Hunt v Evening Standard Ltd

In a defamation action, a justification defence must plead primary facts capable of establishing the alleged meaning. Merely pleading that the claimant was arrested, suspected or feared is insufficient where the defence depends on reasonable grounds for suspicion. The conduct relied on must be identified with adequate particularity. Similar earlier conduct may be relevant where it rationally bears on the facts in issue, but narrative or background is not a substitute for material averments. Evidence of a claimant’s general bad reputation may be admissible in mitigation of damages, particularly where it bears directly on the subject matter of the publication or the claimant’s asserted status. The court may strike out irrelevant or inadequately particularised parts of a defence while allowing a properly arguable allegation to proceed.

The claimant brought a libel action against the publisher of the Evening Standard concerning allegations that he led a criminal network and intended to take over and sell a development site to another criminal gang. The defendant pleaded justification to a different Lucas-Box meaning, namely that the claimant was guilty, or reasonably suspected, of blackmail, witness intimidation and threatening to kill. It relied on several incidents, including the Allen, Wilson and Kavanagh matters, together with allegations of general bad reputation in mitigation of damages.

The claimant applied under CPR 3.4(2)(a) and (b) to strike out parts of the defence as irrelevant or inadequately particularised. The central issues were whether the pleaded matters established conduct capable of supporting reasonable suspicion, whether similar earlier incidents were relevant, and what evidence of general bad reputation could properly be pleaded.

1. Disposition. The claimant’s application succeeded in part. The court struck out portions of paragraphs 6.1, 6.2, 6.7, 6.8, 6.9, 6.11 and 6.12 of the defence, but declined to strike out the remaining challenged material.
2. Justification. The principles stated in Musa King v Telegraph Group Ltd [2004] EWCA Civ 613; [2004] E.M.L.R. 23 required the defendant to plead the primary facts giving rise objectively to reasonable grounds of suspicion. It was impermissible to rely merely on the fact that the claimant had been arrested or suspected by others. The pleaded conduct itself had to support the suspicion. The arrest allegations in paragraph 6.7 therefore added nothing material, and the references to the Matthews convictions, arrests and jury protection lacked sufficient particularity or a pleaded factual basis connecting them with the alleged suspicion.
3. Similar conduct. Earlier events could in principle be relevant to show propensity or make the occurrence of the alleged conduct more probable. The approach in O’Brien v Chief Constable of South Wales Police [2005] 2 AC 534 was accepted. However, the material had to be probative of the issue. Violence followed by a complainant’s unwillingness to provide a statement did not, without more, establish blackmail, witness intimidation or threats to kill. Paragraphs 6.8 and 6.9 were therefore struck out. Paragraph 6.11, alleging that Mr Kavanagh had been intimidated, was sufficiently arguable to remain, although further particulars might later be required.
4. General reputation and mitigation. Evidence of general bad reputation is admissible in mitigation of damages. The developing principles discussed in Burstein v Times Newspapers Ltd, Turner v News Group Newspapers Ltd [2006] 1 WLR 3469, and Tesco Stores v Guardian News & Media Ltd [2008] EWHC B14 (QB); [2009] EMLR 5 required caution before excluding material capable of bearing directly on the defamatory subject matter. The plea concerning the claimant’s reputation among law-enforcement agencies and his asserted status as a businessman was not wholly irrelevant or unparticularised and was allowed to stand.