Horrocks v Lowe

[HOUSE OF LORDS]

AND

Libel and Slander - Defamation - Privilege - Qualified - Council meeting - Defamatory words spoken by one councillor of another - Plea of express malice destroying qualified privilege - Finding that words spoken in honest belief of their truth but with gross, unreasoning prejudice - Whether constituting evidence of malice

In 1961 a corporation bought a piece of land from a company of which the plaintiff was chairman and majority shareholder. It was subject to a covenant that it would not be built on. The company sold adjoining plots and plots opposite the corporation's site to purchasers on that understanding. In 1968, when the plaintiff was a councillor of the majority party on the town council, the corporation granted a lease of the land to a political party club for the purpose of building a club house. Not until the building was nearing completion was it discovered that the covenant prohibited the development of the land. The plaintiff's company had the benefit of the covenant and correspondence passed between the council officers and the company's solicitors, but the company was reluctant to release the covenant, in the interests of the surrounding purchasers. The defendant, an alderman in the minority party, raised the matter in council, and in the course of a speech at an open council meeting he uttered words defamatory of the plaintiff. The plaintiff brought an action for slander against the defendant who by his defence claimed justification and fair comment on a privileged occasion. By his reply the plaintiff pleaded that the defendant had been actuated by express malice. Stirling J. held that the occasion had been privileged. Me found that the defendant had honestly believed that what he

said was true, but that he had shown such "gross and unreasoning prejudice" as to constitute malice in law sufficient to destroy the privilege. He awarded the plaintiff damages. On appeal by the defendant, the Court of Appeal held, allowing the appeal, that as the judge had found that the defendant had honestly believed that what he said was true the qualified privilege attaching to the occasion could only be destroyed if the plaintiff proved that the defendant had been actuated by express malice in its popular meaning of spite or ill will, and that as such express malice had not been found the finding of malice could not stand with the finding of honest belief, so that the privilege of the occasion had protected the defendant.

On appeal by the plaintiff:-

Held, dismissing the appeal, that since the defendant had not misused the privileged occasion by using it for some purpose other than that for which the privilege was accorded to it in the public interest his positive belief in the truth of what he said entitled him to succeed in his defence of qualified privilege (post, pp. 142G-H, 145H - 146B, D-H, 149E-F, 150B-C,E-F, 151F-G, 152A-B, D-G, 153F-G).

Clark v. Molyneux (1877) 3 Q.B.D. 237, C.A. and dicta of Lord Dunedin in Adam v. Ward [1917] A.C. 309, 326-327, 330, H.L.(E.) applied.

Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson [1892] 1 Q.B. 431, C.A. and Watt v. Longsdon [1930] 1 K.B. 130, C.A. considered.

Decision of the Court of Appeal [1972] 1 W.L.R. 1625; [1972] 3 All E.R. 1098 affirmed.

The following cases are referred to in their Lordships' opinions:

Adam v. Ward [1917] A.C. 309, H.L.(E.).

Clark v. Molyneux (1877) 3 Q.B.D. 237; 47 L.J.Q.B. 230, C.A.

Laughton v. Bishop of Sodor and Man (1872) L.R. 4 P.C. 495, P.C.

Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson [1892] 1 Q.B. 431, C.A.

Smith v. Thomas (1835) 2 Bing.N.C. 372.

Watt v. Longsdon [1930] 1 K.B. 130, C.A.

The following additional cases were cited in argument:

Broadway Approvals Ltd. v. Odhams Press Ltd. (No. 2) [1965] 1 W.L.R. 805; [1965] 2 All E.R. 523, C.A.

Brown v. Hawkes [1891] 2 Q.B. 718, C.A.

Coughlan v. Jones and Jones (1915) 35 N.Z.L.R. 41.

Dawkins v. Lord Paulet (1869) L.R. 5 Q.B. 94.

Derry v. Peek (1889) 14 App.Cas. 337, H.L.(E.).

Dickson v. Earl of Wilton (1859) 1 F. & F. 419.

Hayford v. Forrester-Paton, 1927 S.C. 740.

Merivale v. Carson (1887) 20 Q.B.D. 275, C.A.

Pitt v. Donovan (1813) 1 M. & S. 639.

Pratt v. British Medical Association [1919] 1 K.B. 244.

Silkin v. Beaverbrook Newspapers Ltd. [1958] 1 W.L.R. 743; [1958] 2 All E.R. 516.

Simpson v. Robinson (1848) 18 L.J.Q.B. 73.

Slim v. Daily Telegraph Ltd. [1968] 2 Q.B. 157; [1968] 2 W.L.R. 599; [1968] 1 All E.R. 497, C.A.

Spill v. Maule (1869) L.R. 4 Exch. 232.

Turner (orse. Robertson) v. Metro-Goldwyn-Mayer Pictures Ltd. [1950] 1 All E.R. 449, H.L.(E.).

Webb v. Bloch (1928) 41 C.L.R. 331.

Winstanley v. Bampton [1943] K.B. 319; [1943] 1 All E.R. 661.

APPEAL from the Court of Appeal (Lord Denning M.R., Edmund Davies and Stephenson L.JJ.) [1972] 1 W.L.R. 1625.

This was an appeal by the plaintiff, Robert Horrocks, by leave of the House granted on December 19, 1972, from a decision of the Court of Appeal on October 6, 1973, reversing a decision of Stirling J. sitting without a jury at Manchester by which he awarded the plaintiff �400 damages for slander against the defendant, Peter Lowe.

The plaintiff, at all material times a councillor of Bolton Town Council, by his statement of claim alleged that the words of a speech delivered by the defendant at a meeting of the council on November 5, 1969, and a report of the council meeting published on November 6, 1969, in the "Bolton Evening News" were calculated to disparage him in his office and business. By his defence the defendant, inter alia, claimed that the words were spoken to persons having a common interest and in pursuance of a duty without malice in the honest belief that they were true, and on an occasion of qualified privilege. By his reply the plaintiff claimed that in publishing the words complained of the defendant was actuated by express malice.

Stirling J. found that the words used were defamatory and could not be justified and while he was prepared to accept "that he [the defendant] believed and still believes that everything he said was true and justifiable" he found that as a whole the speech was such an unfair and tendentious account of the plaintiff's conduct in relation to the relevant land that it established "gross and unreasoning prejudice," and he awarded the plaintiff �400 in respect of the slander and costs. On the defendant's appeal, the Court of Appeal [1972] 1 W.L.R. 1625 held that the defendant's belief that everything he said was true entitled him to succeed on his defence of privilege.

The plaintiff appealed.

The facts are stated in the opinion of Lord Diplock.

Colin Duncan Q.C. and John E. Previt� for the plaintiff. This appeal raises a short question of law, which was wrongly decided by the Court of Appeal, namely, in any action for libel or slander in which defamatory words have been published on an occasion of qualified privilege, and it is alleged that the defendant was actuated by express malice, and evidence of such malice is adduced at the trial and malice is found established, either by a jury or by a judge, is it in law impossible to find for the plaintiff if it is accepted that the defendant believed what he published at the time of its publication, albeit such belief is found to have been induced by gross, unreasoning prejudice?

"Honest belief" is on the face of it a most misleading expression. Belief either exists or does not exist. "Honest belief" presupposes the possibility of a dishonest belief, which is nonsense. Cotton L.J. in Clark v. Molyneux (1877) 47 L.J.Q.B. 230, 233 described the expression as an

inaccurate one. "Honest belief" is perhaps meant to mean a belief arrived at after examination of the relevant factors, though by no means a reasonable conclusion drawn from them.

What is meant by "express malice" in law? Malice is, of course, a state of mind and not conduct, as Lord Esher M.R. said in Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson [1892] 1 Q.B. 431, 444. A short definition of malice is that it is a state of mind which prompts the defendant to use the privileged occasion for any purpose other than that for which the privilege exists. There are five characteristic sets of circumstances in which malice may be evidenced. (First, however, see Salmond on Torts, 16th ed. (1973), para. 162, pp. 176-177, for an accurate definition of malice in law.) In no particular order, the five sets of circumstances are: 1. The violence of the language used which will not be a feature of the plaintiff's argument here. This is not to be weighed too nicely, but is a factor to be taken into account. 2. Where the defendant publishes what he knows to be untrue. This is the strongest pointer, but it is not necessarily conclusive; for example, an army officer passes on a report which he knows to be untrue but which it is his duty to pass on. This category does not apply in the present case either: there was a finding by Stirling J. that the defendant believed what he published to be true.

[LORD DIPLOCK. Are these circumstances from which malice can be inferred or from which it must be inferred?]

Generally, they are circumstances from which it can be inferred. In one of them, however, it must be. So far as 1 is concerned, for example, it can, and in general should, be inferred. So far as 2 is concerned, only in exceptional circumstances would it not be. As a counterpart to 2, the fact that a defendant publishes what he knows to be true does not mean that he cannot be actuated by express malice. The Court of Appeal in the present case have held that the defendant did not publish what he knew to be true.

3. Where the defendant believes what he says to be true, but is using the occasion not for the purpose for which the privilege exists but for an independent and improper purpose. This applies directly to this case. "Improper" is not used in any moral sense. 4. Here, one starts with the premises that the defendant may believe what he publishes to be true and may not be inspired by any improper motive, so that 2 and 3 are excluded. As a result of gross, unreasoning prejudice, however, the defendant had allowed his mind to become obsessed and by the time of publication of the defamatory matter has closed his mind. He believes in the truth of his charges because he wants to believe them. The judge so found in this case. 5. Spite or ill will - one of the commonest grounds. This was expressly found to be excluded in this case.

The defendant here in fact used the occasion for an improper purpose, he had an ulterior motive for publishing what he did and he had allowed his mind to get into a state in which it was actuated by gross, unreasoning prejudice.

A most important feature in considering malice is that the judge or jury at first instance has a unique opportunity of seeing the witnesses. On May 5, 1971, here, the trial began at Manchester. It lasted five days.

At the end of the first day the jury were dispensed with; the judge therefore became the sole judge of fact. That is a factor of great importance.

The evidence discloses that the defendant failed to consider the facts, and, therefore, that he was reckless. A mere unreasonable assessment of the facts is in itself incapable of establishing malice unless it is so far from the truth that it shows gross, unreasoning prejudice. A distinction is to be drawn between "unreasonable" and "unreasoning." It is clear from the evidence in this case that the defendant regarded this meeting as an opportunity for attacking the plaintiff, not, for example, for getting any facts out of him.

The principle emerges from Clark v. Molyneux, 3 Q.B.D. 237 (see also 47 L.J.Q.B. 230, 233), and more from Winstanley v. Bampton [1943] K.B. 319, that honest belief does not necessarily mean that a defendant is not guilty of malice. Clark v. Molyneux also shows (see also 47 L.J.Q.B. 230, 233) that abuse of the occasion is not a state of mind; it is a fact which follows a state of mind. (The same applies to fair comment.) [Reference was made to Smith v. Thomas (1835) 2 Bing.N.C. 372, 382; Dickson v. Earl of Wilton (1859) 1 F. & F. 419; Simpson v. Robinson (1848) 18 L.J.Q.B. 73; Broadway Approvals Ltd. v. Odhams Press Ltd. (No. 2) [1965] 1 W.L.R. 805; Merivale v. Carson (1887) 20 Q.B.D. 275, per Lord Esher M.R., at p. 281; Brown v. Hawkes [1891] 2 Q.B. 718; Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson [1892] 1 Q.B. 431; Coughlan v. Jones and Jones (1915) 35 N.Z.L.R. 41, 44; Pratt v. British Medical Association [1919] 1 K.B. 244, 276; Webb v. Bloch (1928) 41 C.L.R. 331 and Watt v. Longsdon [1930] 1 K.B. 130.] Winstanley v. Bampton [1943] K.B. 319 shows that honest belief, or belief, does not destroy other evidence of malice. Viscount Caldecote C.J., at p. 322; [1943] 1 All E.R. 661, 663 refers to Watt v. Longsdon [1930] 1 K.B. 130 as authority, not merely to the observations of Greer L.J. in that case.

It is part of the plaintiff's case that the defendant failed to make any reference to the embarrassments which he knew the plaintiff had to his "dilemma": compare Broadway Approvals Ltd. v. Odhams Press Ltd. (No. 2) [1965] 1 W.L.R. 805, per Sellers L.J., at p. 814, perDavies L.J., at p. 824.

Previt� following. Not only was it part of the plaintiff's case at the trial that the defendant had misused the occasion, but it was also his submission to the Court of Appeal.

The purpose of the meeting was the removal of the plaintiff. It was not an appropriate occasion for asking for the removal of a man from the committee. That was not the subject matter of the meeting, which was concerned with the council's liability to pay compensation. By raising the matter in the way the defendant did the effect was that the plaintiff had to be excluded from the meeting. The plaintiff does not say that seeking to get him off the committee was an improper motive, but using that occasion for that end was.

Lord Denning M.R. in the instant case elevated qualified privilege to a situation of absolute privilege.

A summary of the information which was available to the defendant as at November 5, 1969, shows that the defendant had a closed mind.

[LORD WILBERFORCE. The House wishes the defendant to address it

on the subject of gross, unreasoning prejudice and how it fits in with honest belief. He need not address it on the question of the appropriateness of the occasion.]

Michael Kempster Q.C. and Patrick Milmo for the defendant. The plaintiff served a reply setting out the particulars of express malice on which he proposed to rely as required by R.S.C., Ord. 82, r. 3 (3). Further particulars were served in the course of the trial. There was no mention in either set of particulars and no allegation, of the defendant's simple intention of securing the exclusion of the plaintiff from the relevant committee, and no other matters were set out from which "recklessness" could properly be inferred. It appears from the judgment of Stirling J., however, that in fact that motive was employed in argument by leading counsel not as a separate motive from which malice was to be inferred but as a precipitating matter giving rise to the defendant's "closed mind," prejudice, and in turn to recklessness. It was argued that the defendant had that motive, that that led to his mind being closed and unreasonable and that that led to recklessness. This is consistent with the grounds in the plaintiff's further particulars of his reply from which malice was to be inferred. Stirling J. found (1) that the words spoken were defamatory; (2) that they were spoken on an occasion of qualified privilege; (3) that the defendant was labouring under unreasoning prejudice and had a closed mind at the time when the words complained of were spoken. He might have meant that that was evidence either of malice or of a closed mind. Then, however, one comes to the passage in his judgment from which it is clear that he regarded those matters as no more than factors on which one could properly rely in finding that the defendant had had a closed mind. Stirling J. made no finding of recklessness. Prejudice in itself is not an indication from which malice is to be inferred. Stirling J. found that the nature of the defendant's speech - by reason of its being unfair and tendentious - established gross and unreasoning prejudice.

A man cannot be reckless if he honestly and genuinely believes. The finding of Stirling J. that the defendant's unreasoning prejudice was in itself an indication from which malice was to be inferred, at the same time as he found honest belief, was an error which the Court of Appeal properly pointed out. Stirling J. found that the defendant believed that everything which he did was true and justifiable. He did not find recklessness, abuse of the occasion of privilege, that the defendant was moved by hatred for or dislike of or desire to calumniate or injure the plaintiff or anyone else (cf. Watt v. Longsdon [1930] 1 K.B. 130) or that he acted otherwise than from a sense of duty.

In those circumstances, where honest belief has been found and the defendant has been found not to have be�n actuated by any improper motive, there can properly be a finding not just of belief but of honest belief.

If every word and adjective must be given effect to, then when the Court of Appeal use the words "honest belief" - not specifically used by Stirling J. but referred to by him in a reference to Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson [1892] 1 Q.B. 431 - they are in effect saying that not only was the defendant's belief genuine but also he was acting bona fide, within the ambit of privilege

(see Spencer Bower on Actionable Defamation, 2nd ed. (1923), p. 398). The effect of Stirling J.'s findings, and of what he did not find, was that there was genuine belief and no improper motive. That could be described as "honest belief." The Court of Appeal held, correctly, that recklessness and belief could not coexist: see per Lord Denning M.R. [1972] 1 W.L.R. 1625, 1631.

To find "gross and unreasoning prejudice" of a defendant does not mean that he is reckless. He does apply his mind to the matter, and then forms a prejudice. If he refuses to look at something, that might come near to recklessness, but if belief exists then a man is entitled to enjoy the privilege. That is the effect of the line of authorities. The test is always a subjective one, never objective. The judge or jury must always look into the mind of the defendant, and not apply the standard of the reasonable man. They must not look at whether the defendant was reasoning or unreasoning.

The first of this line of authorities was Pitt v. Donovan (1813) 1 M. & S. 639. [Reference was made to Spill v. Maule (1869) L.R. 4 Exch. 232; Clark v. Molyneux, 3 Q.B.D. 237; Adam v. Ward [1917] A.C. 309; Hayford v. Forrester-Paton, 1927 S.C. 740; Turner (orse. Robertson) v. Metro-Goldwyn-Mayer Pictures Ltd. [1950] 1 All E.R. 449; Slim v. Daily Telegraph Ltd. [1968] 2 Q.B. 157 and Silkin v. Beaverbrook Newspapers Ltd. [1958] 1 W.L.R. 743.]

In summary, Stirling J.'s findings amount to findings both of genuine belief and of absence of any improper motive. They amount to findings of honest belief in the sense suggested by Spencer Bower on Actionable Defamation, 2nd ed., p. 398. Accordingly, the Court of Appeal was right in allowing the appeal and saying that honest belief disposed of recklessness, and that prejudice on its own was not a basis on which malice could be found. The Court of Appeal were right again because when, in a situation of privilege, one examines the mind of the speaker, one does not test his mind by reference to an objective standard but the object is (1) to see whether belief is established: Stirling J. so found here, and it is inconsistent with recklessness. Without recklessness, prejudice does not defeat the privilege. (2) Malice could still be established by abuse of the occasion. It is conceded that the authorities show that in certain cases a man may have a belief in the truth of what he says and yet be fixed with malice, because to maintain a situation of privilege he must not only believe, or honestly believe, but must make his statement for the purpose for which the privilege is allowed him.

The most economical statement of the position where privilege is admitted and malice alleged is by Cockburn C.J. in Dawkins v. Lord Paulet (1869) L.R. 5 Q.B. 94, 102. See also the malicious prosecution case of Brown v. Hawkes [1891] 2 Q.B. 718; a passage in the judgment of Cave J. which was there upheld, at p. 722, is of assistance. [Reference was made to Derry v. Peek (1889) 14 App.Cas. 337, 376.] Some of what Greer L.J. says in Watt v. Longsdon [1930] 1 K.B. 130, 154 is obiter and wrong. Watt v. Longsdon shows that malice could still be found in spite of a sense of duty if the writer is actuated by a sense of spite or ill will in the sense of the traditional meaning of malice. In Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson [1892] 1 Q.B.

431 Lord Esher M.R. says, at p. 436, that prejudice may be the cause of recklessness but that one has to look for recklessness.

Duncan Q.C. in reply. On Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson [1892] 1 Q.B. 431, see the reference to that case by McCardie J. in Pratt v. British Medical Association [1919] 1 K.B. 244, 276. There are no findings on fair comment. There is a finding that the statements of fact were untrue, so the matters complained of cannot be fair comment. Fair comment is an expression of opinion and belief or honest belief in the truth of the statement does not arise. It is quite different from a statement of fact. Whether the test of recklessness is objective or subjective is a double test. One has to ask whether a reasonable person could possibly have made the statement, and what was the motive of the person who did make it.

The statement of claim is accepted as being the accurate version of what the defendant said. As to the defendant's attempt on this appeal to list the material which was in the defendant's mind when he said that the plaintiff had misled the committee, there is no evidence to support that list other than what the defendant himself said at the trial.

Stirling J. found that the defendant was actuated by express malice. He found that he was actuated by unreasoning prejudice and had a closed mind. He found that he misused the occasion. He found that he was reckless. The "reckless" finding should be related to the paragraph before: plaintiff's leading counsel at the trial was well founded in what he said.

The question which the plaintiff has to face is this: can one have an honest belief at the same time as being reckless? Reckless means paying insufficient regard to factors as a result of prejudice leading to a position in which one has a closed mind and does not approach the problem with a reasoning mind, as sharply distinguished from a reasonable mind. A person may be unreasonable although he has taken great pains to discover the answer. In the present case, however, as Stirling J. found, the defendant was actuated by prejudice into having a closed mind. That is sufficient to establish recklessness.

If honest belief is to have any meaning at all it must be accepted that it is inconsistent with a reckless state of mind. One must, however, distinguish between honest belief and belief induced by recklessness, which is what Stirling J. found. He does not say "honest belief"; that is significant.

Their Lordships took time for consideration.

January 30. LORD WILBERFORCE. My Lords, I have had the advantage of reading in advance the opinion of my noble and learned friend, Lord Diplock, with which I concur.

I would dismiss the appeal.

LORD HODSON. My Lords, for the reasons given by my noble and learned friend, Lord Diplock, I, too, would dismiss the appeal.

VISCOUNT DILHORNE. My Lords, the respondent was at all material times an alderman of the Bolton Town Council, a member of a number of its committees and of the Labour party, which was then in a minority on the council. The appellant was also a member of the council. He was a member of its Management and Finance Committee and a Conservative. The Conservatives then held a majority on the council. The appellant was also chairman and the majority shareholder in a holding company called Land Development and Building Ltd. Among the activities of its subsidiary companies were the sale, purchase and development of land.

The company sold to the corporation some land subject to a restrictive covenant preventing building thereon. Houses were built on adjoining land and let by a company in which the appellant was concerned on the basis that the land subject to the restrictive covenant would not be built on so that the frontagers would not have the view from their houses obstructed.

Unfortunately the Bolton Corporation, when letting some of the land in Bishops Road to the Great Lever Conservative Club for the club to build premises thereon, overlooked the existence of the covenant. When its existence was brought to their knowledge efforts were made without success to secure the release of the land from the covenant, one difficulty being the assurances given to the frontagers that the land would not be built on. As no release was obtained the Management and Finance Committee ultimately decided that alternative accommodation should be found for the club and compensation paid to them. As a great deal of the building had been done the compensation was considerable.

At the meeting of the Management and Finance Committee at which this was decided and at which the appellant, on account of his interest in the matter, was not present, the respondent expressed the view that the appellant should not be a member of that committee because of the frequency with which his professional interests were likely to arise in matters of concern to the committee. He gave notice of his intention to raise the matter at a meeting of the council. With a Conservative majority on the council he thought his chances of getting his view accepted were slight, but he thought that the Bishops Road fiasco, as it was called, gave him the opportunity he wanted. Prior to November 5, 1969, the Labour caucus met and it was decided that the appellant should be attacked on account of his failure to secure the release of the restrictive covenant and that an effort should be made to secure his removal from the Management and Finance Committee. It was agreed that the respondent should make the attack.

At the meeting of the council on November 5, 1969, he did so. In the course of his speech, which consisted mainly of a narration of events in relation to the building on the restricted land and to the efforts made to secure the release of the covenant, he made some offensive personal observations about the appellant who, again on account of his interest in the matter, was not present, saying:

"For two months he has been like Achilles sulking in his tent while we waited for news. I don't know how to describe his attitude whether it was brinkmanship, megalomania or childish petulance" and

"I suggest that he has misled the committee, the leader of his party and his political and club colleagues some of whom are his business associates."

The appellant issued a writ claiming inter alia damages for slander in respect of this speech.

Stirling J., who tried the case, held that the passages in the speech which I have quoted were defamatory. He held that there had been nothing in the appellant's conduct which could justifiably be the object of any criticism whatever. He saw no evidence that the appellant was capricious, unduly dilatory, or inconsistent or in any way underhand or dishonourable. He ruled that the speech was made on an occasion of qualified privilege, so whether the appellant succeeded in his action depended on whether or not he could establish that the respondent was actuated by malice.

Stirling J. came to the conclusion that the respondent was so anxious to have the appellant removed from the Management and Finance Committee that he did not consider fairly and objectively whether the evidence he had in his possession justified his conclusions or comments. Stirling J. regarded his speech as a whole as such an unfair and tendentious assessment of the appellant's conduct that it established gross and unreasoning prejudice on the respondent's part, but he accepted that the respondent believed, and at the trial believed, that everything he had said was true and justifiable.

Founding apparently on a passage in Gatley on Libel and Slander, 6th ed. (1967), para. 770, which says:

"If a man, through anger, or gross and unreasoning prejudice, has allowed his mind to get into such a state - to become so obsessed - as to cast reckless aspersions on other people which but for such state of mind he could not have honestly believed to be true, the jury may properly find that he has abused the occasion, and in that sense has acted maliciously."

and a passage from the judgment of Lord Esher M.R. in Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson [1892] 1 Q.B. 431, he held that there was malice on the part of the respondent due to his unreasoning prejudice even though he believed what he said. Stirling J. therefore gave judgment for the appellant.

I must confess to feeling considerable doubt whether the finding that there was gross and unreasoning prejudice on the part of the respondent was justified. The respondent was entitled to hold the view that the appellant should not, on account of his business interests, be a member of the Management and Finance Committee. He was clearly not abusing the privileged occasion in expressing that view. In Adam v. Ward [1917] A.C. 309, Lord Dunedin said, at p. 330: "... when considering whether the actual expression used can be held as evidence of express malice no nice scales should be used." Lord Dunedin went on to cite the following passage from the judgment of the Privy Council in Laughton v. Bishop of Sodor and Man (1872) L.R. 4 P.C. 495, 508:

"To submit the language of privileged communications to a strict

scrutiny, and to hold all excess beyond the absolute exigency of the occasion to be evidence of malice would in effect greatly limit, if not altogether defeat, that protection which the law throws over privileged communications."

And in Clark v. Molyneux (1877) 3 Q.B.D. 237, Cotton L.J. observed, at p. 249:

"In order to show that the defendant was acting with malice, it is not enough to show a want of reasoning power or stupidity, for those things of themselves do not constitute malice: a man may be wanting in reasoning power, or he may be very stupid, still he may be acting bona fide, honestly intending to discharge a duty."

These observations which I have cited were directed to the issue whether there was or was not express malice, but I think that in considering whether or not there was gross and unreasoning prejudice on the part of the respondent no nice scales should be used and that the fact that he made observations and comments which others would not have thought it justified or right to make does not, to my mind, exclude the possibility that they were made, not on account of prejudice, but by reason of his failure to appreciate the inadequacy of the grounds on which he based his comments.

However this may be, the question now to be decided is whether the finding of malice, based on Stirling J.'s conclusion that there was gross and unreasoning prejudice, can stand in view of his finding that the respondent believed what he said.

If a man abuses a privileged occasion by making defamatory statements which he knows to be false, express malice may easily be inferred. If, on such an occasion, he makes statements recklessly, not caring whether they be true or false, again malice may be inferred. Such recklessness may be induced by anger, as Lord Esher M.R. pointed out in Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson [1892] 1 Q.B. 431, 444. Lord Esher M.R. went on to say that gross and unreasoning prejudice

"... not only with regard to particular people, but with regard to a subject matter in question, would have the same effect. If a person charged with the duty of dealing with other people's rights and interests has allowed his mind to fall into such a state of unreasoning prejudice in regard to the subject matter that he was reckless whether what he stated was true or false, there would be evidence upon which a jury might say that he abused the occasion."

Lord Esher M.R. was pointing out that there was a state of mind, short of deliberate falsehood, which may lead to the conclusion that there was an abuse of the privileged occasion. He was not dealing with the case where a man honestly believes the truth of his statements.

Can a man who believes what he says on a privileged occasion to be true and which if true would not be an abuse of the occasion be held to have made his statements "recklessly whether they are true or false"? Gross and unreasoning prejudice may have led him to have uttered them recklessly whether they were true or false, but if he believes the truth of what he said, can he at the same time be said to be reckless of the truth

or falsity of his statements? May be that others with more judgment and more wisdom would not have formed the same belief, but if, in fact, he believes what he says, he cannot at the same time, in my opinion, be reckless whether it is true or false. Such recklessness falls short of deliberate falsehood. But such recklessness, not minding or caring whether it be true or false, whether it arise from anger or unreasoning prejudice, or from some other cause, is not consistent with belief in the truth of the statement.

In Watt v. Longsdon [1930] 1 K.B. 130, Greer L.J. said, at p. 154:

"A man may believe in the truth of a defamatory statement, and yet when he publishes it be reckless whether his belief be well founded or not. His motive for publishing a libel on a privileged occasion may be an improper one, even though he believes the statement to be true."

If the statements were believed to be true, that negatives malice based on the contentions that the defendant did not believe them to be true and made them recklessly not caring whether they were true or false. But malice may be established in other ways than showing that the defendant did not believe in the truth of what he said (Smith v. Thomas (1835) 2 Bing.N.C. 372, 382, per Tindal C.J.).

While it is true that a man may believe in the truth of what he says and yet be reckless whether his belief is well founded or not, recklessness whether the belief is well founded, while relevant to the question whether the defendant believed what he said, is not, if the defendant in fact believed, evidence of malice. If it were, then the man who honestly and out of a sense of duty made observations based on information found to be inaccurate or incorrect would have his freedom of speech on a privileged occasion unduly restricted. In this connection the observations of Cotton L.J. in Clark v. Molyneux, 3 Q.B.D. 237, 249 which I have cited are relevant.

In my opinion, the Court of Appeal were right to allow the respondent's appeal. In the course of delivering their judgments some observations were made by their Lordships which might, if taken out of their context, be interpreted as laying down general principles. In this case the only question was whether malice could be inferred from the lack of foundation for the statements made and their tendentious quality, which led Stirling J. to hold that there was gross and unreasoning prejudice and malice despite his finding that the respondent believed what he said. To that, the belief of the respondent was, in my opinion, a complete answer. I do not believe Lord Denning M.R.'s observation [ [1972] 1 W.L.R. 1625, 1630] that members of a local authority, so long as they believe what they say to be true, are not liable for defamation, and when he said: "... so long as they are honest, they go clear," was meant to apply generally and not just to the facts of this case. For a man who honestly believes what he says may yet be actuated by malice and such malice may be established by other evidence than the inference to be drawn from the falsity of the statement. It is that inference which is negatived by belief. For these reasons, in my opinion, this appeal should be dismissed.

LORD DIPLOCK. My Lords, at a meeting of the Bolton Borough Council in November 1969 the respondent, Alderman Lowe, made a speech criticising the conduct of the appellant, Councillor Horrocks, both as a member of the Management and Finance Committee of the council and as chairman of a company, Land Development and Building Ltd. The speech concluded with a request that Mr. Horrocks should be removed from that committee. The words used were defamatory of Mr. Horrocks. He brought an action for slander against Mr. Lowe. At the trial at Manchester Assizes before Stirling J., sitting without a jury, Mr. Lowe's counsel did not seek to justify the expressions used. He relied on the defence of qualified privilege. The judge held, as has never been disputed, that the words were spoken on a privileged occasion; but he also held that malice on the part of Mr. Lowe had been established and gave judgment for the plaintiff for �400 damages. It is only fair to Mr. Horrocks to say that the judge found that the criticism of his conduct was quite unjustified. The only reason why the award of damages was low was because he made it clear through his counsel that what he sought was not substantial damages, but to reinstate his reputation.

Stirling J. found expressly that Mr. Lowe "believed and still believes that everything he said was true and justifiable, ..." He also found, however, that owing to Mr. Lowe's anxiety to have Mr. Horrocks removed from the Management and Finance Committee his state of mind was one of "gross and unreasoning prejudice" - a phrase borrowed from the judgment of Lord Esher M.R. in Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson [1892] 1 Q.B. 431, 444. That case he regarded as

"authority for the proposition that such an attitude of mind, if proved, is evidence from which a jury could properly infer malice even if honest belief in the words used exists."

Paragraph 770 of the current (6th) edition of Gatley on Libel and Slander,the only book to which he was referred in Manchester, appears to support this view.

It will become necessary to examine in more detail some of the judge's other findings as to Mr. Lowe's conduct and attitude of mind; but the finding that the defendant believed that everything he said was true and justifiable lies at the root of this appeal. It was the only part of Stirling J.'s judgment that was dealt with in the judgments of the Court of Appeal on Mr. Lowe's appeal. He conducted his own case in person there, and succeeded upon the ground that his belief that everything he said was true made it impossible as a matter of law to find that he was actuated by malice.

The judgments of Lord Denning M.R. and Edmund Davies L.J. have been criticised in your Lordships' House as being based upon too broad a proposition of law. It is true that there are passages in these extempore judgments which might be read as suggesting that where on a privileged occasion a defendant publishes defamatory statements which he believes to be true he can only lose the protection of the privilege on proof that he was actuated by personal spite against the person defamed. But the Court of Appeal were not embarking on a general exposition of the law of

privilege in actions for defamation. Their attention was concentrated upon the particular facts of the instant case as they had been found in the judgment of Stirling J. Upon those facts the Court of Appeal's decision that Mr. Lowe's belief that everything he said was true entitled him to succeed on his defence of privilege was in my view correct.

The facts are set out in detail in the unreported judgment of Stirling J. They are summarised with his customary felicity in the reported judgment of Lord Denning M.R. in [1972] 1 W.L.R. 1625. Those which are essential to dispose of the question of law now before your Lordships' House can be stated even more briefly.

The business of the Bolton Borough Council was conducted by its members on party political lines. Mr. Horrocks was a member of the Conservative caucus which at the relevant time was in a majority. Mr. Lowe was a member of the Labour caucus. Both were members of the important Management and Finance Committee of the council. Mr. Horrocks was also chairman and majority shareholder in Land Development and Building Ltd., a property company engaged in dealing in and developing property within the borough. In 1961 this company had sold to the Bolton Corporation some land in Bishops Road subject to a restrictive covenant against building on it. Later the company sold building plots on some of the remainder of the land assuring the purchasers of these plots that nothing would be built on the land that had been conveyed to the corporation. Unfortunately, this restrictive covenant was overlooked by the officials of the corporation when a 99-year lease of part of the land subject to it was later granted to the Conservative Club for the erection of a club house. Building work had proceeded nearly to roof height when, in August 1969, the company's solicitors drew the attention of the corporation and the club to the restrictive covenant and demanded that the building be removed.

The matter was dealt with at meetings of the Management and Finance Committee of which the chairman was a Conservative, Alderman Telford. Mr. Lowe was present, but Mr. Horrocks, because of his personal interest, absented himself when the matter was discussed. No solution to the difficulty could be found and ultimately the corporation accepted the liability to find another site for the Conservative Club and to pay them very substantial compensation for their wasted expenditure. A statement to this effect was to be made at the meeting of the borough council of November 5, 1969, by Alderman Telford.

Mr. Lowe and other members of the Labour caucus took the view that because of his personal interest in the development of land in Bolton Mr. Horrocks ought not to be a member of the Management and Finance Committee. He had expressed this view at the meeting of that committee on October 27, 1969, but was powerless to obtain acceptance of it by the committee because of the Conservative majority on the committee and in the council itself. He gave notice that he intended to raise the matter again at the council meeting on November 5 on the occasion of the statement by Alderman Telford about the Bishops Road site. This he did, and what he said at that meeting of the council is the slander in respect of which this action has been brought. It consisted in large part of a recital

of what he understood to be the facts about the Bishops Road affair. It was hard hitting criticism of Mr. Horrocks's conduct. The sting of it was in the words quoted by Stirling J.:

"I don't know how to describe his attitude whether it was brinkmanship, megalomania or childish petulance ... I suggest that he has misled the committee, the leader of his party and his political and club colleagues some of whom are his business associates. I therefore request that he be removed from the committee to some other where his undoubted talents can be used to the advantage of the corporation."

My Lords, as a general rule English law gives effect to the ninth commandment that a man shall not speak evil falsely of his neighbour. It supplies a temporal sanction: if he cannot prove that defamatory matter which he published was true, he is liable in damages to whomever he has defamed, except where the publication is oral only, causes no damage and falls outside the categories of slander actionable per se. The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny has nevertheless to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognises that they have a duty to perform or an interest to protect in doing so. What is published in good faith on matters of these kinds is published on a privileged occasion. It is not actionable even though it be defamatory and turns out to be untrue. With some exceptions which are irrelevant to the instant appeal, the privilege is not absolute but qualified. It is lost if the occasion which gives rise to it is misused. For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit - the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege.

So, the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial. The protection might, however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest. So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. "Express malice" is the term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove. But to destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests.

The motive with which a person published defamatory matter can only be inferred from what he did or said or knew. If it be proved that he did not believe that what he published was true this is generally conclusive

evidence of express malice, for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person.

Apart from those exceptional cases, 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.

Even a positive belief in the truth of what is published on a privileged occasion - which is presumed unless the contrary is proved - may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames. If this be proved, then even positive belief in the truth of what is published will not enable the defamer to avail himself of the protection of the privilege to which he would otherwise have been entitled. There may be instances of improper motives which destroy the privilege apart from personal spite. A defendant's dominant motive may have been to obtain some private advantage unconnected with the duty or the interest which constitutes the reason for the privilege. If so, he loses the benefit of the privilege despite his positive belief that what he said or wrote was true.

Judges and juries should, however, be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity. The motives with which human beings act are mixed. They

find it difficult to hate the sin but love the sinner. Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person's conduct and welcomed the opportunity of exposing it. It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that "express malice" can properly be found.

There may be evidence of the defendant's conduct upon occasions other than that protected by the privilege which justify the inference that upon the privileged occasion too his dominant motive in publishing what he did was personal spite or some other improper motive, even although he believed it to be true. But where, as in the instant case, conduct extraneous to the privileged occasion itself is not relied on, and the only evidence of improper motive is the content of the defamatory matter itself or the steps taken by the defendant to verify its accuracy, there is only one exception to the rule that in order to succeed the plaintiff must show affirmatively that the defendant did not believe it to be true or was indifferent to its truth or falsity. Juries should be instructed and judges should remind themselves that this burden of affirmative proof is not one that is lightly satisfied.

The exception is where what is published incorporates defamatory matter that is not really necessary to the fulfilment of the particular duty or the protection of the particular interest upon which the privilege is founded. Logically it might be said that such irrelevant matter falls outside the privilege altogether. But if this were so it would involve application by the court of an objective test of relevance to every part of the defamatory matter published on the privileged occasion; whereas, as everyone knows, ordinary human beings vary in their ability to distinguish that which is logically relevant from that which is not and few, apart from lawyers, have had any training which qualifies them to do so. So the protection afforded by the privilege would be illusory if it were lost in respect of any defamatory matter which upon logical analysis could be shown to be irrelevant to the fulfilment of the duty or the protection of the right upon which the privilege was founded. As Lord Dunedin pointed out in Adam v. Ward [1917] A.C. 309, 326-327 the proper rule as respects irrelevant defamatory matter incorporated in a statement made on a privileged occasion is to treat it as one of the factors to be taken into consideration in deciding whether, in all the circumstances, an inference that the defendant was actuated by express malice can properly be drawn. As regards irrelevant matter the test is not whether it is logically relevant but whether, in all the circumstances, it can be inferred that the defendant either did not believe it to be true or, though believing it to be true, realised that it had nothing to do with the particular duty or interest on which the privilege was based, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his personal spite, or for some other improper motive. Here, too, judges and juries should be slow to draw this inference.

My Lords, what is said by members of a local council at meetings of the council or of any of its committees is spoken on a privileged occasion. The reason for the privilege is that those who represent the local government electors should be able to speak freely and frankly, boldly and bluntly, on any matter which they believe affects the interests or welfare of the inhabitants. They may be swayed by strong political prejudice, they may be obstinate and pig-headed, stupid and obtuse; but they were chosen by the electors to speak their minds on matters of local concern and so long as they do so honestly they run no risk of liability for defamation of those who are the subjects of their criticism.

In the instant case Mr. Lowe's speech at the meeting of the Bolton Borough Council was upon matters which were undoubtedly of local concern. With one minor exception, the only facts relied upon as evidence from which express malice was to be inferred had reference to the contents of the speech itself, the circumstances in which the meeting of the council was held and the material relating to the subject matter of Mr. Lowe's speech which was within his actual knowledge or available to him on inquiry. The one exception was his failure to apologise to Mr. Horrocks when asked to do so two days later. A refusal to apologise is at best but tenuous evidence of malice, for it is consistent with a continuing belief in the truth of what one has said. Stirling J. found it to be so in the case of Mr. Lowe.

So the judge was left with no other material on which to found an inference of malice except the contents of the speech itself, the circumstances in which it was made and, of course, the defendant's own evidence in the witness box. Where such is the case the test of malice is very simple. It was laid down by Lord Esher himself, as Brett L.J., in Clark v. Molyneux, 3 Q.B.D. 237. It is: has it been proved that the defendant did not honestly believe that what he said was true, that is, was he either aware that it was not true or indifferent to its truth or falsity? In Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson [1892] 1 Q.B. 431 Lord Esher M.R. applied the self-same test. In the passage cited by Stirling J. he was doing no more than disposing of a suggestion made in the course of the argument that reckless disregard of whether what was stated was true or false did not constitute malice unless it were due to personal spite directed against the individual defamed. All Lord Esher M.R. was saying was that such indifference to the truth or falsity of what was stated constituted malice even though it resulted from prejudice with regard to the subject matter of the statement rather than with regard to the particular person defamed. But however gross, however unreasoning the prejudice it does not destroy the privilege unless it has this result. If what it does is to cause the defendant honestly to believe what a more rational or impartial person would reject or doubt he does not thereby lose the protection of the privilege.

I know of no authority which throws doubt upon this proposition apart from a Delphic dictum in the judgment of Greer L.J. in Watt v. Longsdon [1930] 1 K.B. 130, 154 where he gives as an example of a state of mind which constitutes malice: "A man may believe in the truth of a defamatory statement, and yet when he publishes it be reckless whether his belief be well founded or not." If "reckless" here means that the maker of the

statement has jumped to conclusions which are irrational, reached without adequate inquiry or based on insufficient evidence, this is not enough to constitute malice if he nevertheless does believe in the truth of the statement itself. The only kind of recklessness which destroys privilege is indifference to its truth or falsity.

My Lords, in his judgment Stirling J. rejected the inference that Mr. Lowe was actuated by personal spite against Mr. Horrocks. He found, however, that Mr. Lowe was

"so anxious to have the plaintiff removed from the Management and Finance Committee that ... he did not consider fairly or objectively whether the evidence he had of the plaintiff's conduct over Bishops Road came anything like far enough to justify his conclusions or comments."

He then gave some examples of Mr. Lowe's jumping to conclusions and failing to make further inquiries and drew attention to his omission to refer to the dilemma in which Mr. Horrocks found himself vis-�-vis those who had purchased from his company building plots with the benefit of the restrictive covenant against building upon the land leased by the corporation to the Conservative Club.

It was no misuse of the occasion to use the Bishops Road fiasco in an attempt to obtain the removal of Mr. Horrocks from the Management and Finance Committee even though the prospects of success may have been slender until the balance of political power upon the council changed. The other matters referred to by the learned judge as showing Mr. Lowe to be grossly and unreasoningly prejudiced might have warranted the inference that he was indifferent to the truth or falsity of what he said if his own evidence as to his belief had been unconvincing. But it was an inference the judge, who heard and saw Mr. Lowe in the witness box, did not feel able to draw. "I am prepared," he said, "to accept what the defendant reiterated in his evidence that he believed and still believes that everything he said was true and justifiable, ..."

However prejudiced the judge thought Mr. Lowe to be, however irrational in leaping to conclusions unfavourable to Mr. Horrocks, this crucial finding of Mr. Lowe's belief in the truth of what he said upon that privileged occasion entitles him to succeed in his defence of privilege. The Court of Appeal so held. I would myself do likewise and dismiss this appeal.

LORD KILBRANDON. My Lords, I have had the advantage of reading the speech which has been delivered by my noble and learned friend, Lord Diplock. For the reasons given by him, with which I agree, I would dismiss this appeal.

Solicitors: Whitehouse, Gibson & Alton for Henry Fallows & Co., Bolton; Gregory, Rowcliffe & Co. for Woodcock & Sons, Bury.

M. G.