THE HON. MRS JUSTICE TIPPLES Approved judgment Greenstein v Campaign Against Antisemitism [2020] EWHC 2951 (QB) when told the Charity Commission that the CAA was not concerned with fascist groups who were Holocaust deniers. The claimant has no real prospect of succeeding on this issue and the defendant can demonstrate that the third condition under section 3(4)(a) will be met. 46. The claimant has not alleged malice in relation to this publication. Rather, he has relied on the allegation of malice at paragraph 26 of the amended reply. Paragraph 26 relates to the allegation of fact that the claimant had committed several offences and has nothing do with this publication and is, in any event, inadequate for the reasons set out below. The allegations pleaded in the amended reply do not support a case in malice, namely that Mr Falter did not believe that the claimant lied to the Charity Commission about the CAA. (4) The allegation of fact that the claimant had committed several criminal offences including offences of dishonesty, vandalism and drug possession 47. The fourth meaning found by Nicklin J is a factual meaning, which has been admitted to be true (paragraph 15 of the amended defence; paragraph 26 of the amended reply). 48. To succeed on this meaning the claimant must prove malice: section 8(5) of the Rehabilitation of Offenders Act 1974 (“the 1974 Act”). This is accepted by the claimant: paragraph 26 of the amended reply. The defendant’s application is that the malice plea at paragraph 26 of the amended reply should be struck out as the “particulars” do not found a case in law, and have no reasonable prospect of succeeding (paragraphs 3(3) and 10(6) of the application notice). 49. In this context malice has a different meaning to the test under section 3(5) of the 2013 Act. A claimant must demonstrate that, in relation to section 8(5) of the 1974 Act, the conviction is published with some irrelevant, spiteful or improper motive: see Herbage v Pressdram [1984] 1 WLR 1160, CA at 1164 per Griffiths LJ. Further, in KJO v XIM [2011] EWHC 1768 (QB), Eady J explained: “In the relatively few cases in which it is possible to set up a case of malice, the argument will generally be based on the proposition that the individual defendant must have known that the defamatory words complained of were false, or at least have been reckless in that regard. That could hardly be put forward on the present facts, since the basic fact of the conviction is acknowledged to be accurate. Any plea of malice, therefore, would have to be advanced on the alternative ground, canvassed by Lord Diplock in Horrocks v Lowe [1975] AC 135, that the defendant, while knowing the words to be true, published them with the dominant motive of injuring the claimant’s reputation. That is almost untrodden territory in the (more usual) context of qualified privilege, but it is possible that on the present facts the claimant might succeed in establishing that motive ….” (underlining added) 1 5