Lord Ashcroft KCMG v Foley & Anor

At the pleading stage, a defendant advancing justification need not show that the pleaded particulars are more consistent with the truth of the defamatory allegation than with its falsity. The proper question is whether a juror would be perverse to find the plea established on a balance of probabilities if the pleaded facts were proved at trial. The court should avoid a hypothetical evidential filtering exercise based on incomplete facts. A similar approach may apply to fair comment. Legal representatives are entitled to exercise professional judgment about evidence supporting a plea of fraud or justification. The court should principally ask whether the pleading is sufficiently clear and passes the perversity test.

The claimant sued over articles published in The Independent. The defendants sought permission to serve a further defence containing pleas of justification and fair comment, after repeated difficulties in formulating their case and earlier judgments concerning the pleadings.

The court also considered whether the defendants had to satisfy a test that their particulars were more consistent with truth than falsity, and whether they had to identify at that stage the evidence supporting their decision to plead justification.

1. Permission to amend. The defendants were permitted to advance pleas of justification and fair comment, notwithstanding that the latest version of the defence remained imperfect and the substance of the case had emerged partly through oral submissions. The overriding objective required the proceedings to progress to trial. The claimant could seek clarification by correspondence or requests for further information.
2. Justification and fair comment. The court rejected the proposed requirement that particulars supporting justification must be more consistent with truth than falsity. The rule in Somerville v Hawkins (1851) 10 CB 583, reaffirmed in Telnikoff v Matusevitch [1991] 1 QB 102 and Alexander v The Arts Council of Wales [2001] 1 WLR 1840, operates in the context of malice. Extending it to justification would create an uncertain and unwarranted inhibition on pleading the defence.
3. The appropriate question was whether a juror would be perverse to find justification established on a balance of probabilities if all the pleaded facts were proved at trial. The same approach could be used when considering whether it would be perverse for an honest person to hold the opinion relied on in fair comment. That approach was consistent with Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1.
4. The court was guided by McDonald’s Corporation v Steel [1995] 3 All ER 615. Pleaders may exercise professional judgment about evidence supporting a plea of fraud. At this stage the court should examine the clarity of the pleading and apply the perversity test, rather than investigate confidential advice or the detailed rationale for that professional judgment.

The pleadings were to continue through reply and disclosure. The claimant’s application for preliminary hearings was premature.

The judgment records earlier decisions in the same proceedings dated 18 February 2011 and 1 July 2011, and a Court of Appeal judgment dated 4 April 2012. It does not give citations for those decisions.