Greenstein v Campaign Against Antisemitism

Reference: [2021] EWCA Civ 1006

Court: Court of Appeal, Civil Division

Judge: Popplewell, Dingemans, Carr LLJ

Date of judgment: 9 Jul 2021

Summary: Defamation - Libel - Malice- Rehabilitation of Offenders Act 1974 - Spent Convictions - Whether the malice plea relating to spent convictions was correctly struck out

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Appearances: Adam Speker QC - Leading Counsel (Respondent) 

Instructing Solicitors: RPC LLP for the Defendant

Facts

The Claimant, an individual who describes himself as ‘a well-known political activist with a focus on issue related to anti-racism, anti-fascism and Palestine‘ sued the Campaign against Antisemitism (‘CAA’) for libel, misuse of private information and breach of statutory duty under the Data Protection Act, in respect of five articles published on the CAA’s website on 26 February 2017, 30 July 2017, 25 September 2017, 3 January 2018 and 24 January 2018.

At a trial of preliminary issues on 15 February 2019, Nicklin J held that the first article bore four meanings, the last of which was that the Claimant had committed several criminal offences, including offences of dishonesty, vandalism and drug possession.

The Defendant raised a truth defence to that complaint. The Claimant admitted that the meaning was true but contended that because the convictions were spent that defence was vitiated by malice: see s8(5), Rehabilitation of Offenders Act 1974.

At a further hearing on 6 November 2020, Tipples J granted reverse summary judgment holding that the defence of honest opinion applied to the first three meanings and struck out various malice pleas. Arnold LJ gave permission to appeal on one ground only: whether the malice plea directed to the inclusion of the Claimant’s spent convictions in the first article should have been struck out.

Issue

Whether the malice plea directed to the inclusion of the Claimant’s spent convictions in the first article should have been struck out.

Held

Appeal dismissed.

The Judge was correct to strike out the malice plea:

  1. Most of the particulars were mere assertion lacking the identification of any facts or matters from which it could be inferred that it was more likely than not that these spent convictions had been published for some irrelevant, spiteful or improper motive: [24]
  2. Even if, as a matter of strict logic, the inclusion of convictions for vandalism and drug possession may not be relevant to establish a propensity to lie or deceive, absent any facts and matters about the motivation of the author to contradict the reason given in the article for their inclusion, it was not possible to infer that their inclusion was malicious: [25]
  3. The Claimant was attacking the CAA in the article and the law has long recognised that it is only fair for someone to know the character of a person who is attacking the character of another: [26]
  4. The suggestion of malice on the basis that some of the convictions were not related to dishonesty was not pleaded but it would not have mattered had it been: [27]

Comment

A reiteration of the strict requirements when pleading malice in any context. The Court of Appeal stressed the need to plea facts and matters that are more probative of the existence of malice than its non-existence.