Prince Radu of Hohenzollern v Houston & Anor

A justification defence in defamation proceedings must identify the facts relied upon clearly and succinctly, without pleading the evidence. Serious allegations of fraud, forgery or dishonesty require particularity sufficient to tell the claimant the case to be met, including the dishonest states of mind alleged. A defendant must have reasonable evidence, or reasonable grounds for believing that sufficient evidence will be available at trial. A plea based on “grounds to suspect” must identify the claimant’s conduct said to found the suspicion and must not reverse the burden of proof. Third-party allegations and a claimant’s alleged failure to refute them do not, without more, justify the defamatory imputation. Irrelevant, confusing and embarrassing material, including extensive newspaper reports, may be struck out.

The claimant brought defamation proceedings arising from publication in Royalty Monthly in September 2004. After an earlier trial on privilege and related appeals, the defendants served a substantially revised defence of justification. The claimant applied to strike out large parts of it on the grounds that it was irrelevant, embarrassing, prejudicial, inadequately particularised and unsupported by a proper evidential basis.

The defence alleged, among other matters, that the claimant had falsely used a princely title, relied on a forged document, and had been an officer or collaborator of the Securitate. The central procedural question was whether the latest pleading identified the real issues and gave the claimant fair notice of the case to be tried.

1. The plea of justification was struck out as a whole. The defendants were permitted to reconsider and serve a new pleading. The defence of fair comment was also to be deleted, since it was no longer pursued.
2. A justification defence must state the facts relied upon clearly and succinctly, rather than the evidence by which they are to be proved. Allegations of fraud, forgery and dishonesty must be pleaded with particularity, including the relevant dishonest state of mind. The standard is especially demanding where the allegation is serious and the claimant must know precisely the case to meet. The approach described in Hickinbotham v Leach (1842) 10 M & W 361 was applied.
3. A defendant should plead justification only where there is reasonable evidence supporting the defence, or reasonable grounds for supposing that sufficient evidence will be available at trial. Reliance on a document whose authenticity was under serious challenge was inappropriate without proper investigation and explanation. The principle in McDonald’s Corporation v Steel [1995] EMLR 527 was applied.
4. Where the pleaded meaning is that there are strong grounds to suspect wrongdoing, the pleading must identify the claimant’s conduct said to found the suspicion. It must not transfer the burden of proof to the claimant by relying on a failure to refute newspaper allegations or other third-party assertions. The disciplines identified in Musa King v Telegraph Corporation [2004] EMLR 23 were applied. Post-publication events could not support a grounds-to-suspect plea assessed as at publication.
5. Extensive newspaper articles alleging defamatory conduct by third parties were irrelevant and objectionable when pleaded merely to show that such allegations had been made, or that the claimant had failed to answer them. The reasoning in Associated Newspapers Ltd v Dingle [1964] AC 371 was applied.
6. The general observations in McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775 did not relax the claimant’s entitlement to know the case in advance or permit a party to reserve a new case until witness statements. The pleading had to be focused on the real issues and confined to necessary and proportionate material.

The judgment records earlier proceedings concerning security for costs and privilege. The claimant succeeded at the privilege trial: [2007] EWHC 2735 (QB). The defendants’ challenge to that ruling failed in the Court of Appeal: [2008] EWCA Civ 921. This judgment concerned the subsequent pleading of justification.