The claimant, a well-known television presenter, brought a libel claim against the defendant, a political journalist, concerning an article that he had published on his website. At a trial of preliminary issues, the court determined that the allegations in the article were partly factual (that the claimant had engaged upon, supported and encouraged a campaign of online abuse and harassment of a 16-year-old girl, which conduct had also incited the claimant’s followers to make death threats towards the girl) and partly an expression of opinion (that the claimant had acted hypocritically, recklessly and irresponsibly) and that the meaning of the article as a whole was defamatory at common law. The defendant then filed a defence advancing truth, honest opinion and publication on a matter of public interest, pursuant to sections 2, 3 and 4 of the Defamation Act 2013 respectively. On the claimant’s application to strike out those defences, the judge found that the defence of substantial truth did not have a reasonable prospect of success and that, if it was not even arguably true that the claimant had engaged in or encouraged and supported a campaign of online abuse and harassment of the girl, then opinions based on the fact of the claimant having done so could not themselves survive to be defended. He held that the same applied to the public interest defence as there could be no reasonable belief in the public interest in publishing untrue allegations and unsustainable opinions without some clear explanation and justification, none of which appeared in the present case. Permission was granted for the defendant to appeal the judge’s decision in relation to the public interest defence on the ground that the judge had failed properly to apply section 4 of the 2013 Act and had wrongly treated the failure of the section 2 defence of truth when, inter alia, a public interest defence was not conditional on proof of the truth of any factual meaning. The claimant sought to uphold the judge’s decision on the further and additional grounds that: (i) the statement complained of was not on a matter of public interest; (ii) the pleaded defence disclosed no grounds capable of giving rise to a reasonable belief of the defendant that publishing the statement complained of had been in the public interest; and (iii) that the pleading of particulars of the defence of publication on a matter of public interest was so deficient that it ought to be struck out as being likely to obstruct the fair disposal of proceedings.
On the claimant’s application for permission to advance additional grounds and on the defendant’s appeal—
Held, permission to uphold the decision on new and additional grounds refused. Appeal allowed. (1) The claimant ought not to be permitted to advance any of the additional or alternative grounds on which she now sought to uphold the judge’s decision, both because none of those points had been argued before the judge in any form and also because the additional points were to be rejected on the merits as follows: (i) The statutory condition for a defence under section 4 of the Defamation Act 2013 was that the statement complained of was “on” a matter of public interest, or part of such a statement. While there was relatively little authority on the notion of public interest in the present context, it was necessarily a broad concept and it was plainly arguable, at the very least, that the defendant’s article was about matters of public interest including, potentially, the public conduct of a prominent public figure and, in particular, statements she had made or caused to be made publicly. (ii) It would be a rare case in which it was possible to find, on an interim application, that a party could not have held a state of mind which they had asserted and the court would be very cautious before rejecting such an assertion without hearing or even reading evidence on the point. The defendant’s case about his state of mind, supported by a statement of truth, was not inherently incredible and was worthy of a trial. (iii) While the pleading on the public interest defence in the present case was sub-optimal it was not fatally flawed and might be might be capable of cure by amendment (paras 19, 20).
(2) The judge in the present case had not decided that defence of publication on matter of public interest could never succeed where the facts alleged were false and the opinion therefore untenable, which would have been an error of law as an important function of the section 4 defence was to protect those who honestly and reasonably got their facts wrong when publishing on matters of public interest. Nor had she taken an incorrect approach to the issue of meaning. Given that the section 4 defence related to the “statement complained of”, the fate of the defence would not always turn on the true meaning of that statement and the meaning that the defendant intended his words to convey might be relevant to the question whether it was reasonable to believe that publication was in the public interest. However, since that could not be pressed too far, and there were limits to the latitude that could be allowed for ambiguity, the judge had not been wrong to proceed in the present case on the basis of the imputations previously identified by the court in relation to the preliminary issues. A defendant who wished to have his belief assessed on an alternative basis had to make his position clear. In the present case the actual meaning of the statement complained of had been determined before the defence was served and it was that meaning which the defendant sought to defend as true. On general pleading principles, if the defendant wanted to make it part of his public interest defence that he had intended a different meaning, he ought to have said so clearly in his defence, but he had not done so (paras 27, 29).
(3) The judge had conducted a meticulous analysis of the defence of truth and, in light of her conclusions on that defence, had correctly rejected the honest opinion defence which could only succeed if the facts were true. However, she had then fallen into error in concluding that, in the absence of any coherent explanation to the contrary, it could not be reasonable to believe that it was in the public interest to publish false factual allegations and unsustainable opinions. She had therefore wrongly been persuaded that it followed from her conclusions on the section 2 and 3 defences that the defence disclosed no reasonable basis for defending the claim under section 4. While it was axiomatic that the truth or falsity of a defamatory allegation had to be determined objectively, by reference to the full factual picture as presented to the court whether or not the defendant had known all the facts at the time of publication, the legal approach was different when it came to a section 4 defence, in relation to which the relevant question was whether the facts pleaded had disclosed a reasonable basis for the public interest defence. It was therefore an error for the judge to have relied on, or to have taken account of, matters other than those put forward by the defendant as facts he had known and relied on at the time of publication, and not to have taken into account two pleaded articles which, while rightly not relied on in the defence of truth as they would have been irrelevant hearsay in that context, might be relevant to the section 4 defence as, depending on the circumstances it could be reasonable for a person considering whether a publication would be in the public interest to rely on hearsay statements from third parties. The appropriate time and place for an evaluation of these issues would be at a trial. It followed that the judge had been persuaded to take an approach to the section 4 defence which was wrong in principle, had taken account of some irrelevant matters and had not taken account of some that were relevant (paras 25-28, 30–32, 35).
David Mitchell (instructed by George Green LLP, Cradley Heath) for the defendant.
John Stables (instructed by Patron Law) for the claimant.