Waterson v Lloyd & Anor

For honest opinion, the factual basis of the comment must be true or privileged, and the comment must be recognisable as comment. It must also be capable of being made by an honest person, however prejudiced, exaggerated or obstinate. The defence is not defeated merely because the comment concerns conduct within the rules or because the defendant was motivated by hostility. Relevant additional facts matter only if they falsify or materially alter the complexion of the stated facts. On a summary judgment application, the court may determine the issue where the pleaded facts are narrow, undisputed and leave no realistic prospect of the defence failing.

The claimant, a former Conservative MP, brought libel proceedings concerning two campaign newspapers published during the 2010 General Election by the defendants. The Court of Appeal had held by majority that the publications meant that the claimant had claimed nearly £70,000 from taxpayers for a family home about 60 miles from his constituency, and that this was scandalous. It held that the words contained no allegation of illegality, breach of Parliamentary rules or other impropriety.

The claimant sought summary judgment, arguing that the factual basis was incomplete and that no honest person could regard the conduct as scandalous. The defendants sought summary judgment on their honest opinion defence. The central issue was whether the defence had a realistic prospect of failing.

1. Summary judgment. The court applied the predictive approach required under CPR Part 24. The court must avoid a mini-trial, but may decide an issue summarily where the pleaded and undisputed material is narrow and further evidence would not realistically affect the result.
2. Objective conditions. The five conditions for honest opinion were that the comment concerned a matter of public interest, was recognisable as comment rather than fact, was based on true or privileged facts, indicated those facts at least generally, and was capable of being made by an honest person however prejudiced, exaggerated or obstinate. The first, second and fourth conditions had already been determined in the defendants’ favour.
3. The relevant factual basis comprised three matters: the claimant had claimed nearly £70,000 from taxpayers; the claim concerned a family home; and the home was about 60 miles from his constituency. Those facts were true and non-defamatory. No allegation of illegality, breach of the rules or impropriety was made or required.
4. Additional matters relied upon by the claimant, including the absence of adverse findings by Sir Thomas Legg and the fact that the claims were typical, did not falsify or alter the complexion of the stated facts. The narrowness of the factual basis defeated that argument.
5. In the circumstances, an honest person could regard the stated facts as scandalous. The comment therefore satisfied the fifth objective condition.
6. Subjective honesty. The claimant bore the burden at trial of disproving the defendants’ asserted honest belief. Given the absence of disputed facts and the defendants’ maintained evidence of belief, the claimant had no realistic prospect of doing so.
7. The defendants’ application for summary judgment was granted on the honest opinion defence. The claimant’s application was dismissed, and the remaining applications were unnecessary.

The judgment records that Tugendhat J entered summary judgment for the claimant after ruling that the publications were factual allegations and refusing permission to amend the defence to plead justification. The Court of Appeal, by majority, overturned that order and remitted the honest opinion issues. The present court determined the outstanding summary judgment applications.