Mengi v Hermitage

At the end of a libel trial, striking out for lack of substantial tort remains an exceptional remedy. The court must apply the law in force, rather than a proposed statutory serious-harm threshold that has not yet taken effect.

For justification under Defamation Act 1952, s 5, a defence does not fail merely because every distinct charge is unproved, provided the unproved charges do not materially injure reputation in light of the charges proved.

Qualified privilege for reply to attack requires a bona fide, relevant and proportionate response. It is a question of fact whether a publication is a reply, and the privilege is not automatically lost because there have been several responses or a delay.

Reginald Mengi brought a libel claim against Sarah Hermitage concerning website articles and emails describing his involvement in a campaign by his media organisations against British investors in Tanzania and alleging that he had made promises to assist them which he did not honour.

The court rejected an application to strike out the website claim under the jurisdiction associated with Jameel v Dow Jones & Co Inc, and proceeded to trial. The central issues were the meanings of the publications, justification, and qualified privilege by way of reply to attack.

The claim also raised whether the defendant’s unproved allegations materially injured the claimant’s reputation having regard to the allegations that were proved.

1. The claim was dismissed. The court found for the defendant on both justification and qualified privilege.

2. Striking out for absence of a substantial tort can occur at the end of a trial, but only in very exceptional circumstances. The authorities included Fairclough v Summers [2012] 1 WLR 2004 and Abbey v Gilligan [2012] EWHC 3217. The proposed serious-harm requirement in clause 1 of the Defamation Bill was not yet law and could not be applied.

3. The publications conveyed three principal allegations: that the claimant encouraged a defamatory media campaign; that he was complicit in corruption and intimidation; and that he lied to the British High Commissioner about promises to intervene, stop the campaign and pay legal costs.

4. The first two allegations were substantially true and therefore justified at common law. The third was not wholly proved. However, under s 5 of the Defamation Act 1952, the defence did not fail because the unproved charges did not materially injure the claimant’s reputation in view of the more serious charges proved.

5. Qualified privilege by way of reply to attack applied. The privilege requires a bona fide, relevant, proportionate and appropriate response, but necessity is not required. It can extend to a response defending family or friends. Whether a publication is a reply, and whether it remains reasonable, proportionate and relevant despite delay or multiple publications, is a question of fact.

6. The court declined to adopt a legal rule that a person has only one response to each attack. The defendant’s publications and emails were a measured response to the earlier campaign and were not published with malice.