Rothschild v Associated Newspapers Ltd

In a libel action, a defendant may amend a justification defence where the publication is reasonably capable of bearing the amended meanings and the proposed case has a real, rather than merely fanciful, prospect of success. The court must address those questions in a logical order before determining the publication’s actual meaning where that question belongs to a jury. Case-management discretion must reflect the overriding objective and the modern disclosure expectations created by the Civil Procedure Rules and the Defamation Pre-Action Protocol. Where consent to jury trial was not obtained in accordance with the rules, the court must reconsider the mode of trial. The statutory presumption favours trial by judge alone, particularly where a preliminary meaning ruling may promote efficiency.

The claimant brought a libel action against the defendant publisher concerning an article about his relationship with Oleg Deripaska and Lord Mandelson, and Lord Mandelson’s attendance at events in Moscow. The defendant initially pleaded justification and honest comment, but later abandoned honest comment and sought permission to amend its justification case to rely on wider allegations concerning conflicts of interest, inappropriate relationships and discussions about aluminium tariffs.

The claimant applied to strike out the defences or obtain summary judgment. He also sought a change from jury trial to trial by judge alone. The court had to decide whether the article was capable of bearing the amended meanings, whether the proposed justification case had a real prospect of success, whether permission should be refused on case-management grounds, and what mode of trial should be ordered.

1. Amendment permitted. The article was capable of bearing the amended meanings. Applying the principles in Jeynes v News Magazines Ltd [2008] EWCA Civ 130, the court considered the article as a whole and concluded that it contained a significant theme concerning the wider inappropriateness of Lord Mandelson’s relationship with Mr Deripaska and the claimant’s facilitating role. That theme had a common sting with the allegations concerning the Moscow dinner.
2. The defendant’s proposed case also had a real prospect of success. The test under CPR Part 24 was not probability of success. It required a case with more than a merely arguable prospect, while excluding false, fanciful or imaginary prospects. The court was not to conduct a mini-trial. The claimant’s applications to strike out or obtain summary judgment were therefore superseded by the permitted amendment.
3. Permission was not refused on case-management grounds. The new case arose from information supplied by the claimant, remained closely related to the original case, did not materially extend the issues, and reduced the matters in dispute. In light of the overriding objective and the modern expectations created by the Civil Procedure Rules and the Defamation Pre-Action Protocol, refusal would have been unjust and disproportionate.
4. The mode of trial was changed to judge alone. A consensual order for jury trial did not bind the court because the application had not complied with CPR 26.11. Section 69(3) of the Senior Courts Act 1981 applied, and the presumption favoured trial by judge alone. The complexity of the background and the potential benefit of determining meaning as a preliminary issue supported that conclusion.
5. No finding was made on the truth of the allegations or criticism of Lord Mandelson, who was not a party and had made no submissions.

First-instance procedural decision. The judgment does not state any prior appellate decision.