Thornton v Telegraph Media Group Ltd

In malicious falsehood, the claimant must prove falsity, malicious publication and actual pecuniary damage, subject to section 3 of the Defamation Act 1952. The defamation concept of honest comment does not provide an additional defence or determine falsity. A statement expressed as an opinion may still be false where the defendant did not genuinely hold it. The objective criterion applicable to honest comment therefore has no equivalent role in malicious falsehood.

The defendant sought permission to amend its defence to a malicious falsehood claim arising from a review of the claimant’s book. The proposed amendment alleged that the complained-of words were comment which an honest person could have expressed on the basis of facts drawn from the book, and therefore could not be false.

The claimant opposed the amendment as irrelevant and wrong in law. The court considered the elements of malicious falsehood, the relationship between that tort and honest comment in defamation, and the applicable test under Civil Procedure Rules 1998 Part 3.4(2)(a).

1. Permission refused. The defendant was refused permission to amend its defence in the proposed form.

2. The claimant in malicious falsehood must prove falsity, malicious publication and actual pecuniary damage, unless exempted from proving damage by section 3 of the Defamation Act 1952. The burden lies on the claimant for each element.

3. The proposed pleading that the words were comment which an honest person could have expressed on identified facts, and therefore could not be false, was irrelevant and wrong in law. The concept of comment derives from defamation and does not determine falsity in malicious falsehood.

4. An opinion may be the subject of malicious falsehood where the claimant alleges that the defendant did not genuinely hold it. Introducing the objective criterion from honest comment would permit liability to be avoided even where the claimant proved that the defendant did not believe the inference.

5. The proposed analogy with articles 8 and 10 rights was rejected. There is no public interest in asserting facts or opinions which the writer does not believe or hold. The suggested reform could not properly be made by a first-instance judge.

6. The court declined at that stage to withdraw the factual issue from the jury. The claimant retained the burden of proof, and delay alone would not have justified refusing the amendment. The amendment was refused because its proposed legal basis was irrelevant and wrong.

First-instance application. The judgment referred to earlier procedural decisions in the same litigation, including [2009] EWHC 2863, [2010] EWCA Civ 510, [2010] EWHC 1414 (QB) and [2010] EWCA Civ 177.