Miller v Associated Newspapers Ltd

In a libel claim relying on a Chase level 2 meaning, a defendant must prove the primary facts which objectively gave rise to reasonable grounds to suspect the claimant’s conduct. Suspicion must be founded principally on conduct by the claimant, although strong circumstantial evidence may assist where it gives rise to an available inference about that conduct. The court must assess the whole factual position at the date of publication, including explanations given by the claimant and facts unknown to the defendant at the time. Selective, weak or untested hearsay may carry little weight. A claimant may pursue vindication for a lower defamatory meaning determined at a preliminary stage; doing so is not, without more, an abuse of process.

The claimant, a management consultant and former director of Impact Plus Ltd, sued the publisher of the Daily Mail over an article concerning contracts awarded by the Metropolitan Police Service to Impact Plus. The article was held at a preliminary stage to mean that there were reasonable grounds to suspect that the claimant was a willing beneficiary of improper conduct and cronyism arising from his friendship with Sir Ian Blair.

The defendant pleaded justification and, alternatively, abuse of process. The trial concerned whether the defendant had proved the substantial truth of the level 2 meaning, whether continuation of the claim was abusive, and, if necessary, damages.

1. Justification. The defence failed. The defendant had not established, objectively as at the date of publication, reasonable grounds to suspect that the claimant was a willing beneficiary of improper conduct and cronyism in relation to Metropolitan Police contracts.

2. A Chase level 2 defence requires proof of the primary facts and matters giving rise to reasonable grounds for suspicion. The essential focus is conduct by the claimant which brought suspicion upon him. Strong circumstantial evidence may contribute, but it is an adjunct to the conduct requirement and must support an available inference about the claimant’s conduct. The defendant must prove the primary facts, not merely reasonable grounds to suspect that those facts existed.

3. The assessment is objective and concerns the true factual position at the date of publication. The claimant’s evidence about his purpose, knowledge and state of mind was relevant where those matters formed part of the factual matrix. The court had to consider the overall factual position, including explanations given by the claimant and facts existing at publication whether or not known to the defendant.

4. The selective hearsay evidence relied on by the defendant was an unsatisfactory basis for findings of fact and adverse inferences. Under Civil Evidence Act 1968, section 4, its weight had to be assessed by reference to reliability, practicability of calling the maker, contemporaneity, multiple hearsay, possible motives and editing. The defendant bore the burden of proof; the claimant was not required to call the makers of weak hearsay evidence.

5. The defendant’s allegations about failures by the police authorities to comply with procurement rules did not materially establish the claimant’s conduct. There was insufficient evidence that the claimant knew of any breach, was responsible for it, or colluded in it. The evidence instead showed that Impact Plus was suitably qualified and had won the relevant tender on its merits.

6. Abuse of process. The claim was not abusive. A claimant is entitled to pursue public vindication for a defamatory meaning determined at a preliminary stage, even if it is lower than the meaning originally alleged. The confidential investigation report did not provide public vindication, and the defendant’s settlement offer did not justify terminating the claim.

7. Damages. The claimant was awarded £65,000. The court took account of the prominence of publication, distress, reputational harm, the absence of apology or correction, the defendant’s persistence in justification, the cross-examination, and the failure to contact the claimant before publication. No mitigating factors were established.