Full case report
Miller v Associated Newspapers Ltd (CA)
Reference  EWCA Civ 39
Court Court of Appeal
Judge Maurice Kay, Moore-Bick and Lloyd Jones LJJ
Date of Judgment 24 Jan 2014
Defamation – Justification – Chase Level 2 – Conduct Rule
The facts are as set out in the case report of the first instance decision which can be found here. Sharp J found in favour of the Claimant (now the Respondent on appeal) and made an award of damages. She found that the Defendant (now the Appellant) had not made out its case on justification on the meaning as found by Tugendhat J that there were “reasonable grounds to suspect that C was a willing beneficiary of improper conduct and cronyism”; and found that the Claimant’s claim was not an abuse of process. She awarded the Claimant £65,000 in damages.
The Defendant appealed against the decision on the justification defence.
Had the judge erred in finding that the Appellant’s justification defence had failed. In particular had she:
(1) failed to identify correctly what the appellant had to prove in order to succeed in its defence;
(2) taken into account matters that were irrelevant;
(3) made serious errors in her approach to the evidence, in particular the hearsay evidence;
(4) failed to take into account important parts of the evidence;
(5) been inconsistent and unfair in her approach to the evidence generally.
Dismissing the appeal:
(1) The Judge had applied the correct test and had not lost sight of the distinction between Chase Level 1 and Chase Level 2 (i.e. actual guilt and reasonable grounds to suspect). She had referred to the relevant principles in her judgment. The fact that the Judge referred to matters which are not primary facts for the purposes of judging objectively whether grounds for suspicion existed should not be criticised as those matters were part of the evidence that came out at trial.
(2) Although the Judge did discuss in her judgment evidence which did not go to establishing objective reasonable grounds for suspicion, such as the Claimant’s state of mind; or matters which might be seen as “hindsight”, it was not clear how, if at all, it affected her decision.
(3) That contemporaneous documents may provide a better insight into the facts than the unaided recollections of witnesses, particularly where some time has passed is a relevant practical principle but is not a rule of law. The correct approach is to weigh up all the evidence and make findings that are properly supported by it. As such the Judge’s had not erred in her approach to the hearsay evidence put forward by the Appellant. Difficulties with hearsay evidence, in particular difficulties of context where the evidence is ambiguous, were rightly taken into account.
(4) The Judge did give little weight to certain pieces of evidence relied upon by the Appellant, but these were not important pieces of evidence.
(5) Where the Judge referred to matters which the Appellant criticised as irrelevant she was merely emphasising the necessity of viewing all the circumstances in their proper context – both what they did show and what they did not – and in doing so giving examples of circumstances which, if they had existed, might have provided additional support to the Appellant’s case.
(6) Overall the Appellant had not done enough to establish its case on justification. As per the conduct role, only the conduct or the Claimant, not that of any third party, was to be considered. Whilst some of the Judge’s findings may have related to matters which were barely, if at all, relevant to the question of the Claimant’s conduct, she had not lost sight of this key question and did not err in her overall approach.
The Court of Appeal affirmed the conduct rule and the principles relating to Chase level 2 meanings as set out in King v Telegraph Group Ltd  EWCA Civ 613. Their application in this case clearly shows the difficulties defendants may face in establishing a justification defence in such circumstances. In particular this judgment shows the difficulty in picking out what evidence is relevant and can be fairly said to be objective facts evidencing the conduct of the claimant, particularly where much of the evidence comes in the form of statements (written or oral) from individuals who will inevitably have only a subjective view; and documents which may require explanation or context in order to be fully understood.
Reynolds Porter Chamberlain LLP for the Appellant, Simons Muirhead and Burton for the Respondent
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