Harcombe v Associated Newspapers Ltd

The court has an overall discretion whether to order a trial of preliminary issues. The usual considerations include whether the issues are decisive or potentially decisive, whether they can be tried efficiently, the risk of appeal, overlap with issues reserved for a later trial, and the likely costs and case-management benefits. A preliminary trial may properly involve factual disputes where it offers a realistic prospect of disposing of the claim or materially narrowing the issues. Questions under the public-interest defence in Defamation Act 2013, s.4, concern the material available to the publisher, the inquiries made or reasonably available, and the reasonableness of the belief in publication in the public interest. They remain distinct from objective truth and from the subjective issue under s.3(5).

Two libel claims arose from articles in the Mail on Sunday and Mail Online concerning statins and the claimants’ views about them. The defendants relied on truth, honest opinion, statutory qualified privilege under the Defamation Act 1996, statutory qualified privilege under the Defamation Act 2013, and the public-interest defence under s.4 of the 2013 Act.

The parties had previously considered preliminary determinations of privilege, meaning, and fact or opinion. The defendants sought a staged trial addressing qualified privilege, malice, the s.4 public-interest defence, and the s.3(5) honest-opinion issue. The central question was whether those issues should be tried preliminarily despite their factual complexity, cost, and the risk of an appeal before the remaining issues were determined.

1. Preliminary issue discretion. The court retained an overall discretion, in furtherance of the overriding objective, to direct preliminary issues. The relevant assessment was a case-specific cost-benefit analysis. The court considered the potential decisiveness of the issues, trial length and cost, factual complexity, overlap, appeal risk, delay, and the benefits of clarifying the issues for settlement and later case management.
2. Separate treatment of related issues. The court accepted that Mr Calman’s state of mind was relevant to the qualified privilege malice issues, the s.4 defence, and the s.3(5) issue. To avoid repeated evidence and unfairness, the s.3(5) issues would be tried in Trial 1, while the remainder of the honest-opinion defence would be reserved for Trial 2. The objective issues under s.3(4) remained distinct from the subjective issues under s.3(5).
3. Public interest and truth. The s.4 inquiry concerned what material was available, what inquiries were made or could have been made, and how the material was represented. The objective truth of that material was not an issue under s.4 and should remain separate from the truth defence. Findings about material available to the journalist would not impermissibly determine the later truth or honest-opinion issues.
4. Outcome. Although the proposed first trial would be substantial and carried a particularly serious risk of appeal because of Curistan v Times Newspapers Ltd [2009] QB 231, the realistic prospect of disposing of the claims and the substantial benefits of resolving meaning and fact or opinion outweighed those disadvantages. The defendants’ preliminary issues were directed, with the s.3(5) issues included in Trial 1.