Suresh v Samad & Ors

Permission to amend a defamation defence should be refused where the proposed pleading discloses no reasonable basis for the defence and the evidence shows no real prospect of success at trial. A plea of truth must identify clearly the factual case relied upon and must give the claimant a fair opportunity to know the case to be met. A defendant cannot adopt inconsistent positions in the same statement of case.

For the statutory public-interest defence, the defendant must prove an actual belief, held at the time of publication, that publication was in the public interest, and must show that the belief was reasonable in all the circumstances. The assessment focuses on the defendant’s knowledge, conduct, enquiries and role in the publication. The court must allow appropriate latitude for editorial judgment. The defence remained arguable for an interviewer whose role and state of knowledge required further investigation, although not for the principal speakers.

The claimant brought libel proceedings concerning videos published on Youtube and Facebook, alleging misconduct in his capacity as chairman and trustee of a charity. At an earlier hearing, the court struck out most of the existing defences but allowed the defendants a final opportunity to seek permission to plead truth under section 2 and public interest under section 4 of the Defamation Act 2013.

The claimant sought strike-out and summary judgment. The first to third defendants sought permission to amend. The central issues were whether the proposed pleading disclosed a reasonable basis for truth or public interest, whether either defence had a real prospect of success, and whether the third defendant’s separate role as interviewer affected the public-interest analysis.

1. Summary judgment and amendment. The applicant bears the overall burden of showing that the respondent has no real prospect of success and that there is no other compelling reason for a trial. The standard is directed to plain cases and does not require a mini-trial. An application for permission to amend involves the corresponding question whether the proposed defence discloses a reasonable basis and has some real prospect of success.
2. Truth. Paragraph 29 of the proposed amended defence was refused for all defendants. The pleaded particulars were muddled, vague and insufficient to support the serious imputations advanced. The alleged cheque irregularity was contradicted by comprehensive documentary and witness evidence. The alleged £480,000 fraud rested on comparisons between unlike accounting periods, acknowledged calculation errors, overstated figures and unsupported extrapolation. An accounting discrepancy would not, without more, establish reasonable grounds to suspect fraud. The alleged failures to answer questions did not establish the pleaded imputation and could not support the wider allegations. There was no real prospect of a properly pleaded or successful truth defence.
3. Public interest. The court applied the approach in Economou v De Freitas [2016] EWHC (QB). The defendant had to prove an actual belief, held at publication, that publishing the particular statement was in the public interest, and show that the belief was reasonable. Relevant circumstances were those bearing on the belief and its reasonableness, including what the defendant knew, did, or failed to do before publication. The truth or falsity of the allegations was not itself a relevant circumstance, and appropriate allowance had to be made for editorial judgment.
4. The first and second defendants had not pleaded or evidenced facts capable of satisfying the reasonable-belief requirement. They were the speakers, had no credible basis for the financial allegations, and had approached competent authorities without obtaining an evidential basis for financial impropriety. Their applications to plead public interest were refused.
5. The third defendant’s position was materially different. As interviewer, he occupied a role closer to that of a media publisher and said that he had relied on information supplied by others. His responsibility for publication and state of mind remained uncertain. Permission was therefore granted in principle for a properly recast section 4 defence, without summary judgment on that issue.
6. The remaining issues for trial were meaning, responsibility for the Youtube publication, serious harm concerning the Facebook publication, and, if necessary, damages.

The judgment records an earlier decision in the same proceedings. In the October 2016 judgment, [2016] EWHC 2704 (QB), most existing defences were struck out and the defendants were given a final opportunity to seek permission to plead truth and public interest. The present judgment determined that outstanding application.