Yeo v Times Newspapers Ltd

A plea of malice in answer to fair comment or honest opinion must clearly identify the alleged dishonesty and the facts relied on to establish it. The plea must be more consistent with malice than its absence and must identify the individual actors responsible where the defendant is a company. General allegations, aggregated knowledge, or reliance on allegations of mere irresponsibility are insufficient. In costs budgeting, the court considers whether total figures fall within the range of reasonable and proportionate costs, but may have regard to rates and estimated hours where appropriate. A contingency should be budgeted only where the work is identifiable and more likely than not to be required.

The claimant, an MP, brought libel proceedings concerning articles published by the defendant newspaper following an undercover investigation. The proceedings had already involved determinations of defamatory meanings and the amendment and repleading of defences. The claimant’s Reply pleaded malice and responded to justification, fair comment and Reynolds privilege. The defendant applied to strike out the malice plea under CPR 3.4 and sought approval of the parties’ costs budgets. The court therefore considered the adequacy of the malice pleading and the proper approach to costs management in a publication case.

1. Malice. The plea of malice was principally directed to defeating the fair comment defence. In that context, malice means that the person expressing the opinion dishonestly did not genuinely hold it. It does not ordinarily answer a Reynolds privilege defence, because responsible conduct forms part of the conditions of that privilege.
2. A plea alleging dishonesty must be clear and precise. It must identify the facts relied on, focus on what the defendant did, said or knew, and be more consistent with malice than its absence. Allegations of irresponsible journalism do not, without more, establish dishonesty.
3. Where the defendant is a company, the pleading must identify one or more individuals for whose conduct the company is responsible. It is insufficient to allege generally that the company was malicious or to aggregate the knowledge or conduct of several people.
4. The claimant’s plea did not clearly identify the factual case establishing dishonesty by the journalists. It also failed to make clear which allegations in the Reply were relied on and did not adequately connect the alleged knowledge of falsity concerning a narrow factual meaning with the broader defamatory comment. Paragraph 14 was therefore struck out, without prejudice to an application to amend based on a clean formulation.
5. Costs budgeting. Costs approval concerns whether budgeted totals fall within the range of reasonable and proportionate costs. The court may have regard to constituent elements, including hourly rates and estimated hours, particularly in substantial publication cases. A contingency must concern identifiable work outside the main Precedent H categories and should be included only where that work is more likely than not to be required. Unlikely work may be dealt with later if it becomes necessary under the revision provisions.
6. Costs management conferences should ordinarily be conducted by telephone or in writing where practicable. Early budgeting may be appropriate in publication cases, particularly where freedom of expression or inequality of resources makes early cost control relevant, but it is not routine.