Cruddas v Calvert & Ors

For individual political donors, access to senior politicians at social events is not improper merely because it follows a donation. It becomes inappropriate, unacceptable and wrong where donations are used to secure confidential information, enhanced influence over policy-making, or unfair commercial advantage.

In malicious falsehood, every reasonably available meaning must be considered. Malice remains subjective. A publisher is not malicious merely because it foresees that some readers may wrongly give true words an untrue criminal meaning which the publisher did not intend to convey.

A true non-criminal imputation does not prevent liability for separate, unproved allegations of electoral-law criminality that materially damage reputation.

The claimant, the former Treasurer of the Conservative Party, sued two journalists and the publisher of The Sunday Times for libel and malicious falsehood arising from articles based on an undercover meeting about political donations.

Following a preliminary ruling on meaning and a trial before Tugendhat J, the defendants were held liable for three meanings, awarded damages of £180,000, and restrained by injunction. The defendants appealed.

The central issues were whether the cash-for-access meaning was substantially true, whether an unintended but foreseeable criminal interpretation could found malicious falsehood, and whether allegations concerning foreign donations and evasion of electoral law were true.

1. The appeal was allowed in part. The court held that the cash-for-access meaning was substantially true. The defendants were therefore not liable in libel or malicious falsehood for that meaning.

2. Access for substantial individual donors to senior politicians at social events was an acceptable and inevitable feature of political fundraising. It was, however, unacceptable for donors to obtain confidential government information, enhanced influence over policy, or unfair commercial advantage by reason of their donations. On the full transcript, the claimant had represented that sufficiently large and well-timed donations could obtain such access, information, influence and commercial benefit. That was inappropriate, unacceptable and wrong, though it did not allege an offence under the Bribery Act 2010.

3. The single-meaning rule did not apply to malicious falsehood. Nevertheless, malice was subjective and depended upon the meaning the publisher intended to convey. Where an article had one correct and true meaning, but some cynical readers might wrongly give it an untrue criminal interpretation, a publisher who intended only the true meaning was not malicious merely because that mistaken reading was foreseeable. The falsehood had to be a correct possible meaning which the publisher intended to convey.

4. The defendants failed to justify the two foreign-donations meanings. The claimant had discussed lawful possibilities subject to compliance procedures and had not countenanced an offence under section 61 of the Political Parties, Elections and Referendums Act 2000. The trial judge’s findings that the journalists knew the allegations were untrue and acted maliciously were not displaced.

5. Section 5 of the Defamation Act 1952 did not defeat liability. The unproved allegations of facilitating criminal evasion materially injured reputation despite the truth of the non-criminal cash-for-access meaning.

6. Damages were reduced to £50,000, comprising £43,000 general damages and £7,000 aggravated damages. The injunction was discharged as to the justified first meaning but remained in force as to meanings two and three.

• Court of Appeal (Civil Division) — in [2015] EWCA Civ 171, allowed the defendants’ appeal as to meaning 1, dismissed it as to meanings 2 and 3, reduced damages, and varied the injunction.
• High Court of Justice, Queen’s Bench Division — Tugendhat J, after trial, held the defendants liable for libel and malicious falsehood in respect of all three meanings, awarded £180,000 damages, and granted an injunction.
• Court of Appeal (Civil Division) — on 21 June 2013, determined the meanings of the articles on an expedited preliminary appeal, including the distinction between libel and malicious falsehood.
• High Court of Justice, Queen’s Bench Division — on 5 June 2013, determined the preliminary issues of meaning.