Milne v Express Newspapers

For the statutory defence following a rejected offer to make amends, the expression “knew or had reason to believe” that the statement was false in section 4(3) of the Defamation Act 1996 imports recklessness. It does not impose a negligence standard or permit constructive knowledge based on inquiries which a publisher ought to have made.

The inquiry concerns facts actually known to the responsible publisher. Deliberately shutting one’s eyes to an obvious truth is reckless, but mere carelessness, grounds for suspicion, or an inferential case that the publisher should have investigated further cannot defeat the defence.

The claimant brought a defamation action concerning a Sunday Express article. The parties agreed that the article meant that he was reasonably suspected of giving false evidence to the Filkin Inquiry.

The defendant made an unqualified offer to make amends under the Defamation Act 1996. The claimant rejected it. The defendant then relied on the statutory defence. Eady J struck out the claimant’s initial reply and later refused permission to amend it, entering judgment for the defendant. His first judgment was reported at [2003] 1 WLR 927.

The claimant challenged the construction of section 4(3), and contended that his proposed particulars could establish that the journalist had reason to believe the agreed defamatory meaning was false.

1. Appeal dismissed. The court granted permission to appeal on the claimant’s amended grounds, but upheld Eady J’s construction of section 4(3) of the Defamation Act 1996 and his refusal of permission to amend the reply.

2. The offer-of-amends regime is intended to secure early compromise of defamation claims while providing appropriate vindication and full compensation. A rejected unqualified offer therefore gives a defence unless the claimant proves the state of mind specified in section 4(3). The statutory hurdle is deliberately high.

3. The phrase “had reason to believe” that the statement was false imports recklessness in the sense explained in Horrocks v Lowe [1975] AC 135. The inquiry is into facts actually known to the publisher. It does not extend to facts which the publisher ought to have discovered. There is no intermediate state of mind between reckless indifference to truth and constructive knowledge based on negligence. A person who shuts his eyes to an obvious truth is recklessly indifferent to it.

4. The proposed pleading did not meet that test. At its highest, the pleaded facts might cast doubt on Mr Zaiwalla’s criticism of the Filkin report. They did not provide a proper basis for finding that the journalist was recklessly indifferent to whether there were reasonable grounds to suspect the claimant of giving false evidence. The chain of inference was too brittle and did not address the agreed defamatory meaning.

5. The application to extend time for the first permission application was refused because no live challenge to the first order remained. The further application for permission was also refused insofar as it went beyond the amended grounds on which permission had been granted.

• Court of Appeal (Civil Division) — dismissed the claimant’s appeal after granting permission on amended grounds: [2004] EWCA Civ 664.
• Queen’s Bench Division — Eady J struck out the claimant’s initial section 4(3) reply, then refused permission to amend it and entered judgment for the defendant. The first judgment is reported at [2003] 1 WLR 927.