Ashcroft v Foley & Ors

On an application to amend or reinstate defences of justification and fair comment, a pleaded allegation must identify clearly the conduct said to be defamatory and the facts relied upon to support it. The court should not conduct a mini-trial or require the defendant to disclose its evidence at the pleading stage. It may nevertheless strike out an unclear or speculative plea which leaves the claimant unable to know the case to meet. Where dishonesty is expressly alleged, the supporting facts need not be consistent only with dishonesty and need not make that inference inescapable. But they must be particularised and capable of supporting the pleaded meaning. Mere knowledge of wrongdoing, or acquiescence in wrongdoing by others, does not by itself justify a meaning alleging that the claimant personally authorised or committed the misconduct.

The defendants sought permission to reinstate amended defences of justification and fair comment after their earlier defences had been struck out in [2011] EWHC 292 (QB). They proposed new Lucas-Box meanings concerning alleged loans by the claimant’s bank to the Premier of the Turks and Caicos Islands, and alleged dishonesty in the claimant’s subsequent denials.

The claimant argued that the proposed meanings were unclear, speculative and incapable of supporting the defamatory imputations. The central issues were whether the pleaded facts could support inferences of dishonesty without being more consistent with dishonesty than innocence, whether the proposed allegations gave adequate particulars of the claimant’s personal involvement, and whether acquiescence could justify the published words.

1. Applicable principles. The court adopted the guidance in McDonald’s Corporation v Steel [1995] 3 All ER 615 and the majority reasoning in Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1. The question was whether the pleaded allegations were incapable of proof. The court should avoid a mini-trial and ordinarily assume that properly pleaded facts will be proved. A defendant need not disclose its evidence or identify confidential sources at this stage.
2. Where dishonesty is expressly pleaded, the particulars need not be consistent only with dishonesty. It is sufficient that they are capable of supporting the pleaded inference. The inference need not be inescapable, and a different inference consistent with honesty may remain reasonably possible. This did not remove the requirements of clarity, particularity and a rational evidential basis.
3. The proposed primary meaning, that the claimant authorised his bank to lend money without commercial repayment, was impermissibly vague. It left open whether the loan was a gift, whether interest or capital was repayable, whether contractual terms were a sham, whether non-enforcement occurred later, and what part the claimant allegedly played. The defendants had to identify the precise charge, the claimant’s role, the relevant terms and when any alleged impropriety occurred.
4. The alternative meaning based on the claimant’s knowledge and acquiescence was also unacceptable. Knowledge of wrongdoing did not establish a defamatory meaning unless the claimant authorised it or was able to prevent it and failed to do so. Mere acquiescence did not meet the sting of words portraying the claimant as personally responsible for the misconduct.
5. The defendants could rely on an official report as a possible evidential foundation for pleading serious misconduct, but could not infer misconduct from what the report did not say. Any allegations concerning the second article, including that the claimant had lied or been economical with the truth, were parasitic upon properly formulated primary allegations. They could stand only to that extent.

The defendants’ earlier defences of justification and fair comment had been struck out by an order dated 17 March 2011, for reasons given in [2011] EWHC 292 (QB). The defendants intended to seek permission to appeal, but the present judgment determined their parallel application to put forward amended defences.