Underhill v Corser & Anor

Factual and Procedural Background

The Plaintiff brought a libel claim concerning an editorial ("the Editorial") published in the Autumn 2007 issue of "King's Messenger" ("KM"), the magazine of Company A, a charitable society dedicated to the preservation and exhibition of a historic locomotive. Both Defendants are members of Company A; the Second Defendant authored the Editorial. The Plaintiff was formerly Chairman and Engineering Manager of Company A until his resignation in October 2007, following disputes arising from his dual role as a volunteer and as an employee of The Hospital providing engineering services to Company A, which led to allegations of conflicts of interest.

The court ordered a trial by judge alone on preliminary issues including whether the words were published to non-members, whether any such publications were on occasions of qualified privilege, and whether the First Defendant bore legal responsibility for the publications. The scope of the issues was narrowed to focus on distribution of KM to 16 non-members on a "non-members mailing list". The Plaintiff also sued the Second Defendant over three letters to a member of Company A, though this hearing focused primarily on the Editorial.

The Editorial contained serious allegations against the Plaintiff, implying dishonesty and misappropriation of Company A’s funds. The Defendants admitted publication to members on occasions of qualified privilege but denied such privilege applied to non-members. The Defendants pleaded qualified privilege as to non-members on the basis of an existing relationship and legitimate interest in receiving the publication. The Plaintiff contended this defence was defeated by malice.

Legal Issues Presented

1. Whether the words complained of were published to non-members, and if so, to whom and by what means.
2. Whether any of the publications to non-members were made on occasions of qualified privilege.
3. Whether the First Defendant is legally responsible for any of the publications complained of.

Arguments of the Parties

Plaintiff's Arguments

• The Editorial accused the Plaintiff of dishonest misappropriation of Company A’s funds.
• The First Defendant is responsible for publication because he read the draft Editorial and did nothing to prevent its publication, which amounts to consent or authorisation.
• The Defendants misled the Plaintiff about the extent of publication to non-members, withholding information about the non-members mailing list.
• The plea of qualified privilege is defeated by malice, and the publications to non-members were not privileged.
• The pursuit of the claim regarding non-member publications is justified despite the small number of recipients and absence of evidence of actual harm, as vindication is sought.

Defendants' Arguments

• The Second Defendant authored the Editorial and admitted publication to members on occasions of qualified privilege.
• The First Defendant is not liable merely by virtue of his Board membership; personal involvement in publication must be shown.
• The non-members mailing list recipients had existing relationships with Company A and legitimate interests in receiving KM, thus qualified privilege applies.
• The Editorial's subject matter was already in the public domain through specialist press reports and public statements.
• The Defendants denied publication to the public and non-members other than those on the mailing list, and initially withheld the non-members mailing list citing changes over time.
• The Defendants argued that the claim regarding publications to non-members is disproportionate and an abuse of process.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the legal responsibility for publication by applying established principles that liability requires knowing involvement or authorisation, not mere passive acquiescence. The First Defendant, who read the draft Editorial but did not intervene or authorise publication, was found not liable. The court distinguished previous cases where proprietors or publishers had control over defamatory material from the First Defendant’s role as a Board member without editorial control.

Regarding qualified privilege, the court applied the classic test requiring a reciprocal interest or duty between communicator and recipient. It found that non-members on the mailing list, including photographers and business contacts, did not have a sufficient interest in the Society’s financial affairs to justify qualified privilege. The court rejected the Defendants’ argument that existing relationships or awareness of press coverage conferred privilege, noting the absence of Reynolds privilege or a public interest defence.

The court considered evidence of publication to 16 non-members, finding that at least 13 likely read the Editorial. However, none had sufficient interest to attract qualified privilege, and the publication was not ancillary or incidental to privileged communications to members. The court also addressed procedural fairness and found that the Defendants’ failure to disclose the non-members mailing list and misleading pleadings impeded the Plaintiff’s case.

Finally, the court rejected the Defendants’ abuse of process argument, holding that the serious defamatory allegations justified proceeding with the claim despite the limited number of non-member recipients and the absence of evidence of actual harm.

Holding and Implications

The court’s final determinations on the preliminary issues were:

• Publication: The words complained of were published to approximately 13 non-members through the non-members mailing list.
• Qualified Privilege: None of the publications to non-members were made on occasions of qualified privilege.
• Responsibility: The First Defendant is not legally responsible for any of the publications complained of.

The direct effect of this decision is to allow the Plaintiff’s claim to proceed against the Second Defendant for publication to non-members without the defence of qualified privilege, while excluding liability of the First Defendant for publication. No new precedent was established beyond the application of established defamation principles to the facts. The decision clarifies the limits of qualified privilege in the context of publications to non-members with tenuous relationships to a society.