Full case report
Ashcroft v Foley
Reference  EWHC 292 (QB)
Court Queen's Bench Division
Judge Eady J
Date of Judgment 17 Feb 2011
Defamation – Libel – Justification – Fair comment – Honest comment – Reynolds Privilege – Strike out
Defamation – Libel – Further information – Whether corporate defendant could be ordered to provide information about its means and ability to pay a costs order
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 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.
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. C served a Part 18 Request and then applied to strike out the defences of justification and honest comment and a particular relied upon to support the Reynolds defence. Ds produced a draft amended defence.
C also brought an application for information about D2’s means, expressing concern that since D2 no longer published the paper it could not publish any apology, so that if D2 was impecunious C could not be confident of obtaining any valuable remedy if he won the case.
(1) Whether the defences of justification and honest comment should be struck out;
(2) Whether a particular of Reynolds privilege that related to conversations the journalist had with unnamed sources but which he did not rely upon should be struck out; and
(3) Whether D2, the corporate defendant, should be ordered to provide information about its ability to meet the costs of the action.
Striking out parts of the defence but refusing to order D2 to provide the information sought:
(1) The defences of justification and fair comment would be struck out in their entirety. It is necessary to focus on the dispute between the parties and to ensure that a defendant is justifying a coherent defamatory meaning. Here, most of the meanings were lacking in clarity and failed to set out properly what the claimant was alleged to have done. Further, the particulars of justification, also relied upon to support the comment meanings, were muddled and unclear and breached established rules. There was no doubt that if there was a viable defence of justification or fair comment in relation to these very important and serious allegations, then it was in everyone’s interests that it saw the light of day and could be properly addressed on a fair and open basis. However, it was not either in the public interest or to the advantage of either of the parties for the case to proceed on a muddled basis, with C and his advisers not being aware of the case they had to meet, either at the stage of disclosure of documents or at the trial itself.
(2) The paragraph of the Reynolds defence would be struck out. If, as Ds pleaded, the sources in question provided no relevant information, or none that was relied upon, then the fact that there was contact with them was completely irrelevant. Journalists could not collect “brownie points” for having rung round a number of people who had no relevant information to give. It did not advance the debate in any way.
(3) The relief sought was refused. Clause 1(iv) of the PCC Code required a publication to report the outcome of a libel action in which it had been involved, and a change of ownership would not affect that. In any event, the court had no jurisdiction to order the information sought.
A useful reminder of the need for clarity when serious allegations are being levelled at a claimant. The Judge’s conclusion at  that the PCC Code binds “publications” regardless of a change of owner is potentially important.
Davenport Lyons for the Claimant; David Price Solicitors and Advocates for the Defendant
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