Full case report
Ashcroft v Foley (No 2)
Reference  EWHC 1710 (QB);  EMLR 30
Court Queen's Bench Division
Judge Eady J
Date of Judgment 1 Jul 2011
Libel – pleading – justification – honest comment – application for permission to amend – serious allegations – clarity – particularity – relevance – evidential sufficiency – test for pleading justification of serious allegations
C sued over articles published in The Independent newspaper and on its website on 19 and 20 November 2009.D1 was the author of the articles and D2 (a company) and D3 were at that time the owner and editor of the newspaper respectively.
C’s case was that the articles implicated him as having participated in corrupt activities in the Turks and Caicos Islands. He also contended that the second article contained an additional accusation against him that he told a “blatant lie” in his solicitor’s letter addressed to the Ds in an attempt to cover up his conduct.
The Ds served a defence which denied that the articles were defamatory of C and raised defences of justification, honest comment and privilege under various heads, including Reynolds. On C’s application the Court struck out the defences of justification and honest comment. Ds now applied for permission to add both those defences by amendment, in different terms from the earlier plea.
C objected, contending that the new draft was lacking in coherence and particularity, and that one of the meanings it sought to justify was not a possible meaning of the words complained of. C also contended that Ds should show that the draft had a sufficient evidential basis, and that they had failed to do so. Ds contended that they did not have to demonstrate this, and that the evidential sufficiency of a plea settled by their Counsel and bearing their statement of truth should be assumed. There was also a dispute as to the legal standard which had to be met for a plea alleging fraud or similarly serious wrongdoing to pass muster.
(1) What standard did a draft plea of justification have to meet, as a matter of law, for the court to grant permission to amend to add it.
(2) Was the draft amended Defence clearly and sufficiently pleaded, having regard to the gravity of the allegations it sought to justify and the appropriate standard?
(3) Was the second of the meanings at issue one which the words were capable of bearing?
(4) Did the Ds have to show evidential sufficiency and if so had they done so?
1. The particular principle applicable to an allegation of malice or dishonesty which required a pleaded case in malice to be more consistent with the existence of malice than its non-existence had not previously been applied to a plea of justification. The Court proceeded, therefore, on the assumption that particulars of justification, for an inference of dishonesty to be based upon them, do not need to be in themselves consistent only with such a conclusion: Three Rivers DC v Bank of England (no3)  2 AC 1 followed; McDonald’s Corporation v Steel  3 All ER 615 considered.
2. No. The new Lucas-Box meaning at paragraph 7.1 was lacking in clarity and the present wording was a fudge. A claimant is entitled to know the case he has to meet and at present the case was unclear and appeared designed as to embrace all possible permutations giving the impression of speculation rather than evidence. The pleading, and the particulars did not make clear to the Claimant or the interested reader what deeds or omissions are laid at his door. The case did not pass muster as a pleading.
3.No, the alternative meaning was not one the words were capable of bearing because mere acquiescence is inadequate as a defence to the words complained of.
4. There was a need to have evidential support for pleaded allegations but the court could not compel the Defendants to reveal what evidence they said they had at this stage and proceeded on the assumption that the pleaders had sufficient material to support their pleaded case.
The main point of legal interest in this decision is that it proceeds on the basis that there are or may be two different sets of requirements when it comes to pleading allegations of fraud or dishonesty or similar. The stringency of the requirements when malice is pleaded is well known, and similar to the test for alleging fraud in other contexts. However, the Judge approached the case on the footing that a somewhat less rigorous approach should be taken if the allegation in question is to be made by the defendant to a libel action, in a plea of justification. He stated, however, that he was proceeding on this assumption.
Davenport Lyons for the C; David Price Solicitors and Advocates for the D
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