Downtex v Flatley: CA 2 Oct 2003

The claimants sought damages for defamation and breach of contract. The claimants had purchased a business from the defendant, which contract included a clause requiring the defendant to say nothing damaging about the business. The defendant asserted qualified privilege. The defendant was alleged to have told suppliers, by means of anonymous letters, that they were in financial difficulties.
Held: The defence of qualified privilege is highly fact sensitive. The test of whether the defence had a real rather than fanciful prospect of success is clear and needs no amplification. The test of whether qualified privilege exists is a matter for the judge rather than jury, and it is therefore more appropriate for a judge on a strike out application to make his assessment. The Court will look at the underlying facts in order to determine whether the statements made were objectively justified so as to require the protection of qualified privilege. The defence was bad in law, and struck out.
Potter LJ said: ‘the summary procedure should not involve the conduct of a mini-trial in a case where the defence advanced is ‘fact sensitive’ and there is reason to think that further facts may emerge or require investigation at trial before a fair and/or final conclusion can be reached. However, where there is sufficient material before the court on the pleadings or in evidence to allow the court to form a confident view upon the prospects of success for the defence advanced and the case is not fact sensitive in the sense that the essentials have all been deployed and there is no reason to think that the defendant will be in a position to advance his case to any significant extent at trial, then the court should not shy away from careful consideration and analysis of the facts relied on in order to decide whether the line of defence advanced is indeed no more than fanciful.’


Lord Justice Chadwick, Lord Justice Potter, Mr Justice Cresswell


[2003] EWCA Civ 1282




Civil Procedure Rules 24


England and Wales


CitedToogood v Spyring 1834
Qualified Privilege of Bona Fide Words Under Duty
The defence of qualified privilege arises where the statement in question was bona fide and without malicious intent to injure: ‘In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the . .
CitedAdam v Ward HL 1917
The plaintiff, Major Adam MP, falsely attacked General Scobell in a speech in the House of Commons, thus bringing his charge into the national arena. The Army Council investigated the charge, rejected it and directed their secretary, Sir E Ward, the . .
CitedSwain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
CitedKearns and Others v The General Council of the Bar CA 17-Mar-2003
The claimants had sought to recover from the General Council of the Bar damages for libel in a communication from the head of the Bar Council’s Professional Standards and Legal Services Department to all heads of chambers, their senior clerks and . .
CitedJames Gilbert Ltd v MGN Ltd 2000
The test to be applied to the question of summary disposal under s.8 of the 1996 Act is the same as that under CPR Part 24. . .
CitedComarek v Ramco Energy QBD 2002
A company in business in Prague had sent a document defamatory of the claimants with whom they were in a business relationship to the British Ambassador in Prague and asked for his assistance.
Held: On the relevance of ‘common interest ‘ to . .
CitedHebditch v MacIlwaine CA 1894
On the defence of common interest such as to establish qualified privilege: ‘The defendant cannot create a privilege for himself because of honest belief on his part that the person to whom he made a slanderous communication had an interest or duty . .

Cited by:

See AlsoDowntex Plc v Flatley QBD 27-Feb-2004
. .
CitedClift v Slough Borough Council and Another QBD 6-Jul-2009
The claimant sought damages for defamation. The council had decided that she had threatened a member of staff and notified various people, and entered her name on a violent persons register. She alleged malice, the council pleaded justification and . .
CitedErnst and Young Llp and Others v Coomber and Another QBD 8-Nov-2010
The claimants, Coomber, claimed in conspiracy, and the defendants claimed in defamation. Various applications were made. The claimants had promoted a development project, but their bankers went into administration. The bank being unable to promise . .
CitedKordowski v Hudson QBD 21-Oct-2011
The claimant alleged that the defendant, the chief executive of the Law Society had slandered him in a conversation with another senior lawyer. The claimant now sought summary judgment against the claimant, saying that the defence had no realistic . .
Lists of cited by and citing cases may be incomplete.

Defamation, Contract, Civil Procedure Rules

Updated: 08 June 2022; Ref: scu.186626