C v Mirror Group Newspapers

For the purposes of section 32A of the Limitation Act 1980, facts relevant to a cause of action for libel or slander are the facts which the claimant must prove to establish a prima facie case. They do not include facts which merely answer an anticipated defence, improve the prospects of success or strengthen the evidence.

Malice in malicious falsehood requires an absence of honest or genuine belief in the truth of the publication. Carelessness, even if extreme, is insufficient unless it supports that inference. Because malice concerns the publisher’s state of mind and ordinarily depends upon inference, a claim should be struck out only where it plainly and obviously cannot succeed.

The appellant brought proceedings against four newspaper publishers over reports repeating a false allegation by her former husband that she was connected with drug smuggling. The allegation followed wardship proceedings in which a judge had enlisted media assistance to locate the appellant’s children and had permitted the father to discuss relevant details with the press.

The writs were issued outside the ordinary three-year limitation period for libel but within the period applicable to malicious falsehood. The judge below struck out both claims. The appellant argued that section 32A of the Limitation Act 1980 extended time because she had only later learned that the allegation had not been made in court. She also contended that the publishers’ failure to investigate the serious allegation afforded an arguable inference of malice.

The central questions were whether a fact bearing upon an anticipated defence of privilege was relevant under section 32A and whether the malicious falsehood claim was incapable of succeeding.

1. Disposition. The Court of Appeal unanimously allowed the appeal in part. The libel claim remained struck out, but the malicious falsehood claim was permitted to proceed.

2. Limitation of the libel claim. Neill LJ, with whom Morritt LJ and Pill LJ agreed, held that the construction adopted in Johnson v Chief Constable of Surrey had to be applied to section 32A of the Limitation Act 1980. Facts relevant to the cause of action are confined to those which the claimant must prove to establish a prima facie case. They do not include facts bearing only upon a possible defence.

   The appellant’s later discovery that the drug-smuggling allegation had not been made in court therefore did not qualify. That fact concerned whether the publishers might have a defence of privilege, rather than an ingredient of the appellant’s cause of action. The public interests in finality and certainty supported this narrow construction. The court left open the position where absolute privilege is apparent on the face of the statement of claim.

3. Malice in malicious falsehood. The relevant state of mind was an absence of honest or genuine belief in the truth of the publication. Carelessness, impulsiveness or irrationality, even if serious, was insufficient unless it justified that inference. The court had to examine the circumstances at the time of publication with particular care because malice was ordinarily a matter of inference.

4. Strike-out threshold. The media had been enlisted by a judge to locate the children, and the father’s permission to speak to journalists could reasonably have conferred credibility upon him. Those circumstances strongly supported the publishers. Nevertheless, the father had made an exceptionally serious allegation which did not appear in the judge’s statement, and the publishers apparently made no further inquiries. Discovery and cross-examination could bear upon whether they lacked a genuine belief in the allegation.

   The power to strike out had to be exercised with the greatest care and only where the action plainly and obviously could not succeed. The malicious falsehood claim did not meet that threshold.

5. Damage. In view of the seriousness of the allegation and section 3(1)(a) of the Defamation Act 1952, the court would not strike out the malicious falsehood claim for want of an arguable case on damage.

1. Court of Appeal: The appeal was allowed in part. The strike-out of the libel claim was upheld, while the malicious falsehood claim was restored.

2. Queen’s Bench Division: Sir Michael Davies struck out the appellant’s claims in libel and malicious falsehood. No citation for that decision is stated in the judgment.