The Court of Appeal has allowed part of a barrister’s appeal against the dismissal of his defamation proceedings over a solicitor’s 2015 email about a booklet of appeal documents. It held that the email could reasonably be understood to mean that he had misrepresented facts and defaulted on a duty in the litigation. The court struck out his other pleaded meanings, which it found could not reasonably be attributed to the email, and declined to dismiss the remaining claim at this stage.
The proceedings arose from an appeal in a separate dispute over the construction of the barrister’s late father’s will. In November 2015, solicitor Emma Brennan emailed the barrister and copied the Supreme Court Office. She wrote that her client had not been served with a booklet of appeal and that she awaited it. The barrister alleged the email implied, among other things, that he was dishonest and had misled the court. The solicitor’s firm denied defamation and relied on qualified privilege, among other defences.
The High Court dismissed the proceedings, finding that the email was not reasonably capable of a defamatory meaning and that qualified privilege applied. The barrister appealed. The Court of Appeal agreed that the High Court had erred by resolving a factual dispute about whether the booklet had been sent in 2008. On a strike-out application, the Court of Appeal said, the barrister’s account had to be taken at its highest.
But the appeal court upheld the conclusion that the email could not reasonably bear most of the pleaded meanings, including that the barrister was dishonest, deceitful, unprofessional or unfit in his profession. It found one pleaded meaning remained arguable: that he had misrepresented the facts and defaulted on a duty as a party to litigation. Whether the email actually carried that meaning is for the eventual trier of fact.
The court also held that the High Court should not have decided the qualified-privilege defence on the strike-out motion, particularly where malice was pleaded and factual questions remained. It allowed the appeal to that extent, proposed striking out the portions of the claim based on meanings it found unstateable, and otherwise declined the relief sought by the respondent. The ruling did not decide whether the remaining meaning was defamatory in fact or whether the defence would succeed at trial.