Armstrong v Times Newspapers Ltd & Ors

Qualified privilege for responsible journalism cannot be struck out summarily merely because an article is serious or controversial, or because the claimant was not asked every allegation. The court must assess the Reynolds factors objectively, including the sources and verification of information, urgency, opportunity to comment, presentation and other circumstances. Failure to seek comment is relevant but not automatically fatal. Disputed issues about sources, responsibility and pre-publication exchanges ordinarily require evidence. The court restored the qualified-privilege defence and parts of the justification pleading; the cross-appeal failed.

Lance Armstrong brought a libel claim concerning an article in The Sunday Times about alleged drug use in professional cycling. The defendants pleaded justification and qualified privilege. At a case management conference, Mr Justice Eady struck out the qualified-privilege defence, reduced the available meanings and substantially curtailed the particulars of justification. His decision is reported at [2004] EWHC 2928 (QB).

The defendants appealed. Armstrong cross-appealed in relation to certain surviving particulars. The central issues were whether the Reynolds defence and disputed factual matters could properly be disposed of summarily on the pleadings.

1. Disposition. The defendants’ appeal was allowed in part. The qualified-privilege defence was restored, subject to amendment and the usual costs terms. Certain particulars of justification were restored. The claimant’s cross-appeal was dismissed.
2. Summary disposal. On a Part 24 application, the court must assume that pleaded facts can be proved unless the factual basis is fanciful or contradicted, or the defence would fail in law even if the facts were established. A complex dispute about sources, research, knowledge, responsibility or pre-publication dealings should not be converted into a mini-trial. The approach in [2001] UKHL 16 was followed.
3. Qualified privilege. Reynolds privilege depends on responsible journalism and an objective duty-interest or public-right-to-know assessment. Relevant considerations include the seriousness of the allegation, the source and status of the information, verification, urgency, whether comment was sought, whether the claimant’s position was fairly presented, the article’s tone and other circumstances. Failure to put allegations to the claimant is a factor in the balance, but is not necessarily determinative. The court relied on the approach in [2001] EWCA Civ 1805 and rejected summary disposal without evidence.
4. Meaning and pleadings. The single-meaning rule does not prevent a publisher relying, for qualified privilege, on a lesser possible meaning such as reasonable grounds to suspect drug use, even if the words might bear a meaning of guilt for justification purposes. An apparent willingness to participate in a doping programme could be relevant to reasonable suspicion without an allegation of subsequent use. Team context, medical warnings and commercial pressure could also be relevant if properly pleaded, but material directed only at another cyclist was excluded.
5. Objective assessment. A witness’s belief about the contents of a package or the meaning of words adds no independent basis to an objective assessment of reasonable grounds, absent further facts such as demeanour or tone. The disputed source material and pre-publication exchanges required witness statements and disclosure. Paragraph 4.15 and paragraphs 4.74(i) and (ii) were restored; paragraphs 4.72 and 4.73 could be restored in amended form, while the excluded parts of paragraphs 4.54(iv), 4.87 and 4.88 remained struck out.

• Court of Appeal (Civil Division) allowed the defendants’ appeal in part, restored the qualified-privilege defence and certain justification particulars, and dismissed Armstrong’s cross-appeal.
• Queen’s Bench Division, Mr Justice Eady, at [2004] EWHC 2928 (QB), struck out the qualified-privilege defence, restricted the meanings relied on and curtailed the justification particulars at a case management stage.