Fallon v MGN Ltd

In a defamation claim involving a Lucas-Box plea of justification, particulars must support the pleaded level of meaning. A Level 3 meaning alleging grounds to investigate cannot sensibly be maintained where investigations have already occurred. For a Level 2 meaning alleging reasonable grounds to suspect, the defendant must plead objectively judged primary facts which link the claimant’s own conduct to the suspected wrongdoing. Statistics, third-party suspicions, arrests, public outcry, police activity and the claimant’s failure to sue others do not, without more, discharge that discipline or reverse the burden of proof. The seriousness of the allegation requires correspondingly cogent supporting material. A defective plea should be struck out, leaving any later application to amend to be considered on its own merits.

The claimant, a well-known jockey, sued the publisher of the Racing Post over an article reporting betting activity by Miles Rodgers and referring to the claimant’s arrest in a police investigation into conspiracy to defraud. The claimant pleaded meanings alleging race-fixing and criminal conspiracy. The defendant pleaded, alternatively, that there were reasonable grounds to suspect those allegations or sufficient grounds to investigate them.

The claimant applied under CPR Part 3.4(2) to strike out the justification pleading. The central issues were whether the article could bear the pleaded Level 3 meaning and whether the particulars and evidence disclosed reasonable grounds to suspect the claimant personally.

1. The court accepted that the article was capable of bearing the claimant’s pleaded meanings, but held that the Level 3 meaning could not properly be limited to grounds to investigate. The article followed investigations by the police and the newspaper, so it would be perverse to treat it as merely calling for an investigation.
2. The Level 2 justification plea still required particulars capable of supporting reasonable grounds to suspect the claimant. Under Musa King v Telegraph Group Ltd [2005] 1 WLR 2282, the conduct rule required the plea to be directed generally towards the claimant’s conduct. The plea also had to avoid transferring the burden of proof and had to identify objectively judged primary facts giving rise to solid, reasonable grounds for suspicion.
3. The betting statistics did not, by themselves, implicate the claimant in a corrupt conspiracy. The alleged car journey, the claimant’s prediction about the race, the public outcry, police and Jockey Club investigations, arrests, searches and the absence of a prior libel action added no legally sufficient bridge between the claimant and Rodgers. Matters had to be assessed at the date of publication.
4. The expert evidence did not support the allegation that the claimant appeared to wait for another horse. The disciplinary proceedings under Rule 156(i) of the Rules of Racing were consistent with error and did not equate to proceedings under Rule 157 for deliberate stopping or slowing.
5. Applying the approach in Re H (Minors) [1996] AC 563, the serious allegation required stronger evidence than the bare statistics supplied. The defective justification pleading could not remain merely because later evidence might emerge. Any application to amend would be considered on its own merits when made.

First-instance decision. No earlier appellate decision is stated in the judgment.