Hamilton & Anor v Clifford

At the interlocutory stage in a defamation claim, a pleaded meaning should be removed only where no reasonable reader could adopt it. Otherwise meaning remains for the jury. The repetition rule prevents a defendant who adopts an accusation from justifying a lesser imputation by proving only belief, report, or reasonable grounds based on the accusation itself. A defence of reasonable grounds to suspect requires objectively sufficient facts, not bare assertions, subjective belief, arrest, absence of disproof, or an unclear alibi. Fair comment cannot recast verifiable allegations of criminal conduct as opinion. Qualified privilege may protect a proportionate reply to a public attack, but disputed relevance and malice generally fall to the jury. Evidence of general bad reputation is confined to the aspect of character implicated by the libel.

Christine and Neil Hamilton brought claims against Max Clifford concerning six alleged slanders and seven alleged libels arising from public allegations that they had participated in a rape. The applications concerned the meanings of the publications, the actionability of the alleged slanders, and the defences of justification, fair comment and qualified privilege. The defendant also relied on general bad reputation material. The central issues were whether the pleaded meanings and defences were legally capable of being maintained before trial, and which questions should remain for the jury.

The interlocutory applications were allowed in part.

1. Meaning. The court refused to strike out the claimants’ meaning that the publications conveyed guilt or complicity in rape. A reasonable reader could read between the lines and draw inferences from indirect language. The stringent pre-trial threshold was not met: jurors would not be perverse in adopting the pleaded meaning. The lesser Lucas-Box meaning of reasonable grounds to suspect was also left for the jury in relation to the publications in paragraphs 3 to 14. The GMTV broadcast, however, endorsed the accuser’s criminal allegation and could not properly be reduced to a lesser meaning under the repetition rule.
2. Repetition rule. A person who adopts or endorses an allegation must justify the underlying allegation itself. It is insufficient to prove only that the allegation was made, that the defendant believed it, or that there were grounds for believing it. The rule operates both on meaning and on the pleading and proof of justification: see [1997] QB 123 and [1999] QB 241.
3. Justification. Reasonable grounds to suspect had to be based on objectively sufficient facts, assessed by reference to a hypothetical reasonable observer. The accuser’s bare assertion, her persistence with the police, the arrest, the absence of proof disproving the allegations, an apparently incomplete alibi, and her demeanour did not supply an objective basis. Strong circumstantial evidence could in principle suffice, but none was pleaded. The plea of justification was therefore struck out.
4. Fair comment. Opinions and value judgments, including some inferences about motives or states of mind, may be comment where the relevant facts are accurately stated or sufficiently indicated. That principle did not extend to verifiable allegations of rape or to an objectively assessable assertion of reasonable grounds to suspect. Describing the allegations as an opinion of the defendant did not avoid the distinction between fact and comment. The defence was struck out.
5. Qualified privilege. The defendant had a reasonable argument that he was entitled to reply to public attacks on his own character. The response had to be proportionate and directed to the subject and scale of the attack. Whether the defendant went beyond defending himself, and whether his conduct was malicious, depended on disputed facts and remained for the jury. Privilege could not be based on a supposed right to defend the accuser’s reputation.
6. Bad reputation. Evidence relevant to general bad reputation must concern the aspect of character implicated by the libel. Material about political sleaze and an earlier libel action was irrelevant to an allegation of violent or sexual misconduct and was struck out. The claims therefore proceeded with questions of meaning and malice for the jury, and qualified privilege surviving only on the limited reply-to-attack basis.