Foley & Ors v Ashcroft

A defendant pleading justification in a libel action must specify precisely and clearly the defamatory meaning to be justified. The supporting particulars must identify the claimant’s relevant acts and give a succinct account of the essential facts. Serious allegations demand corresponding precision.

The breadth and constitutional importance of honest comment do not permit a loose or ineffective pleading. The facts said to warrant the comment must be pleaded clearly. When determining whether published words are capable of bearing a proposed meaning, the court considers what a jury could sensibly understand, approaching the permissible range generously. A meaning may nevertheless be excluded where no sensible jury could adopt it.

The appellants were a journalist, the publisher of the Independent, and its editor. Lord Ashcroft sued them for libel over two articles concerning loans associated with his bank, the former Premier of the Turks and Caicos Islands, and alleged political influence.

Eady J struck out defences of justification and honest comment in [2011] EWHC 292 (QB). He subsequently refused permission to introduce revised defences in [2011] EWHC 1710 (QB). The defendants appealed both interlocutory orders.

The principal questions were whether the proposed meanings and supporting particulars stated a sufficiently clear and coherent case, whether the words could bear certain lesser meanings, and whether the requirements imposed by the judge were too exacting.

1. Both appeals dismissed. Pill LJ and Sharp J delivered the joint judgment. Elias LJ agreed. The judge’s rulings on meaning and his case-management decisions disclosed no error.

2. A defendant pleading justification must specify precisely and clearly the defamatory meaning to be justified. The proposed meaning concerning loans made without seeking commercial repayment admitted numerous materially different possibilities. It did not identify clearly the alleged impropriety or the claimant’s role. It therefore failed the specification requirement in paragraph 2.5(1) of Practice Direction 53 to the Civil Procedure Rules 1998.

3. The later formulation in the defendants’ letter was, subject to qualification, sufficiently clear. It alleged that ostensibly commercial loan arrangements were understood from the outset not to require proper repayment. The supporting particulars could also sustain an inference that the claimant authorised the loans, particularly if they included the allegation that the bank, with his knowledge, did not seek enforcement. That formulation was not, however, the pleaded amendment which the judge had been required to decide.

4. Particulars of justification must be capable of proving the pleaded defamatory meaning. They must also provide a succinct and clear account of the essential and relevant facts. Their adequacy depends on their precision and focus, not their volume. The proposed allegation that the claimant was party to a culture of political amorality was vague and supported by diffuse particulars from which the acts alleged against him could not readily be identified.

5. The requirement that a serious imputation be pleaded with the precision of an indictment does not import an excessive or technical criminal standard. It means that the defendant must identify the acts attributed to the claimant and relied upon to justify the imputation. The requirement accords with modern pleading practice and has particular force where corruption or comparable misconduct is alleged.

6. Honest comment requires identification of facts upon which a person could honestly express the comment. Its importance to freedom of expression and the breadth of the objective test do not remove the ordinary requirements of clarity and proportionality. The defects in the particulars of justification consequently undermined the honest-comment defence, although a properly particularised defence of the proposed general kind could legitimately be pleaded.

7. The words were incapable of bearing the lesser allegation that the claimant merely acquiesced in others’ wrongdoing. They portrayed him as centrally involved. Nor could the second article sensibly mean only that his denials were evasive or lacked candour: it presented unequivocal denials in opposition to stated facts.

8. The court declined to decide whether allegations of fraud in justification must satisfy the same pleading threshold as fraud or malice in other contexts. The result would have been the same whichever proposed standard applied. Repeated applications designed to preserve an unnecessarily general pleading may eventually become an abuse of process.

1. Court of Appeal (Civil Division): Dismissed both appeals and left undisturbed the orders striking out the defences of justification and honest comment and refusing the proposed amendments: [2012] EWCA Civ 423.
2. Queen’s Bench Division: Eady J refused permission to introduce the revised defences: [2011] EWHC 1710 (QB).
3. Queen’s Bench Division: Eady J struck out the pleaded defences of justification and honest comment: [2011] EWHC 292 (QB).