Joyce v Sengupta

A defamatory statement may also found an action for malicious falsehood. The claimant must prove falsity and malice, together with financial loss or satisfaction of the statutory conditions dispensing with proof of special damage.

A claimant with overlapping causes of action may choose which to pursue. The choice of malicious falsehood instead of defamation, including to obtain legal aid, is not without more an abuse of process. General damages under section 3 of the Defamation Act 1952 are not necessarily nominal merely because actual loss cannot be proved.

A newspaper accused a royal employee of stealing and disclosing private letters. She alleged that the accusations were false and malicious, had impaired her employment prospects and had caused distress. Unable to obtain legal aid for defamation, she brought proceedings for malicious falsehood.

A deputy High Court judge struck out the statement of claim as an abuse of process. He considered that an essentially libel claim had been forced into an unsuitable cause of action and that the pleaded malice and damage were inadequate. The claimant appealed, seeking permission to amend her pleading.

The central issues were whether choosing malicious falsehood improperly deprived the defendants of procedural advantages, whether the legally aided proceedings were uneconomic or bound to fail, and what damages could potentially be recovered.

1. Appeal allowed unanimously. The order striking out the action was discharged, the action was reinstated and the claimant was permitted to amend her statement of claim. The Vice-Chancellor delivered the leading judgment. Butler-Sloss LJ agreed, and Sir Michael Kerr agreed with the judgment and proposed order.

2. A claimant may choose between available and overlapping causes of action. The fact that one cause of action provides different defences, burdens or procedural consequences does not oblige the claimant to pursue the supposedly primary or most appropriate remedy. The use of malicious falsehood rather than defamation was therefore not an abuse merely because the defendants lacked an absolute statutory right to jury trial.

3. The claimant’s reliance on legal aid did not render the proceedings abusive. Parliament had entrusted decisions about the grant, continuation and limitation of legal aid to the Legal Aid Board. Questions about the reasonableness of that grant were distinct from the court’s decision whether a properly constituted action should proceed.

4. The amended pleading disclosed an arguable malicious-falsehood claim. It alleged falsity, reckless indifference amounting to malice, and financial damage to employment prospects. The judge had erred by effectively accepting the defendants’ affidavit evidence about the journalist’s state of mind without permitting discovery or cross-examination. An action may be struck out only when it plainly and obviously cannot succeed.

5. Section 3 of the Defamation Act 1952 was intended to provide a remedy where actual pecuniary loss was difficult to prove. Damages recoverable under it were not necessarily nominal merely because evidence of actual loss was inadmissible under that head.

6. The court declined to decide whether distress and injury to feelings were recoverable as a separate head of damage. Sir Michael Kerr considered that aggravated general damages could potentially reflect malice and the manner of the wrong, but that the authorities did not support an additional, separate award for distress where the falsehood was defamatory. As the point had not been fully argued, he agreed that the pleading should remain.

1. Court of Appeal: The appeal was allowed unanimously. The striking-out order was set aside, the action reinstated and leave to amend the statement of claim granted.
2. High Court, Queen’s Bench Division: A deputy High Court judge struck out the statement of claim as an abuse of process, holding that an essentially defamation claim had been placed in the form of malicious falsehood.