Full case report
Cruddas v Calvert
Reference  EWHC 1096 (QB)
Court Queen's Bench Division
Judge Nicol J
Date of Judgment 1 May 2013
Libel – Malicious Falsehood – Amendments to Particulars of Claim – Malice – Aggravated Damages – Jury Trial
The Claimant was the former Treasurer of the Conservative Party. On 15 March 2012 he had been made the subject of subterfuge and covert recording by the First and Second Defendants (members of the Insight team of the Sunday Times) who posed as potential donors to the Conservative Party.
The Claimant sued on the articles published on 25 March 2012 by the Defendants. He brought claims for libel and malicious falsehood. The pleaded meanings for both actions were:
(1) In return for cash donations to the Conservative Party, the Claimant corruptly offered for sale the opportunity to influence government policy and gain unfair advantage through secret meetings with the Prime Minister and other senior ministers.
(2) The Claimant made the offer, even though he knew that the money offered for secret meetings was to come, in breach of the ban under UK electoral law, from Middle Eastern investors in a Liechtenstein fund; and
(3) further, in order to circumvent and thereby evade the law, the Claimant was happy that the foreign donors should use deceptive devices, such as creating an artificial UK company to donate the money or using UK employees as conduits, so that the true source of the donation would be concealed.
In relation to the libel claim, the Defendants relied on a defence of justification contending that the articles were true in the meanings:
(1) That what the Claimant said in the course of a meeting on 15 March 2012, as co-Treasurer and Board member of the Conservative Party, in claiming:
(a) that the Conservative Party would accept large donations from persons whose sole purpose in making the donations was to advance their business interests by obtaining direct access to the Prime Minister, by lobbying on policy areas affecting their business and by moving in circles where they would pick up useful intelligence to progress their business strategy;
(b) that in return for six-figure donations, such persons would be able to achieve that purpose in the ways they wanted; and
(c) that in return for donations of £250,000 a year, they would obtain special access to the Prime Minister and senior governments ministers, would get noticed and be taken really seriously, would be able to operate at a higher level within the Party (and, thus, the Government) and would have things open up for them;
was inappropriate, unacceptable and wrong and gave rise to an impression of impropriety.
(2) That the Claimant, when faced with the prospect of donations being made to the Conservative Party from an overseas fund (which was not itself eligible to make donations under the relevant law), was prepared to contemplate ways in which donations from that source could be made to the Party, namely;
(a) Through using a legal loophole that would permit a UK company, carrying on business within the jurisdiction, to make donations from such a source; or
(b) By having individuals on the UK electoral register make donations in their own name;
even though the use of either route would result in the concealment of the true source of the donation, contrary to the spirit of the law which was intended to ensure that the source of any donation over £7,500 would be made public.
In the alternative, the Defendants contended that the words complained were true in substantially the meaning pleaded by the Claimant in (1) above.
In relation to the malicious falsehood claim, the Defendants denied malice, relied upon their justification defence to rebut falsity and contended that the publication was not likely to cause the Claimant pecuniary damage within s.3 Defamation Act 1952.
At the first Pre-Trial Review of the action, the substantive issue before the Court was the Claimant’s application for permission to amend his Particulars of Claim to add to the Particulars of Malice following disclosure. The Defendants contended that a number of the amendments failed to disclose a proper case in malice against the First and Second Defendants and permission to amend should not be granted. Although the Claimant had issued an application seeking variation of mode of trial to Judge alone, the Court had insufficient time to deal with that application. The application for permission to amend had therefore to be dealt with on the basis that, as matters stood, the action would be tried before a Judge and jury.
Granting permission for some amendments and refusing permission for others:
(1) the starting point was that permission to amend should usually be granted to allow the real dispute between the parties to be adjudicated upon – Cobbold -v- Greenwich LBC (9 August 1999, unreported CA, applied);
(2) the proper test at this stage where the action was to be tried by a jury was that amendments that had a reasonable prospect of success could only be refused if a jury would ultimately be perverse to accept the relevant contention (Alexander -v- Arts Council of Wales  1 WLR 1840 considered).
(3) Although particulars of malice must be more consistent with the existence of malice than its absence, the process was not mechanistic (Turner -v- MGM  1 All ER 449, 455 considered). The evidence had to be looked at thematically. When a Claimant relies on intention to harm as malice it will commonly be the case that he invites that conclusion to be drawn as a matter of inference. There may be cases (of which the House of Lords no doubt thought Turner -v- MGM was one) where the differing strands of evidence on which the Plaintiff relied were so independent of each other that they could not be mutually supporting. Consequently, if one, individually examined, did not lead to at least the probability of the existence of malice it was nothing to the point that there were other strands which also did not lead to the probability of its existence. But there will be other factual situations where the position is, or may be, different and where two or more strands of evidence are capable of leading to an inference which could not reasonably be drawn if the strands were looked at individually. An example of this is what Lord Diplock had to say in Horrocks -v- Lowe  AC 135 at 151 about the inclusion of extraneous defamatory material on an occasion of qualified privilege. In itself it may or may not show malice: the proper course is to consider this aspect together with all the other circumstances of the case in deciding whether an inference of malice can properly be drawn.
(4) Malice premised on an intention to injure had to be based on it being demonstrated that the Defendants intended to injure the Claimant. It was not sufficient to show that the publication of the words was intended to harm some other person (Wilts United Dairies -v- Thomas Robinson Sons & Company Ltd  RPC 220 considered).
(5) The amendments sought were additionally relied upon in aggravation of damages in the Claimant’s libel claim. Having regard to the importance of the matter to the Claimant (and the Defendants) and the onus of proving malice they were not disproportionate.
Although the report is largely taken up with the determination of particular amendments sought by the Claimant, the decision is interesting for its discussion of the proper approach to amendments to a plea of malice. The Judge held that Turner -v- MGN should not be read as suggesting that each individual paragraph in a statement of case should be analysed (to the exclusion of all others) to determine whether that paragraph, itself, was more consistent with the presence than absence of malice. He drew support for this conclusion from Alexander -v- Arts Council for Wales  and a judgment of Lord Cooke in the Court of Final Appeal in Hong Kong in Next Magazine Publishing Ltd -v- Ma Ching Fat  HKCFA 10;  HKLRD 751 .
Slater & Gordon for the Claimant; Bates Wells Braithwaite for the Defendants
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 3rd Edition of The Law of Privacy and the Media, published by OUP. Further details here.