to procure the revocation or non-reissue of a form Med 3 so as to enable the Defendant to convene an effective disciplinary hearing and then to dismiss Mr. Gregson, that could not be regarded as an improper motive The essential point which he made was that if, as Mr. Gregson accepted, Mr. Hindle had an honest - even if on his case erroneous - belief that Mr. Gregson had been working installing kitchens, and thus was fit to work, then he must also have held an honest belief that Mr, Gregson should not be entitled to have a form Med 3 issued in his favour. It followed that his dominant motive in writing the letter, as Mr. Gregson accepted and indeed positively submitted, was to have the form Med 3 revoked or not re-issued. That could under no circumstances be regarded as an improper motive. Even if his anterior motive was, by achieving this, to put Mr. Gregson into a position where he could not justifiably refuse to attend the disciplinary interview and thus to facilitate his dismissal, that could not convert what was otherwise a proper motive into an improper one.
  71. It is worthwhile referring to the facts of Horrocks v. Lowe itself. In that case the judge at trial found that the defendant honestly believed that was he said about the claimant at the meeting of the borough council in question was true and justifiable, but that his state of mind at the time was one of 'gross and unreasoning prejudice' against the claimant. Lord Diplock held that even if the defendant's belief is arrived at through carelessness, impulsiveness or irrationality, that does not help the claimant unless it can be proved that the defendant misused the occasion. What must be proved is that his dominant motive in communicating the information was improper, for example spite against the claimant or a desire to obtain some private advantage unconnected with his legitimate duty or interest. It must be proved, therefore, that his desire to comply with his legitimate duty or to protect his legitimate interest played no significant part in his motives.
  72. In my judgment, there is no real answer to Mr. Crystal's submission. This is one of those cases referred to in Gatley where, even if - as I am prepared to assume for these purposes - Mr. Gregson is able to establish his factual case at trial, including his evidence about the circumstances leading up to the letter as showing that the Defendant through Mr. Hindle had already reached the conclusion that Mr. Gregson was a dishonest employee who it wanted to get rid of as soon as it could, nonetheless no judge or no jury, properly directed, could properly conclude that the Defendant did not have a genuine desire to use the occasion to communicate to the GP the information about Mr. Gregson being able to work as a kitchen fitter. It follows that they could not properly conclude that the Defendant had a dominant and improper motive to injure Mr. Gregson and, thus, the case of malice is bound to fail.
  73. Although Mr. Gregson has also referred to the Defendant having an intention to discredit him in the eyes of his GP, this does not seem to me to be remotely credible, even if it is intended to rely on this as some further or additional improper dishonest motive. There is no warrant in the evidence for any suggestion that the Defendant had any interest in what the GP might think of Mr. Gregson; its only interest was to ensure that the GP was made aware of what Mr. Hindle believed was the import of what PC Naylor had told him, so that this could be considered by the GP when deciding whether or not to revoke or not to re-issue the Med 3 form.
  74. Conclusion

  75. I recognise that these conclusions have the unfortunate effect, so far as Mr. Gregson is concerned, of bringing his claim to a juddering end without his having the opportunity to put his case at trial. In particular I am conscious that it has the effect of preventing him from establishing that the Defendant's contention that he was acting fraudulently by claiming statutory sick pay whilst working as a kitchen installer is false. That is something which I have had very much in mind. However if, having heard full argument on the point, as I have, I am satisfied, as I am, that he simply cannot succeed in this claim, even if he was to succeed in defeating the justification defence, because the Defendant will inevitably succeed on the qualified privilege defence, then it is my duty to rule accordingly and to bring the case to an end in order to prevent further time and cost being unnecessarily incurred.
  76. Thus, for the reasons which I have attempted to give, the Defendant's application succeeds and the claim must be struck out.

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