Miller v Associated Newspapers Ltd

To justify an imputation that reasonable grounds exist to suspect wrongdoing, a defendant must prove primary facts which, viewed objectively and as a whole at the date of publication, provide reasonable grounds for the suspicion. The focus is on observable conduct by which the claimant brought suspicion upon himself.

Later events cannot establish the necessary grounds. Later evidence may nevertheless prove or disprove facts already existing when the material was published. A claimant’s subsequent account of an unobservable state of mind is irrelevant, although the court may infer that state of mind from primary facts.

The publisher of the Daily Mail appealed from Sharp J’s judgment for the claimant in a libel action: [2012] EWHC 3721 (QB). The article meant that reasonable grounds existed to suspect that the claimant had willingly benefited from improper conduct and cronyism in the award of Metropolitan Police consultancy contracts to his company.

Sharp J rejected justification and abuse of process and awarded £65,000 damages. The appeal challenged justification alone. The central issue was whether the judge had applied the correct principles to the evidence and whether the facts, viewed objectively and as a whole at publication, provided reasonable grounds for the stated suspicion.

1. Appeal dismissed unanimously. The observable facts existing at publication did not provide reasonable grounds for suspecting that the claimant had willingly benefited from improper conduct and cronyism.

2. A Chase Level 2 imputation alleges reasonable grounds for suspicion, rather than actual guilt. Its sting is that the claimant’s own conduct has brought the suspicion upon him. Justification therefore required proof of primary facts which, objectively assessed in their full context as at publication, would cause a reasonable person to suspect the alleged wrongdoing.

3. The claimant’s later account of what he thought, believed or intended was not itself a relevant primary fact because his state of mind was not observable. The reasonable person could, however, infer a state of mind from other primary facts. Evidence given at trial was admissible where it shed light upon circumstances existing before publication, even if the evidence came from the claimant. The trial judge had not confused reasonable suspicion with proof of actual impropriety.

4. The rule against hindsight excludes events occurring after publication. It does not exclude later statements which tend to prove or disprove facts already existing at publication. The explanations criticised by the publisher related to events long preceding publication.

5. Contemporaneous documents often provide valuable assistance when assessing recollection and credibility, but there is no rule requiring them to be preferred to witness evidence. The court must weigh all the evidence and make findings properly supported by it.

6. Under sections 2 and 4 of the Civil Evidence Act 1995, failure to give a hearsay notice does not make a statement inadmissible as proof of its contents, although it may affect weight. Reliability must be assessed in light of all relevant circumstances. A mechanistic examination of every statutory consideration is unnecessary.

7. Reading the trial judgment as a whole, Sharp J had identified the relevant facts, evaluated them in context and asked whether collectively they supported the alleged suspicion. Her conclusion was correct.

1. Court of Appeal (Civil Division): By [2014] EWCA Civ 39, unanimously dismissed the publisher’s appeal against the rejection of its justification defence.

2. High Court, Queen’s Bench Division: Sharp J gave judgment for the claimant in [2012] EWHC 3721 (QB), rejecting justification and abuse of process and awarding £65,000 damages.

3. High Court preliminary ruling: Tugendhat J determined that the article conveyed reasonable grounds to suspect that the claimant had willingly benefited from improper conduct and cronyism, and that the meaning was defamatory. No citation is stated in the judgment.