Chase v Newsgroup Newspapers Ltd

A plea of justification succeeds only if the defendant proves by admissible evidence the essential or substantial truth of the defamatory sting. Where the sting alleges reasonable grounds for suspecting wrongdoing, the grounds must be objectively reasonable and will ordinarily arise from the claimant’s conduct, although compelling circumstantial evidence may suffice.

Repeating allegations does not establish their truth. Hearsay may nevertheless be admitted under the Civil Evidence Act 1995, subject to its safeguards. Reasonable suspicion must be assessed using material available when the publication occurred; later events cannot establish that such grounds then existed. These rules strike a proportionate balance under Article 10 of the European Convention on Human Rights between freedom of expression and protection of reputation.

Chase v Newsgroup Newspapers Ltd concerned newspaper articles which associated a paediatric community nurse with the suspected hastening of the deaths of children in her care. The claimant alleged that the articles conveyed that there were very strong grounds to suspect her of serial murder. The defendant pleaded a narrower meaning: that reasonable grounds existed for suspecting her involvement in hastening the deaths.

At a case management conference, Eady J struck out that plea of justification under CPR Part 24 and rule 3.4. He held that the pleaded particulars could not support the meaning relied upon. The defendant appealed, arguing principally that the Human Rights Act 1998 and Article 10 required the established conduct, repetition and post-publication rules of defamation law to be changed.

The central issue was whether those rules imposed a disproportionate restriction on freedom of expression and whether the particulars could sustain the pleaded reasonable-suspicion meaning.

1. Appeal dismissed unanimously. Lord Justice Brooke delivered the judgment, with which Lord Justice Rix and Lord Justice Keene agreed. The defendant’s particulars were incapable of justifying the pleaded meaning and would impermissibly transfer to the claimant the burden of disproving allegations made by third parties.

2. A plea of justification requires the defendant to prove by admissible evidence the essential or substantial truth of the defamatory sting. Proving a lesser defamatory meaning is insufficient. The defendant bears the burden on the balance of probabilities, although grave and inherently improbable allegations require correspondingly stronger evidence.

3. A publication may convey distinct allegations of guilt, reasonable grounds for suspicion, or grounds for investigation. Where reasonable suspicion is pleaded, the defendant must establish objectively reasonable grounds. Following Shah v Standard Chartered Bank Ltd [1999] QB 241, those grounds will ordinarily focus upon conduct of the claimant. The language of that decision is not statutory, however, and compelling circumstantial evidence may in an appropriate case provide the necessary grounds.

4. The repetition rule remained valid. A publisher cannot justify a defamatory allegation merely by proving that another person made it. The substance of the allegation must be proved. The categorical suggestion in Shah v Standard Chartered Bank Ltd that hearsay could not contribute to proof had to be qualified by the Civil Evidence Act 1995. Hearsay is admissible in principle where the statutory requirements and CPR Part 33 safeguards are observed, although its reliability and weight must be assessed.

5. Reasonable grounds for suspicion must exist at the date of publication. Later events cannot be used to establish that the suspicion was then objectively reasonable. The court applied the approach in Bennett v News Group Newspapers Ltd [2002] EMLR 860. The separate rule permitting later events to be pleaded against a general aspersion on character depends upon the nature of the libel and the later conduct and did not apply here.

6. Article 10 did not require alteration of these principles. Freedom of expression is a primary democratic right, but it carries duties and may be restricted to protect reputation. The restrictions served a pressing social need and were proportionate. The conduct rule, the repetition rule as qualified by the admissibility of hearsay, and the rule excluding later events from proof of contemporaneous reasonable suspicion therefore remained compatible with the Convention.

1. Court of Appeal (Civil Division): In Chase v Newsgroup Newspapers Ltd [2002] EWCA Civ 1772, the court unanimously dismissed the defendant’s appeal and upheld the striking out of paragraph 12 of the defence and its particulars.

2. High Court, Queen’s Bench Division: At a case management conference on 31 May 2002, Eady J struck out the reasonable-suspicion plea of justification under CPR Part 24 and rule 3.4 because the particulars were incapable of supporting the pleaded meaning.