Lord Ashcroft KCMG v Foley & Ors

Defences of justification and fair comment in a libel action must identify clearly and coherently the defamatory meaning relied upon and the facts said to justify or support it. Serious allegations, especially allegations of corruption, require particular clarity and specificity. Mere association, links, recitation of another person’s findings, or vague references to influence do not provide an adequate plea unless the defendant identifies the claimant’s alleged involvement and the facts supporting the inference of wrongdoing. A fair comment defence must identify both the comment and the factual foundation on which it is said to be honestly expressible. Pleadings which leave the claimant uncertain of the case to be met may be struck out.

The claimant brought a libel action concerning articles published in The Independent about his business dealings and alleged influence in the Turks and Caicos Islands. The defendants pleaded justification, fair comment, privilege and other defences. The claimant applied to strike out parts of the defences, principally because the pleaded meanings and supporting particulars were vague, composite, and insufficiently connected to allegations of corruption.

The court considered the defendants’ proposed amended defence as their best case. The principal issues were whether the proposed meanings and particulars identified a viable case of justification or fair comment, whether reliance on the Auld Inquiry report complied with the repetition rule, and whether other parts of the defence concerning sources and costs information should remain.

1. Justification. The current pleas of justification were struck out. A defendant is entitled to plead its own coherent case, but must identify the conduct alleged against the claimant and the facts from which the alleged defamatory meaning can be inferred. Allegations that a claimant’s bank or associated companies made loans, funded property, or maintained relationships were insufficient without clear allegations of the claimant’s authorisation, knowledge, involvement, improper motive and the alleged favourable treatment.
2. Descriptions such as “associated”, “linked”, or “party to a culture of amorality” cannot be used as an unfocused smear. Where an association is relied upon as evidence of corruption, the alleged impropriety must itself be pleaded, or the facts supporting the inference must be set out. Serious allegations concerning political influence likewise required the relevant acts, ministers, policy decisions and causal connection to be identified.
3. Particulars could not simply reproduce findings or allegations from Sir Robin Auld’s report. The defendants had to prove the relevant facts independently. The report did not itself refer to or criticise the claimant, and general findings about amorality could not create a prejudicial climate or establish defamatory imputations against him.
4. Fair comment. The defence had to identify the defamatory comment and the facts on which an honest person could express it. The pleaded comments concerning the claimant’s influence, safeguards and relationship with William Hague lacked sufficient factual foundation. If the defendants intended to rely on the claimant’s alleged history of corruptly using money to obtain influence, that history had to be set out with particularity.
5. The plea that the journalist had contacted “a number of sources” was struck out because the defendants expressly relied on no information obtained from those sources. The court refused an order requiring the second defendant to disclose information about its financial means. CPR 1.1, CPR 25.13(2)(c), CPR 18.1 and CPR 3.1(2)(m) did not confer such a power merely to reassure a claimant about recovery of costs.