Full case report
Foley & Others v Lord Ashcroft
Reference  EWCA Civ 423;  EMLR 25
Court Court of Appeal
Judge Pill LJ, Elias LJ, Sharp J
Date of Judgment 4 Apr 2012
Defamation – libel – The Independent – allegations of involvement in corruption – pleading – justification – honest comment – defences struck out – application for permission to amend by adding back both defences – application dismissed – appeals – threshold requirements for pleading – clarity – precision of indictment – pleading fraud – appeals dismissed
In November 2009 the defendants published two articles in The Independent referring to the C. He sued for libel. His 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 denying that the articles were defamatory of C and raising defences of justification, honest comment and privilege, including Reynolds. On C’s application Eady J struck out the defences of justification and honest comment on 18 February 2011. The Ds later applied for permission to add both those defences by amendment, in different terms from the earlier plea. C objected, and in a judgment handed down on 1 July 2011 Eady J refused permission to amend and dismissed the applications.
The Ds appealed against both decisions, contending that both versions of the defences had ‘passed muster’. It was argued that the tests of sufficiency of pleading that Eady J applied on each occasion had been too stringent and/or that the Judge had erred in applying the tests.
C argued that the Judge had been right for the reasons he gave. By a Respondent’s Notice C further contended that Eady J’s second decision should be upheld on two additional grounds, not relied on by him: (i) that as a matter of law a plea of fraud advanced by way of justification is subject to the same stringent requirements as a plea of malice or fraud in any other context (ii) that the Ds had insufficient evidence to support their draft pleading.
(1) Whether the Judge had erred in law in striking out the defences of justification and honest comment in the initial Defence and refusing permission for the first draft amended defence (the November draft) and/or the further version produced in March 2011 (the March draft)
(2) Whether the second decision of Eady J should be upheld for the different reasons contended for in the Respondent’s Notice.
(1) The Judge had not erred in law or been too stringent. He did not set the pleading bar too high. He did no more than require the defendants to comply with well-established principles which accord with the modern approach to pleading. The Judge had been correct to strike out the pleas of justification and comment and to refuse permission for both the November draft, and the March draft.
The Judge had been correct to rule that two of the Ds’ pleaded meanings were not possible ones. The Ds’ criticism of the Judge for applying a rule that a plea of justification should be as precise as an indictment was ill-founded. The pleas of justification were insufficiently clear and precise in respect of the serious allegations the Ds were seeking to level at C. The particulars were diffuse and rambling. Whilst the Ds had, by the time of the second hearing, gone some way to explaining in a letter the case they sought to make it was wrong of them not to have incorporated that case into a draft amended defence.
On honest comment, there was no need for a different approach in relation to the comment defences than that taken in respect of justification. The point at issue was clarity, and the facts pleaded in support of the comment defence were not sufficiently clear.
(2) It was unnecessary to consider the matters raised by C’s Respondent’s Notice. However Elias J said his strong preliminary view was that a plea of fraud by way of justification should be subject to the same rules as any other plea of fraud.
A very strongly worded judgment re-iterating the need to plead serious allegations clearly and with precision. The Court affirmed that the well-established ‘precision of an indictment’ principle in Hickinbotham v Leach remains good law. The judgment also sounds a warning that the courts may not tolerate repeated attempts to amend. The Ds’ behaviour in this case was described as ‘deplorable’ and the Court said there would come a time when repeated applications became an abuse of process.
Also of interest from a legal point of view are the obiter remarks of Elias LJ. C had asserted that an allegation of fraud in a particulars of justification should be subject to the same requirements as a plea of malice or fraud . Pill LJ and Sharp J did not address the point as it was not necessary to do so. Elias LJ agreed, and declined to decide what he said was a ‘point of some importance on which we heard only limited argument’. He did, however, comment that his “strong preliminary view” was that C was correct. He could see no obvious reason why a pleading which asserts the truth of an allegation of fraud should be subject to less stringent rules than the plea of fraud itself.
It happens that the ordinary requirements for pleading fraud were considered by Roth J in a judgment handed down on 23 March 2012, in Seaton & Ors v Seddon & Ors  EWHC 735 (Ch).
David Price Solicitors and Advocates for the Appellants; Davenport Lyons for the Respondent
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