Rath v Guardian News and Media Ltd & Anor

In libel proceedings, a defendant may rely on an uncomplained-of passage where the pleaded allegation and the complained-of meaning share a common sting. At the interlocutory stage, a justification plea should not be struck out if the alleged facts could support the necessary inference, even where the evidence does not identify every affected individual.

Fair comment may include an inference about causation where the reader can recognise it as comment and the article states or indicates facts from which it is drawn. Under Defamation Act 1952, s 6, the defence may survive even if every factual allegation is not proved, provided the opinion is fair having regard to the facts proved.

Earlier similar defamatory publications by the same publisher cannot ordinarily be used to reduce libel damages by showing that the claimant’s reputation was already tarnished.

The claimant brought libel proceedings against the publisher of The Guardian and its columnist concerning three articles in the Bad Science column. The articles criticised his promotion of vitamins and micronutrients in the treatment of HIV and AIDS and his opposition to antiretroviral medication.

The defendants pleaded justification and fair comment. The claimant applied to strike out parts of the defence, obtain summary judgment on the fair-comment plea, and remove reliance on earlier similar publications in mitigation of damages. The defendants applied to amend their defence.

1. Polly Peck application. The allegation that the claimant was associated with an extreme attack on Zackie Achmat was a particular instance of the wider allegation that he had campaigned irresponsibly against antiretroviral medication. The allegations therefore shared a common sting. The defendants could rely on the claimant’s conduct concerning Anthony Brink to justify the pleaded meanings, and the relevant paragraphs were not struck out.
2. Perhaps application. The amended allegation that the claimant had substantially contributed to the deaths of perhaps hundreds of thousands of people was capable of being supported by inference. At this stage it was unnecessary for the particulars of justification to identify every AIDS sufferer said to have been affected. The plea therefore had a real prospect of success and was not struck out.
3. Paragraph 12(38). The pleading concerning the letter from 199 health professionals could stand if relied on to show that the claimant continued his campaign despite being warned of its dangers. It would not, without more particularisation, establish the truth of the underlying factual allegations attributed to the professionals.
4. Fair comment. The defendants had a real prospect of showing that the allegation concerning contribution to deaths was a deduction, inference, conclusion or criticism recognisable as comment. The article supplied facts from which a reasonable reader could understand the allegation as an inference about causation. The defendants also had a real prospect of relying on Defamation Act 1952, s 6. Summary judgment was therefore refused.
5. An application under CPR Part 53 PD4.2 concerns the defamatory meaning, if any, of the words complained of. It cannot determine finally the meaning or truth of factual material relied on as the substratum of a comment. Since the defendants might prove some of those facts, the issue could not be disposed of summarily.
6. Dingle application. Earlier similar publications by the same defendant could not ordinarily be used in mitigation of damages. The later authorities concerning relevant background and context did not establish that a claimant’s failure to complain about an earlier similar libel was directly relevant in this case. The relevant words in paragraph 15 were struck out.
7. The claimant’s Dingle application succeeded. His other applications were dismissed. The defendants’ application to amend the defence was allowed.