Horrocks v Lowe [1975] AC 135

Key Point

  • The defence of qualified privilege does not apply where the defendant’s statement is motivated by malice, malice meaning that the desire to injure is the dominant motive of the publication
  • While lack of honest belief or recklessness as to the truth conclusively proves malice, malice may be proven even where there was honest belief in the truth where the dominant motive was for some private advantage unconnected to the duty or interest justifying qualified privilege

Facts

  • At a meeting of the Bolton Borough Council, the defendant Lowe (D) made a speech criticising the conduct of the claimant Horrocks (C), both as a member of the Management and Finance Committee of the council (the “Committee”) and as chairman of a company, Land Development and Building Ltd
  • D called for C’s removal from the Committee
  • C brought an action for slander, but D sought to rely on a defence of qualified privilege
  • C appealed on the grounds that a defence of qualified privilege would be defeated because of malice on D’s part

Held (House of Lords)

  • Appeal dismissed; D had not abused his qualified privilege because he held an honest and positive belief in the truth of his statement
  • As such, malice did not apply so as to defeat the defence of qualified privilege in this case

Lord Diplock

Malice

  • “.. 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”: p. 149
  • Lack of honest belief or recklessness as to the truth of the defamatory statement is conclusive proof of malice, but mere indifference to the truth is not
    • “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.”: p. 150A
    • “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. “: p. 150B
  • However, malice may be proven even if there was honest belief in the truth in certain cases
    • “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 law.”: p. 150C
    • “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.”: p. 150C
    • “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.”: p. 150C
  • However, juries should be slow to hold that there was malice where there was honest belief in the truth
    • “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.”: p. 151A

Current case

  • “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.”: p. 153