The Duke of Sussex v Associated Newspapers Limited

At an interlocutory stage, a defence of honest opinion should be struck out only if it discloses no reasonable grounds, or summarily dismissed only if it has no real prospect of success. The court must assess the pleaded meaning and the facts relied on under section 3(4)(a) of the Defamation Act 2013. A case is not a single-fact case merely because one factual issue is disputed. Where the opinion concerns whether public statements were misleading, those statements may themselves constitute supporting facts. An ambiguity in the meaning may be relied upon by the defendant if the proposed construction is reasonably available. The court should avoid conducting a mini-trial, while deciding a short point of construction where the necessary material is available.

The claimant sued over an article published in the Mail on Sunday concerning his judicial review challenge to decisions about publicly funded protective security. In an earlier judgment, the court found that the article conveyed factual meanings concerning the claimant’s offer to pay for security and the nature of his legal challenge, together with a defamatory opinion that he had attempted to mislead and confuse the public. The claimant abandoned one part of the meaning and applied under Civil Procedure Rules 1998 3.4(2)(a), alternatively Part 24, to strike out or summarily dismiss the defendant’s honest opinion defence. The central issue was whether the pleaded and evidential basis of that defence had any realistic prospect of success.

1. Application refused. The honest opinion defence was neither struck out nor summarily dismissed.
2. For summary judgment, the question was whether the defence had a realistic, more-than-arguable prospect of success, not whether it was likely to succeed. The court had to avoid a mini-trial, but could analyse written evidence against contemporaneous documents and decide a short point of construction where the necessary material was available.
3. The claimant’s argument that the case was a single-fact case failed. The reference to “the offer” in the meaning could reasonably be construed as an offer made to the Government, in the context of the alleged governmental refusal challenged in the judicial review. The defendant was entitled to seek to prove that no such offer had been made to the Government before the judicial review, even if the Sandringham offer itself was undisputed.
4. More importantly, the opinion alleged that the claimant had attempted to mislead and confuse the public. The defendant relied not only on the timing of the offer but also on the Press Statement and Background Briefing issued on the claimant’s behalf. Those materials arguably suggested that an earlier offer to the Government had been rejected and that the judicial review challenged the Government’s refusal to accept an offer to pay. There was a realistic prospect of proving that this presentation was inaccurate or incomplete.
5. If those facts were proved, an honest person could have held the opinion that the claimant was attempting to mislead or confuse the public. The defendant therefore had a real prospect of establishing the defence under section 3 of the Defamation Act 2013. The pleaded defence also disclosed reasonable grounds under Civil Procedure Rules 1998 3.4(2)(a).