Summary judgment granted for Defendant in claim over email sent during litigation: an occasion of ‘obvious privilege’

On 24 July 2025, Richard Spearman KC, sitting as a Deputy High Court Judge, awarded summary judgment in favour of the Defendant in Daniel McAteer v Richard Thoburn [2025] EWHC 1900 (KB) This was a claim brought for defamation and malicious falsehood arising out of an email sent by the Defendant in October 2023 in the context of then-extant litigation between the Claimant and a third-party company in which the Defendant was a shareholder.

Background

The parties had been on opposing sides of a dispute relating to the liquidation of a company. Mr McAteer had sought to challenge and change the course of the liquidation through litigation. After failing in that objective at first instance (before Insolvency and Companies Court Judge Jones in May 2023), Mr McAteer launched an appeal. Whilst Mr McAteer’s appeal was pending, he initiated an exchange of correspondence about the proceedings with eight shareholders in the company and the company’s liquidators. During the course of this, he invited the shareholders to endorse a proposed consent order which would have seen the liquidators concede certain issues in his favour, removing the need for his then extant appeal. Mr McAteer asked for anyone with any queries to contact him and asserted that failure to respond would be taken by him to mean that there was no objection to his proposed course. Mr Thoburn replied by email of 25 October 2023, keeping all the recipients of the Claimant’s email in copy. The statements made by Mr Thoburn in this responsive email became the subject of claims by Mr McAteer in defamation and malicious falsehood, issued almost a year later, on the last day within limitation. In the meantime, Mr McAteer’s appeal in the underlying dispute was heard by Sir Anthony Mann, and ultimately dismissed.

The Defendant in the defamation claim Mr Thoburn made an application for summary judgment and/or the striking out of the Claimant Mr McAteer’s libel and malicious falsehood claims on 25 April 2025, on grounds that (i) the Claimant was unable to show any serious harm to reputation (a necessary ingredient of a libel claim), (ii) the email was sent on an occasion of qualified privilege and there was no realistic prospect of the Claimant establishing malice (and for which reason, the malicious falsehood claim should also fail) and/or (iii) that neither the libel claim nor the malicious falsehood claims, as pleaded, disclosed reasonable grounds for bringing the action. The application was heard before on 27 June 2025.

The Judgment

The Judge found for the Defendant on every aspect of the application. In summary:

Strike out

The pleaded case on serious harm to reputation was formulaic and contained no particulars. The pleaded case on malice (in the malicious falsehood claim) was also formulaic, consisting of a recital of the legal requirements of malice, without setting out any facts. These were not minor or inconsequential deficiencies, and both claims therefore stood be struck out pursuant to CPR 3.4(2)(a).

Summary judgment: serious harm

By the time of the hearing, two witness statements had been filed by the Claimant in response to the application. Much of that evidence concerned alleged damage to his economic interests; there was little mention of the email complained of, but instead complaint about the alleged conduct of the Defendant and others over a much longer period. The Claimant’s suggestion that the email had lowered him in the eyes of right-thinking members of society was a purely formulaic assertion, which was at odds with the facts of the case; this was not a case of publication to the world at large, but to a handful of persons. During the course of the hearing, the Claimant confirmed that he had made no attempt to contact any of the addressees of the email to ask what effect it had on their view of him and his reputation. It was clear to the Judge that the Claimant had no evidence that the publication of the email had caused serious harm to his reputation or that it was likely to do so. This was unsurprising both in light of the unsubstantiated way in which his pleading was drafted and the context in which the email was written and sent; it was fanciful to suggest that those addressees who took the trouble to read and digest the email would not already have formed settled views about the Claimant and his conduct. There were also insuperable problems with the Claimant’s suggestion that the email had caused him adverse economic consequences.

Summary judgment: qualified privilege and malice

The Judge agreed with the Defendant’s submission that it was difficult to conceive of a more obviously privileged occasion than, in the course of proceedings, the publication of views concerning contentious proposals for resolution of the dispute, where those views are sent both to the opposing side and those on the same side. The Judge considered that the necessary reciprocity of interest was ‘manifestly in existence’ such that the Claimant had no realistic prospect of succeeding on the issue.

As to malice, the Claimant’s pleaded case fell far short of meeting the exacting criteria required by the authorities. The approach to pleading and proof of allegations of malice is to be treated as akin to fraud; mere assertion will not do. The Claimant’s evidence did not improve on his pleaded position. There was, accordingly, no reason to consider that the Claimant would be likely to answer the defence of qualified privilege on the libel claim, or to prove malice for the purposes of the claim in malicious falsehood.

Richard Thoburn was represented by Max Campbell and Gervase de Wilde of 5RB.