Neutral Citation Number: [2011] EWHC 2809 (QB)
Case No: HQ10D03486
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 4/11/2011

Before :

THE HON. MR JUSTICE NICOL
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Between :

	Keith Crossland	Claimant	
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	University of Glamorgan	Defendant	

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The Claimant in person
Kate Wilson (instructed by Morgan Cole LLP) for the Defendant

Hearing dates: 24th October 2011
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Judgment

Mr Justice Nicol: 

Introduction

1.	This is an appeal by the Claimant against the order of Master Leslie who, on 17th June 2011, struck out his claim for libel and entered summary judgment in favour of the Defendant. On 28th July 2011 Hickinbottom J. granted the Claimant permission to appeal on one ground. He has renewed his application for permission to appeal on the remaining grounds, which Hickinbottom J. directed should be considered at this same hearing. The Defendant has served a Respondent’s Notice arguing that there are other, additional, grounds on which the Master’s order could also be upheld. The Claimant issued a separate application notice on 17th October 2011 but that, in effect, reiterated certain of his arguments as to why the claim should not have been struck out or summary judgment granted.

2.	The Claimant was an LLB student at the University of Glamorgan between 2005-2008. He graduated successfully. In his second year he simultaneously started a two year course for an MSc in Human Resource Management. By the summer of 2007 he had completed one year of this and been awarded a post-graduate certificate in Human Resource Management. 

3.	In September 2009 he wished to re-enrol for the second year of the MSc programme. (There was some discussion later within the University’s administration as to whether he should have been treated as a ‘returning student’ or a ‘new applicant’ and at one stage the Claimant was told he should be treated as a ‘returning student’. However, when this matter was examined in the course of the complaint procedure initiated by the Claimant it was decided that he was properly to be regarded as a ‘new applicant’.)

4.	On 23rd September 2009 there was an induction or enrolment evening. It was conducted by three women members of staff: Chris Hole, the scheme leader for the MSc HRM; Rhian Griffiths; and Sian Hill. It will be necessary to say more about the Claimant’s behaviour on that evening, but, to put it neutrally, it was challenging.

5.	The following day (so 24th September 2009) Ms Hole reported what had happened to Lyn Daunton, the Divisional Head for Organisational Leadership, Learning and Management in the Business School. 

6.	On that same day the Claimant sent an email to Ms Hole apologising for his behaviour the previous evening. He explained that he was diabetic and, when his blood sugar level was low, he became hypoglycaemic and this made him confused.  I will return to the issue of when this information reached Ms Daunton.

7.	On the afternoon of the same day, Ms Daunton emailed the outgoing Dean of the Business School (Alan Lovell) and the incoming Dean (Monica Gibson-Sweet). She did not name the Claimant but said “His behaviour in the enrolment session was such that the scheme leader and two administrators felt uncomfortable in his presence. A student also made the comment that they would prefer not to embark on a programme of study if he was in the same class.” She said that she herself had taught this student in his certificate year and found him “difficult and tiresome”. She said that she had spoken to Richard Owen, the Associate Head of the Law School who had reported that he was “very difficult and very challenging in a negative sense throughout his time in the law school. A huge amount of time had been spent in dealing with the constant demands of this student which had culminated in the Head of the Law School considering taking disciplinary action against him.”

8.	The following day (25th September 2009) Ms Daunton emailed the same two addressees. She reported on a conversation which a colleague of hers had had with the Academic Registrar, William Callaway. The email continued:
“Hi both, I had a conversation with a colleague in Academic Registry late yesterday who had discussed this situation with William. He indicated that we do not have to accept this student. We do however need a rational for this decision and this is where it may be difficult. I have given his suggestions below followed by worst case scenarios if the student takes this further. Given his history he probably will.
The reasons he suggested we could give are:
1.	Tell the student the programme is full – very uncomfortable with this as this is not true
2.	Ask for a reference from HASS [Humanities and Social Sciences] – fine but then we would then need to do this with all of the students who join the 2nd stage from other institutions – (we may already do this) and negative references are an easy target for  liturgy
3.	Indicate to the student that his behaviour during the induction session was such that his application is declined – we would have to gather evidence from the scheme leader, administrators and students who were present at the time (this may be difficult).
None perhaps carry much weight. Can I ask you to advise as to what we do next please. Best wishes Lyn. ”
9.	Ms Gibson-Sweet replied the same day: 
“My advice would be that we go for 3 but you would need to check if the staff at the very least are willing to testify and then see if some of the enrolees would be willing to commit to paper. This is the real reason why we do not want to recruit this student – we feel that he will disrupt the holistic experience for other students and we have to respect this. However, the crucial issue here is the evidence.
Number 1 – would easily be dismissed as untrue
Number 2 – do we ever ask for references? If not then this would also not stand up
Alan what are your thoughts?”
10.	On 28th September 2009 Ms Daunton apparently had a phone conversation with Ms Sara Moggridge, the Deputy Academic Registrar in which she asked about what could be done about a student who turned up an enrolment session and behaved in a manner which was “concerning and disruptive”. On 29th September 2009 Ms Daunton emailed Ms Moggridge to say that the student’s behaviour had been “so threatening and disruptive that members of staff and a number of students have indicated that they do not want to work with him (he developed a reputation as a very difficult student when he was in the Law School).” Later on 29th September 2009 Ms Daunton emailed Ms Gibson-Sweet to report that the student had had some sort of diabetic episode which caused him to behave as he had. It is apparent from a further email to Ms Gibson-Sweet of 30th September 2009 that Ms Daunton had only recently been told about the Claimant’s diabetes.

11.	The Claimant’s original Claim Form relied on 5 publications which were alleged to have been libellous. The Master gave him permission to add a sixth (though, that, too was then struck out). None of the communications to which I have so far referred is any of the publications on which the Claimant relies.

12.	The first pleaded cause of action is an email of 1st October from Denise Williams, Deputy Academic Registrar to Beverley Bentley-Webb, who was the Defendant’s Equalities Manager in its Human Resources Department.  The Claimant alleges that the email was also copied to various other members of the staff of the Defendant. The material parts of the email said:  
“I need some advice on a student who wants to come back to the Business School to do a Masters in HR having previously done an LLB course here and possibly other courses. He has been a problem student, being disruptive and aggressive at times so we’d prefer not to take him back. He appears to have been in last week and was aggressive but later sent an email apologising for his aggression and saying it was due to the fact that he had diabetes and when he hasn’t taken his insulin he can become very aggressive. If we can’t find an academic reason as to why he isn’t suitable for the course he wants to do, I presume that we are running the risk of disability discrimination accusations and possibly legal action if we refuse him a place on the course. Would justification for refusing him admission on the basis of his previous behaviour overcome such an accusation, particularly if we asked for a reference from one of his previous tutors as part of the application?”
13.	Ms Bentley-Webb replied the following day (2nd October 2009)  
“Thank you for your email, I am not in the office today for a meeting, however, I completely agree with your view. Disability and behaviour are two completely separate issues. We have many staff and students with disabilities who do not behave aggressively or disruptively and it appears evident that tutors and students are concerned about this student returning to Glamorgan.
You are absolutely right in your view to refuse a place on the basis of previous and again current aggressive behaviour, particularly if you can provide a reference/ statement from a tutor. This would overcome the DDA challenge as a key line in the DDA is “cooperation of the individual” which includes an individual managing their behaviour and ensuring they take their medication if this is linked to behaviour.
I must say that (in my view) aggressive behaviour is not a symptom of diabetes (but could be) a result of hypoglycaemia which is very high or very low blood sugar. Again, not managing diet or medication. However, I would not link aggressive behaviour to diabetes at all. An individual with diabetes should know very well how to manage their condition to ensure they do not go into a hypo-glycaemia state as this can be very dangerous. I’m sure the student is well aware of these issues and I’m surprised has used his condition as an excuse for his bad behaviour.
I hope this is of help and please let me know if you have any further queries I am more than happy to assist.”
14.	This is the second publication which is said to have been libellous of the Claimant.

15.	Although the correspondence to which I have referred suggested that the possibility of not allowing the Claimant to enrol was canvassed, he was given an extended deadline of 16th October 2009 to provide his application form and references, he did not meet this. 

16.	On 22nd October 2009 Mr Callaway sent an email to Ms Gibson-Sweet and various other colleagues. He said 
“I am not up to date on where we are on this but my view is:
-	If he is not a current student we should choose not to admit/enrol on the grounds of his abusive behaviour and previous form as evidenced by a letter that we require from HASS. I am not sure what precedent there is but I cannot believe that we knowingly admit students where we have both written and witnessed evidence of inappropriate behaviour.
-	If he is a student we invoke the appropriate disciplinary regulations and follow the regulations.
I am happy for you and Monica to deal with this and come to an appropriate conclusion.”
17.			This is the third publication on which the Claimant relies.
18.	The Claimant did eventually register for the course on 11th November 2009.

19.	The University has a complaints procedure. The Claimant invoked this process and claimed he had been discriminated against because of his disability, namely diabetes. The first stage of the procedure is for the complaint to be investigated by an appointed investigating officer and considered by a Senior Quality Officer in the Academic Registry.  Mike Porch began the investigation, but he was unable to complete it and it was taken over by Caryn Hill and the final report was sent to the Claimant by Samantha Green. She reported on 21st May 2010. Although the report was addressed to the Claimant (as the complainant), it is pleaded that it would have been read by various other members of staff. A passage in the report is the 4th publication of which the Claimant complains. It said: 
“The behaviour of the student witnessed at the induction event has been described as aggressive and threatening. Several witness statements corroborate this. The faculty has a duty of care to all staff and students, and whilst it appreciates that the student’s behaviour was a consequence of a hypoglycaemic attack, staff are aware of and trained on reasonable adjustments for the admissions process under the University’s Disability Equality Scheme.”
20.	Ms Green recorded that the University had apologised to the Claimant for   the delay in registering him for the course in the autumn of 2009 and that the Claimant appeared to have accepted the apology.

21.	The Claimant, however, was not satisfied and took his complaint to the 2nd Stage by the Student Conciliator. This was Ms Ros Morton. Her report of 11th August 2010 made a number of recommendations in the Claimant’s favour –
“In light of all the foregoing, I conclude that the University did not properly follow its own processes and procedures and I therefore make the following recommendations:-
a.	That the university reimburse you £565 being your fees for last year 09/10
b.	That fees 2010/11, £1875 be waived so that you can complete the HRM course at no further cost. This is in recognition that you could not complete the course in the expected time-scale because of the delay in commencing the second year.
c.	That the Faculty assist you with your application for CIPD membership
d.	That the Faculty assist you with applying for a work placement
e.	That the Faculty provide you with clarification in relation to the Employment Law module with regards to what mark will be awarded
	In addition, I make the general recommendation that staff engaged in enrolment have enhanced disability awareness training as part of the preparation for enrolment and induction. ”
However, in the course of her report she said:  
“Firstly, on the issue of discrimination: At enrolment, staff experienced your behaviour as threatening and aggressive – their words – and some students were alarmed. 
Even though you subsequently disclosed your disability, which contextualised your behaviour after the event, staff did not then follow the university’s process when a disability has been disclosed, which would be that the applicant/student is encouraged to register with the Disability & Dyslexia Service to consider the nature of the disability and identify any support needs and reasonable adjustments.” 
This is the fifth publication on which the Claimant relies.
22.	The Claimant was not willing to accept Ms Morton’s recommendations. He took his complaint instead to the third stage. This involved a hearing lasting a day and a half before a panel comprising Helen Marshall, the Pro Vice-Chancellor and two other members (Louise Bright and Paula MacIntyre). Ms Marshall reported to the Claimant on 25th October 2010. She repeated the recommendations which Ms Morton had made. In the course of her report, however, she said 
“The Panel is satisfied that there were concerns about your behaviour during the enrolment event and that these were not allayed as a result of the conversation with a member of staff from the Law School regarding earlier experiences of you. Once the information regarding your diabetes became known the Dean took advice from the Academic Registry which was to re-start the application process and obtain from you a completed application form and references, as concerns about your previous behaviour which appeared to be unconnected to your diabetes remained.” 
This is the sixth publication on which the Claimant relies. It was not in the original claim (Ms Marshall only issued her report after proceedings had begun). The Master granted the Claimant permission to add it by amendment but it (as well as the previous five) was struck out or subject to summary judgment in the Defendant’s favour.
23.	The Claim Form was issued on 15th September 2010. The Defence is dated 18th February 2011. It raises a number of defences, but the only one material to the present proceedings is qualified privilege which, it is pleaded related to all 5 publications in the original claim form (and which it was understood would be invoked in relation to the 6th as well).

24.	In his reply, the Claimant alleged that the privilege was destroyed by malice.

The proceedings before the Master

25.	The Defendant’s application which was heard by the Master sought to strike out the Claim or have summary judgment in the Defendant’s favour on the grounds that the publications were plainly protected by qualified privilege and further
“The Claimant’s plea of malice in the Reply is incoherent and/or fails to allege malice against any individual for whom the Defendant is vicariously liable and who was responsible for all or any of the five publications complained of. The facts and matters relied upon by the Claimant are therefore incapable of amounting to malice in law and the plea of malice should be struck out. Further or alternatively, there is no issue on malice fit to be left to a jury.
Alternatively, in respect of the fifth cause of action, there was no real and substantial tort and the claim founded on that publication should be struck out accordingly.”
26.	The Claimant accepted that the first four publications were in principle on occasions of qualified privilege (although he alleged that the privilege was defeated by malice). The Master held that the 5th and 6th publication were likewise on an occasion of qualified privilege. The Claimant does not seek to challenge that finding.

27.	The Master turned to the question of malice. He criticised the Claimant’s pleading as prolix, but he understood that the Claimant was alleging that only one of the Defendant’s employees had been malicious and that was Ms Daunton. The Master said at paragraph 11 of his decision, 

“I gave Mr Crossland the opportunity to apply for an adjournment to amend his Reply so that he could review his case as to who he might allege had been malicious or acted with malice within the defendant university. He declined that opportunity. He stuck to his guns – that the only person who was malicious was, as pleaded, Ms Daunton. It is important to bear the law in mind.”
28.	The Master went on to observe that it was important to identify who it was that the Defendant said had been malicious. The Defendant was the University. The University would be vicariously responsible for the torts of its employees, but if the Claimant was to defeat the plea of qualified privilege he had to show that a particular employee had both (a) published the libel in question or was responsible for its publication and (b) was malicious.  The Master reminded himself that if one person published a defamatory statement to another, he or she would also be responsible for the re-publication by that second person if he or she knew or intended that it would be re-published or instructed or authorised its republication. 

29.	The Defendant had argued that there was no evidence fit to go to a jury that Ms Daunton had acted maliciously, but the Master did not find it necessary to deal with that argument. The reason was that he decided that it was not arguable that Ms Daunton had participated in or been responsible for any of the 6 publications pleaded by the Claimant. At paragraph 15 of his decision the Master said:
“The first publication, Denise Williams: there is no evidence in law or in fact capable of going to a jury that Lyn Daunton participated in that publication. Neither is there any evidence that she participated in the second email published and authored by Beverley Bentley-Wenn (?). Neither is there any evidence that she participated in the publication of the third email from Mr Callaway. As to the third, fourth and fifth publications [There is an error here. The Master should have referred to the fourth, fifth and sixth publications], which are the reports and findings of the investigations relating to the complaints stages 1, 2 and 3, Ms Daunton hardly participated in those at all and certainly had no participation in the findings. They are all, as far as I can see, on the evidence that I have seen and on the evidence available, entirely independently concluded by the investigators: Samantha Green, stage 1, Senior Quality Officer, Ros Morton, Student Conciliator, stage 2, Helen Marshall, Pro Vice Chancellor and Acting Vice Chancellor, stage 3. All the authors independently arrived at conclusions. They may have reported in those conclusions things that were said by other people; it was their duty to do so. There cannot possibly be any malice from them and none is alleged. Even if there were any malice from Ms Daunton it avails the Claimant nought, as she did not participate in the publications (as described by Eady J.) so that her employer cannot be vicariously liable for any malice there might have been.”
The issues on the appeal

30.	The Claimant argues that the Master was wrong to reach the conclusion that it was unarguable that Ms Daunton was responsible for any of the 6 publications. It is this ground for which Hickinbottom J. gave permission to appeal. I will refer to this as the republication issue.

31.	In its Respondent’s Notice, the Defendant also seeks to uphold the Master’s decision on the alternative basis that there is no arguable case fit to go before a jury that Ms Daunton was malicious. 

32.	In relation to the 4th, 5th and 6th publications the Defendant would also argue that the Claim should be struck out because these were not real and substantial torts. This is an argument which rests on the principle in Jameel (Yousef) v Dow Jones Inc [2005] QB 946.  This is the Jameel issue.
The further grounds of appeal on which the Claimant would wish to rely are as follows.

-	He submits that the Master misunderstood his case. He argued (or would wish to argue) that qualified privilege was also defeated because each of the publishers acted out of an improper purpose. 

-	He argues as well that the Master was wrong to say that his case was that Ms Daunton alone was malicious. He argued or would wish to argue that the authors of the 4th, 5th and 6th publications were also malicious. 

-	Finally, he submits that the Defendant’s application notice had not given proper notice of the ground on which they were successful before the Master. On that basis alone the application should have been dismissed.

The principles to be applied on a strike out or application for summary judgment in defamation claim.

33.	The Court may strike out a statement of case if it appears to the court that it discloses no reasonable grounds for bringing the claim or it is an abuse of the process of the court – CPR r. 3.4(2) (a) and (b). It may give summary judgment in favour of a defendant if it considers that the claimant has no real prospect of succeeding on the claim and there is no other compelling reason why the claim should be disposed of at trial – CPR r. 24.2.

34.	Because this is a defamation claim there is the possibility that trial would be before a judge and jury – Senior Courts Act 1981 s.69 and the jury would have the responsibility of deciding issues of fact. However, at a trial it would be for the judge to decide if there was a question of fact fit for a jury to decide. If the evidence, taken at its highest, was such that a jury could not properly reach a necessary factual conclusion the judge would be entitled to withdraw that issue from the jury. Correspondingly, if that is the case then summary judgment can properly be granted – see Alexander v Arts Council of Wales [2001] 1 WLR 1840, where summary judgment was granted because there was no evidence on which a jury could properly find that the Defendant acted maliciously. The court will apply a test similar to that adopted by a judge in a criminal trial when faced with a submission that the defendant has no case to answer – see R v Galbraith [1981] 1 WLR 1039. In the specific context of the sufficiency of a plea of malice, Eady J. reviewed the principles to be applied in his judgment in Seray-Wurie v The Charity Commission of England and Wales [2008] EWHC 870 (QB) at [30] – [35] He noted that the burden of proving malice was difficult to discharge and findings of malice were rare. Although the court should be wary of denying the claimant a trial by jury of the issue of malice, where, on the pleadings and the available evidence the only verdict in the claimant’s favour would be perverse, it was the judge’s duty to prevent time and money being wasted on a hopeless allegation. The facts relied upon must be capable of giving rise to the probability of malice, as opposed to a mere possibility. It must be rationally open to the jury to conclude that the publisher was either dishonest or had the dominant motive to injure the claimant. Mere assertion of malice will not do. A Claimant may not proceed simply in the hope that something would turn up if the defendant chose to give evidence or made an admission in cross examination.

The re-publication issue

35.	A Claimant who can establish that a defendant is liable for an original publication may claim damages for loss that flows immediately from that publication, but the Claimant may also seek compensation for loss which results from the recipient of the original publication (the original publishee) republishing the defamatory words to others. Whether the Claimant is entitled to damages for such indirect loss is governed by rules relating to the remoteness of loss. In McManus v Beckham [2002] 1 WLR 2982 Laws LJ thought that the test was therefore one of reasonable forseeability – whether a reasonable person in the defendant’s shoes would have anticipated that there was a significant risk that what she said would be repeated in whole or in part.

36.	 This line of authority is not directly relevant to the present issue. The Claimant’s causes of action are based on 6 publications. Ms Daunton was the publisher of none of them. However, the Claimant submits that she was jointly responsible for these publications because she was the source of information on which the publisher relied. It is a subtle question whether precisely the same tests should be applied in determining whether joint responsibility is engaged in these circumstances. The issue is debated in (among other places) Duncan and Neil on Defamation (3rd edition Para 8.17). For the purpose of the present proceedings, Ms Wilson, on behalf of the Defendant, was prepared to proceed on the basis that the test was or might be the same.

37.	However, the Claimant’s pleaded particulars of claim and reply, though prolix, as the Master said, nowhere identified precisely what were the words which the Claimant alleged Ms Daunton had published and which were then republished on the occasions on which he did rely.  The Claimant, who represented himself, said in his oral submissions that he maintained that Ms Daunton had said to the Academic Registry that he “had been disruptive and aggressive at times while he was at the Law School”. I note at this point that the complaints about the Claimant’s behaviour fell into two parts: his behaviour during his previous period as a student at the University i.e. in 2005-2008 and his behaviour at the enrolment session on 23rd September 2009. In this response, the Claimant focussed on the former. 

38.	The Claimant then argued that it was the Defendant itself which pleaded that the individual publishers of each of the 6 publications were under a social or moral duty to publish. This was part of its argument that each publication took place on an occasion of qualified privilege. But if it was Ms Daunton’s complaint about the Claimant to the Registry which set off this chain of events, it would have been apparent to a reasonable person in her position that there was a significant risk that her words would be repeated. Accordingly, the Claimant would argue, she was jointly responsible for those republications and her malice would defeat the Defendant’s plea of qualified privilege.

39.	There is, however, a fundamental problem for the Claimant with this line of reasoning. He needs to establish that there is at least a triable issue as to whether Ms Daunton used the words that he attributes to her or words to the same effect. It is not necessary for him to show that Ms Daunton’s words were repeated verbatim: slight differences will be unimportant. 

40.	In her email of 24th September to the incoming and outgoing deans she had said that she had spoken to the Associate Head of the Law School about a student (whom she did not name). He had indicated that the student was “very difficult and very challenging in a negative sense throughout his time in the law school.” But this is different language from that used by Ms Williams in her email of 1st October 2009 when she said the Claimant had been disruptive and aggressive at times. The difference between “difficult and challenging in a negative sense” and “disruptive and aggressive” on the other is not slight. It is significant. The Claimant himself appears to appreciate the difference. He has not chosen to include Ms Daunton’s own email among the various publications on which he sues. 

41.	The Claimant observes that Ms Daunton said nothing to correct the expression “aggressively or disruptively” in the email of 2nd October 2009 from Ms Bentley Webb when it was copied to her. But Ms Bentley-Webb did not attribute that expression to Ms Daunton. It is unclear from the evidence before me whether Ms Daunton was also sent Ms Williams’ email of 1st October to which Ms Bentley-Webb was replying. But if she was, the same comment can be made. Ms Williams did not say, “I have been told by Ms Daunt that the Claimant was aggressive and disruptive during his time at the Law School” or words to that effect. In these circumstances, Ms Daunton’s failure to comment is nothing to the point. At one point in his (first) skeleton argument for this appeal, the Claimant submitted that when Ms Daunton sent an acknowledgement of this email at 13.12 on 2nd October 2009 she herself republished the first and second libels about him. But his particulars of claim (even as amended) did not rely on Ms Daunton’s email as a yet further cause of action and he has not sought permission to re-amend the particulars to add this matter. 

42.	In its defence, the Defendant said, “Ms Daunton sought further advice from the Academic Registry. In turn, Ms Williams contacted Ms Bentley-Webb … seeking advice on the situation which had been reported to her.” In his letter of 9th March 2011 the Claimant sought further information as to the source of Ms Williams’ information that he had been disruptive and aggressive in his time at the Law School. The Defendant responded, “There is no direct source as such. The information provided to the Academic Registry that led to Ms Williams’ email of 1 October 2009 came from both the Business School and the Law School via the Business School.” In his second request for further information of 22nd March 2011, the Claimant asked whether Ms Daunton told the Academic Registry specifically either Mr Callaway or Ms Williams or Hywel Nash that he had been disruptive and aggressive at time at the Law School. The Defendant responded that this was not necessary or proportionate to enable the Claimant to prepare his own case or understand the case he had to meet. The Defendant added that in any case, Ms Daunton did not recall the precise words which she used. As it happens in her evidence to the 3rd Stage Panel Ms Daunton denied that she used the words aggressive and disruptive to describe the Claimant’s behaviour in his time at the Law School to Ms Williams. I accept that for the purpose of deciding whether the Master was right to dispose of the claim summarily, evidence from Ms Daunton herself would be of very limited importance if there were contrary evidence, but in this case I consider that there is not.

43.	The Claimant submits that it is at least arguable from all of this that Ms Daunton must have used the words he attributes to her. However, I do not accept this. Ms Williams did not attribute the expression to Ms Daunton. Her expression was different from the ones which Ms Daunton had used on 24th September. The Claimant has the burden of proof on this issue. It is for him to show that Ms Daunton was jointly responsible for Ms Williams’ email and therefore her alleged malice is material to defeat the plea of qualified privilege. To do that he must show (amongst other things) that what Ms Williams said in her email was a republication of words which Ms Daunton herself had used (or words to a like effect). On the evidence before me I do not consider that a jury could properly find that he has discharged that burden.

44.	Accordingly, I consider that the Master was correct to strike out or give summary judgment in relation to the first publication for the reason which he did.

45.	The second publication was the email in reply from Ms Bentley-Webb. This also used the adjectives ‘aggressive’ and ‘disruptive’. But that was, presumably, because they were used in Ms Williams’ email to which she was responding. If, as I have held, Ms Williams’ email was not a publication for which Ms Daunton can be held responsible, Ms Bentley-Webb’s reply cannot be either.

46.	Accordingly, I agree that the Master was right to strike out or give summary judgment in relation to the second publication for the reason which he did.

47.	The third publication did not take place until some three weeks later. It is far from clear whether the expression “abusive behaviour” related to the Claimant’s behaviour on 23rd September or during his 3 years as a student at the University. In any case, the Defence pleads that “Discussions about the Claimant’s conduct and his application for a place on the MSc HRM had continued during October 2009 between senior staff in the Academic Registry, the Business School and the Head of the Enquiries and Admissions Unit.”  The Reply does not challenge this part of the pleading and it is difficult to see how it could. Thus Mr Callaway  used terms which were different from those which Ms Daunton had used in her email of 24th September and different from those which the Claimant attributes to Ms Daunton saying to the Registry. Mr Callaway also had a number of other sources of information available to him apart from Ms Daunton. In my judgment Mr Callaway’s email is not arguably a re-publication of words that Ms Daunton had spoken or written and is not arguably a publication for which Ms Daunton is responsible.

48.	Thus, I agree that the Master was right to strike out the third cause of action for the reason which he gave.

49.	The fourth publication was the Stage 1 report on the Claimant’s complaint of disability discrimination. The original investigating officer was Mike Porch. He had a fairly brief meeting with Chris Hole on 8th March 2010. She recalled the Claimant’s “incongruent behaviour” at the induction event which had caused several students in the room to show concern. Some of these students had said to Ms Hole that if the Claimant was enrolling on the course then they were not happy to do so. In notes of this meeting the words “aggressive and irate” appear. The Claimant argues that they were part of Mr Porch’s aide memoire  about topics to raise with Ms Hole. In his draft report he said that the Claimant’s behaviour had been disturbing for both staff and students and led Ms Hole to have reservations as to the appropriateness of him for this course. It is fair to say that the words “aggressive and irate” do not appear in Mr Porch’s draft report in relation to Ms Hole. However, it does record Phil Cribbs, a student administration manager, saying that he had been present in another room on 23rd September, several staff members had expressed concerns about the Claimant’s behaviour that night and Rhian Griffiths had mentioned “aggressive behaviour” to him.    
 
50.	Mr Porch was not, however, able to complete the report and the responsibility for doing so was passed on to Ms Caryn Hill.  She gathered witness statements from the members of staff who had been at the enrolment event with the Claimant. On 1st April 2010 Sian Hill said 
“I found Keith’s behaviour to be quite threatening. I was sat in very close proximity to him, as I was waiting to enrol him, and I moved after a while as I felt very uncomfortable.
He couldn’t seem to grasp what Chris was saying to him about when modules would be taking place, even though she was very clear and concise, and extremely patient.
There were some other HRM students in the room and they too moved to a corner and looked uncomfortable. The whole situation was quite distressing, and I felt very uncomfortable and scared at times as to what he could do next.”
51.	On the same day, Rhian Griffiths said:
“Keith’s behaviour at the HRM induction event was rather unusual. He didn’t appear to understand Chris’ very clear instructions and guidance. He was a little aggressive and uncompromising which I found highly unnecessary considering Chris was very patient and helpful towards him. I found his behaviour rather disruptive to the rest of the cohort enrolling that evening. The student I was enrolling at the time did express to me that she felt a little unnerved by his behaviour (as I did).”
52.	On 8th April 2010 Chris Hole said 
“Sorry for the delay in my reply – I have been thinking about this – it’s tricky to be ‘explicit’ after such a long time, even though it was memorable as an incident (it was actually in October so is now a good 5 months ago!)
Never-the- less, the following observations and feelings are offered in the spirit of seeking an appropriate resolution
In terms of general observations –
The enrolment event was running a little less smoothly than I would have liked it to have been due to room changes – but Keith’s behaviour seemed ‘disproportionate’ to the circumstances.
He queried a number of elements of the enrolment form he was being asked to complete in a very challenging manner
Sorry, I can’t remember the specific details, but I do recall that I found the nature of his questioning rather bewildering…. (i.e. not that he didn’t understand the questions, but he was challenging why we needed to know)
He also challenged the process itself and did not accept the explanations offered. NB I did not get any sense of him not understanding the issues – indeed, he is very familiar with our enrolment processes as he has completed a number of enrolments with us; rather he seemed determined to argue/challenge at every juncture.
When I sensed that the nature of this challenge was moving from the assertive to aggressive, I felt it inappropriate to continue with Keith’s enrolment there and then.
Moreover, I had a group of students who were attending the induction event who had already been waiting for an additional 20 minutes or so whilst I was trying to manage Keith’s concerns. (NB They had been part of the same enrolment process and I had asked them to wait in another classroom as they were obviously affected by Keith’s behaviour in the main enrolment room)
I seem to recall that at least one of my female colleagues in the room had left at this point to seek support as she felt unnerved.
I also remember having to manage the other aforementioned students who went on to enrol…….they spoke of feeling scared and distressed at the events they had witnessed.
In terms of how I felt…
I do recall feeling not a little vulnerable at the time and, upon reflection, at a loss as to what else to do. The situation played on my mind sufficiently that I had a very disturbed night and I referred the incident to my Divisional Head first thing the following morning, where the observations and feelings you are now seeking were recounted.”
53.	It will be recalled that the passage in the report which was prepared by Ms Hill but signed by Samantha Green was “the behaviour of the student witnessed at the induction event has been described as aggressive and threatening. Several witness statements corroborate this.” 

54.	In my judgment it is quite plain that Ms Hill or Ms Green was intending to refer to these three witness statements which I have set out above. Their report was a summary of those statements. It was not a reference back to anything that Ms Daunton may have said. Ms Daunton, of course, was not at the enrolment event herself. Accordingly, in my view it is not arguable that these words were a republication of anything that Ms Daunton may have said or written previously. More fundamentally, the words complained of in this report concerned exclusively the Claimant’s behaviour at the enrolment event. They did not relate to his previous time in the University’s Law School. Ms Daunton was not arguably responsible for the publication of the words complained of in the Stage 1 report. 

55.	The 5th Publication is the Stage 2 report written by Ms Morton. The words complained of in that report are “At enrolment staff experienced your behaviour as threatening and aggressive – their words – and some students were alarmed.”

56.	My comments in relation to the Stage 1 report apply equally in this context. In my judgment it is quite plain that Ms Morton was intending to summarise the accounts of the witnesses who had provided statements at stage 1. Ms Morton had also herself met with (among others) Ms Hole. It is possible that Ms Hole added to what she had said in her statement. I do not know and it does not matter. What is clear is that it is the accounts of those witnesses to whom Ms Morton was referring. It was not a reference to anything Ms Daunton may have said previously. Furthermore, the words complained of again related to the Claimant’s behaviour on 23rd September 2009. They did not relate to his period in the Law School. Ms Morton touched on this subject elsewhere in her report, but the Claimant has not objected to the words she used in that context. It is unarguable that this was a publication for which Ms Daunton had any responsibility.

57.	The panel which considered Stage 3 of the complaint process heard evidence from Ms Daunton amongst others. It also had the documentary evidence which had been gathered at an earlier stage. The report recorded that Ms Daunton said that when Ms Hole came to see her on the day after the enrolment event she was “visibly upset and distressed.” The report also noted that she had spoken to Mr Owen, the Associate Head of the Law School who had said that he would provide a factual but not an evaluative reference for the Claimant. She said that she had queried this with Mr Owen and he outlined some concerns that he was aware of regarding the Claimant’s behaviour during his time at the Law School. Ms Daunton said that Chris Hole had said the Claimant was aggressive and threatening and that she (Ms Hole) had felt threatened. Ms Daunton had told the Panel she had no reason to believe otherwise. The words which the Claimant complains of were, as I have quoted in paragraph 22 above. He would argue that they allude back to the passages which I have summarised.

58.	However, as I have emphasised, the original publication of which the Claimant complains was Ms Daunton’s alleged expression that he was aggressive and disruptive in his time at the Law School. The words of which the Claimant complains in Ms Marshall’s report do include “concerns about your previous behaviour” but this is not a republication of an allegation of aggression and disruption. Nor in the summary of Ms Daunton’s evidence to the panel earlier in the report is that expression used. Once again, therefore, Ms Marshall’s report is not arguably a republication of words which the Claimant attributes to Ms Daunton. Any alleged malice on the part of Ms Daunton cannot therefore taint the qualified privilege which this publication attracted.

59.	Thus I agree with the Master’s conclusion that the 4th, 5th and 6th publications were not ones for which Ms Daunton was responsible, although my reasons are not identical to his.

60. 	In the course of his submissions the Claimant argued a discrete point as to the form of the defence. He submitted that nowhere did the Defendant address his complaints about the description of his behaviour at the Law School as aggressive and disruptive. He submits that there is therefore, in accordance with CPR r.16.5(5), an implied admission of his case in this regard. This argument is misconceived. I am only concerned with the defence of qualified privilege. The Defendant in its Defence asserts that the first 5 publications were published on occasions of qualified privilege and in respect of none of them does the Claimant have an arguable case of malice. Those pleadings are comprehensive. There has been no need of an Amended Defence to the Amended Particulars of Claim because these were struck out. But the Defendant has made clear that its position is the same in respect of this publication. There is no scope for an implied admission by virtue of r.16.5.

Is there an arguable case that Ms Daunton was malicious?

61.	Because I have decided that it is not arguable that Ms Daunton used the words which the Claimant attributes to her about his time in the Law School and that she is not responsible for any of the 6 publications on which the Claimant sues, this issue does not strictly arise. But since the issue of whether she was arguably malicious in what she did say was fully ventilated before me, I turn to that question now.

62.	Although the Claimant’s pleading is prolix it is not entirely clear as to why he says that Ms Daunton was malicious, but it seems that he is alleging that she did not believe what she said was true. If that was the case, there is no doubt that malice would be established – see for instance Horrocks v Lowe [1975] AC 135. There is an exception to this where the publisher is under a duty to pass on a report whether or not the publisher believes it to be true, but the Defendant does not allege that it relies on that exception in connection with the present issue.

63.	The Claimant seeks to establish that Ms Daunton did not believe what she said to be true by the absence of evidence to support what she said. What she said related to (a) the Claimant’s time at the Law School and (b) the events at the enrolment event.

64.	As to the Claimant’s time at the Law School, I have already said that I do not consider it arguable that Ms Daunton used the words that he had then been disruptive and aggressive. Her email of 24th September to the Deans had said that Richard Owen had reported the Claimant as being “very difficult and very challenging in a negative sense throughout his time in the law school.” In her email of 29th September 2009 she described him as having a reputation as a very difficult student. The Claimant has not sued on these publications. A short answer, therefore, is that her honesty or good faith in using those expressions cannot be in issue.

65.	But if the Claimant were to argue that it was then I would conclude that there is no triable issue as to her being malicious in using those terms. As she and Mr Owen told the Stage 3 Panel, he had informed her of difficulties which the Law School had encountered with him. The Claimant alleged that this was only about objections which he had raised to an inconsistent approach of lecturers to the style of written assignments (he had complained that one required footnotes and another criticised him for using footnotes). But the concerns went wider than that. Ms Marshall’s report did not spell these out. The Panel’s summary in its report recorded that the Claimant had confirmed to the Panel the information given to Ms Daunton by Mr Owen. While there were different interpretations which could be put on some aspects of the Claimant’s behaviour, the Panel considered that Mr Owen had given Ms Daunton a fair and honest account and this did not allay her concerns about the Claimant’s behaviour. As I have already noted, the Panel did say that Mr Owen had told Ms Daunton that he would not provide an evaluative reference for the Claimant.

66.	The Defendant applied to adduce as fresh evidence, the  full transcripts of the evidence of Mr Owen and Ms Daunton to the Panel (the Claimant had put forward only extracts from these transcripts at the hearing before the Master).  Ms Wilson accepted that this evidence was available to the Defendant at the time of the hearing before the Master. It did not therefore satisfy one of the requirements in Ladd v Marshall [1954] 1 WLR 1489. However, as was said in Hertfordshire Investments Ltd v Bubb [2000] 1 WLR 2318 at 2325 the power of an appellate court to receive fresh evidence is now governed by CPR 52.11(2). It is no longer necessary to show “special grounds”. The Ladd v Marshall principles remain relevant considerations but the discretion must be exercised in accordance with the overriding objective of doing justice. 

67.	In this case, I consider that justice does require me to take account of the additional transcripts. I bear in mind that these are transcripts of hearings at which the Claimant was present and took an active part. He does not question their accuracy. He has put forward extracts from them before the Master, but the fuller record gives a more complete picture. They amplify what the Panel was referring to in its report. There is no injustice to the Claimant if this additional evidence is admitted.

68.	The transcript of the evidence of Mr Owen shows that the concerns which the Law School had did go beyond his challenge to the marks which he had received in an assignment. Mr Owen had had concerns about his behaviour towards a female member of staff. She had been struggling with a data projector and he had lifted her. This had left the member of staff feeling uncomfortable. The Claimant had on more than one occasion behaved in supermarkets in a way which triggered a confrontation. That, too, had led Mr Owen to question his behaviour. There had been another incident in a class which Mr Owen recounted which he thought had left some students showing signs of discomfort.

69.	In these circumstances, there would be no case fit to be left to a jury that Ms Daunton did not believe it to be true that the Claimant had gained a reputation as a very difficult or challenging student.

70.	In her email of 29th September to Ms Moggridge, Ms Daunton did describe the Claimant’s behaviour as threatening and disruptive during the enrolment process. Does the Claimant have an arguable case that she did not believe this to be true?

71.	In my judgment he does not. The day after the enrolment event Ms Hole spoke to Ms Daunton as her Divisional Head. I have quoted from her statement of 8th April 2010 at paragraph 52 above. She described the Claimant’s behaviour as moving from assertive to aggressive, that she felt it necessary to move other students into another room because they were affected by the Claimant’s behaviour. One of her colleagues had felt unnerved. Students had spoken to her of feeling scared and distressed. She herself had felt not a little vulnerable and had had a very disturbed night. Hayley Burns, the Head of the Quality Unit at the University provided a witness statement for the Defendant’s application. Ms Burns says that she had spoken to Ms Hole as to what she had said to Ms Daunton the following day. Ms Hole said she described his behaviour to Ms Daunton as “aggressive” and “inappropriate” and remarks of one of the other students being “shaken” or “afraid”. The account which Ms Daunton herself gave to the Stage 3 Panel was that Ms Hole had said the Claimant behaved in a very aggressive manner, that he had been intimidating and very threatening and she had felt threatened.  The students had expressed disquiet about what had taken place. Ms Daunton recalled that Ms Hole had been very upset by what had happened. 

72.	The Claimant is right to observe that the other two members of staff who were present at the enrolment event did not speak to Ms Daunton. However, the picture which their statements paint is consistent with that described by Ms Hole. It is therefore the more likely that Ms Hole has correctly stated what she reported to Ms Daunton.

73.	The Claimant argues that the description of his behaviour has been ratcheted up over time.  He notes that in her email of 24th September 2009 Ms Daunton said that the members of staff had “felt uncomfortable” in the Claimant’s presence as a result of his behaviour at the enrolment. Mr Owen, the Associate Head of the Law School, recalled her using the same expression a day or so later to describe the incident on the enrolment event. In a call to Ms Moggridge on 28th September 2009 she called it “concerning and disruptive”.  On 8th March 2010 Ms Hole had described the Claimant’s behaviour to Mr Porch in the course of his Stage 1 investigation as “incongruent”.  Even the statements provided to Ms Hill in the following month were, he notes,  qualified – “moving from assertive to aggressive” in Ms Hole’s words, “a little aggressive” as Ms Griffiths wrote, “quite threatening” as Sian Hill described it.  

74.	The Claimant also argues that Ms Daunton moved from describing his behaviour as making the staff feel quite uncomfortable to “disrupting and threatening” in her email of 29th September 2009 to Ms Moggridge and this was to be explained because Ms Daunton had since learned that the Claimant suffered from diabetes and had had a hypoglycaemic episode. She was, he submitted, deliberately exaggerating what had taken place.

75.	On this last point, Ms Wilson submitted that the email to Ms Moggridge had been sent at 10.57 on 29th September 2009. It was not until 17.54 on the same day that Ms Daunton wrote to Ms Gibson-Sweet to report that the Claimant’s disability had affected him. In a further email on the following day, Ms Daunton said that she had not yet informed the Registry of this piece of information because she had only just got it. Ms Wilson argued that a jury could infer Ms Daunton was unaware of the Claimant’s disability when she wrote to Ms Moggridge at 10.57. I did not find this persuasive (at least at the stage of a strike out/summary judgment application). Ms Daunton’s comment that she had “just got” the information about the Claimant’s condition could have referred to the morning, rather than specifically the evening of the previous day. The precise time that she received this information is unclear on the evidence.

76.	 Nonetheless, Ms Hole’s evidence as to what she told Ms Daunton on 25th September would be a strong rebuttal of the claim that Ms Daunton did not honestly believe that the Claimant’s behaviour had been threatening or aggressive or disruptive.  I must not forget that at a trial, the burden of proof would not be on the Defendant to show that this was her honest belief, but on the Claimant to prove that it was not. This is not a case (like, for instance, Kordowski v Hudson [2011] EWHC 2667 (QB)) where there was a relevant conflict of evidence and summary judgment was therefore inappropriate. The various terms used to describe the Claimant’s behaviour on that evening are not necessarily inconsistent. Bearing in mind the principles articulated by Eady J. in Seray-Wurie v The Charity Commission of England and Wales and which I have summarised above, I do not consider that the Claimant has a realistic prospect of being able to discharge this burden of proof.

77.	Accordingly, on this ground as well I would have struck out the claim and granted summary judgment to the Defendant.

Are the 4th, 5th and 6th Claims to be struck out on the Jameel ground?

78.	Given my conclusions on the issues which I have considered so far (and the remaining ones which I discuss below), it is not necessary for me to address this question. I only observe that the application notice objected to the 5th Claim on this ground. It was legitimate for the Defendant to extend it to the 6th Claim (since that only came into the picture as a result of the Claimant’s application to amend the Particulars of Claim to add this cause of action). I would, though, have needed persuading that it was open to the Defendant to extend its argument on this appeal to the 4th Claim as well.

Is it arguable that the plea of qualified privilege could be defeated on grounds of improper purpose?

79.	The Claimant submits that the employees of the Defendant who published at least the first 3 publications did so as part of a scheme to find a sham means for excluding him from the University. This was an improper purpose and, accordingly, the publications are not protected by qualified privilege. He points in particular to the email from Ms Daunton to the two Deans on 25th September 2009 and which I have quoted at paragraph 8 above and Ms Gibson-Sweet’s reply a few hours later on the same day. 

80.	I do not accept that this is an argument with any merit. To some extent it covers the same ground as the Claimant’s case that Ms Daunton was malicious. I have said that case is not reasonably arguable.

81.	In her email of 25th September 2009 Ms Daunton set out objections to each of the three courses which had been provisionally proposed by the Academic Registry. The third alternative was to “indicate to the student that his behaviour during the induction session was such that his application is declined.” Ms Daunton recognised that there might be difficulty in gathering the evidence from those who were present at the time. In her reply Ms Gibson-Sweet advised going for this third option, but recognised as well that there might be difficulty in gathering evidence. However, this does not show an improper purpose. Ms Gibson-Sweet said expressly that the real reason for objecting to the Claimant was that “we feel that he will disrupt the holistic experience for other students.” 

82.	The Claimant alleged that the first publication of which he complains was searching for a way of excluding him that would avoid liability under the Disability Discrimination Act. But it is not improper for an institution such as the University to take advice from its Equalities Manager as to the impact of legislation such as the DDA and courses of action which might be adopted which would not attract liability.  Likewise, there is nothing improper in the Equalities Manager responding to such a request.

83.	The Claimant argued that the third publication was part of an earlier discussion   in which the Registry had suggested making up reasons for excluding the Claimant. I do not accept that this is a line which is properly arguable. Mr Callaway was giving his view that a student who had behaved abusively should not be admitted or enrolled. But, as the next sentence went on, the premise was that there was written and witnessed evidence of inappropriate behaviour.

84.	The Claimant’s case that the 4th, 5th and 6th publications were for an improper purpose was in reality a claim that their authors knew that what they said was untrue and for that reason they were malicious. I turn to that next.

Is it arguable that the authors of the 4th, 5th and 6th publications were malicious?

85.	In connection with the Stage 1 report, the Claimant argued that Ms Green was wrong to say that the delays in him registering for the course in the autumn of 2009 were not intentional and Ms Green was lying when she said that they were unintentional. There is no basis for the allegation of lying, but anyway the words complained of relate to the characterisation of the behaviour of the Claimant at the enrolment event as aggressive and threatening. I think that the Claimant argued that this was malicious because it was not supported by the witness statements and Ms Green must have known that. If this was his case, it is wholly unarguable. I have set out the accounts of the members of staff above. They would allow Ms Green to characterise them in the way that she did. 

86.	The Claimant’s attack on Ms Morton, the author of the Stage 2 report and the 5th publication pleaded, appeared to have a similar basis. My response is the same. The witness statements regarding the enrolment event mean that it is hopeless for the Claimant to argue that Ms Morton did not believe her characterisation of his behaviour was true. Her comments about delay do not bear on the words complained of in this part of the Claimant’s cause of action. In any event, Ms Morton did make a number of recommendations in the Claimant’s favour which mean that an allegation of malice on her part would have even less chance of success.

87.	The Claimant’s case that Ms Marshall was malicious was because he said that she knew what she was saying was untrue. He alleges that he was guilty of wilful blindness in not calling Ms Hole to give evidence before the panel and she constructed her decision so as deliberately to avoid the University being liable for disability discrimination. Since this 6th cause of action had only been added to the Particulars of Claim with the permission of the Master and had then been struck out along with the rest of his case, there had not been the opportunity for the defendant to file a defence or the Claimant to file a reply. Nonetheless, it was incumbent on the Claimant to explain in support of this ground of appeal what particulars of malice he would be able to plead. In my judgment he wholly failed to do this. Allegations of malice are, as Eady J. said, the equivalent of a charge of dishonesty. They will be struck out unless they are properly particularised. The Claimant was unable to indicate any particulars from which a jury could properly conclude that Ms Marshall was malicious in the ways that he alleged.

88.	Accordingly, I refuse permission to the Claimant to rely on the additional grounds of appeal that relate to the alleged improper purpose of the publications and the alleged malice of other employees of the Defendant.

Whether the Defendant gave proper notice of the grounds of its application
89.	The Claimant alleges that he was unaware that the Defendant was going to argue at the hearing before the Master that his plea of malice was deficient because it did not disclose an arguable case that Ms Daunton was responsible for the publications of which he complained. He refers to CPR 24PD 2(3) (a) which requires an applicant to identify concisely any point of law on which he relies. He also refers to a passage in Gatley on Libel and Slander paragraph 32.22 which says, 

“In the light of the decision in Armstrong v Times Newspapers Ltd [2005] EWCA Civ 1007, [2005] EMLR 33, the application notice [for a strike out or summary judgment] should set out the grounds for the application in clear terms: generalities risk taking the respondent by surprise, and ambushes will not be tolerated. In Armstrong, the claimant’s notice of application had given only the most general grounds for the application, namely that the defendants had no real prospect of successfully establishing a Reynolds defence, so the defendants decided that there was no need to put in evidence. Shortly before the hearing, the claimant served a substantial skeleton argument which raised issues as to the truth of a number of matters asserted in the defence. Had the claimant set out the grounds of the application for summary judgment in the notice, the defendants would have been able to decide what evidence to adduce, in order to show the judge that there were evidential issues fit for trial, but as it was, the claimant’s approach was ‘entirely unsuitable’, and the defendants faced a mini-trial for which they were entirely unprepared. The Court of Appeal allowed their appeal and restored the defence of qualified privilege.”

90.	In my judgment there are two short responses to this ground of appeal. The first is that the notice of application did say (amongst other things) that the plea of malice “fails to allege malice against any individual for whom the Defendant is vicariously liable and who was responsible for all or any of the five publications complained of…Further or alternatively there is no issue of malice fit to be left to a jury.” That properly alerted the Claimant to the argument that he needed to be able to show a case with a real prospect of success in relation to each publication that at least one of the Defendant’s employees was both malicious and responsible for the publication. 

91.	The Claimant argued that the application notice should have specifically drawn attention to the Defendant’s reliance on B v N & L [2002] EWHC 1692 (QB) in which Eady J. gave examples of how a defendant might be liable for a re-publication by the original publishee. However, that confuses the role of the application notice and that of the skeleton argument. This level of detail is appropriate for a skeleton. It is not necessary in the application notice.

92.	The second response is that, even if the Claimant had a point about being given inadequate notice of the Defendant’s case before the Master, he was well aware of it by the time this appeal was heard. On the hearing before me, he had a proper opportunity to deploy all the arguments he wished in response to the Defendant’s case. Armstrong was different. As the passage from Gatley makes clear, the lack of notice in that case meant that the Defendant had not assembled and put before the court the evidence which it would otherwise have wished to do.  That was not a deficit which could be remedied on an appeal. Besides, the court said that a mini-trial, of the kind which would then have been involved, was an inappropriate exercise on an application for summary judgment. In the present case, the Claimant has not argued that there was further evidence which he would have wished to put in had he properly understood the nature of the Defendant’s case. The Claimant argued that the Court should, in effect, discipline the Defendant for not observing the procedural requirement of giving proper notice of the detail of its application. I have already said that I reject the allegation of inadequate notice, but I maintain my second response as well despite this argument. The Court must apply the overriding objective which is to deal with a case justly - CPR r.1.1. If as I have concluded after hearing all of the Claimant’s arguments, his plea of malice has no real prospect of success, it would be disproportionate and contrary to the aim of dealing with cases fairly and expeditiously to allow the appeal and permit the claim to proceed to a trial which the Claimant has no real prospect of winning. 

93.	I regard this ground of appeal as without merit. I refuse the Claimant’s renewed application for it to be included.

94.	In the course of his submissions the Claimant argued that this was a complex case and, as such, it should not have been struck out or led to summary judgment. He referred to the familiar passage in Three Rivers DC v Bank of England (No.3) [2003] AC 1 at [95]. So far as this was a discrete ground of appeal, I reject it. This was not a particularly complex case. When properly analysed, the issues are straightforward. In the language of r.24.2 there was no real prospect of the Claimant succeeding on his plea of malice and there was no other compelling reason why the action should proceed to trial.

Overall conclusions

95.	I refuse the Claimant permission to enlarge his grounds of appeal. 

96.	This appeal is dismissed.

97.	I refuse to grant the relief sought in the Claimant’s application notice of 17th October 2011.