Horrocks v Lowe

Facts

Mr Lowe and Mr Horrocks were both members of Bolton borough council. At a meeting of the council Mr Lowe made a speech accusing Mr Horrocks of misconduct in relation to a matter of council business, in terms that were defamatory of him. Mr Horrocks sued for slander. It was accepted that the statements were made on an occasion of qualified privilege, so the question was whether Mr Lowe had been actuated by malice.

History

The trial judge found that Mr Lowe had believed that what he said was true, but held that he was nonetheless malicious because of his gross and unreasoning prejudice against Mr Horrocks, and gave judgment for Mr Horrocks. The Court of Appeal reversed that decision. Mr Horrocks appealed.

Issue

Whether a defendant who honestly believes the truth of a defamatory statement made on an occasion of qualified privilege may nonetheless be found to have acted with malice because his belief was the result of prejudice or was unreasonable.

Held

Appeal dismissed. Since Mr Lowe honestly believed what he said, the defence of qualified privilege was not defeated by malice.

Ratio

• Qualified privilege is defeated by malice, meaning that the defendant used the privileged occasion for a purpose other than that for which the privilege is accorded, the dominant improper motive commonly being a desire to injure the claimant; if the defendant did not believe what he said was true, or was recklessly indifferent to its truth, that will generally be conclusive of malice.
• Conversely, a defendant who positively believes in the truth of what he says is generally entitled to the protection of the privilege, however irrational, prejudiced or unreasonable his belief, and carelessness or impulsiveness in reaching it is not malice; the court must not confuse an unreasoning belief with an absence of belief.

The judgments

Key reasoning

• Those who speak on privileged occasions, such as councillors in council debates, often hold strong and partisan views; to deny protection to those whose honest beliefs are ill-founded or prejudiced would undermine the freedom of speech the privilege exists to protect.
• Malice concerns the state of mind of the defendant, so the question is not whether a reasonable person would have held the belief but whether the defendant held it and spoke for the purpose for which the privilege is given.
• Even where a defendant believes the statement to be true, the privilege may be lost if his dominant motive was not to perform the relevant duty or protect the relevant interest but some improper purpose such as spite or personal advantage; but such cases will be rare.
• The trial judge, having found honest belief and no improper dominant motive, ought to have held the privilege intact; his finding of gross prejudice could not by itself establish malice.

Where it fits in the module

On the Defamation Act 2013, section 6, which protects statements in scientific or academic peer-reviewed journals unless shown to be made with malice, Horrocks v Lowe supplies the meaning of malice the courts are likely to apply. It frames the debate about how far defamation law should protect honest but careless or prejudiced speech in the interests of freedom of expression, and the balance between the subjective malice test and protection of reputation.

Criticisms

• A purely subjective test may protect speakers who make serious allegations with no reasonable basis, giving little weight to the reputational harm to the claimant.
• The distinction between an unreasoning belief and an absence of belief can be difficult to apply, making findings of malice heavily dependent on assessments of credibility.
• The emphasis on dominant motive is hard to apply where speakers have mixed purposes, as is common in political debate.