Rothschild v Associated Newspapers Ltd

A defendant may justify a defamatory publication by proving that its essential sting is substantially true. Where a specific allegation is presented as an example of a wider defamatory charge, the wider charge may be proved through other examples, including facts not stated in the publication.

The publication must bear a genuine common sting. Unrelated misconduct cannot justify the libel. In an exemplar case, the majority treated justification as requiring the proved example to carry, in essence, a sting as grave as the published but unproved example, so that the false accusation caused no additional reputational loss.

The appellant sued the publisher of the Daily Mail for libel over an article alleging that he had taken Lord Mandelson, then European Commissioner for Trade, to a Moscow business dinner connected with an aluminium transaction. It was common ground that material parts of that account were false.

Tugendhat J nevertheless upheld justification in [2012] EWHC 177. He found that the article also conveyed a wider charge that the appellant used his friendship with Lord Mandelson to impress and retain the favour of a Russian businessman. A separate trip to Siberia substantially proved that charge.

The appeal concerned whether the article contained that wider defamatory sting and whether the proved Siberian example could justify the publication despite the false Moscow allegation.

1. Appeal dismissed unanimously. Laws LJ delivered the leading judgment. McCombe LJ agreed, after initial hesitation, and Sir David Eady agreed with the disposition while expressing reservations about part of the governing formulation.

2. A defence of justification succeeds where the defendant proves the substantial truth of the defamatory allegation. A claimant may confine the complaint to the published meaning, but cannot alter the publication's meaning by severing relevant parts. The defendant may justify a common sting derived from the publication as a whole. Proof of unrelated misconduct cannot justify the libel.

3. The article contained a general defamatory charge as well as the specific allegation about the Moscow dinner. Read in context, it accused the appellant of being prepared to use his friendship with Lord Mandelson to impress and retain the favour of the Russian businessman, while knowing or being expected to foresee that this would expose Lord Mandelson to accusations of conflict of interest and improper discussions. The dinner was portrayed as an example of that wider charge: per Laws LJ at [32]–[36].

4. In an exemplar case, Laws LJ held that a general charge may be justified through other proved examples, including facts not published. The proved example must carry, in essence, a sting as grave as the published but unproved example. This prevents a defendant from obtaining a roving commission while allowing substantial truth to answer a claim: at [22]–[26].

5. The trial judge was entitled to find that the appellant facilitated lavish hospitality and close contact between Lord Mandelson and the businessman during a business trip to Siberia. The appellant knew or should have foreseen the resulting suspicions of conflict of interest and improper discussion. In context, that proved instance bore essentially the same sting as the false Moscow allegation. The appellant therefore had no additional reputation to lose through the latter allegation: per Laws LJ at [47]–[51].

6. McCombe LJ considered the equivalent-sting principle supported to a limited extent by Berezovsky, but said its wider resolution could await another case. Sir David Eady doubted the need for such a prescriptive rule. In his view, justification of a general charge need not invariably fail because the published example was more serious than the example proved. The court could instead justify the general charge and assess separately whether the unproved specific allegation caused compensable marginal damage, consistently with section 5 of the Defamation Act 1952: at [56]–[65].

1. Court of Appeal (Civil Division): In [2013] EWCA Civ 197, the court unanimously dismissed the claimant's appeal and upheld the judgment for the defendant.
2. Queen's Bench Division: Tugendhat J gave judgment for the defendant after trial in [2012] EWHC 177, holding that the defence of justification was established.
3. Queen's Bench Division, interlocutory stage: In [2011] EWHC 3462, Tugendhat J permitted the defendant to recast its justification defence after it accepted that it could not prove the allegation concerning the Moscow dinner.