Jan Cambridge v Guillermo Makin
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tomlinson,Lady Justice Black,Lord Justice Hughes |
| Judgment Date | 09 February 2012 |
| Neutral Citation | [2012] EWCA Civ 85 |
| Docket Number | Case No: A2/2011/0285 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 February 2012 |
[2012] EWCA Civ 85
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Tugendhat
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hughes
Lady Justice Black
and
Lord Justice Tomlinson
Case No: A2/2011/0285
Mr William Bennett (instructed by Kirwans LLP) for the Respondent
Mr Hugh Tomlinson QC and Mr David Hirst (instructed by Messrs Collyer Bristow LLP) for the Appellant
Hearing date : 3 November 2011
Introduction
At all times material to this action the Claimant held office as an unpaid non-executive director of a professional association. The Defendant was a member of that association. In a long and detailed reserved judgment delivered in January 2011 after a five day trial in November 2010, Tugendhat J decided that a statement agreed to be defamatory of the Claimant published by the Defendant in an email sent to many hundreds of persons in the profession in May 2007 was untrue and, save in respect of one of the three distinct categories of persons to whom it was sent, not published on an occasion attracting qualified privilege. The judge also decided that, in any event, the Defendant in publishing the email had been actuated by malice. The defamatory allegation was that the Claimant had abused her position as an office holder by acting on a conflict of interest to her own financial benefit. In respect of the libel, which the judge found to be particularly mean and humiliating, and which had undoubtedly caused the Claimant great personal distress, she having been in consequence regarded by her peers, quite wrongly, as having taken the opportunity afforded by her office to cause their destitution for her personal gain, he awarded damages of £30,000. This award took into account that the Claimant had already received an apology and compensation in the same amount, £30,000, from the GMB trade union on whose letter paper the libel was published, the Defendant acting in that regard as a committee member of the Interpreters and Translators Branch (ITB) of the union.
The Defendant, now Appellant, sought originally to challenge all of the judge's conclusions save only his assessment of damages. Permission to appeal was granted by Smith LJ on the papers on grounds relating to qualified privilege and malice but refused in relation to the defence of justification. The application for permission to appeal in respect of the latter has not been renewed. It is said on this appeal by Mr Hugh Tomlinson QC for the Appellant that in relation both to qualified privilege and malice the judge made fundamental errors in his analysis and approach. On the former he is said to have confused traditional common law qualified privilege and Reynolds privilege, wrongly importing into the former considerations of "responsibility" which have in that context no place. His finding of malice is said to be insupportable, to have failed to take into account that the Appellant was not the author of the email and to be reliant upon two clearly incorrect findings to the effect that the allegation in the email was novel and that the Appellant had made no enquiries as to its correctness.
The facts in outline
The full story is set out in the judge's judgment, 2011 EWHC 12 (QB), to which reference may be made by those interested. Much of it is necessary only to an understanding of why the defence of justification failed. I need not cover that ground, although I would observe in passing that the attempt to justify was in my view quite hopeless, reflecting the extent to which the allegation of abuse of office for material gain transcended any legitimate difference as to the policies which should have been pursued by the Board of Directors of which the claimant was a member. I propose to do no more than to set out here such material, derived from the judge's findings, as is necessary in order to understand and to place into context the arguments on the appeal.
The Claimant and the Defendant are both highly qualified professional interpreters. As the judge observed at the outset of his judgment interpreters are essential to the public service. Their role in the criminal justice system is so important that it is specifically provided for in ECHR Article 6 as follows:—
"3. Everyone charged with a criminal offence has the minimum rights: … (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court."
Within the criminal justice system interpreters may be required not only in court but also to assist with police questioning of suspects and witnesses. They must not just be competent linguists, they must have an appropriate level of understanding of the legal and administrative provisions in the context of which their services are required. I would add that interpretation is a special skill which is different from the linguistic ability which is a pre-requisite. The need for the services of an interpreter can arise at short notice, and the number of languages in which they may be required is of course large. The requirement that the assistance be free means that the cost falls to be met out of public funds. Police forces, and other public service organisations, hereinafter "PSOs", responsible for the budgets for the criminal justice system have necessarily for some years been looking for efficiency and costs savings in relation to the provision of this as all other relevant services. Such measures can have adverse effects upon the earnings of interpreters. It is concern that the activities of the Claimant and others contributed to the destruction of the livelihoods of some interpreters which forms the backdrop to this case, but as I have already indicated the sting of the libel is that the Claimant abused her position so as to further her own financial interests in preference to those of the members of the association, or "registrants", which it was her duty to serve.
At all material times the Claimant occupied positions of leadership on various professional associations and other bodies which promote the interests of linguists and interpreters and ensure the maintenance of proper professional standards amongst language practitioners. Two such bodies are the Chartered Institute of Linguists (the "CIOL") formerly the Institute of Linguists (the "IOL") and its wholly controlled subsidiary, National Register of Public Service Interpreters Limited ("NRPSI"), a company limited by guarantee and a not for profit organisation. The Defendant was one of a group of interpreters which became dissatisfied with the activities of NRPSI and campaigned vigorously for the removal of the Claimant, and others, from its Board of Directors. The Claimant had been appointed to that non-executive office by the CIOL.
In March 2007 the Defendant and others put forward a Motion of No Confidence in the Claimant and two other directors of NRPSI alleged to have implemented policies detrimental to the professional interests of interpreters whose details were registered with NRPSI. The Motion was to be debated at the forthcoming AGM of CIOL which was in the event held in May 2007. Eleven emails were then circulated as part of a campaign in support of the Motion. Critically however they were sent to persons other than those entitled to vote at the AGM. The email in question was the eighth in the sequence and as I shall describe it differed markedly from those which preceded it in that it introduced a not previously adumbrated allegation that the Claimant had abused her position as a diretor of NRPSI by acting on a conflict of interest, namely overseeing the sale of NRPSI members' data to a commercial agency, CINTRA, in which she was privately interested and from which she stood to and did personally benefit.
The aims of CIOL, by which NRPSI is wholly controlled, are to promote the use and learning of modern languages, to improve the status of all professional linguists, to establish and maintain high standards of work, to serve the interests of all linguists, and to ensure professional standards amongst language practitioners through its Code of Conduct. It has about 6,500 members worldwide.
NRPSI maintains a register of Public Service Interpreters ("PSIs") to enable PSOs and the agencies through which they work to obtain professional, qualified and quality-assured interpreters. The NRPSI website current as from July 2005 describes it thus:—
"Like other professional registers, it comprises individuals who have satisfied selection criteria in terms of qualifications and experience, agreed to abide by a Code of Conduct … and subject to Disciplinary Procedures … where there are allegations that the code has been breached …
Public Service Organisations and agencies that they work through can obtain access to the National Register via a subscription service which is available through this website …
The Register is administered by NRPSI Ltd, a wholly owned and non-profit making subsidiary of the Institute of Linguists. The Institute of Linguists is the UK's largest language professional body and was established in 1910." (emphasis added)
The judge described the system as follows:—
"16. The Register maintained by NRPSI ("the Register") was established in 1994 with the support of the Home Office and the Nuffield Foundation. It was established in response to a recommendation made by the Royal Commission on Criminal Justice in 1993. This was to the effect that there should be national and local registers of qualified interpreters with...
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