Libel – Justification – Reynolds – Striking Out – Summary Judgment – CPR Part 24
In June 2004, the Sunday Times published an article about the cyclist, Lance Armstrong, entitled “LA Confidential”. The Claimant contended that the article suggested that he was guilty of taking performance enhancing drugs in cycling competitions. The Defendants contended that the article meant only that there were reasonable grounds to suspect the Claimant of doing so or that there were grounds to investigate whether he had. The Defendant also relied upon Reynolds qualified privilege defence. The Judge held that the Reynolds defence should be summarily dismissed under CPR Part 24. Following a ruling on meaning – striking out the “grounds to investigate” meaning – he also struck out large parts of the defence of justification. The Defendants appealed the dismissal of the Reynolds defence and the striking out of some limited parts of the justification defence.
(1) Whether the Reynolds defence had properly been dismissed under CPR Part 24; (2) Whether the Defendants’ reformulated Reynolds defence should be allowed by amendment; (3) Whether the disputed particulars of justification should be allowed to form part of the justification defence.
(1) Applying Three Rivers DC v Bank of England (No 3) [2001] UKHL 16; [2003] 2 AC 1 ยง95, it was not appropriate to dispose of the Reynolds defence at the Part 24 stage. The Judge had not assumed all disputed facts in the Defendants’ favour and the matter needed full investigation at trial; (2) the Defendants were granted permission to amend their Defence to reformulate the Reynolds defence in accordance with the Court’s ruling; (3) some of the particulars of justification struck out by the Judge could be restored; in some instances with amendment (where appropriate). Appeal allowed in part.
One of the many unsatisfactory areas of the Reynolds defence is the lack of clarity over the proper roles of judge and jury. This is crucial to understanding the circumstances in which Reynolds defences can be disposed of at the Part 24 stage. The only detailed analysis of the delineation of responsibility between judge and jury was Eady J’s judgment in Galloway. It is clear from Gilbert v MGN Ltd and Lukowiak v Unidad Editorial SA [2001] EMLR 1043 that Reynolds defences are susceptible to summary judgment (whether for or against the Defendant). The Court of Appeal’s decision in this case contributes little to guiding first instance judges on when it is and when it is not appropriate to do so.