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||Neutral Citation Number:  EWHC 12 (QB)
||Case No: HQ09X00176
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||12 January 2011
B e f o r e :
THE HONOURABLE MR JUSTICE TUGENDHAT
|| Jan Cambridge
||- and -
William Bennett (instructed by Kirwans) for the Claimant
Hugh Tomlinson QC and David Hirst (instructed by Collyer Bristow) for the Defendant
Hearing dates: 8, 9, 10, 11, 12 November
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Tugendhat:
- Interpreters are essential to the public service. Their role in criminal justice is so important that it is specifically provided for in ECHR Article 6 as follows:
"3 Everyone charged with a criminal offence has the minimum rights:… (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court".
- Interpreters have, therefore, not only to be competent linguists, they also have to have an appropriate level of understanding of the legal and administrative provisions in the context of which their services are required. The need for the services of interpreters can arise at very short notice, in particular in the criminal justice system. It can arise anywhere in the country, and the number of different languages which may be required to be interpreted is large.
- The requirement that the assistance be free imposes the cost on the public purse. Interpreters have to be paid their fees and travelling expenses. Police Forces, and other public service organisations ("PSOs") responsible for the budgets for the criminal justice system have been looking for efficiency and costs savings for some years. These sometimes have adverse effects upon the earnings of interpreters.
- It is against this background that this libel action is being contested between two highly qualified professional interpreters.
- The Claimant is a freelance professional linguist. It is her conduct in 2005 in the exercise of her duties as a non-executive director of NRPSI Ltd that has been called into question. It was criticised in an e-mail dated 7 May 2007 ("the words complained of") published by the First Defendant ("the Defendant").
- The words complained of read in full as follows:
"We have had an overwhelming response to our correspondence and need to clarify two extremely important issues:
1) The private interests of NRPSI directors in selling our data to commercial intermediaries and the breach of the Data Protection Act 1998.
Two NRPSI Board Directors, Nicola Clegg and Janet Cambridge had interests in CINTRA Ltd, an agency which obtained our data contrary to the DPA 1998. Nicola Clegg was the CEO of CINTRA and Janet Cambridge worked as a trainer for CINTRA at the time our data were sold. There is evidence in the Coventry Partnership Project, the Lincolnshire Business Case Study, the East Midlands Delivery Plan and CINTRA's Training Manual from 2005 that CINTRA used its connections with the CIOL and NRPSI, through the two directors, to obtain a contract with five East Midlands constabularies and Norfolk. CINTRA has created a monopoly in East Midlands and Norfolk and slashed interpreters' fees by about 60%. We cannot compete against CINTRA. We can either work through them for their rates or not at all.
2) Adequacy of the corrective measures taken by the NRPSI
The remedial action taken by NRPSI came too late because CINTRA already had the contract. Following the ICO's ruling, we asked John Hammond on many occasions to terminate the licence with CINTRA. He has refused to do so even though he admits in his letter to the MCILs that terminating the licence would frustrate the East Midlands contract.
We hold that John Hammond's explanation is incomplete, inaccurate and misleading. We can provide you with concrete documentary evidence which shows the link between NRPSI Board Directors, Nicola Clegg and Janet Cambridge with CINTRA should you request it. We ask you to consider the evidence before making an informed decision which will have an impact on our profession and livelihoods in the future. …"
- This is an allegation or charge that the Claimant did abuse her position, sometimes referred to as a Chase Level 1 meaning (Chase v News Group Newspapers Ltd  EMLR 218). It is not allegation merely that there were reasonable grounds to believe that she did, nor any lower meaning. Following a determination I made in July 2010, and an appeal to the Court of Appeal, it was agreed between the parties that the meaning of the words complained of is:
"the Claimant abused her position as a director of NRPSI by acting on a conflict of interest, namely overseeing the sale of NRPSI members' data to a commercial agency, CINTRA, in which she was privately interested and from which she stood to and did personally benefit".
- The meaning is derived more particularly from the following passages from the words complained of:
"The private interests of NRPSI directors in selling our data to commercial intermediaries …
Two NRPSI Board Directors, … and Janet Cambridge had interests in CINTRA Ltd, an agency which obtained our data … Janet Cambridge worked as a trainer for CINTRA at the time our data were sold. There is evidence in the Coventry Partnership Project, the Lincolnshire Business Case Study, the East Midlands Delivery Plan and CINTRA's Training Manual from 2005 that CINTRA used its connections with the CIOL and NRPSI, through the two directors, to obtain a contract with five East Midlands constabularies and Norfolk."
- The action was started as long ago as 1 August 2008. The Defendant did not obtain legal representation until April 2010. His defences to the claim are now (1) that in the above meaning the words complained of are substantially true and (2) that in any event the words complained of were published on an occasion of qualified privilege recognised at common law (this defence being added by amendment in June 2010). There is a Reply alleging malice.
- If these defences both fail, there are issues on damages. The Defendant's case is that, in the context of the events leading up to their publication, the words complained of had little impact on the Claimant's reputation.
- When the matter was before me in July the trial was adjourned in order to give the Defendant an opportunity to apply to strike out the action as an abuse of the process of the court. But in the event he did not pursue his application.
- There was originally a Second Defendant, the Defendant's trade union, GMB. This was because the words complained of were published by the Defendant on a template which included the name, address and other details of the Second Defendant at a time when he was conducting his campaign through that union. The Second Defendant settled the action with the Claimant, so that it now proceeds against the Defendant alone.
- In May 2010 the Claimant amended her Particulars of Claim to abandon claims which she had been making on other publications. These were e-mails of 2 April 2007, and words published by the Defendant on the Second Defendant's website.
NRPSI and CINTRA
- NRPSI Limited ("NRPSI") is a company limited by guarantee. It is a not for profit organisation wholly controlled by the Chartered Institute of Linguists ("CIOL"), formerly the Institute of Linguists ("IOL"). The aims of CIOL have at all material times been to promote the use and learning of modern languages, to improve the status of all professional linguists, to establish and maintain high standards of work, to serve the interests of all linguists, and to ensure professional standards amongst language practitioners through its Code of Conduct. It has about 6500 members worldwide.
- A print out from NRPSI's website dated 11 October 2005 (which is in the form that it had been from about July that year) includes the following explanation of its role:
"NRPSI Ltd is as its title suggests a National Register of Public Service Interpreters for the use of Public Service Organisations and agencies that they work through to obtain professional, qualified and quality assured interpreters.
Like other professional registers, it comprises individuals who have satisfied selection criteria in terms of qualifications and experience, agreed to abide by a Code of Conduct … and subject to Disciplinary Procedures … where there are allegations that the code has been breached….
Public Service Organisations and agencies that they work through can obtain access to the National Register via a subscription service which is available through this website ….
The Register is administered by NRPSI Ltd, a wholly owned and non-profit making subsidiary of the Institute of Linguists. The Institute of Linguists is the UK's largest language professional body and was established in 1910" (emphasis added).
- The Register maintained by NRPSI ("the Register") was established in 1994 with the support of the Home Office and the Nuffield Foundation. It was established in response to a recommendation made by the Royal Commission on Criminal Justice in 1993. This was to the effect that there should be national and local registers of qualified interpreters with the aim of "using only interpreters with proven competence and skills who are governed by nationally recognised code of conduct". NRPSI and the Register have no statutory backing.
- From 1996 until 2000 IOL managed and administered it. In 2005 IOL became the CIOL. Since 2000 the Register has been administered and managed by NRPSI.
- NRPSI is funded by subscriptions from those interpreters whose names are on the Register, and from fees charged to bodies to which it grants licences. Those whose names are on the register are known as "Registrants". Licensees are referred to as "subscribers". PSOs pay licence fees to secure access to the information on the Register. They are thus enabled to find suitable public service interpreters. PSOs include police forces and the Home Office. The licence is to use the computer software programmes and associated documents, and the database comprising the Register, for the express purpose of commissioning interpreters for interpreting work and no other purpose.
- The CIOL and the Institute of Translation and Interpreting ("ITI") are the two main bodies for professional interpreters and translators. The CIOL and the ITI are private members associations. They provide professional validation, registration and support for their members. ITI runs examinations for interpreters and translators to validate a members' professional skills. ITI has approximately 3000 members. The CIOL performs similar functions to ITI but it has a wider membership. Both the CIOL and ITI have codes of conduct and procedures. The CIOL is run by a Council ("the Council"), which is the equivalent of a board of directors of a company. The Council is elected by and from the members.
- CINTRA Limited ("CINTRA") is also a company limited by guarantee, and is also not run for profit. It was incorporated on 4 March 1997. It is an agency which provides interpreters and translators for the public sector. It is the successor to the Cambridgeshire Interpreting and Translation Agency, which was established in 1995 with funding from local authorities. In 2004 the Chair of CINTRA was Ms Glegg.
- CINTRA first held a licence to access the Register in 1996. It has held licences for most of the period up to 2005. This was set out in an e-mail dated 20 September 2010 from the Defendant's solicitor to Mr Hammond with so that it would not be necessary for a witness from CIOL to give evidence on the point. The contents of that are not in dispute, and it contains nothing about the terms of any licence. The licences in the earliest years may have been restricted, but in 2000 and 2001 CINTRA was licensed, and I infer that that was in respect of the criminal justice system. There was then a gap of two years in 2003 and 2004 before the grant of the licence material to these proceedings ("the Licence"). The signatures on the Licence are dated 27 and 28 January 2005. But there are references in the evidence to it being granted on 1st January. On my findings of fact nothing turns on the difference, although the later date might in principle have been more favourable to the Defendant, and the earlier date more favourable to the Claimant.
- Until 2005 there was no issue raised by anyone as to whether or not CINTRA and other agencies should be granted licences to access the Register. Licences were granted to agencies, and it was the policy of NRPSI to do that, as the website makes clear. In 2004 there arose a question as to the financial terms on which licences should be granted to CINTRA and other agencies, and that was considered by the Board of NRPSI. I shall refer to that in more detail below.
- The Claimant has long experience practising as an interpreter in commerce industry and the public services. She also provides training to interpreters who work in the public services, and has done so since 1998. The provision of training represents about half her professional work. She lives in Cheshire. She is an external examiner for Middlesex University's Post Graduate Certificate for the Diploma in Public Service Interpreting ("DPSI").
- She joined the IOL and began to work for local commercial companies in 1983. For seven years between 1998 and 2005 she designed and delivered training courses for overseas doctors new to the NHS for the Mersey Post Graduate Medical Deanery. She is a fellow of CIOL. The Claimant has served on the Council from 2000 to the present day. This is an unpaid role. She is also a fellow of the ITI. She was admitted in 1992 and made a fellow in 1999.
- The Claimant was first on the Register in 1994. In April 2000 she joined the Board of Directors of NRPSI. She resigned on 21 July 2007, but continues to sit on a committee which advises the Board. The other members of the Board when she joined it included Ann Corsellis OBE, Ms Glegg and Henry Pavlovich. Mrs Corsellis was Vice-President of CIOL until March 2010, and had been a member of the Council for twenty years.
- Mr Pavlovich was at that time also Chief Executive of both CIOL and NRPSI, and the only member of the Board of NRPSI with executive responsibility. The others were all non-executive directors.
- The Claimant was also on three advisory groups, advising on best practice and the needs of PSOs and interpreters. These were the Legal Services Advisory Group ("LSAG"), the Public Service Advisory Group ("PSAG") and the Interpreters Advisory Group ("IAG").
- At the time in 2005 material to this action there was a further member, John Dwyer. Mr Dwyer was formerly Assistant Chief Constable of Cheshire Constabulary, and had carried the national portfolio for the Association of Chief Police Officers ("ACPO").
- The Defendant has since 1975 obtained a number of distinctions in the academic field, both in South America and in England. His first degree was at the Universidad del Salvador. In 1978 he studied at Cambridge and in 1984 he was awarded a PhD by the University of Cambridge. In 2001 he was awarded a Professorship at the Universidad del Belgrano, Buenos Aires. In the same year he became an associate of Cambridge University Latin American Faculty. He still teaches at university level, and supervises and examines MA theses. But since 2004 his main occupation has been as a professional public service interpreter. He lives in Cambridge. In 2003 he registered with NRPSI.
- The Defendant and other interpreters became dissatisfied with the grant of the Licence to CINTRA made by NRPSI in the January 2005, and with the grant of licenses to other agencies. The main reason for their dissatisfaction was that, with the benefit of the Licence, CINTRA obtained a contract with PSOs which resulted in a reduction in the earnings of interpreters. The PSOs in question were five police forces in the East Midlands: Derbyshire, Leicestershire, Lincolnshire, Northamptonshire and Nottinghamshire ("the East Midlands Police"). There had been no objection raised by the Defendant to any licence which had been granted before January 2005.
- For the period from about May 2005 (when the Defendant and other interpreters learnt of the contract between CINTRA and the East Midlands Police) until some time after May 2007, many interpreters were strongly critical of NRPSI and its directors for the grant of the Licence to CINTRA for the year 2005. They were particularly critical of Ms Glegg and, to a lesser extent, of the Claimant. The Defendant and other Registrants sought to remove the Claimant and Mrs Corsellis (and another director) from their offices as directors of NRPSI by means of a Motion of No Confidence ("the Motion of No Confidence"). Mr Glegg had resigned in July 2005. The Motion was to be moved at the Annual General Meeting ("the AGM"), not of NRPSI, but of CIOL. That had been due to be held in April 2007 and was postponed twice to 19 May 2007. The Defendant published a number of e-mails to many people in the period up to the AGM as part of a campaign to encourage those eligible to vote to do so in favour of the Motion of No Confidence.
- After he learnt of the grant of the contract to CINTRA the Defendant first conducted his campaign through a branch of the Amicus trade union. It was the National Union of Professional Interpreters and Translators ("NUPIT"), of which he was a member. He subsequently set up a new branch within the GMB trade union, and continued the campaign through that. This was the Interpreters and Translators Branch ("ITB").
- There came to be established an association calling itself the NRPSI Action Group. This was made up of some Registrants.
- There are a number of registers of interpreters maintained by different bodies. Another such body is the Association of Police and Court Interpreters ("APCI"). Interpreters often placed their names on more than one of the registers.
- There is an order of priority of the registers set out in the National Agreement on Arrangements for the Use of Interpreters, Translators and Language Service Professionals in Investigations and Proceedings within the Criminal Justice System ("the National Agreement"). The version of this document before this court is the one revised in 2007. The National Agreement is described as issued by the Office for Criminal Justice Reform, and produced in consultation with the Interpreters Working Group ("IWG"). It includes representatives from the Association of Chief Police Officers, Crown Prosecution Service, HM Courts Service, The Probation Service, The Home Office, Magistrate's Association, The Bar Council and the Law Society, as well as representatives of interpretive bodies. The 2007 revision replaces an earlier agreement issued by the Trials Issue Group in 2002. The National Agreement provides guidance on arranging suitably qualified interpreters when the requirements of Articles 5 and 6 of ECHR apply. It is guidance, and not legally binding.
- The order of priority listed in the agreement for the choice of interpreters is: (1) NRPSI full status registrants; (2) NRPSI interim status registrants; (3) APCI interpreters; (4) NRPSI rare language registrant; (5) ITI members.
THE POLICY DIFFERENCES BETWEEN THE PARTIES
- The Defendant states that he and the Claimant are political opponents in relation to a range of issues affecting NRPSI, and have been so since 2005 or thereabouts. The date is significant. The Defendant first opposed the Claimant in or after April of 2005, that is, some months after the grant of the Licence to CINTRA in January. By April it had become clear that PSIs who might work for the East Midlands Police forces stood to lose financially from the making of the contract with CINTRA. In consequence of these events, the Defendant has campaigned for the election to the Board and committees of NRPSI of interpreters who pay their fees to NRPSI and would use their position (if elected) to safeguard the interests of PSIs.
- The policies advocated by the Defendant were the contrary of the policies for which he criticised the Claimant (and two other members of the Board of CIOL) in the Motion of No Confidence he put forward for the AGM of CIOL. The policies criticised in the Motion of No Confidence included the following:
"4. Supporting outsourcing and the sale of the Register to agencies such as CINTRA Ltd and Reliance Secure Management Task which pay rates up to 60-70% below the rates recommended by the ACPO and which abuse registrants' data by using unqualified interpreters, contrary to the OCJR [Office of Criminal Justice Reform] guidelines, despite having access to the database.
5. Not allowing registrants' representation on the Board and a say in policies which affect their livelihood.
6. Using and refusing to change an undemocratic process to create an authoritarian Board of Directors which does not reflect the diversity of the registrants on the NRPSI and which does not safeguard their interests."
- The Claimant is in fact a PSI, but she did not use her position on the Board of NRPSI to influence the policies of NRPSI to safeguard the interests of PSIs, as the Defendant considered that she should have done.
- The Claimant states that she is sympathetic to PSIs, because the fees that they have been able to charge have been in decline for a number of years. As a PSI herself, she has suffered from this. She attributes this decline to the growing use by PSOs of intermediaries such as CINTRA, with a view to keeping their costs down. CINTRA was not the only intermediary that had been licensed by NRPSI. But in the Claimant's view NRPSI could not properly have refused to grant licenses to intermediaries, because that would be contrary to the reason for its existence, namely to make available to PSOs a list of suitably qualified PSIs. In her view it was not for NRPSI to use its powers as a licensor to influence how PSOs retained PSIs, that is, to influence them to retain PSIs directly, rather than through an intermediary. As she puts it:
"The NRPSI was set up to help ensure that PSOs had access to properly qualified PSIs. It was not designed as a trade union like organisation. It cannot pursue the interests of PSIs at the expense of PSOs; it is stuck in the middle and must remain neutral and impartial".
- Although the Claimant disagrees with the views of the Defendant on matters of policy relating to CIOL and NRPSI, in these proceedings she makes no complaint of the fact that the Motion of No Confidence was put forward. Nor does she complain of the terms of the Motion of No Confidence, nor of any of the other e-mails that were circulated in the course of the campaign conducted by the Defendant and others.
- The Defendant criticises the Claimant for being selective of the publications, and of the particular allegation or charge, of which she complains in these proceedings. But a claimant in libel proceedings is always entitled to choose what to complain about.
- The Court is not in any way concerned with the issues of policy that divide the Claimant and the Defendant. Nothing in this judgment should be taken as indicating support for one view or the other.
CONFLICT OF INTEREST
- The law on conflicts of interest is not in dispute as it applies to the events referred to in these proceedings. In the Companies Act 2006 s.175 the duty of directors to avoid conflicts of interest was put on a statutory footing. That came into force on 1 October 2008. But at the time of the events in question the law was taken to be as stated by Lord Upjohn in Phipps v Boardman  2 AC 46 at 124 (although he dissented on the facts): see Bhullar v Bhullar  EWCA Civ 424 -. Lord Upjohn said:
"It [the rule of equity] is perhaps stated most highly against trustees or directors in the celebrated speech of Lord Cranworth LC in Aberdeen Railway v Blaikie ([1843-60] All ER Rep at p252) where he said:
"And it is a rule of universal application, that no one, having such duties to discharge, shall be allowed to enter into engagements in which he has, or can have, a personal interest conflicting, or which possibly may conflict, with the interests of those whom he is bound to protect."
The phrase "possibly may conflict" requires consideration. In my view it means that the reasonable man looking at the relevant facts and circumstances of the particular case would think that there was a real sensible possibility of conflict; not that you could imagine some situation arising which might, in some conceivable possibility in events not contemplated as real sensible possibilities by any reasonable person, result in a conflict."
- When the court is considering whether or not a person has "a personal interest conflicting, or which possibly may conflict, with the interests of those whom he is bound to protect", then the "relevant facts and circumstances of the particular case" at which the reasonable man must be looking are the facts as they are, not the facts as they appear to an objector to be. So, as Richards LJ said in National Assembly for Wales v Condron  EWCA Civ 1 573 (at paragraph 50):
"the court must look at all the circumstances as they appear from the material before it, not just at the facts known to the objectors or available to the hypothetical observer at the time of the decision."
- There is little assistance in the case law or commentaries on what has and has not been held to be amount to a conflict of interest in circumstances which are comparable to those in the present case.
- Mr Bennett included in the authorities an extract from Company Directors Law and Liability (Sinclair, Vogel and Snowden Sweet & Maxwell, 2005 ed, updated April 2008). At para 3.54 the editors commented on the law as it was before s.175 came into force. At para 3.57 there is this passage:
"It is not clear what is required in order for a director to be considered as having an interest in a contract. … A direct financial interest will clearly be sufficient… Similarly, a director will be considered as being interested in a contract in which he has an indirect financial interest, such as a contract entered into by a company in which he holds shares (whether beneficially or as trustee) or a partnership of which he [is] a partner … In certain circumstances, a director would be considered as being interested in a contract between the company of which he is a director and a second company by which he is employed. This will largely depend upon the role that the director has within the company by which he is employed and the extent to which he benefits as a result of the relevant contract".
- At para 3.86 there is the following in relation to non-executive directors:
"Although it is clear that an executive director (ie a director who carries out a management function on behalf of a company, often employed pursuant to a service contract) is prohibited from competing with a company of which he is a director…, it does not appear that non-executive directors are prohibited from competing with the company or from taking directorships of competing companies. This stems from the difference in function between an executive and non-executive director. A non-executive director's role is usually limited to a supervisory one, effectively a policing function. By contrast executive directors actively manage its business".
- The duty to avoid conflicts of interest includes a duty to avoid conflicts of duty. There has been much mention of conflicts of interest of Ms Glegg. Her position with CINTRA meant that she owed duties to CINTRA as well as duties to NRPSI. In these proceedings I am not concerned with any conflicts in the position of Ms Glegg. The Claimant was criticised for not doing anything to prevent the continuation of such conflicts. This is an allegation against her made in item 2 of the Motion of No Confidence but that is not relied on in support of the defence of justification. The Motion of No Confidence included:
"2. Allowing Nicola Glegg, CINTRA's Chief Executive at the time, to remain on the Board despite the obvious conflict of interest
3 Allowing CINTRA to use their names as well as the connections with NRPSI/CIOL to obtain the East Midlands and Norfolk contracts which destroyed the livelihoods of our colleagues in the area and diminished the pool of qualified interpreters".
- The court is not equipped to make any findings on any conflict of interest which may have affected Ms Glegg. Neither she, nor NRPSI nor CINTRA are parties to this action. And a duty to avoid conflicts of interest is not infringed if authorisation has been given to a director who would otherwise find herself in a position where her duty and interests conflict. That Ms Glegg had a relationship with CINTRA was well known to all those concerned in the management of NRPSI. The Claimant has not sued on the allegation in item 2 of the Motion of No Confidence. Nothing in this judgment should be taken as my expressing a view one way or the other upon the allegations made by the Defendant against Ms Glegg or anyone other than the Claimant.
- For her part the Claimant observes that the policy contended for by the Defendant would itself involve conflicts of interest. According to his policy, members of the Board of NRPSI should be PSIs and they should use their position as directors of NRPSI to advance the interests of themselves and of other PSIs, by refusing licenses to intermediaries where the grant of such licenses might result in a reduction in the earnings of PSIs. I do not have to adjudicate upon that point. But it illustrates how non-executive directors, who are chosen because of their experience, may find themselves in a position where they are at least open to criticism (whether well founded or not) for acting in pursuit of an interest when that may be said to in conflict with a duty.
- I heard oral evidence from the Claimant, and other witnesses called by her. They included the following: Mr Dwyer, Ms Wright (the Chief Executive of CINTRA), Ms Pocock (the Chair of the Interpreting Division of the CIOL, who is not a PSI), Mr Brooke Townsley (the Senior Lecturer in Legal Interpreting and Public Service Interpreting at the University of Middlesex since 2006 and Vice Chair of CIOL since 2009), Mr Cambridge (the Claimant's husband), and Mrs Corsellis. Most of these were called to give evidence as to damages.
- Ms Glegg attended court in July on the day which would have been the first day of the trial if I had not granted the Defendant the adjournment that he sought in order to advance an abuse of process argument which he did not, in the event, pursue. She explained to me at that time that she now lived in Nepal. One of the arguments advanced for the Claimant in opposing the adjournment was that Ms Glegg would not be available to give oral evidence at an adjourned hearing, and that a video link to Nepal might not be possible. In the event that proved to be the case. She made herself available to give evidence over a video link, but no such link was in fact established.
- The Defendant gave evidence. He also called Dr Zuzana Windle. She is a PSI and a co-signatory with him of the Motion of No Confidence and of the words complained of. The Defendant also called Mr Pavlovich and Mr Buckingham. He is the Chairman of APCI, who had attended as a scrutineer at the AGM of CIOL on 19 May 2007.
- The documentary evidence before the court is less than satisfactory for the resolution of the issues I have to decide. This is no doubt in part attributable to the fact that the parties most directly involved in the allegation against the Claimant (of acting on a conflict of interest) are not parties to this action, namely NRPSI, CIOL and CINTRA. Whatever the reason for the scarcity of original documents, I make my findings on the basis of the evidence that is before the court.
- The only documents emanating from NRPSI are the following. There is the Licence to CINTRA dated 27 January in incomplete form (there are omitted the documents referred to in the Licence relating to the fee). There are also a small number of e-mails for the period October 2004 to April 2005 to which I shall return below.
- There are two versions of a Board Minute of NRPSI relating to a meeting held on 29 July 2004. There is the draft produced from his own papers by Mr Pavlovich, and the version as signed by the Claimant on 5 November 2004.
- There is a print out from the NRPSI website dated July 2005 giving the Privacy Statement which led to the finding by the Information Commissioner's Office ("ICO") that there had been a breach of the first data protection principle (see para 80 below).
- There is an undated document bearing CINTRA's logo and the title: "Face to Face Interpreting Service for the East Midland Police Forces: Supporting Documentation – Delivery Plan" ("the Delivery Plan"). The version before the court consists of the first 76 pages, but not the Appendices referred to in the text. This is one of the documents referred to in the words complained of.
- In relation to Ms Glegg and the Claimant, the Delivery Plan stated as follows:
"Nicky Glegg is a recognised authority on the training and development of interpreters and on language service development. Her training credentials include….
Nicky Glegg was the first chair of the National Register of Public Service Interpreters and is represented on the Trials Issue Group….
Jan Cambridge has an MA in Applied Linguistics, the Institute of Linguist's Final Diploma, DPSIs in both legal and health options, and has been working as a public service interpreter in English and Spanish since 1984. She joined the National Register in 1994…".
- Later in the document there is the heading "Interpreter Standards". The Delivery Plan contains a number of references to the Register. At p68 it stated that "CINTRA subscribes to .. NRPSI", and another register, through which it stated that it had access to nationally registers throughout the UK. On p32 of the Delivery Plan it is stated that CINTRA had carried out market research to verify the interpreter capacity currently available in the East Midlands. One of the ways that it had done this was by reviewing the interpreters available via the NRPSI. At p34 it is stated that CINTRA proposed to advertise and communicate with interpreters through multiple channels, including by letters and telephone calls to all National Register interpreters. It also states that it carries out monthly reviews of NRPSI. It states it uses the on-line National Register to locate nationally registered interpreters. The document states that CINTRA's objective would be to train 110 new interpreters in the East Midlands to the standard required by the National Register by 31 December 2005.
- The Defendant does not say in his evidence from where he obtained this document, but it is apparent that he obtained it after April 2005. In his first witness statement he stated that after becoming concerned in May 2005:
"Our concerns were heightened when the East Midlands Delivery literature also revealed that two trainers retained by CINTRA were Nicky Glegg and her friend and fellow NRPSI director [the Claimant] …".
- On the limited information before me, I find that the Delivery Plan was completed sometime after the grant of the Licence in January 2005 and before April 2005. It was in any event drafted after the Claimant had completed her intervention in the grant of the Licence in about November 2004, as described by Mr Pavlovich (see para 104 below: the Claimant and other members of the Board discussed the fee which CINTRA were to be charged for the Licence).
- There is another undated document bearing CINTRA's logo with two sequences of internal numbering of the pages ("the Training Manual"). One sequence of numbering is from 31 to 34. Another sequence of internal number is an unnumbered title page, p1 of the document headed "About Cintra", and pp14 and 15 which include text headed "CINTRA's Trainers". On the title page (numbered 31 in that sequence) is the heading "Training and Consultancy for Users and Providers of Language Services". On the pages numbered 33 and 34 in that sequence, (and 14 and 15 in the other sequence), is a list of named trainers, including Nicky Glegg and the Claimant. It described them in terms similar to those used in the Development Plan. There is nothing to indicate what was contained in the preceding 30 pages in the sequence ending with p34, and nothing to indicate what was contained in the pages 2 to 13 in the sequence ending with page 15.
- There was no evidence as to the provenance of the two documents bearing the CINTRA logo, and Ms Wright had not seen them. However, their authenticity as CINTRA documents is not in dispute, whatever they may be, and at whatever date they may have been produced.
- It will be recalled that the words complained of include the following:
"… Janet Cambridge worked as a trainer for CINTRA at the time our data were sold. There is evidence in … CINTRA's Training Manual from 2005 that CINTRA used its connections with the CIOL and NRPSI, through the two directors to obtain a contract with five East Midlands constabularies …"
- I have been given no evidence that the Training Manual was available as early in 2005 as 27 January, the date of the Licence to CINTRA.
- The first reference in the documents to the Training Manual is in an e-mail from the Defendant dated 29 April 2007. That includes:
"The name of NRPSI Board Director, [the Claimant] appeared in CINTRA's Training Manual in May 2005".
- The date of May 2005 for the Training Manual would be consistent with the fact that in May 2005 the Claimant did in fact carry out some training for CINTRA, whereas she had not carried out any training for them since 19 October, which is the date on which she had been asked for permission for the use of her name in a course brochure.
- I find that the Training Manual was produced in May 2005. It is not therefore direct evidence of anything that occurred in relation to the grant of the Licence in January 2005.
- Another document referred to in the words complained of is the Lincolnshire Business Case Study. A copy is before the Court. It is a nine page document with a fax header dated 26 June 2005. Its title refers to "Business Case Meeting Friday 10th June…" It refers to a proposal by CINTRA. Amongst the seven documents said to be attached is "Cintra Service Delivery Plan". There is no express reference to either of the Claimant or Ms Glegg. On p7 of the document it is suggested that the fee currently paid to NRPSI by the Lincolnshire Police of £3,100 would cease to be payable if it contracted with CINTRA. I take it that the reference in the words complained of to Lincolnshire Business Case Study is to the Cintra Service Delivery Plan that was said to be attached to it, and which it was assumed must have contained a reference to the Claimant similar to that contained in the Delivery Plan.
- There is nothing to suggest that this document was in existence at or before the time when NRPSI granted the Licence to CINTRA, so this document does not take the Defendant's case any further.
- Another document referred to in the words complained of is the Coventry Partnership Project. This document is dated January 2006. The only passage in this document to which I was referred is one on p20 in which it is stated that "CINTRA has been involved in the work of the Institute of Linguists and was instrumental in the establishment of the National Register of Translators and Interpreters". The Claimant was asked about this and said she had never seen it before, so far as she recalled. The relevance of this document to the allegation complained of is not apparent. In the e-mail of 7 May it may have been relevant to the charge against Ms Glegg. It does not advance the Defendant's case against the Claimant.
- There are a few documents dated well after the occurrence of the events in question in this action.
- One is a document dated November 2009 headed "CIOL Independent Review 'The Future of the National Register of Public Service Interpreters'". In this document the writers express an opinion on conflict of interest in terms that may refer to both Ms Glegg and the Claimant, or possibly only to Ms Glegg. The Defendant refers to this document in his witness statement as giving him some support. I do not agree. It does not matter whether this document refers to the Claimant, as the Defendant infers, or whether it does not. I must make my own decision on the evidence put before me. That may or may not be the same as the material available to the author of this document. Even if the material available to the court were the same, I would still have to reach my own decision.
- This is, of course, also the case with the advice of solicitors instructed by CIOL, who advised that there was no conflict of interest on her part (see para 109 below). Whatever the solicitors advised, I must make my own decision.
- Another document is undated. It is headed "Register of CIOL Council member Declarations of Interest". In it the Claimant is recorded as declaring in the column headed "other conflicts":
"5 days' paid work for CINTRA in the last 5 years"
- Cross-examined about this the Claimant said she did not remember the date. She said she declared it to reduce the unpleasantness, not because she felt there was a conflict. She had been told that CIOL's solicitors had said there was not a conflict.
- The Defendant contends that this document gives support to him. I do not agree. The questions I have to decide (other than on the issue of malice) are objective ones. It is not what the Claimant thought the position to be. The work that the Claimant did for CINTRA is as I find it to be in this judgment. Whether on that finding there was or was not a conflict of interest at or before the time when the Licence was granted to CINTRA in January 2005 is a matter for me to decide. I am not assisted by the opinions of others.
DATA PROTECTION MATTERS
- In late 2005 or 2006 the Defendant made a complaint to the Information Commissioner about the grant to CINTRA of access to the personal data of Registrants which resulted from the grant of the Licence in January 2005. This complaint was upheld by a decision notified by the ICO dated 10 March 2006. This issue is referred to in the Motion of No Confidence as item 1. The effect of the decision was that there had been a breach of principle 1 of Sch 1 of the Data Protection Act 1998 ("the 1998 Act"). The decision letter is addressed to the Defendant and included:
"It has already been established that NRPSI did not adequately explain to the registered interpreters that their details could be made available to intermediaries acting on behalf of public services and that the consent interpreters provided prior to this arrangement may not have been sufficient to cover this added access to the register. Therefore NRPSI contravened the 1st Data Protection Principle.
NRPSI have since taken the necessary remedial action by modifying their website and sending out a questionnaire…
No further action is to be taken in this matter because NRPSI are taking the necessary remedial action to ensure compliance with the DPA.
I realise that this is probably not the outcome you wanted and I therefore draw your attention to our complaints procedure details …"
- The Claimant accepts that there was such a breach. She states that it was inadvertent and notes that it was remedied to the satisfaction of the ICO. She states that she had no experience of data protection matters and expected them to be dealt with by the professional employees of NRPSI. She did not regard them as the responsibility of the non-executive directors. The remedial action was taken by Mr Hammond, CIOL's Chief Executive. The implication of the ICO's decision was that such breaches had been taking place since agencies were first licensed to have access to the Register after the coming into force of the 1998 Act, but no one had noticed or complained.
- The Claimant makes no complaint in these proceedings concerning the allegation made by the Defendant that she was responsible for this breach of the 1998 Act. The issue is therefore irrelevant to the defences of justification, and is of limited relevance to the defence of qualified privilege.
UNDISPUTED FACTS IN 2004 and 2005
- The events which form the background to this dispute arise from the decision of the East Midlands police forces to outsource the provision of interpreters. They had previously booked interpreters directly with NRPSI. On or about 22 November 2004 they invited tenders for the provision of such services through an agency. CINTRA was one of five agencies that tendered for the contract. The tender was to be for face to face interpreting. That is not the only way in which interpreters provide their services. Other ways of interpreting are translation and telephone interpreting.
- The invitation to tender was advertised in the Official Journal of the European Union for 22 November 2004. There is no copy of the invitation before the court, nor any other evidence as to the date by which tenders had to be submitted. I infer that the Delivery Plan was, or was a part of, the tender submitted to the East Midlands Police in response to that invitation.
- According to the Delivery Plan, the East Midlands Police had found that booking interpreting services directly from NRPSI created a number of constraints, primarily due to a shortage of interpreters on the Register in many languages and locations. The East Midlands Police had also referred to what they described as the high cost of service provision, particularly travel expenses, and the high hidden costs in terms of police staff time spent booking and resolving issues with individual interpreters. They were therefore looking for an alternative means to provide interpreters of the same standard and credentials as the NRPSI, but with guaranteed response times and lower costs. The contract would be for a period of five years.
- The aspect of the East Midlands Police proposal which later became of most concern to individual interpreters was that the lower cost was going to come, at least in part, from lower fees paid to interpreters. PSIs working for the East Midlands Police would in effect have to provide their services through CINTRA. CINTRA would not only pay at lower rates, but also itself require a fee from the East Midlands Police from their services. So the total sum available for interpreters would be reduced. The reduction was to be significant.
- In order to address what the East Midlands Police referred to as the shortage of interpreters, CINTRA proposed to train interpreters. In its Delivery Plan it stated that it had nationally recognised in-house training capacity, and a long track record in building regional interpreter capacity. It stated that every year more than sixty new interpreters took the DPSI through CINTRA's exam centre, and that more than 250 interpreters had qualified for the DPSI through CINTRA over the previous ten years.
- To support its bid CINTRA's Delivery Plan included a section headed "Training Provision". In it CINTRA stated that it had a wide pool of trainers who were highly experienced and qualified. It named Ms Glegg and the Claimant, as set out in para 60 above.
THE FACTS WHICH THE DEFENDANT MUST PROVE TO BE TRUE
- The Defendant accepts that, in order to succeed on his defence of truth, he must prove to be substantially true three factual elements which together constitute the "abuse" by the Claimant. Mr Tomlinson expresses these as follows: (1) That the Claimant oversaw the sale (or licensing) of NRPSI members' data to CINTRA; (2) That the Claimant was privately interested in CINTRA; (3) That she stood to and did personally benefit from CINTRA. It is also part of the Defendant's case that in so far as she had an interest which conflicted with her duty to NRPSI, she did not declare it, but participated in the decisions which led to the licence being granted and the personal benefit to herself.
- Whether or not the Claimant oversaw the sale (or licensing) of NRPSI members' data to CINTRA, and whether or not she was privately interested in CINTRA, and stood to benefit personally, must be decided as at the period ending with the grant of the Licence on 27 January 2005. There is nothing which she did after that which is alleged to have given rise to a conflict of interest. Events subsequent to 27 January 2005 are relied on, including e-mails and work she did for CINTRA in May 2005. But the relevance of them is as to the inferences, if any, that may be drawn from them as to the Claimant's knowledge and position up to the grant of the Licence, including whether, and if so how, she had a private interest in CINTRA and stood to benefit from the grant of the Licence.
- An allegation that a director has acted in breach of her obligations owed to a company in her capacity as director is commonly made by the company itself, in proceedings to which the company and the director are parties. As already noted, in the present case no allegation of breach of duty is or has been made by NRPSI or CIOL against the Claimant, and neither body is a party to the proceedings.
- The case for the Defendant is based on the small number of contemporaneous documents referred to above, on the evidence of Mr Pavlovich, and on the evidence of the Claimant herself.
- There are two witness statements from Mr Pavlovich, one dated 21 June 2010 and the second dated 28 October 2010. In the first witness statement Mr Pavlovich stated that he first discovered that Ms Glegg was on CINTRA's board immediately after the NRPSI board meeting on 29 July 2004. He knew (already) that she had once been the Chief Executive of CINTRA and that she had set it up in, he thought, 1997. He said it had been floated off from Cambridge Council. Before July 2004 he had not understood that Ms Glegg retained an official post in CINTRA at that time. He did understand that she was teaching and carrying out consultancy work for CINTRA at that time. When he discovered that Ms Glegg was a director of CINTRA at the same time as being a director of NRPSI he made strenuous, but as he says ultimately unsuccessful, efforts to persuade Mr Hammond the chair of CIOL to speak against the renewal of Ms Glegg's directorship of NRPSI, when that came up for renewal at the Council meeting on 9 April 2005. He also expressed his concerns orally at that meeting and in correspondence with Mr Melville, who was also a member of the Council and a relatively new director of NRPSI. Mr Pavlovich subsequently left his position at NRPSI. I formed the clear impression that he held a degree of ill feeling towards the Claimant and others arising out of the fact that they did not share his view of the conflicts of interest which he thought existed.
- The first document relied on by the Defendant is a string of e-mails dated between 10 and 21 June 2004 and exchanged between Caroline Taylor of CINTRA and the Claimant. In the first of these Ms Taylor said she understood that Ms Glegg had spoken to the Claimant about the possibility of her doing training for CINTRA's interpreters. It appears from the text of these e-mails, and the Claimant's own evidence, that the Claimant had not done this before. They discussed difficulties about the travelling, given the distance between East Anglia and Cheshire (five hours drive). An arrangement was made for the Claimant to train on a Saturday in September.
- The only CINTRA course that the Claimant attended in 2004 was on Saturday 16 October. On that occasion she was paid her expenses, but no fee. On 19 October 2004 Ms Taylor wrote to the Claimant thanking her for giving the course. The e-mail continued:
"[Ms Glegg] mentioned to me that you might be interested in teaching some other course for CINTRA. If you are, would you mind your name appearing in a course brochure that CINTRA is about to publish. If you don't mind your name appearing, would you be able to send me some brief biographical materials?"
- In cross-examination the Claimant gave evidence which I accept. She said she had known Ms Glegg since about 1990, and that they had a good relationship on the occasions when they attended meetings together. But she had had no previous relationship with CINTRA before the e-mails. She had first worked for it in October 2004. She did one half day's work then. She was never employed by CINTRA other than as a freelance trainer. She did not see the Training Manual at the time it was produced by CINTRA. At the time she gave her consent to the use of her name, she did not know what else would be included in the document. In fact the Training Manual contains no mention of the Claimant's position with NRPSI. And the same information, appearing in the Delivery Plan, could not be described as being in a course brochure, which is the only consent for which she was asked.
- The only other documents dated in 2004 relied on by the Defendant consist, and consist only, of the Minutes of a meeting of the Board of Directors of NRPSI held on 29 July 2004. There are two versions of this minute. The first is a draft dated 3 August 2004. The second is the final version signed by the Claimant and dated 5 November 2004. So far as material, they are identical save for the addition of nine words in the final version. The relevant minute is number 246 headed "Access to the Register".
- There were present at the meeting on 24 July 2004 the Claimant, Mrs Corsellis, Mr Dwyer, Ms Glegg and Mr Pavlovich. Also present by invitation were Mr Hammond, the Chairman of IOL, and Dr Melville Smith the Honorary Treasurer of IOL. Also in attendance were Mr Hedley, the Company Secretary, and Ms Robson, Director of LSL and General Manager Professional Services NRPSI. Mrs Corsellis was in the chair for the items minuted as 236 to 240. The Claimant was in the chair for the subsequent items, including minute 246.
- Minute 246 reads as follows in the draft:
- "Since the board had previously given opinions on which companies might have access to the register, Ms Robson asked for guidance to access on the register by commercial agencies, especially in view of the recent letter from the association of Translating Companies citing possible breaches of competition law.
- Mrs Corsellis stated that there was no problem with giving access to bona fide agencies working in the public sector and for Saxon House [the office of NRPSI] to set the charges.
- It was AGREED that each non PSI organisation should be expected to pay £2500 for its basic licence and then an additional £1000 for each public service organisation they had a contract with. If the PS organisation had a number of sites then the agency would be charged an additional fee of £500 per site for that organisation.
- Ms Robson added that she was currently charging £200 per hard copy to PS organisations and £300 to non-PS organisations and although hard copies were probably unnecessary, they will generate a considerable amount of income. Mr Dwyer noted that the above ruling meant that it did not matter how many languages subscribers wished to use as the ruling would apply across the board.
- Ms Robson stated that commercial agencies needed to be defined so that the office staff might know what charges to levy.
- Ms Glegg raised the matter of the charges to be levied for public service organisations and suggested any non public service organisation be asked the legal status of their company. Any that were local authorities, companies limited by guarantee or charities should be able to subscribe to the register at the public service rate. Those who did not fit this category would be at the commercial rate already described above. Mr Dwyer raised the concern that if an agency worked solely for public service organisations then NRPSI would loose out financially if this agency was only charged the PS organisation rate.
It was AGREED that all organisations should be asked their status in future and that the setting of a rate for non public service organisations/agencies who work solely in the public service domain, be considered at the next meeting. A report was needed on the subject to enable a proper and informed decision to be made.
In the final version signed by the Claimant, there was omitted from the minute what appears as the second bullet point in the draft ("Mrs Corsellis stated that there was no problem….."). What the Defendant contends to be significant is that in the bullet point starting "Ms Glegg raised the matter of the charges to be levied…" there were inserted after the name of Ms Glegg a parenthesis including the words "Director of Cintra, a client of NRPSI Ltd".
Action WH/SR [Mr Hedley and Ms Robson]."
In cross-examination the Claimant said that she remembered the board meeting of July 2004. She said that "we all knew that Ms Glegg [worked for CINTRA]". She said that the words referring to that, which appear in the signed minutes, were not inserted by her and she does not know who they were inserted by. She did not remember the details of the discussion at the meeting in July.
I have been unable to find anything in this minute, or the evidence relating to it, that assists me in deciding any issue in this action. It appears from the Minute that Ms Glegg was arguing for a fee to be payable by CINTRA which would be financially advantageous to CINTRA, and correspondingly financially disadvantageous to NRPSI. And Mr Dwyer pointed this out at the meeting. I am not concerned with whether or not Ms Glegg made the declaration of interest that she should have made in July 2004. It is plain that before the Minute was signed by the Claimant on 5 November 2004 Ms Glegg had made a declaration that was inserted into the signed minutes.
I do not have to decide whether this declaration told members of the Board anything material which they did not already know. Mr Dwyer stated that he knew that Ms Glegg worked for CINTRA. Mr Pavlovich states that he was not aware in July 2004 that Ms Glegg was a Director of CINTRA. But he was aware that she had been its Chief Executive about six years previously, and that in 2004 she provided consultancy services and taught courses for CINTRA. It was on 29 July that he learnt that she was a Director of CINTRA.
Such evidence as there is as to how the Licence for CINTRA came to be granted on 27 January 2005 was agreed, or was given by Mr Pavlovich. It was agreed that CINTRA had previously had a licence which expired in December 2002. It made an application on 16 November 2004 for a licence at the PSO rate of £550 a year. It was granted in January 2005 for the period 1 January 2005 to 31 December 2005 but not at the PSO rate. The rate was the higher one charged to non-public service intermediaries. Mr Pavlovich stated:
"In general the renewal of NRPSI licences was fairly routine and by and large was carried out by the office manager at the NRPSI. The standard procedure was for the license holder to make a written request for renewal. If there had been any complaints or problems with a subscriber, or if there was an issue about the fee to be charged these would be brought to my attention and the matter referred to the board, otherwise I would sign off the license renewal without any further consultation…
I recall receiving a letter from the Chief Executive of CINTRA Caroline Taylor sometime in late 2004 seeking a NRPSI licence for CINTRA. My recollection is that I wrote to Caroline Taylor proposing a payment of £2500 plus £1000 for each constabulary with who they contracted. This prompted a series of emails from Nicky Glegg. She said that it was wrong for CINTRA to be charged the commercial rate. I was also telephoned about the matter by [the Claimant] and Ann Corsellis. All three ladies wanted CINTRA to be treated like a PSO. I now know that CINTRA was granted a license starting 1 January 2005, having not had a license for two years previously. As to the fee I think that CINTRA did pay the £2500 fee although not the extra fees for each constabulary after CINTRA was awarded the East Midlands contract…
When CINTRA renewed its application for a licence in November 2004 I referred the matter to the board who agreed it should be granted. I believe the Claimant was present".
The Claimant's recollection of this was as vague as Mr Pavlovich's. She accepted that there was a discussion at the end of 2004 about the tariff that CINTRA would be required to pay. She did not recall what Mr Pavlovich said about that. But she accepted that the amount that CINTRA should pay was a policy decision. She did recall saying that CINTRA was a not for profit company, and she thinks she might have thought that not for profit agencies should pay less than commercial agencies. She did not accept the suggestion that that decision was detrimental to NRPSI in that it would lose the subscriptions from the police forces concerned. She said that five forces of the East Midlands Police continued with their own subscriptions for at least a year, and that three still do. In any event NRPSI was not a profit making body. She accepted that NRPSI was running a deficit at the time. But as I understood her evidence she did not view the financial position of NRPSI as the main consideration in arriving at the decisions she had to make. She was concerned about it fulfilling the function for which it was set up.
There was no evidence, whether from Mr Pavlovich or at all, that there was raised with the Board any suggestion that CINTRA should not be granted a Licence. The only question raised for the Board to decide was the rate that it would be required to pay.
The Licence to CINTRA was signed by Ms Caroline Taylor for CINTRA on 28 January 2005 and by a Mrs Ghanem on behalf of NRPSI on 27 January 2005. It does not specify the fee to be charged for the licence. What it said is:
"The licence fee payable by the subscriber to the NRPSI Ltd for the licence shall be a fee calculated in accordance with the NRPSI Ltd's published Licence Fee matrix from time to time ("the Licence Fee matrix") and shall be: as quoted ".
The document referred to by the words "as quoted" is not before the court.
Mr Pavlovich said in his first witness statement that it was in May 2005 that he first heard that the Claimant was listed as a trainer for CINTRA. By the time he learned this a furore had erupted amongst NRPSI registrants concerning the contract between the East Midlands Police Forces and CINTRA. He states that he asked the Claimant at that time whether she was doing paid work for CINTRA and that the Claimant did not deny it. But he states that he did not immediately raise the issue of a conflict of interest with the Claimant. However, he did raise that issue with Ms Glegg. He and Mr Hammond then discussed the matter with NRPSI's solicitors, Mr Pavlovich states that they advised, much to his surprise, that there was "no conflict of interest". The advice of the solicitors is not before the court. There is no evidence as to the factual assumptions on which the advice was given, and it is not clear whether those six words "there was no conflict of interest" fully represent the advice given, or are the interpretation of Mr Pavlovich or someone else.
Mr Pavlovich suggests, and Mr Tomlinson put to the Claimant, that she had known that CINTRA was bidding for the East Midlands Police Forces contract at about the time the bid was being made. She denied that. Some emails were put to her in cross-examination.
There is an email dated 14 February 2005 at 11:44 with the subject "Face to Face Interpreting Tender-Query". It is from Ms Glegg and addressed to Mr Howard of the Lancashire Police. It was copied to Mr Dwyer, Mrs Corsellis and the Claimant. The email was part of a string, the whole of which was copied to the Claimant. Ms Glegg was drawing to the attention of Mr Howard (and so of the Claimant) emails that she had exchanged in the previous week with Mr Frazer of the Leicestershire Constabulary. The Leicestershire Constabulary was one of the East Midlands Police forces.
On 8 February 2005 at 13:32 Ms Taylor of CINTRA asked Mr Frazer for clarification of that force's invitation to tender. Ms Taylor ended the e-mail saying:
"I would be pleased if you could clarify the wording that we should use in preparing our submission for tender".
As Ms Glegg said in her e-mail of 14 February at 11:44, which was copied to the Claimant, she understood Mr Frazer's response to mean that the Leicestershire Constabulary were interpreting the National Agreement in a way that meant that they did not have to look first for interpreters at the NRPSI.
The same day at 13:51 Mrs Corsellis replied to Ms Glegg, sending a copy of her reply to Mr Dwyer and the Claimant. The terms of the reply are not material. CINTRA was asking the Leicestershire Constabulary to clarify the wording that CINTRA should use in preparing its submission for the tender. What the emails are relied on to show is that, if the Claimant read the full string of emails, she would have learnt that CINTRA were preparing a submission for the tender. When asked about the email of 14 February from Ms Glegg to Mr Howard, the Claimant said she remembered that part of the email which was copied to her. She said she did not recall the rest, that is to say the earlier emails in the string which appeared below the text addressed to Mr Howard. She said she would have looked at it and said to herself that it was none of her business. It was not for NRPSI as a regulator, to get involved. She understood that CINTRA would be tendering for contracts all the time.
Mr Tomlinson asked Mrs Corsellis about these emails. She said she did not remember documents about the tender.
I accept the evidence about this given by the Claimant and Mrs Corsellis. I would regard it as improbable that anyone in the position of either lady would have thought that they needed to read this lengthy string of e-mails which did not directly concern them.
The main significance that I attach to these e-mails is that they are consistent with the Delivery Plan still being in the course of preparation on 14 February 2005. So even if I had found (which I do not) that the Claimant read them, that would not have been evidence that she knew about the tender at any time before NRPSI granted the Licence, or, in particular, in November 2004 at the time she intervened in the discussion about the fee which CINTRA should be charged by NRPSI for the Licence.
On 4 May 2005 Ms Rowlands wrote an email to the Claimant. She was a PSI, and became a member of the NRPSI Action Group. She expressed to the Claimant her concern about the contract which by then had been entered into between the East Midlands Police and CINTRA. She said she imagined that all five police forces would be cancelling their subscriptions to NRPSI. She said she understood that the contract had been put out to tender and she asked whether NRPSI was aware of this development. Its impact on the local NRPSI members would be devastating. She said that colleagues in the Midlands were furious that "A board member of NRPSI is also a board member of CINTRA".
The Claimant replied the next day saying:
"I am unclear from your email why you say members are annoyed at Nicky's involvement with the NRPSI. Perhaps you would like to clarify this? She was appointed to the NRPSI because of her knowledge of front line delivery of both interpreting and public services. For the NRPSI to act without this input would be short-sighted at the very least. Like all the other directors, with the exception of Henry Pavlovich, CEO of the IOL, she gives her time for expenses only".
On 9 May Mr Pavlovich sent an email to the Claimant. He stated that he believed that Ms Glegg had a conflict of interest between CINTRA Ltd and NRPSI.
Later, on 9 May 2005 Ms Glegg wrote an email commenting on what Ms Rowlands had said. Ms Glegg said that a number of organisations other than CINTRA tendered, five were short listed, and four of these were commercial agencies. In answer to the query "Was the NRPSI aware of the contract being put out to tender" Ms Glegg had responded "Yes". That answer provoked a strong response from Mr Pavlovich, who wanted to know how it was said that the NRPSI knew. He had not been one of addressees to whom the e-mails of 14 February had been copied: Ms Glegg had copied hers to Mr Dwyer, Mrs Corsellis and the Claimant, and Mrs Corsellis had copied her response to Mr Dwyer and the Claimant.
On 10 May 2005 Mr Pavlovich wrote an email to the Claimant, Mr Hammond, Mrs Corsellis, Mr Melville, Mr Dwyer, Ms Glegg and Mr Hedley. Mr Pavlovich expressed himself bluntly and sarcastically. He wrote:
"I take it that the Official Journal of the European Union is regular reading for CINTRA. Or was the police tender in that journal brought to her attention by those attending IWG meetings, where she is ostensibly representing NRPSI Ltd? I just ask. (I know the answer)".
I have not seen any evidence that he did know the answer to his question. Mrs Corsellis attended meetings of the IWG and she gave evidence that she did not recall the East Midlands Police tender being discussed. She also gave evidence, as did Mr Dwyer (and the Claimant), that she did not remember the e-mail string addressed to her on 14 February. But her e-mail of 14 February does refer to the IWG:
"Do you wish me to do anything about the IWG sub-group while you are in India?"
The premise underlying Mr Pavlovich's question appears to me to be unrealistic: that CINTRA would have learnt about the invitation to tender only if it was mentioned at the IWG meeting. Even if Mrs Corsellis had said that it had been mentioned at the meeting, I would not regard that as being of any significance. The e-mails show that CINTRA knew about the invitation to tender at least from 8 February 2005. In reality I would expect that they had been on the look out for potential business and would not need to be informed of the announcement in the Official Journal by a private communication from any of the directors of NRPSI. There was no challenge to Ms Glegg's statement that other agencies also tendered. It is to be expected that the East Midlands Police Forces would have wished their invitation to tender to be as widely known as possible amongst potential tenderers, and that potential tenderers would make it their business to find out about such announcements.
Mr Pavlovich went on to say in his e-mail that he begged to differ with Ms Glegg that NRPSI was aware of the tender. He said that neither Mr Hedley, as Company Secretary, nor himself, as Chief Executive, were informed and neither Ms Glegg or the Claimant mentioned it at board meetings. He stated that the public would perceive that Ms Glegg was in a position of conflict of interest. Clearly relationships between Mr Pavlovich on the one hand and Ms Glegg and the Claimant on the other were very poor at that point.
On 10 May 2005 Mr Pavlovich sent to Mr Hammond the draft of a standard response that he intended to issue to all those who contacted NRPSI about Ms Glegg and what he called the "CINTRA/NRPSI business". It read:
"NRPSI Ltd was not informed beforehand that CINTRA Ltd was bidding for a contract with five clients of NRPSI Ltd or that CINTRA had won the tender. The first NRPSI Ltd knew of this development was when correspondence started coming in from interpreters who had received a letter from the police authorities concerned advising them to register with CINTRA Ltd. Ms Glegg is a director of CINTRA Ltd and also on the board of NRPSI Ltd, so it is regrettable that the matter was not first raised with NRPSI Ltd.
At the instigation of the Chief Executive of the Institute of Linguists the situation is being discussed by the officers of both the Institute as parent company and NRPSI Ltd as an affected party".
On 11 May 2005 Mr Pavlovich wrote to the Claimant and Mrs Corsellis:
"Did you know before last week that the East Midlands Police Authorities were going to put out a tender for PSI services and that CINTRA was going to bid for it?"
He received no reply to this e-mail. On 12 May 2005 Mr Pavlovich sent another email to Mrs Corsellis and to the Claimant with a copy to Mr Hedley. It read:
"I have not yet received a reply to my question (see below [that is the email of 11 May 2005]) and would be grateful for one, in writing. If no reply is forthcoming I'm afraid I shall feel duty bound to raise the matter at the July meeting of the council".
On 12 May 2005 Mr Hammond wrote to Mrs Corsellis and to the Claimant. The subject is "Nicky and Dual Directorships etc". It attached a document. He reported that he had spoken to Mrs Corsellis. He added:
"I have given [Mr Pavlovich's] concerns put to us last Friday a lot of thought and spoken to him again at length yesterday. Discounting the "witchhunt" factor and his close propensity to create a storm in a teacup, I nevertheless felt a concern and the attached paper is my attempt at clarifying it. I suggest it might form the basis of our meeting on Friday. I am sending you this before sending it to Nicky just in case I am missing something fundamental or have made incorrect assumptions. I would certainly hope not to offend Nicky and in any way adversely affect the mutual good will, so if you can persuade me that I have got it all wrong, please do so!...".
The attached document includes the following:
"Re: Ms Nicky Glegg's Dual Directorships and Representations on the IWG.
1. The Board of NRPSI Ltd has always been aware that Ms Glegg is a member of the Board of CINTRA, a company she was instrumental in founding in 1997, in addition to being a member of its own Board. CINTRA is a subscriber to the NRPSI register (i.e. pays an annual fee for access to the register). The NRPSI Board has in the past assessed the risks of a conflict of interest (whether actual or potential) on the part of Ms Glegg as being minimal or certainly as being within tolerable limits.
2. Ms Glegg is currently the delegated representative of NRPSI Limited on the Government's Interpreting Working Group ("IWG").
3. CINTRA competes in the market place with other companies such as Language Line and Bowne Global for the provision of PSIs to public services, chiefly the Criminal Justice System and health authorities. The recent award of a contract to CINTRA by five East Midlands Police Authorities following a public tender is one such example and perhaps indicative of the future trend in PSI provision. Due to the somewhat novel nature of this outsourcing of provision, the IOL and NRPSI are receiving phone calls and correspondence expressing concern by PSIs. Whether such concerns (e.g. a feared decrease in hourly rates) turn out to be well founded or not is not relevant to the matter at hand.
4. The significance of the aforementioned contract (both in terms of size, public profile and as an indicator of future practice), and some of the questions being asked of us by PSIs (whether or not on the Register and/or members of the IOL) has caused us to re-examine whether or not it is still acceptable for an individual to sit on the boards of CINTRA and NRPSI Ltd and for that individual to represent one of the companies, NRPSI Ltd on the government's IWG.
5. My concern is with the possible public perception. It is an invidious position for the individual as it lays him or her open to charges, or simply even suspicions, of a conflict of interest, whether actual or potential. It is perhaps imprudent for the company. NRPSI Ltd and its parent, as the Register must be seen to be neutral and impartial vis à vis all stakeholders in the community and above any charge of preferment, whether actual or potential of one PSI provider over another. I can also see a public relations difficulty for CINTRA as detractors might attribute their competitive successes to the special relationship they enjoy with the IWG, for example, or to information they receive by virtue of their involvement with the register, however fanciful this may be. This is naturally a matter for them.
6. I have to emphasise that I have tried to look at the facts and public relations aspects dispassionately and objectively, without regard to individuals concerned and the motivations by which people disaffected for whatever reason, may fairly insinuate improper conduct for an irregular state of affairs. There is absolutely no suggestion that any one of us has acted unprofessionally or without the utmost integrity and transparency. It is simply a matter of placing all parties beyond the minutest hint of a conflict of interest or partiality or of possible preferment, etc.
On 16 May Mr Pavlovich sent another email to the Claimant asking the same question as he had asked before.
7. I next need to discuss my thoughts with Nicky before our meeting on Friday 13 May so that we can properly discuss how to deal with this concern and come up with a solution.
On 17 May Mr Pavlovich sent another email to the Claimant, to Mr Melville Smith, Ms Glegg, Mr Hammond, Mr Dwyer and Mrs Corsellis with a copy to Mr Hedley. It referred to the forthcoming board meeting. He wrote:
"There is no point in holding a board meeting until the matter of Nicky Glegg's conflict of interest has been resolved.
And you Jan have still not replied to my request for an answer to the question: Did you know before May 2005 that Cintra Ltd was bidding for a contract with the East Midlands Police Authorities (a tender that was apparently advertised in November 2004)?
Nicky Glegg has gone into print saying that NRPSI Ltd did know, which is news to me as Chief Executive and William as Company Secretary.
Therefore Ms Glegg is either a liar or she told you as chair of NRPSI Ltd and you did not have the courtesy (or the fiduciary duty) of informing company officers. I would be interested to know which it is".
On 23 May 2005 Mr Pavlovich wrote an email to Mr Hammond. It was copied to a solicitor at Messrs Harbottle & Lewis. It is a long email covering two pages. The email includes a statement that members of the IOL who also happen to be Registrants are not much concerned with "the finer legalistic points of whether or not Ms Glegg... has broken any conflict of interest laws", but rather are concerned about their livelihoods. He sets out the brief history of the matter and five issues. The first issue is that IOL is supposed to be looking after its members ("in this case by lobbying with the organisations concerned both The East Midlands Police Authorities and Cintra Ltd"). The second issue identified is that NRPSI is directly affected by the contract because the police forces concerned are its direct clients. NRPSI registrants and IOL members see a conflict of interest in Ms Glegg sitting on the boards of both Cintra and NRPSI and "in [the Claimant] chair of NSRPI Ltd doing paid contract work for Cintra Ltd". That is the first mention of a conflict of interest by the Claimant personally. He then repeats the point made previously that Ms Glegg maintained that she did inform NRPSI and that if she informed the Claimant then, says Mr Pavlovich, the Claimant should have informed the Chief Executive and the Company Secretary about it. The email ends:
"There is a further issue in [the Claimant]'s test of loyalty to the Institute and NRPSI Ltd since she sits on both their boards is (ie whether she did or did not know about the contract and failed to keep the board or company officers informed because she does paid work for Cintra Ltd)".
On 25 May Mr Hammond responded to Mr Pavlovich's email. The email includes the following:
"There is quite legitimately an angry and concerned group of interpreters who on the face of it have been adversely affected by the East Midlands contract. They even direct their anger and frustration at us (NRPSI/IOL) as their membership body feeling isolated and helpless as individuals. The concept of conflict of interest has been seized in the melee by a few, in my opinion incorrectly. I very much hope it is not a case of animosity or vindictiveness directed personally against the individual(s) concerned. The current atmosphere makes it more difficult than it would be in calmer times to rebut a proposition which may be groundless. In this matter we are where we are. To that extent and I agree that we are caught up in a PR problem not of our causing. I say we would be in much the same position even without the dual directorship question…"
The Claimant has given evidence that she was unaware that CINTRA had tendered for the East Midlands Police contract. There is no evidence that she was aware of it at any time before it became public knowledge in April 2005. The furthest that the Defendant can advance his case on the evidence is that the Claimant would have known about the tender on 14 February if she had read the whole string of e-mails that were included. But that goes nowhere towards proving that she knew about it before she made the only intervention she did make in the grant of the Licence to CINTRA, namely the discussion about the fee that CINTRA should be charged. That discussion took place apparently in November 2004. On the other hand, in cross-examination Mrs Corsellis said that she may have been aware of the proposed contract between CINTRA and East Midlands Police before it was entered into, although she did not state when she might have known. She may well have known, since she wrote her e-mail on 14 February, but that does not advance the Defendant's case.
There is no dispute that the Claimant did work for CINTRA in May 2005 for seven days, and that the training she gave was pursuant to CINTRA's new contract with the East Midlands Police. There has been some confusion in her evidence as to whether she was paid for that work or not. I find that she was not paid, but she was re-imbursed her expenses. But nothing turns on that finding. She and CINTRA had agreed that she would be paid, and she was mistaken when she stated that she was paid. The fact that she was not paid appears to be an oversight by her in failing to send an invoice.
Ms Wright is the current Chief Executive of CINTRA. She gave evidence. CINTRA has also produced from its files or records a record of a payment made on 13 June 2005 in respect of hotel expenses for the Claimant on 25 May 2005. It might have been expected that documents would have been available from CINTRA or from CIOL to evidence how much CINTRA agreed to pay as a license fee. No questions were asked by either side of Mr Pavlovich or Ms Wright to enlarge upon or challenge the evidence in respect of this matter.
As to the tender by CINTRA to East Midlands Police Force, and the contract that followed, the Claimant said in evidence that she did not know anything about that before interpreters started to complain, which was in May. There is no reason in my judgment to disbelieve her. The Defendant attaches significance to the fact that the Claimant did not reply to Mr Pavlovich's e-mails, and to questions that he put to her subsequently on the same subject. But given their tone, I do not find it surprising that she did not reply. I accept that the Claimant did not know of CINTRA's tender, or of the Delivery Plan, or what it was to contain, before the end of January 2005, and she did not know until the award of the contract to CINTRA in April 2005.
The Defendant also invites me to disbelieve the Claimant's evidence as to when she knew of the use of her name in the Training Manual and the Delivery Plan. The Claimant says she did not know of this before May 2005, and did not consent to CINTRA using her name in their tender. There is no evidence that she did know. There is not even any evidence that these documents came into existence before the only occasion when the Claimant is alleged to have intervened in the proposed grant of the Licence to CINTRA (November 2004), or before the grant of the Licence on 27 January. For the Defendant it is submitted that I should disbelieve her because of her admitted relationship with CINTRA, and from the absence of any suggestion by her that she complained to CINTRA. I have no hesitation in rejecting that submission. A person is not to be taken as admitting the truth of every statement made about her in public which she does not publicly deny.
For the Defendant it is further submitted that the allegation of abuse is made out even if the Claimant did not know these things. It is said that the question is an objective one, and that there is no need to establish knowing abuse. If a director stands to gain from an engagement of the company, even though she does not know that, nevertheless if she participates in the decision in question, she has abused her position as a director. I do not understand this submission. No director would ever know whether she was free to participate in a discussion about the company's business, because it is impossible to foresee the future, and thus any future benefit, however small, that might accrue to the director as a result of the decision in question. For the purpose of the law of conflicts of interest, a person cannot be said to stand to benefit from something simply because, months later, she does in fact benefit from it. For her to stand to benefit at the time she does the relevant act, it must be foreseeable that as a consequence there is at least the real possibility of a benefit. It will always depend on the particular facts in question.
CONCLUSIONS ON JUSTIFICATION
On the basis of these findings I turn to the words complained of, and in particular to the material words set out in para 8 above.
The charge is that "[the Claimant] worked as a trainer for CINTRA at the time our data was sold". That is not true. The Claimant did not work as a trainer at the time the Licence was granted, or at any time when she intervened in the discussions leading up to the grant of the Licence. So she had no private or other interests in CINTRA. She had done one half day's work on a freelance basis in October 2004, but she did not work for CINTRA in the period November to January. In the period November to January she did not know of the CINTRA tender for the East Midlands Police, and did not know that she stood to benefit from any such tender. On the true facts, as I find them, a reasonable man looking at the relevant facts and circumstances of the particular case would not think that there was a real sensible possibility of conflict.
Next are the words:
"There is evidence in the Coventry Partnership Project, the Lincolnshire Business Case Study, the East Midlands Delivery Plan and CINTRA's Training Manual from 2005 that CINTRA used its connections with the CIOL and NRPSI, through the two directors, to obtain a contract with five East Midlands constabularies and Norfolk".
This is untrue. There is no evidence in the Coventry Partnership Project, or the Lincolnshire Business Case Study relevant to the charge against the Claimant. The Delivery Plan and CINTRA's Training Manual from 2005 each refer to the Claimant as a trainer, but there is no evidence that either document existed in the period November 2004 to January 2005, after which neither NRPSI or the Claimant did anything to advance CINTRA's tender. Neither of these documents, nor any other document, provides evidence that CINTRA was using its connection with the Claimant, or the Claimant's connection with NRPSI, to obtain the contract with East Midlands Police Forces. There is no mention in either document of the fact that the Claimant held any position with NRPSI. The Claimant did not know of CINTRA's tender at any material time. The fact that the Claimant did some work as a trainer for CINTRA on 25 May 2005 does not justify the inference that before the end of January she knew that she stood to benefit from the grant of the contract to CINTRA.
Even if the Claimant had known of CINTRA's proposal to tender at the only time she intervened in the arrangements between NRPSI and CINTRA, namely in November 2004, my conclusion would have been the same.
The issue in which she intervened was the amount of the Licence fee to be charged to CINTRA, not whether CINTRA should be granted a Licence at all. It is not, and cannot be, suggested that the difference between the amount of the fee favoured by the Claimant, and the amount favoured by Mr Pavlovich was such as to affect the outcome of CINTRA's application for a Licence. The explanation that the Claimant has given as to why she favoured the grant of a Licence to CINTRA, expressed by reference to the object for which NRPSI was set up, is entirely convincing. No reasonable person looking at the relevant facts and circumstances of the particular case would think that there was a real sensible possibility that the Claimant had any private interests, or, if she did, that she was preferring them to her duty to NRPSI. At no time before the grant of the Licence had anyone suggested that no Licence should be granted to CINTRA, whether for the reasons advanced subsequently by the Defendant and others, or for any other reason. At the time of the events in question there was no reason why the Claimant should have opposed the grant of a Licence to CINTRA.
The only other point made in relation to the Claimant's actions before the grant of the Licence is that she should have disclosed her interest in CINTRA before participating in the discussion as to the amount to be charged by way of a fee. I have found that she had no relevant interest to declare. But even if she had had an interest to declare, failing to disclose an interest would not in my judgment suffice for the Defendant to succeed in his defence of justification, having regard to the other findings that I have made. A failure to declare an interest when required to do so may be wrong, and it may of itself have serious consequences. But it is not the same as acting to promote a director's private interests when the director has a duty to act in the best interests of the company. As Mr Bennett put it, it is not possible to act on an appearance of a conflict of interest, and the appearance of a conflict of interest cannot be the basis of an abuse.
QUALIFIED PRIVILEGE – THE LAW
As already noted, the plea of qualified privilege was introduced by the amendment to the defence made in June 2010. The Defendant alleges that the e-mail containing the words complained of was one of a series of emails sent to a recipient list, and that the list was prepared for the purpose of sending these emails. He states that the list comprised the individuals in the following classes:
(1) Those who were entitled to vote in the forthcoming AGM motion of no confidence for the reason that they were all members of the CIOL with the right to vote; and/or
(2) Those who worked as interpreters in the criminal justice system and were affected by the issues underlying the motion of no confidence; and/or
(3) Were members of professional associations directly affected by the award of a regional monopoly to an outsourcing agency which competed with their association. A large proportion of the recipients were also members [that is, registrants] of the NRPSI, the organisation which the underlying subject matter of the vote of no confidence was concerned with.
It is further pleaded;
"in the circumstances, as the mover of the vote of no confidence at a forthcoming AGM and as a member of CIOL and a registrant on NRPSI and an interpreter working in the criminal justice system, the Defendant had a recognised duty and interest in sending the communication containing the words complained of, which were germane to the situation and restrained in their tone and necessary for a democratic process of accountability with a national organisation to recipients who had a legitimate interest in receiving them based on their voting entitlement, and/or membership status, and/or in protection of their economic interests and/or in connection with the interests of their professional association."
In the Amended Reply it is admitted that publication of the words complained of to individuals entitled to vote at the AGM at which the motion was to be moved, namely members of the CIOL, was on an occasion of qualified privilege. It is denied that publication to any other individuals was on an occasion of qualified privilege.
It is common ground that the law is correctly stated in Duncan & Neill on Defamation 3rd ed para 16.09:
"The general test [for qualified privilege at common law] may therefore be stated as follows: having regard to the subject matter of the communication, did the publisher have a duty or interest to make it and the publishee(s) to receive a corresponding interest or duty to receive it?"
The editors go on to say:
"16.12 … the duties and interests which found an occasion of qualified privilege must exist in fact. This is an objective question, and it is not sufficient that the person who makes the defamatory communication honestly believes that he has a legitimate duty or interest to make it or his audience to receive it… In assessing whether the objective test has been satisfied in any particular case the court may have regard to the relationship between the publisher and the recipient or recipients of the publication. If the relationship is a pre-existing one it may often be easy for the defendant to satisfy the test. If, however, there is no existing relationship between the parties prior to the publication, the defendant may be required to plead and prove additional facts, including in some cases the results of inquiries he has made, to show that in the circumstances the publication is protected"
- the text includes a citation from Adam v Ward  AC 309 at 334 and the footnotes refer to Kearns v General Council of the Bar  EWCA Civ 331;  1 WLR 1357, CA, which Mr Tomlinson cited to me.
Mr Bennett also referred to the discussion in Gatley on Libel and Slander 11th ed. At para 14.9 the editors cite the passage in Watts v. Times Newspapers Ltd.  QB 650, 660 where Hirst LJ said:
"Where the court has to consider whether a particular occasion is privileged, it is necessary to take into account 'every circumstance associated with the origin and publication of the defamatory matter, in order to ascertain whether the necessary conditions are satisfied by which alone protection can be obtained': London Association for Protection of Trade v. Greenlands Ltd.  2 A.C. 15, 23, per Lord Buckmaster L.C."
Mr Tomlinson submits that the Defendant's primary case is that he and all the publishees had a common interest, but in the alternative he had a duty and all the publishees had a reciprocal interest. It is the Defendant's case that the publishees' interest arose from the fact that they all worked as interpreters in the criminal justice system and were affected by the issues underlying the Motion of No Confidence, and/or were members of professional associations directly affected by the award of what the Defendant called a regional monopoly to an outsourcing agency, CINTRA, and that a large proportion of the publishees were also registrants with NRPSI. The Defendant was a member of CIOL, an interpreter working in the criminal justice system and a registrant on the Register.
There is no dispute that the e-mail was primarily aimed at persons who fell within those descriptions, although there is a dispute, considered below, as to whether all of the recipients of the e-mail, that is the publishees, fell within that description.
There is also an issue as to whether the fact of falling within those descriptions sufficed to attract qualified privilege to the occasion of the publications to such people.
Mr Tomlinson does not submit that the Defendant had a pre-existing relationship with any publishees other than those entitled to vote at the AGM. The court is not concerned in this part of the judgment with the publication to those entitled to vote at the AGM. Qualified privilege is admitted to apply to the publication to them. So no submissions were directed to the position of those publishees, and nothing in this part of this judgment relates to them. The submissions, and the judgment, relate to publication to those not entitled to vote at the AGM.
Nor does the Defendant rely on any other facts than those already stated. He does not, for example, rely on any contention to the effect that he or anyone else had made any inquiries as to whether the allegation complained of was true, or whether there were any grounds to believe that it was true.
Apart from the issues identified so far, Mr Bennett stresses the need to have regard to "the subject matter of the communication" (para 16.05 of Duncan & Neill cited above) as one of the circumstances which the court must consider. He refers to a line of cases in support of the proposition that where a defendant volunteers charges against a claimant which may injure that claimant's rights, then, until that claimant has been told of the charges and has had an opportunity of meeting them, the communication ought to be confined in the first instance to those whose duty it is to investigate the charges: Purcell v Sowler (1877) 2 CPD 215, 218, 221; De Buse v McCarthy  1 KB 156, 164-166, 169.
The editors of Duncan & Neill later deal with some cases where publication may be privileged even though made to persons lacking the interest that is in general required, when it is made incidentally to persons who do have the required interest:
16.19 … the publication may reach an audience which includes complete strangers, that is people who have no connection with either of the principal parties to the communication or with the person defamed, nor any legitimate interest in, or duty to observe in relation to, the subject matter of the communication. In such cases, the question is whether the mode of publication adopted for the purpose of communicating with those persons who had the necessary duty or interest in relation to the subject matter of the communication was in all the circumstances reasonably warranted by the exigency of the occasion. If so, then the privilege will not be lost by reason of the fact that the communication also reached persons who had no such duty or interest. Publication by means of the Internet may also on occasion lead to defamatory material being seen by persons who lack the necessary interest. In these cases the relevant test appears to be: was the communication by means of the Internet reasonable and proportionate having regard to the interest sought to be protected"
– footnotes refer to Pittard v Oliver  1 QB 1474 and Yiamouyiannis v British Dental Association (ureported 3 February 1998, Eady J, both of which were cited to me by Mr Tomlinson.
The law of defamation is one of the means by which English law implements the differing requirements of the European Convention on Human Rights, in particular, the right to reputation (Art 8) and the right to freedom of expression (Art 10). In applying the law the court has to have regard to these rights. In the present case the charge against the Claimant in the words complained of is a serious one, relating to her personal integrity in the discharge of an office of great responsibility. Likewise, there was a high public interest in the manner in which she discharged her office. So the rights engaged are of high value on each side.
QUALIFIED PRIVILEGE – PUBLICATION
For the defence of qualified privilege there are two questions on which the burden of proof is different:
i) to whom were the words complained of published? - the burden of proving that lies on a claimant.
ii) did those persons proved to have been publishees have the necessary interest in the publication, and did the Defendant have the necessary duty or interest in making the publication? - the burden of proving that lies on a defendant.
To whom were the words complained of published?
The case on who were the publishees has a complicated procedural history. The words complained of were in an email in a format such that, when read, or printed out, it did not disclose the addressees to whom it had been sent.
Accordingly in the Particulars of Claim as originally drafted the Claimant alleged, pending disclosure, that the email was published to unidentified persons who were on a distribution list prepared by the Defendant, and which included numerous persons who were neither on the Register nor members of CIOL.
In paragraph 23 of the Defence as originally served the Defendant admitted that the email of 7 May containing the allegation complained of was published widely amongst members of the interpreting profession.
The Claimant requested further information as to the identities of the publishees: both the original publishees, and the persons to whom the email had been forwarded. The Defendant replied on 23 April 2010 that he had no knowledge of the persons to whom the e-mail had been forwarded.
As to the original publishees, the Defendant responded with a list, but it is not a list of names. It is a list of email addresses, some 925 in number. It covers some eleven pages under separate headings: APCI, Others, ITI, "Find Linguist", and Cambridge CIOL Section. The section headed "APCI" covers a page and a quarter. The section headed "others" is two addresses. The section headed "ITI" is about a page and a quarter. Each page has over 150 addresses on it. The section headed "Find a Linguist" covers seven pages. The section headed "Cambridge CIOL" is a list of something over fifty addresses.
On 28 May 2010 the Claimant amended her Particulars of Claim to plead that publication was to the persons on the list provided by the Defendant.
On 20 June 2010, as already noted, the Defendant amended his Defence to plead qualified privilege, and at that point he pleaded that publication was to the recipients set out in paragraph 27.4 of the Defence. Paragraph 27.4 stated that publication was to "an email recipient list" established for the purpose, and then described the three classes of person who were said to be included on that list.
The Defendant has given inconsistent statements about who were the publishees amongst members of the NRPSI Action Group. In his first witness statement dated 21 June 2010 at paragraph 42 he said:
"the recipients were linguists whose email addresses were made available on the "Find a Linguist" section of the CIOL's website, members of the APCI and members of the Institute of Translating and Interpreting (ITI). My wife, Dr Lucila Makin researched the website to identify all interpreters and translators who worked in the public, criminal and court sector and who were registered as members of the NRPSI. She excluded members who were in, for example, the health and local government sectors. This is because I intended that the email should go only to NRPSI members working in the criminal justice system… A further 300 recipients were members of the [NRPSI] Action Group…"
In his second witness statement dated 28 October 2010 (that is a few days before the start of the trial on 4 November) the Defendant corrected what he had said in his first witness statement, saying:
"17. At paragraph 42 of my first Witness Statement I said that I sent the same email to 300 individuals who formed part of the NRPSI Action Group. In fact I did not send an email to them specifically although some recipients were members of the Action Group. I posted the text of the email on NRPSI Action Group Yahoo site, a registered membership website which provides a forum for those whose common interest was pursuing reform of the NRPSI. The site was not publicly accessible but only available to members of the NRPSI Action Group."
In his written opening submissions Mr Bennett noted this change in the Defendant's evidence. He stated that it was understood that information posted on the website would have been automatically forwarded to each person who had subscribed to the website.
In cross examination the Defendant added further information. He said that he was aware that the Yahoo website displayed the text of the words complained of next to a button marked "forward" which facilitated the onward transmission and publication of the text by the reader of the website. He said he had no problem with that form of dissemination because every syllable in the words complained of was right. He intended them to transmit it in that way. The figure of 300 recipients mentioned in paragraph 42 of his first witness statement was incorrect. He thought the correct figure was 198. He said he and his wife worked together. He checked what she did and talked things through with her.
During the trial Mr Bennett gave notice that he was proposing to apply at the next convenient moment for permission to amend the Particulars of Claim to add as publishees the 300 further recipients identified in paragraph 42 of the witness statement of the defendant.
Mr Tomlinson objected saying that that prejudiced the Defendant irretrievably, because if the Defendant had had notice of the application before, or at the start of, the trial, it would have been possible to look for evidence that those individuals were members of the Action Group.
Mr Bennett responded that the Claimant had been prejudiced by the way that the Defendant had dealt with the issue of publication. The Claimant and her advisers had understood that the 300 were included in those who were in the List provided as part of the Further Information. It was only on 28 October 2010, in paragraph 17 of the second witness statement, that it appeared that the 300 were not included in the List provided as part of the Further Information. Mr Bennett had adverted to the point in paragraph 16 of the written submissions dated 4 November 2010, which he used to open the case.
As already noted, in cross examination the Defendant conceded that material posted on the website would be forwarded to members of the Action Group. Mr Bennett submitted that the Claimant should not be prejudiced by the inaccuracy of the information that the Defendant gave, both as part of the Further Information and in his first witness statement.
Mr Tomlinson noted that the Reply had been amended on 3 November and that this application to amend the Particulars of Claim could have been made then.
I stated that I would decide in this judgment whether or not to permit the amendments by Mr Bennett.
During the course of the trial Mr Tomlinson asked for permission to adduce evidence from a solicitor from the firm instructing him. She, together with junior counsel, had prepared a spreadsheet. It is headed "Schedule of all email recipients listed as "non CIOL members" on list of 7 May 2007 email recipients". There are nine columns. The first column is the address taken from the List. The second column is a name, which the solicitor has attributed to the address. The third, fourth, fifth and sixth columns show whether the person so named is a member of APCI, CIOL or ITI, and whether the person is registered with NRPSI. The seventh and eighth columns identify individuals who are said to be members of GMB or of the Action Group. The last column identifies those who it has not has been possible to trace in 2010.
I refused permission to adduce this schedule by way of evidence from the solicitor. As I understood it, it was a compilation made by comparison with documents which had been disclosed. I stated that it could be adduced, if at all, as part of the submissions for the Defendant in closing.
Mr Bennett protested that he had had no proper opportunity to consider this complicated document. He would not have time during the remainder of the trial and before speeches to check its accuracy.
As to the 300 persons referred to in the Defendant's second witness statement, I give permission to the Claimant to amend her Particulars of Claim at para 14 to include them, in the form of a draft set out in para 12 of Mr Bennett's Closing Submissions. This amendment adds as alleged publishees (in addition to those in the list referred to above, now included in para 14.1):
"14.2 the 300 members of the NRPSI Action Group
14.3 the unidentifiable persons connected with the interpreting and translating professions".
The Defendant did not take any objection based on the Limitation Act.
The confusion as to the identities of the publishees is entirely of the Defendant's making. It would not have arisen if the Defendant had given correct evidence in his first witness statement. It was of little significance to the outcome of the action before the late amendment to plead qualified privilege. The confusion on the Defendant's part as to the identity of the publishees was not known to the Claimant at the time she consented to his application for permission to amend.
Mr Bennett submits that the effect of the Defendant's evidence was, by the end of the trial, that he did not know to whom he had published the words complained of, and that it can be inferred that he had published them to many unknown persons.
I set out my findings below.
Did the Defendant and the publishees have a duty or interest in making and receiving the e-mail containing the words complained of?
In his second witness statement the Defendant also wrote this about the publishees and how they were selected:
"4. In the course of this action I have disclosed a list of email addresses ("the List") to whom the contents of the 7 May email timed 19:56 were sent on that day. I now realise that the email was sent to only about 25 persons but the contents were sent to all on the list in a number of separate emails. This was because I sent the same email to all those on the List in batches of about 25. There was also considerable duplication of email addresses within the disclosed list. A number of separate email addresses on the List was approximately 818.
5. The List was compiled in about March 2007 as explained below. I used the List on a number of occasions to send out emails, such as what has been termed in this litigation as the "contextual emails" drafted either by Zuzana Windle or myself or both of us. These were the emails which dealt with the motion of no confidence at the AGM of the … CIOL and the reform of the NRPSI, which we hoped to effect through our campaign efforts. The List was compiled to ensure that we sent these emails only to those persons who actually had a genuine interest in the issues to which they related: either because they had a vote at the AGM or because they were translators and interpreters working in the criminal justice sector and so had a direct interest in the issues.
6. The List had to be put together from a number of sources because I did not have access to the National Register maintained by the NRPSI. I discussed the matter with my wife who is also a professional interpreter and also works within the criminal justice system. Together we devised a way of putting a list together. We wanted to communicate mainly with those who had a vote at the CIOL AGM and those whose livelihoods would be jeopardised by the granting of contracts such as the one awarded to CINTRA.
7. The CIOL… website does not maintain a list of CIOL members or NRPSI members for public inspection. Nor is there a list available for inspection by members of CIOL… the CIOL website does however have an online "Find a Linguist" search facility which details members' qualifications and their specialisations. …
8. There were two other relevant websites those of the …ITI and …APCI. … I knew that both these organisations had a number of individuals on their list who worked it the criminal justice system.
9. As a result of all this, my wife and I decided the names of the relevant individuals could be found in four places: the "Find a Linguist" section of the website of CIOL, the ITI website, the APCI directory and the membership of the Cambridge Society branch of the CIOL (a copy of which was then in my possession). … I believed that it was highly likely that a public sector translator registered with APCI or ITI would also be on the NRPSI National Register.
10. Even though every member of CIOL would be entitled to vote on the motion of no confidence my wife and I agreed that we would limit the search to only those members who specialised in the criminal justice system as the case for reform of the NRPSI related to this specialisation. The first step required was to select a language. Once this had been done a list of names appeared. Either my wife or I then clicked on each name to determine whether the linguist worked in the criminal justice system. If the linguist did, then he or she was added to the list. If a linguist did not, he or she was not added to the list.
11. We found the details of 483 CIOL members who worked in the criminal justice system from the "Find a Linguist" list. All of them were entitled to vote of the AGM at which the motion of no confidence was to be heard…
12. At the time the List was compiled there was approximately 1800 interpreters… on the NRPSI register engaged predominantly in the criminal justice system. Because of the way in which the list was compiled I believed that most of those on it would be NRPSI members. This was confirmed when the CIOL disclosed to me their database of members from the approximate time the emails were sent (May 2007), which revealed that overwhelmingly the individuals on the list were registered members of the NRPSI.
13. The contents of the e-mail were sent to 117 APCI members whose names were on the list at that time. … APCI was directly affected by the CINTRA contract APCI members would be compelled to register with CINTRA if they wished to work for an East Midlands force. Members of the APCI were encouraged to attend the CIOL AGMs. APCI registered interpreters who were also members of CIOL, were entitled to attend the CIOL AGM and vote on the motion of no confidence. …
14. There were approximately 240 email addresses relating to ITI members on the list: however when duplicate names were removed along with those who were members of the APCI of the CIOL or APCI too 164 email addresses remained…"
The Defendant says the following in his witness statement about his inquiries into the charge the Claimant complains of. He said he first learnt about the East Midlands Police contract with CINTRA in May 2005. In May or June he learnt that the NRPSI Action Group was being formed to fight outsourcing contracts in general and this one in particular. He was one of the 150 members who started the group. He, Ms Rowlands and Dr Windle then began to investigate the circumstances in which CINTRA had acquired the contract. He does not give any details of his investigations, or how he set about them. He simply says "We acquired CINTRA's East Midlands Delivery literature and brochure". He does not say how, when or from whom he acquired it, or that he took any steps to verify any suspicions which he might have formed when he read it. He states that it was later (he does not state when) that he read the e-mail from Ms Taylor to the Claimant dated 19 October 2004. He does not say that he took any steps to investigate what work the Claimant did for CINTRA or when she did it.
I have referred above to Ms Rowlands' e-mail to the Claimant of 4 May and her reply of 6 May. Ms Rowlands did not raise with the Claimant the charge which is the meaning of the words complained of.
The Defendant states that the Action Group expressed their concerns to Mr Pavlovich about the impact that the CINTRA contract would have. He does not say that they expressed to him any concern about the charge that he later made in the words complained of. He refers to an e-mail sent on 16 May by a Mr Newton to members of the NRPSI Action Group. It sets out the contents of a letter he had sent to Mr Pavlovich, which includes concerns about a director of CINTRA being at the same time a director of NRPSI. There is no reference to any concern about the Claimant. He then goes on to refer to his complaints to the ICO about the breach of the Data Protection Act, referred to above.
On 1 August 2006 the Defendant sent an e-mail to Mr Hammond in which he expressed his concern about "the continued presence as a CINTRA trainer of [the Claimant]". On 16 August 2006 he sent an e-mail or made an internet posting in which he stated that "John Hammond does not see it" and "At least we should go for Cambridge … getting rid of her would free one position on the board". These documents do not contain the charge which he later made in the words complained of. On 11 September 2006 the Defendant sent an e-mail to a large number of people, including to the Claimant. It attached a position paper of 15 pages setting out the views of the ITB on the policies and management of the NRPSI. It does not mention the charge that was to be made in the words complained of. On 22 September 2006 the Defendant circulated by e-mail another document prepared on behalf of the ITB concerning the 2007 Council elections. It gives notice of his intention to move a motion of no confidence in the board of NRPSI at the AGM on 12 May 2007. The ground put forward is the conflict of interest alleged to arise in the case of Ms Glegg and the failure of the board to prevent that arising. He proposed that on the passing of the motion the board should resign with immediate effect and be replaced by "a reform committee chaired by [the Defendant] and Zuzana Windle plus such colleagues as they may co-opt".
The exchange of e-mails and other documents continued. I have summarised a number of them in the judgment I gave on 12 July 2010  EWHC 2804 (QB) paras 26-50. In this judgment it is necessary to refer only to the following.
On 27 March 2007 the Defendant, on behalf of ITB, wrote to the Privy Council Office a complaint against the CIOL. The complaint was mainly about the alleged failure of the NRPSI to correct breaches of the 1998 Act. But the letter includes the following paragraph which sets out his position as at that date with respect to the Claimant:
"There is an irreconcilable conflict of interest between CINTRA Ltd and NRPSI registrants living in the area because they compete for the same jobs. Despite the obvious conflict of interest, the former Chief Executive of CINTRA, Nicola Glegg, was allowed to be on the Board of Directors of NRPSI Ltd at the time registrants' data were sold to her company, CINTRA. Moreover, another Board Director, [the Claimant] also worked as a trainer for CINTRA and was included in CINTRA's literature submitted to the East Midlands constabularies at the time of the tendering process. The GMB has evidence that CINTRA used its connections with [CIOL] and NRPSI as a selling point to obtain the East Midlands contract which has destroyed the livelihoods of many professional interpreters".
Mr Bennet drew to the Defendant's attention that this is not an allegation that the Claimant allowed herself to be used. The Defendant does not there write that she preferred her private interests to those of NRPSI, or otherwise abused her position.
In April Mr Hammond issued a four page document addressing each of the matters raised by the Defendant in the Motion of No Confidence. In reply, on 29 April the Defendant circulated his comments on what Mr Hammond had written. What he wrote about the Claimant in that document alleged a conflict of interest as at May 2005, and did not refer to the Claimant having preferred her private interests to her duties to NPRSI at the time that the Licence was granted to CINTRA. What he wrote was:
"ALLOWING CINTRA TO USE THEIR NAMES
The name of NRPSI Board Director, [the Claimant], appeared in CINTRA's Training Manual in May 2005, the time of the East Midlands contract. Any connection with CINTRA or any other company which causes registrants a financial detriment, constitutes a conflict of interest".
A review of the material before the court discloses that the charge complained of in the 7 May 2007 e-mail was made for the first time in that e-mail. It had not previously been advanced. It had not been inquired into by the Defendant or by anyone else. The Claimant had not been told of the charge and had not had an opportunity of meeting it.
FINDINGS ON PUBLICATION AND RECIPROCAL DUTY/INTEREST
In all the circumstances, there was in my judgment no duty on the part of the Defendant to publish the charge which the Claimant complains of to those who did not have a right to vote at the AGM, and such people had no interest in receiving that publication. It was simply an accusation made by the Claimant and Dr Windle, without any proper factual basis, and without any inquiry and without giving the Claimant the opportunity to rebut it.
There is a comparison to be made between the allegation in the e-mail of 7 May about the breach of the Data Protection Act, which the Claimant does not complain of, and the allegation about preferring her private interests, which she does complain of. In his submissions Mr Tomlinson couples them together saying:
"As a member of CIOL, an NRPSI registrant and a PSI, the Defendant had a moral and social duty to report policy failures which were underpinned by breaches of data protection and company law and conflicts of interest…"
The fallacy in this submission is that the charge of a breach of the data protection law stands on a wholly different footing from the charge of breach of company law and conflicts of interest. The breach of the first data protection principle had been investigated by the ICO, which is the statutory body responsible for such investigating such allegations, and the ICO had found a breach to have been established. If the Claimant had complained of that part of the e-mail of 7 May, it may well be that different considerations would have applied. But she did not sue on that, as was her right. And I reach no view on that. But I mention it to demonstrate the fallacy in Mr Tomlinson's submission.
If the charge that the Claimant abused her position by preferring her private interests to her duties as a director had been found to be established by an appropriate investigating body, then I would have reached a different conclusion in relation to the charge the Claimant does complain of. I would have held that the Defendant and the persons on the Defendant's list, selected as he describes in his witness statements, did have the required reciprocal interests. The registrants were not required to be members of CIOL. But if a director responsible for the Register was abusing her position by preferring her private interests, then in my judgment that would have been of legitimate interest to those interpreters who might consider being registrants, as well as those who actually were registrants. It would have been of interest to interpreters who practised in the public service. It would have had a potential financial impact upon all of them.
Further, if I had held that there was the necessary reciprocal duty/interest on the part of the Defendant and interest on the part of the publishees, I would not have held that the defence failed on the ground that there were publishees who lacked the necessary interest.
I would have held that the mode of publication adopted for the purpose of communicating with those persons who had the necessary duty or interest in relation to the subject matter of the communication was in all the circumstances reasonably warranted by the exigency of the occasion. I would have held that the communication the Defendant effected by means of the Internet was reasonable and proportionate having regard to the interest sought to be protected.
The Defendant admits that he is not in a position to provide evidence as to the identity of each and every publishee. He asks the court to draw inferences on the basis of the way the publishees were selected.
Notwithstanding the confusion and inconsistencies in the Defendant's evidence on publication, I accept that the Defendant and his wife went to considerable trouble to select the addresses to be put on the list of recipients by reference to their professional interest in the NPRSI. This interest was by reason of their work as interpreters who provide services to, or might be expected to provide services to, persons in the criminal justice system. If there were addresses on the list which did not relate to such interpreters, then I accept that that was incidental, and that the Defendant did not intend them to be there.
In the light of the findings that I have in fact made, and the findings that I have indicated that I would have made in other circumstances, it does not matter whether or not the publishees did include persons other than those to whom the Defendant intended to publish the words complained of. But for completeness sake I find that there were probably a number of recipients who would not have had the necessary interest in receiving the communication (assuming that I had found that the intended publishees did have the necessary interest). The number of publishees who would not in any case have had the necessary interest cannot be quantified, but it was probably a very small proportion of the whole.
QUALIFIED PRIVILEGE – MALICE
It follows from the conclusions I have reached that the issue of malice relates only to the publication to those who had the right to vote at the AGM. On this basis it will be relevant to the amount of damages.
The case in malice against the Defendant is advanced on the basis that he had no honest belief in the allegation of which she complains. His motive, it is said, was to open the way for election to the Board of NRPSI of himself and those who shared his views on policy. It is said that as the date of the AGM approached, he lost any remaining sense of propriety and honesty in his determination to achieve his ends.
In Horrocks v Lowe  AC 135 at 150 Lord Diplock explained what is meant by malice in relation to qualified privilege. So far as is material he said:
"what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, "honest belief." If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be "honest," that is, a positive belief that the conclusions they have reached are true. The law demands no more."
I accept that the Defendant held no personal ill will towards the Claimant. His campaign to have her removed from the Council was with a view to furthering his policies, and to prevent the implementation of her policies for NRPSI. As he explained in his e-mail of 1 August:
"At least we should go for Cambridge … getting rid of her would free one position on the board"
The Defendant gave evidence, both in writing and orally, that he did believe that the contents of the e-mail of 7 May were true. He gave his evidence with great confidence, firmness and persuasiveness. If demeanour in the witness box was the main test of credibility, he would have been a very credible witness. But demeanour in the witness box is notoriously misleading: see the extra-judicial writing of Lord Bingham in a chapter headed "The Judge as Juror: The Judicial Determination of Factual Issues". This is published in "The Business of Judging", Oxford 2000, pages 3 and following, reprinted from Current Legal Problems, vol 38 Stevens & Sons Ltd 1985 page 1–27. The relevant passages start at page 5 and continue through to page 15. The most important tests of credibility are the consistency of a witness's evidence with what can be shown to have occurred, and with what he has said or done previously.
When Mr Bennett cross-examined the Defendant about para 3 of the Motion of No Confidence he said that the documents (Mr Tomlinson explained that by that the Defendant meant the Training Manual) were in the public domain and it was incumbent on a person whose name is used to issue a correction. He said he had to assume that what CINTRA had done was all consented to by the Board of NRPSI. He said he referred to "private interests" because they were frustrated by two years of stonewalling. He said that what he was criticising was policies and not a syllable was inaccurate.
In re-examination the Defendant said of the 7 May e-mail that they were trying to maintain rhythm in their campaign. Desperate attempts were being made by IOL to avoid the Motion being considered.
I have set out above in paras 189 to 197 the two year history of the Defendant's campaign, as it concerned the Claimant. Throughout that period, until 7 May, he had not made the allegation that he made in that e-mail. As Mr Bennett reminded him, even as late as 27 March 2007, the furthest that the Defendant had gone in relation to the Claimant was to say what is set out in para 194 above. He had only two documents referring to the Claimant, the Delivery Plan, and the Training Manual. Neither of these is linked in any way to any action of the Claimant as a director of NRPSI. He accepted in cross-examination that he received no new information between 27 March and 7 May which provided support for the allegation complained of.
I have considered carefully whether the untrue statements about the Claimant that I have found he made could be attributable to an "imperfection of the mental process" such is described by Lord Diplock.
There are strong reasons for rejecting that explanation in this case. The Defendant is a highly intelligent and educated man. He had every reason to raise any allegation that he could properly raise against the Claimant throughout the two year period of his campaign from May 2005 to May 2007. If he had believed what he wrote on 7 May, there is no reason why he should not have written it earlier. If he had cared whether it was true or false, he could have made inquiries, but he made none. Others with whom he worked, in particular Ms Rowlands raised concerns with the Claimant, and the Claimant responded. Mr Hammond also responded to the Motion of No Confidence in April, saying: "Council cannot identify a deliberate or even inadvertent act or omission of the Board which conferred an advantage on CINTRA, either knowingly or unwittingly". Mr Hammond also distinguished criticisms of the Board from criticisms of CINTRA, saying that "If the complainants are alleging false or improper representations by CINTRA, the Council's view is that this is a matter which should be taken up with CINTRA".
The e-mail of 29 April (para 68 above) was written in reply to Mr Hammond's response. The e-mail of 7 May followed a week later: it makes clear that impropriety is alleged against the Claimant. Both in that context, and from the plain meaning of the words used, the e-mail of 7 May obviously crosses the line from a debate about policies to a personal charge. I cannot accept the Defendant was giving frank evidence when he said "We were criticising policies".
For these reasons I conclude that the Defendant did not believe the allegation complained of to be true. He did not care whether it was true or false.
It follows that the publication to the members of CIOL was not on occasion of qualified privilege.
It follows from the conclusions that I have reached so far that the defences of justification and qualified privilege each fail.
The Claimant originally made a claim for special damages. That is not now pursued, so general damages only are to be assessed. The claim includes a statement that aggravated damages are claimed. But following the amendments, there are no surviving grounds pleaded, as is required by CPR PD 53(2) and 16.4(1)(c).
Although no such information has been pleaded, the court may take into account the manner in which a case has been defended. A defendant is entitled to defend himself. But a trial necessarily involves the further publication of the allegation complained of. And it is painful and distressing for a claimant to have to live through the years which preparation for a trial, and then a trial itself, involve. That is why, when an action is settled at an early stage, the appropriate damages that may be agreed are likely to be much lower than the damages that would be awarded at the end of a trial.
An award of damages for libel has three purposes: first, to compensate the claimant for the damage to her reputation, second to vindicate her good name and third to compensate her for the distress, hurt and humiliation which the defamatory publication has caused to her.
Important factors in assessing damages are the seriousness of the libel and the extent to which it has been published, and to whom.
The allegation that a director has abused her position to prefer her private interests over her duties is a serious libel. The publishees in this case were fellow members of her own profession. A professional person's reputation amongst colleagues is one of the most important considerations of such a person.
I accept the evidence of the Claimant and her husband that the libel, as I have found it to be, caused her great distress. The campaign against her up to that point had been hard fought, but this was a personal allegation.
The libel has been particularly distressing to the Claimant, since she has put in hundreds of hours of her time on a voluntary basis working for NRPSI, and has reached a very distinguished position in her profession. The allegation that she preferred the benefit of a working for CINTRA to her duties as a director is particularly mean and humiliating for her in these circumstances.
The Claimant describes how, following the e-mails published by the Defendant in the Spring of 2007, persons with whom she was working ceased to be cordial and pleasant as they had been before, and stopped speaking to her. Others demanded that she defend herself from the charges of wrongdoing made by the Defendant. Interpreters expressed their belief that she had caused destitution amongst them by her illegal acts.
The Claimant gives evidence as to why she believes that she has lost professional engagements as a result of the libel. It is very rare in libel actions for claimants to be able to prove actual loss, or special damage. But where a libel is likely to cause significant loss of earnings, that can be taken into account in the assessment of general damages.
In addition, the Claimant was working on a PhD at the time. As a result of the libel, and the distress it caused her, she fell behind with her work on this.
The witnesses called on the issue of damages speak highly of the Claimant. The Claimant's career, as I have described it at the beginning of this judgment, speaks for itself. These winesses support her claim that the libel is likely to have caused serious professional damage to her. Ms Pocock gives the most specific evidence. She states that since 2007 the CIOL Interpreting Division has felt unable to use the Claimant as a contributor to seminars and other events because of the allegations made against her by the Defendant and others. The Committee of CIOL remain concerned that the Claimant might be at risk of verbal abuse if she were to give a seminar.
In any event I have no difficulty in concluding by myself that serious professional damage is a likely result of a charge of personal wrongdoing of the kind alleged.
A defendant is entitled to have taken into account any mitigating factors. One of these is any sums received by a claimant in respect of the publication. Another is any directly relevant background facts, including the behaviour of a claimant towards a defendant.
Under this head the Defendant has advanced a case to the effect that the Claimant has been selective in what she has sued upon, and was herself party to attacks on the Defendant. He relies on a letter which he says that she sent to the head of his union on 29 April 2009, threatening to sue him. He also relies on the failure of the Claimant to prevent what he alleges was the conflict of interest of Ms Glegg. I have already stated that I cannot reach any conclusion in this judgment as to whether or not there was anything relating to Ms Glegg which was unlawful or which the Claimant ought to have prevented. So I disregard that point. I also disregard the point based on the threat to sue the Defendant. There was a letter on behalf of the Council at a time when the Claimant was a member. The Defendant has not proved that the Claimant personally sent another version of that letter. Part of that letter relates to allegations about the position of Ms Glegg upon which I have made no findings. There is also complaint of what is said to be the misleading way in which the Defendant was presenting his case on the breach of the data protection legislation. I find nothing in the letter which would justify a reduction in the damages which I would otherwise award.
The Claimant received an apology and compensation from GMB Trade Union in September 2009. I have not been given any details of the terms of the apology. Mr Bennett submitted that this settlement was irrelevant. Mr Tomlinson submits that it is relevant and asks the court to take into account the £30,000 the Claimant has received. In my judgment I should take into account the compensation which the Claimant has received from GMB.
Mr Bennett submits that the claim settled by GMB was being advanced on a wider basis than the claim that I have tried. Nevertheless, Mr Bennett asks me to assess damages on the basis that the Defendant is liable for no more than he would be liable for as a joint tortfeasors with GMB. By that he meant that I should apply the principle that where joint tortfeasors are sued, the court should make the award of damages which is appropriate to the one who is least culpable. But as an exception to that, the Defendant alone is liable for the damage caused since the settlement with GMB, principally the damage and distress caused by the trial itself.
I must also take into account that the e-mail of 7 May contains a separate defamatory allegation, relating to the breach of the 1st data protection principle found by the ICO. The Claimant has not complained about this. In my judgment this allegation is of a different order of seriousness from the allegation she has complained of. Any breach of the law is serious. But it is clear from the letter from the ICO cited above that this breach was relatively low in the scale of possible breaches of that legislation. And the recipients of the e-mail would for the most part have known that the Claimant was a non-executive director, and that compliance with the 1998 Act should be the responsibility of the executive directors. That does not excuse the Claimant from all blame, but she had personally committed a breach of the law. The damage the Claimant has suffered from this defamatory allegation, about which she does not complain, requires me to make a modest reduction from the figure for damages which I would otherwise have awarded.
I have also heard evidence that the dispute between the Claimant and the Defendant has been conducted on a wider basis than this action alone. As already noted, the Claimant withdrew part of the claim she had originally advanced. She has also made complaints elsewhere about the conduct of the Defendant.
In the end I must reach a single figure as my award It must be what is, in all the circumstances proportionate to the damage suffered, and likely to be suffered, as a result of the allegation complained of, and what is reasonably required to re-establish her reputation.
In my judgment, taking all the foregoing matters into account, including the compensation paid by GMB, the award that is required to be made now is damages of £30,000.
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