McPhilemy v Times Newspapers Ltd & Ors

In a defamation action, a defendant may justify any defamatory meaning which the words are reasonably capable of bearing, but may not justify a separate meaning which the claimant does not allege. Particulars of justification must be confined to matters essential to determining the real issues. The court must nevertheless preserve the defendant’s full essential defence and the claimant’s opportunity for proper vindication. Evidence bearing on the truth or falsity of the publication’s central thesis may therefore be admissible where it forms part of the defamatory sting and is relevant to responsibility, recklessness or damage. Case management should exclude peripheral and disproportionate investigation, while preserving material central to a legitimate defence.

The claimant, a journalist and managing director of a television production company, sued the publishers, editor and journalist responsible for a Sunday Times article describing his programme as a hoax. The defendants pleaded meanings alleging that he knew, or ought to have known, that the programme was inaccurate and unreliable, acted recklessly in facilitating its broadcast, and was thereby unfit for comparable work.

Astill J had earlier permitted a justification plea including recklessness. Eady J later allowed extensive amendments to the defendants’ Lucas-Box meaning and particulars, including matters challenging the truth of the programme’s central thesis. The claimant appealed, arguing that those matters exceeded the permitted meaning and created a disproportionate inquiry.

1. Appeal dismissed. May LJ gave the principal judgment. Judge LJ agreed. Woolf MR agreed with May LJ and gave additional guidance.
2. A defendant may justify any defamatory meaning which the words are reasonably capable of bearing, but cannot justify a separate and distinct meaning which the claimant does not allege. Particulars must identify the facts relied upon, but should be strictly confined to matters essential to the real issues. The action must also be structured so that the defendant can deploy its full essential defence and the claimant can obtain proper vindication.
3. The article came close to asserting that the programme’s central thesis was untrue. That allegation added to the defamatory sting because the alleged hoax involved deceiving viewers about the substance of the programme, not merely defective journalistic methods. The amended meaning was therefore capable of being borne by the article and was not materially different from the meaning previously permitted.
4. Particulars concerning the failure to corroborate the programme’s principal source, checks on persons identified as members of the alleged Committee, and the asserted falsity of the Committee thesis were legitimate. They were relevant both to whether proper inquiries had been made and to whether the programme was probably untrue. The evidence should, however, be managed proportionately. It might be confined to the specific Committee and conspiracy described by the source, rather than any wider Northern Irish conspiracy. The tribunal of fact might not need to decide the thesis absolutely if the sting could be justified without doing so.
5. The claimant’s continued reliance on the programme and subsequent book could properly be pleaded. It might bear on recklessness and damages. The delay and alleged overreaching did not justify interference with Eady J’s discretion.
6. Woolf MR added that an appeal from a pre-CPR decision is determined by whether the decision was wrong under the former approach, although current proportionality considerations may inform any consequential order. Pleadings should mark out the issues without excessive particulars; under the new procedure a concise statement of the facts relied upon will ordinarily suffice.

Order: appeal dismissed with costs.

• Court of Appeal (Civil Division): Appeal from Eady J’s decision allowing amendments to the defendants’ meaning and particulars dismissed with costs. The court held that decision was correct.
• Queen’s Bench Division: Eady J allowed the re-amendments on 30 July 1998 and postponed the trial. The appeal was confined to the amended meaning and three paragraphs of the particulars.
• Queen’s Bench Division: Astill J, on 5 February 1997, permitted the defendants’ then pleaded justification meaning to remain after an application under Order 82 rule 3A.