Where does the defence of justification stand post-Defamation Act 2013...
04/02/2014 14:22
IP & IT
Where does the defence of justification stand post-Defamation Act
2013?
31/01/2014
IP & IT analysis: Callum Galbraith, solicitor in the entertainment, media and IP department with
Hamlins LLP, discusses the Daily Mail’s appeal of its dismissed libel claim against Andrew Miller.
Original news
Miller v Associated Newspaper Ltd [2014] EWCA Civ 39, [2014] All ER (D) 154 (Jan)
The claimant issued libel proceedings against the defendant newspaper following the publication
of an article. The judge rejected the newspaper’s defence of justification and entered judgment
for the claimant. The newspaper appealed.
The Court of Appeal, Civil Division, in dismissing the appeal, held that the judge had not
required the defendant to establish actual impropriety, rather than reasonable grounds for
suspicion. Further, the judge had not erred in her approach to the evidence. The observable
facts at the date of publication had not provided reasonable grounds for suspecting that the
claimant had been a willing beneficiary of improper conduct and cronyism.
On what grounds did Associated Newspapers bring the appeal?
Associated Newspapers brought the appeal in respect of the judge’s ruling that it could not rely
on the defence of justification (which in future will be described in a more punchy manner as
‘truth’). In summary, the appeal related to the evidential burden required to prove that there were
reasonable grounds for suspecting that Andrew Miller (founder and managing director of IT and
management consultancy company, Impact Plus) was a willing beneficiary of cronyism and
improper conduct on the part of Sir Ian Blair (who was at the material time Deputy
Commissioner of the Metropolitan Police).
What is a Chase Level 2 imputation?
In libel, if a defendant publishes a rumour then they are liable as if they were the person who
had made the allegation in the first instance. A situation often arises where a defendant seeks to
distance himself from that rumour in a newspaper. The issue which therefore often needs to be
considered is what the words in fact would be understood to mean to the ordinary reader. There
is often an issue as to the extent to which a defendant can rely upon exculpatory information, for
example a published denial by the subject of the allegations. Meaning requires consideration of
a number of things, such as context, and the bane is considered alongside the antidote.
Meaning is often at the heart of a libel litigation. However, it is often not addressed until the trial,
leading to uncertainty as to what a defendant is required to establish in order to successfully
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Where does the defence of justification stand post-Defamation Act 2013...
04/02/2014 14:22
pursue a justification and comment defence. It also means that a claimant may have no idea
until a very late stage as to whether they may or may not win the action. Typically, meaning is
not addressed until the trial because it is regarded as an issue to be determined by the jury.
However, with the reforms brought about by the Defamation Act 2013 (DA 2013), juries will now
no longer be a bar to determining meaning early. This should mean that libel cases can be
resolved at an earlier stage.
In any event, the case of Chase v News Group Newspaper Ltd [2002] EWCA Civ 1772, [2002]
All ER (D) 20 (Dec) set out that there are three levels of gravity in relation to defamatory
meanings, known as ‘stings’. A sting could mean that:
• someone has actually committed a serious act
• there are reasonable grounds to suspect that he or she has committed such an act
• there could be grounds for investigating whether he or she was responsible for such an
act
These are known as Chase Levels of meaning. Issues often arise in respect of the second and
third levels of meaning. ‘Reasonable grounds for suspicion’ is known as a Chase Level 2
meaning. This was at the centre of Associated Newspapers’ appeal. In essence, to succeed with
a defence based on reasonable grounds for suspicion, it is necessary to prove the primary facts
and matters which gave rise to the reasonable grounds of suspicion objectively judged. Those
facts cannot include events that transpired after publication. Further, a defendant cannot merely
pick and choose the facts. In this regard, the court will need to consider the overall factual
position at the time of publication.
How did the first instance judge approach this issue?
As with many other cases, both meaning and the justification defence were important issues in
the proceedings. In this regard, the claimants’ first pleaded meanings were struck out by the
court (displaying the importance of pleading meanings carefully). The court allowed the claimant
to re-plead its meaning. As the parties had agreed that the case needed not to be heard by a
jury and would be heard by a judge sitting alone, Associated Newspapers applied for the
meaning of the words complained of to be tried as a preliminary issue. The benefit of this was
that they would have a better idea of what they needed to prove at trial. At that hearing the judge
accepted neither the claimant nor the defendant’s primary submissions as to meaning. Instead,
he set out an alternative meaning, which was that the words meant that there were reasonable
grounds to suspect that the claimant was the willing beneficiary of improper conduct and
cronyism because of his friendship with Sir Ian Blair in respect of the award of a number of
Metropolitan Police service contracts.
The case itself was tried some six months later, in May 2012, by Sharp J. At the trial the
defendant’s plea of justification was unsuccessful. The judge did not consider that the defendant
had established the reasonable grounds to suspect wrong doing. The judge emphasised that a
defendant must show that the claimant brought the suspicion on themselves by their own
conduct (‘the conduct rule’). The judge stated that, while strong circumstantial evidence might
give reasonable grounds for suspicion, this did not mean that the defendant could ignore the socalled conduct rule. While the judge considered that a number of incidents relied upon could
give rise to suspicion in isolation, they were not sufficient so as to entitle the defendant to win
the case.
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What did the Court of Appeal conclude?
The Court of Appeal upheld the judge’s first instance decision. At the centre of the appeal was
Associated Newspapers’ criticism that the judge had accepted the claimant’s attempts to explain
away his actions at the trial after the event. Mark Warby QC, for Associated Newspapers, refers
to this as the rule against hindsight. While the Court of Appeal was sympathetic to an extent to
Associated Newspapers’ position, it nevertheless was not convinced that the judge had lost sight
of the distinction between the various Chase levels of meaning, and decided that the bar had not
been set too high.
What warning does this ruling send out to news publishers?
The decision sends out the warning that a justification defence can be fraught with difficulty—
even in circumstances where there is strong circumstantial evidence to support the plea. In
particular, the case re-affirms the long-standing view among lawyers that it is extremely difficult
to defend a case which relates to a meaning regarding reasonable grounds for suspicion.
From a publisher’s perspective, the decision highlights the necessity to consider carefully what
meaning an article may be said to convey in order to limit a claimant’s ability to sue. For
example, had the Daily Mail contacted Andrew Miller prior to publication and published a more
balanced piece, then this may have significantly altered its defamatory meaning. The decision
highlights the necessity for responsible journalism.
What insights does this case give defamation lawyers for approaching similar issues in future?
The dispute generally shows the uncertainties of libel litigation. The difficulties in pursuing a
justification defence are unlikely to be altered by DA 2013. Indeed, as DA 2013 abolishes the
common law defence of justification, it is likely that a number of existing key principles will end
up being re-litigated to establish fresh binding precedents for the future. However, the ability to
determine meaning sooner rather than later is likely to have extremely positive benefits (albeit
this did not assist the defendant in this instance).
The lengthy and, no doubt, costly litigation underlines the necessity for libel lawyers to be
mindful of the need to attempt to resolve such disputes at an early stage, whether through
negotiation or mediation.
Interviewed by Dave Thorley.
The views expressed by our Legal Analysis interviewees are not necessarily those of the
proprietor.
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