Windsor v Boycott & Anor

On a renewed application for permission to appeal, permission may be granted where the proposed ground has a sufficient prospect of success, even though permission was previously refused. The court need not determine the ultimate merits at that stage. In a libel action, material concerning later conduct may warrant argument if it could arguably bear on the pleaded defamatory meaning or the justification case, although it may not itself constitute proper particulars of justification.

The claimant brought libel proceedings over a newspaper article alleging that he had acted as an MI5 mole within the National Union of Mineworkers during the miners’ strike. Eady J restricted the defendants’ pleaded Lucas Box meaning and struck out particulars of justification concerning alleged statements made by the claimant to the media in 1990, after he had left the union.

Mantell LJ granted permission on other grounds but refused permission to challenge the ruling on justification. The renewed application concerned whether the 1990 material had a sufficient connection with the permitted meaning and could be relied on in relation to the plea of justification.

1. Application granted. Lord Justice May allowed the renewed application for permission to appeal on the additional grounds concerning the 1990 allegations. The order did not determine whether the allegations were admissible or whether they would ultimately establish justification.
2. Eady J had excluded the material because it concerned events after the claimant left the National Union of Mineworkers and had no sufficient nexus with the allegation that he had been an MI5 mole. The material was also considered incapable of adding to the permitted particulars of justification, and its investigation was excluded as a matter of case management.
3. Lord Justice May considered that the 1990 allegations were probably not sufficiently connected with the sting of the libel and were not themselves proper particulars of justification. However, it was arguable that, if the claimant’s statements were proved false, they might be regarded as disinformation by someone alleged still to be acting as an MI5 mole in 1990 in relation to the miners’ strike.
4. The submission was not likely necessarily to succeed before the full court, but it had a sufficient prospect of success to justify permission. Costs in the appeal were ordered.

• Court of Appeal (Civil Division): In [2001] EWCA Civ 1321, Lord Justice May granted the renewed application for permission to appeal on the additional justification grounds.
• High Court of Justice, Queen’s Bench Division: Eady J restricted the pleaded meaning and struck out the disputed 1990 particulars of justification.