Armstrong v Times Newspapers Ltd & Ors

On an interlocutory meaning and pleading application in a libel action, a court should exclude a pleaded meaning only where it is so far-fetched that a properly directed jury would be perverse to accept it. Words must be read as a whole, in their natural and ordinary meaning, by the ordinary reasonable reader. Repeated allegations cannot generally be justified merely by proving that others made them. A plea based on reasonable grounds to suspect misconduct must identify material connected with the claimant’s conduct or strong circumstantial evidence. General background, guilt by association and speculation are insufficient. Public concern alone does not establish qualified privilege for serious allegations: the Reynolds factors must be applied, including verification and a fair opportunity for the claimant to respond.

The claimant sued the publisher and journalists over a Sunday newspaper article concerning allegations that he had used performance-enhancing drugs. The defendants pleaded meanings ranging from the existence of questions warranting investigation to guilt, and relied on justification, qualified privilege and other procedural protections.

The court had to determine the meanings of which the article was capable, the permissible scope of the particulars supporting justification, whether the qualified-privilege defence had a realistic prospect of success, and applications concerning security for costs and costs capping.

1. Meaning. The article, read as a whole by the ordinary reasonable reader, was capable of conveying guilt or, at least, reasonable grounds to suspect that the claimant had taken performance-enhancing drugs. It was not capable of conveying merely that third parties had raised questions warranting investigation. The judge’s function was to delimit the permissible range of meanings and pre-empt perversity, applying a high threshold of exclusion.
2. Justification and repetition. The pleaded level-three meanings were struck out. The remaining issue was whether there were reasonable grounds to suspect the claimant of taking drugs. Under the repetition rule, the defendants could not justify the article simply by proving that experts or other persons had made allegations. The material relied upon had to relate to the claimant’s conduct or constitute strong circumstantial evidence. General doping in cycling, the conduct of other cyclists, unexplained testing limitations, rumours, speculation and guilt by association lacked the necessary nexus. Some material concerning the claimant’s own conduct, alleged requests for medical products, discussions about doping, recorded haematocrit levels and dealings with a doctor was capable of surviving in suitably confined form.
3. Defamation Act 1952. Section 5 had no application because the surviving meanings of guilt and reasonable grounds to suspect were not two distinct charges.
4. Qualified privilege. Applying the non-exhaustive Reynolds criteria, the seriousness of the allegations required careful verification and a fair opportunity for the claimant to answer the substance of the proposed charges. Public concern about doping did not itself create a duty to publish allegations that this claimant had probably taken drugs. The qualified-privilege pleading was therefore disallowed.
5. Other orders. Security for costs was ordered to reflect the estimated additional enforcement costs in the United States. A prospective costs-capping order was refused because the existing rules and retrospective costs assessment provided adequate protection and the proposed order would be unprecedented in the circumstances.