Morgan v Associated Newspapers Ltd

Applications concerning an honest-opinion defence in a defamation claim should be determined against the meaning actually found by the court. The supporting facts must have a real prospect of establishing the factual foundation of the opinion, including the essential nexus between the facts and the criticism. Particulars must provide a clear and precise summary of the essential facts relied upon. A loose or grafted pleading that obscures the issues may be struck out, and the defendant required to replead from the beginning. Summary judgment remains inappropriate where a properly pleaded defence could realistically succeed. The objective test for honest opinion is not assisted by evidence of what third parties thought of the claimant’s conduct.

The claimant sued over an article concerning his purchase of six affordable-housing properties associated with a development by Redrow. The court had previously determined the article’s meaning and held that factual allegations concerning the purchase and discount were distinct from an opinion that the claimant had exploited his position to make a personal gain in a greedy, unethical and morally unacceptable way.

The defendant’s original defence had pleaded honest opinion and truth by reference to a materially different meaning. After the preliminary rulings, it sought permission to amend its defence. The claimant sought strike-out and summary judgment. The central issues were whether the proposed and existing particulars disclosed a viable honest-opinion defence and whether the defence had a real prospect of success under Defamation Act 2013, section 3.

1. Outcome. The defendant’s amendments to the honest-opinion case were refused, paragraph 5 of the defence was struck out, and the defendant was given an opportunity to replead from a blank page. The claimant’s application for summary judgment was refused because a properly pleaded honest-opinion defence could not yet be ruled out.
2. Under section 3 of the Defamation Act 2013, the facts relied upon must exist at publication and provide a sufficient factual foundation for the opinion. The court did not finally determine whether the section permits reliance on any unrelated true fact. It indicated that the opinion must retain a nexus with the subject matter and meaning of the publication.
3. The meaning found by the court was not disjunctive. The criticism that the claimant had exploited his position to line his own pockets depended on the asserted personal gain and the circumstances by which it was obtained. A viable defence therefore needed clearly to address those matters, while remaining open to other facts that could demonstrate how the alleged gain was obtained.
4. Following Ashcroft v Foley [2012] EMLR 25, particulars supporting honest opinion must contain a succinct and clear summary of the essential and relevant facts. The existing pleading was loose and ineffective because it had been drafted for a different meaning and amended by adding material rather than being reappraised. It obscured which facts supported which parts of the opinion.
5. The alleged benefit had to be particularised. If based on an undervalue, the defence needed to address the properties’ value subject to their continuing affordable-housing restrictions. If based on tied accommodation, it needed to explain how the benefit enhanced the hotel or estate or what alternative accommodation would have cost. Evidence of unencumbered market value was largely irrelevant.
6. Paragraphs relying on the reactions of other people were irrelevant because the honest-opinion test was objective. The summary-judgment test in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) required a realistic, not fanciful, prospect of success, but the court could not conduct a mini-trial on the disputed valuation and factual issues.

First-instance decision. The judgment records two earlier interim judgments in the same proceedings: meaning and fact or opinion were determined in [2018] EWHC 1850 (QB), and serious harm was determined in [2018] EWHC 1725 (QB). Those decisions were not appellate decisions.