Ward v Associated Newspapers Ltd & Anor

A civil claim is not an abusive collateral attack merely because it concerns matters raised during an earlier criminal trial. The question is whether the later proceedings seek, in substance, to undermine a decision that actually determined the issue. Under Civil Evidence Act 1968, section 13, a relevant subsisting conviction is conclusive evidence of the offence in a libel action, but this does not prevent investigation of allegations that were not determined by the criminal court. At summary judgment stage, spent convictions do not automatically defeat serious-harm prospects. Malice requires evidence concerning identifiable persons involved in publication. A malicious-falsehood claimant relying on section 3 of the Defamation Act 1952 must identify the nature and mechanism of the alleged pecuniary loss. The Jameel jurisdiction should be exercised only on a clear and compelling basis.

Michael Ward brought claims in libel and malicious falsehood against Associated Newspapers Ltd and the Mail on Sunday. The claims arose from a statement supplied for publication in a Byline article reporting his allegations that Mail on Sunday journalists had contributed to a miscarriage of justice and that his allegations had been rejected at trial, on appeal and by the Criminal Cases Review Commission.

The defendants applied to strike out the claim as an abusive collateral attack on Mr Ward’s criminal convictions, and alternatively sought summary judgment based on serious harm, qualified privilege, malice, the statutory requirements for malicious falsehood and Jameel abuse. The court also considered the significance of the earlier criminal proceedings and the pleaded meaning of the statement.

1. Collateral attack. The claim was not an abusive collateral attack on Mr Ward’s convictions. The allegations concerning the Mail on Sunday and its journalists had been raised to challenge witness credibility, but had not been judicially determined. The jury could have accepted those allegations yet convicted on other evidence. The Court of Appeal had reviewed the judge’s summing-up, not adjudicated on the truth of the allegations. The CCRC’s decisions were not court decisions protected by the collateral-attack principle.
2. Section 13. If the convictions became relevant in the libel action, section 13 of the Civil Evidence Act 1968 would make them conclusive evidence that Mr Ward committed the offences. That provision was an impediment to reopening the convictions, but it did not prevent examination of alleged journalistic misconduct that the criminal proceedings had not determined.
3. Serious harm. The defendant had not shown that Mr Ward had no real prospect of proving serious harm under section 1 of the Defamation Act 2013. The pleaded meaning was not fanciful, and the fact that the convictions were spent supported the possibility of reputational rehabilitation. The issue required evidence and was unsuitable for summary judgment.
4. Malice and qualified privilege. The applications concerning reply-to-attack qualified privilege and malicious falsehood were refused. Malice has the same meaning in both contexts. The states of mind of different individuals within an organisation cannot be amalgamated. However, the evidence left a tenable case that the persons who approved the statement lacked a sufficient basis for asserting that the allegations had been rejected and had no merit. Mr Ward was directed to identify the individuals alleged to be malicious and the supporting facts.
5. Malicious falsehood. Mr Ward had a coherent explanation of the nature of the alleged pecuniary loss and the mechanism by which the publication allegedly caused it. His reliance on section 3(1) of the Defamation Act 1952 therefore could not be rejected summarily, although the case had to be properly pleaded.
6. Jameel abuse. The remaining claim was not plainly pointless or disproportionate. At this early stage the court could not assess the likely issues or costs, and the defendant had not established a clear and compelling basis for preventing adjudication. The defendant’s application was refused.