Cook v Telegraph Media Group Ltd

For honest comment, the relevant question is objective: whether an honest person could have made the comment and whether it was germane to the subject criticised. Different legal, moral or public standards may coexist, so a comment that conduct was appropriate under one standard may be consistent with criticism under another. Malice defeats the defence only where the defendant, or the relevant individual for whom a corporate defendant is liable, did not believe that the comment was justified. Spite or ill-will alone is insufficient. Where the comment was made by a different journalist, malice must be proved against the person responsible for that comment.

The claimant, a Member of Parliament, brought a libel action concerning three articles published by the defendant newspaper about his attempted reimbursement of a £5 church offertory donation. The court had previously ruled that the articles conveyed three defamatory meanings, all of comment.

At trial, the court determined whether an honest person could express those comments on the admitted facts and whether the claimant had established malice in relation to one of them. The defendant relied on the defence of fair comment, now described in the judgment as honest comment.

1. Honest comment and pertinence. The test of pertinence is purely objective. A comment must be one which an honest person could have made, however prejudiced, exaggerated or obstinate that person might be, and it must be germane to the subject criticised. The principle was stated by reference to Spiller v Joseph [2010] UKSC 53 and Tse Wai Chun Paul v Albert Cheng [2000] HKCFA 35.
2. The defamatory meanings were not logically inconsistent. A person could regard a claim as appropriate under the rules governing parliamentary expenses while considering that it could not be justified to the public. Legal justification and moral justification are not necessarily the same. Each comment could therefore have been made by an honest person and was germane to the subject criticised.
3. Malice. The only relevant question was whether the person responsible for the comment believed that it was justified. Spite or ill-will was immaterial. The plea concerned a comment in the Leader written by Mr Palmer, not Mr Sawer. That alone defeated the allegation of malice against Mr Sawer.
4. In any event, the evidence established that neither Mr Sawer nor Mr Palmer lacked belief in the comment. The contemporaneous email showed that the conversation relied on by the claimant had occurred before 11.53am, contrary to the claimant’s recollection, but the judge drew no adverse inference against him. The credibility challenge to Mr Sawer failed.
5. The claim therefore failed in its entirety. Since malice was not established, the defence of fair comment succeeded, and it was unnecessary to consider the other pleaded defences. The separate application to strike out the malice allegation under CPR 3.4(2) was not decided because it served no practical purpose after trial.

The judgment records earlier decisions in the same litigation at [2011] EWHC 763 (QB) and [2011] EWHC 1134 (QB). No appeal history is stated.