Mosley & Anor v Focus Magazin Verlag GmbH

On an application under section 8(2) of the Defamation Act 1996, the court must decide whether the claim has a realistic, rather than fanciful, prospect of success. The court may determine that issue on the material presently available, although an adjournment may be appropriate where disclosure could materially affect the prospects of success.

In a claim based on legal innuendo, the claimant ordinarily must identify a publishee who knew the extrinsic facts said to establish reference. An inference that unnamed readers possessed that knowledge may be drawn only in exceptional circumstances, such as publication by a national newspaper with very wide circulation where knowledge of the facts is the only reasonable inference.

Mosley and the Federation Internationale de l'Automobile appealed from the summary dismissal of their defamation claim by Morland J on 26 October 2000. The claim concerned a German-language magazine interview in which the words complained of referred to unnamed people who had allegedly spent money to destroy the European Competition Commissioner.

The appellants relied on publicity in English newspapers concerning their dispute with the Commissioner. They contended that readers of the magazine could identify the unnamed persons as the appellants and that further disclosure might establish the necessary readership. The central issues were whether the claim had a realistic prospect of success under section 8(2) of the Defamation Act 1996 and whether a specific publishee had to be identified.

1. Appeal dismissed. The Court of Appeal upheld the summary dismissal of the defamation claim under section 8(2) of the Defamation Act 1996, with costs.
2. The expressions “no realistic prospect of success” in section 8(2) and “no real prospect of succeeding” in CPR 24.2 have the same meaning. The question is whether the claim has a realistic, as opposed to fanciful, prospect of success. The tests of prospects of success and reason to be tried are distinct, and the criteria in section 8(4) apply only to the latter.
3. The judge was entitled to decide the application on the material before him. Although an application before disclosure may be adjourned where disclosure could significantly affect the prospects of success, no adjournment had been sought and the court could not assume that useful evidence would later emerge.
4. For legal innuendo, the claimant ordinarily must identify the publishee who possessed the extrinsic knowledge linking the words to the claimant. The exceptional possibility of relying on an inference that some readers possessed that knowledge applies only where the facts are sufficiently notorious, such as publication in a national newspaper with very wide circulation. A German magazine with limited sales in England and Wales, a relatively inconspicuous article and words not published in the main language of the jurisdiction did not qualify.
5. Pill LJ accepted that some of the first-instance judge’s assumptions about the readership were too narrow, but held that the remaining circumstances made the required inference unrealistic. Thorpe LJ regarded the judge’s readership speculations as unsustainable, yet agreed that the absence of any identified publishee and the limited circulation meant that the claim remained insubstantial. Mantell LJ agreed with the reasons of the other judges.

• Court of Appeal (Civil Division): dismissed the appeal from the summary dismissal of the claim by Morland J on 26 October 2000.