Calvert & Ors v Cruddas

Permission to appeal in a defamation claim should be granted where the proposed challenge has a better than fanciful prospect of showing that the trial judge went wrong on the facts in a radical way. That assessment may take account of the interdependence of related allegations and claims. Where a challenge to the central libel issue may affect a related malicious falsehood claim, permission may be granted for both. A separate challenge to the statutory requirement of likely pecuniary damage may nevertheless be refused where it raises no sufficient prospect of success.

Peter Cruddas obtained damages of £180,000 for libel from Tugendhat J on 31 July 2013. The judge also found malicious falsehood established but made no separate award. The claim concerned The Sunday Times reports of an undercover meeting about political donations, involving alleged cash for access and foreign donations. The appellants renewed an application for permission to appeal after permission had been refused on the papers. The central issue was whether the proposed factual challenges had a sufficient prospect of affecting the findings on justification, malicious falsehood and, separately, likely pecuniary damage under Defamation Act 1952, s 3.

1. Permission granted in part. The court granted permission to appeal on the cash for access allegation, the foreign donations allegation and the findings of malice in the malicious falsehood claim. Permission was refused on the discrete issue of the likelihood of pecuniary damage for the purposes of s 3 of the Defamation Act 1952.
2. On an application for permission to appeal against factual findings, the proposed appellants had to show a better than fanciful prospect of persuading the appellate court that the trial judge had gone wrong on the facts to a radical degree. The court recognised that the judge’s findings were based on a painstaking review of a lengthy video and transcript, and that the proposed appeal faced formidable difficulties.
3. The cash for access challenge nevertheless raised an uneasy but sufficient concern that the trial judge might not have confronted the realities of the exchanges at the meeting. That contention justified permission.
4. Permission was also granted on the foreign donations issue because success on the cash for access challenge might affect the assessment of the respondent’s attitude to the proposed means of transferring money from foreign donors. The same interrelationship meant that the factual findings of malice in the malicious falsehood claim warranted appellate consideration.
5. The court agreed with Sharp LJ’s reasoning and refused permission to challenge the findings at paragraphs 306–310 concerning likely pecuniary damage under s 3. Permission was therefore granted only to the stated extent.

1. Court of Appeal (Civil Division): On renewal of the permission application, permission was granted in part in [2014] EWCA Civ 476.
2. Court of Appeal (Civil Division): On 21 June 2013, the court determined the meanings of the publications, including the cash for access and foreign donations allegations, in [2013] EWCA Civ 748.
3. Tugendhat J: On 31 July 2013, the respondent received £180,000 damages for libel, and malicious falsehood was found established without a separate damages award: [2013] EWHC 1427.
4. Court of Appeal (Civil Division): Sharp LJ refused permission on consideration of the papers on 25 November 2013.