Reference:  EWHC 110 (QB)
Judge: Eady J
Date of judgment: 31 Jan 2012
Summary: Defamation - strike out - CPR 3.4 - Justification - Reynolds privilege
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Instructing Solicitors: Hughmans for C; Simons Muirhead for D
In The Sunday Times D published an article which was agreed to mean that C was a crime lord implicated in fraud, murder, witness intimidation, making death threats and drug trafficking. C issued a claim. D pleaded justification and a defence it described as “Public Interest/Article 10” which the Judge preferred to describe as a Reynolds defence. The defence encountered a serious setback when 49 paragraphs were struck out in December 2010 by Tugendhat J. D amended in draft, placing the meaning of the allegations on the level of ‘reasonable grounds to suspect”. C applied to strike out the amended defence. In related proceedings D was restrained from making use of certain evidence leaked to it by the police on grounds of confidentiality, with that position to be kept under review, especially if it prevented D from establishing its defence of justification.
Wherther defences of Reynolds privilege and justification should be struck out for disclosing no reasonable grounds for defending the claim.
Pending submissions that the Defence of justification should be struck out,
(1) Particulars of justification based on a pseudonymous published work of fiction which attributed to C various murders and assaults without giving proper particulars were hopeless, irrespective of the fact that C’s brother had said the book was truthful; C’s brother’s admissions could not stand;
(2) Particulars of an alleged assault based on a statement to police subsequently withdrawn and a section 18 charge not prosecuted could stand as it was still open to D to prove the underlying facts of the assault;
(3) Particulars that C had become involved in a piece of real estate litigation in order to intimidate the claimant into withdrawing, had made anonymous telephone threats and said to the claimant he should be “handed over” and two more particularised threats to murder had the potential to be proved at trial;
(4) Particulars that officers arresting C would not provide their names, that C asked for them or that they arrested C’s mistress were irrelevant, as was the information C used offshore companies to hold property;
(5) “Unsolicited statements” to police could be interpreted as admissions of criminal involvement at trial and “no comment” statements would not be struck out at an interim stage;
(6) The particulars allowed to stand of intimidation could be used to establish the broader notion that C was a crime lord, as could an attack on a crime reporter and threats to the journalist, but fresh particulars that C had killed a man in 1982 and a Mile End doorman, run a collaborative dope import business and tortured a trafficker required greater detail. Passing references to murders nor a reference to an interest in a property used for prostitution could stand. Serious allegations of misconduct must not be pleaded as bare assertion.
(7) The Reynolds plea, in certain regards, consisted of general claims from unidentified sources and was under-particularised. Mere regurgitation of allegations and references to the journalist’s awareness or previous writing was not enough to support a public interest defence.
Required reading for journalists and those pleading defences of justification and Reynolds privilege alleging serious criminal wrongdoing. Useful commentary on how justification ought to be pleaded in such cases, with specific reminders about the duty to fully particularise allegations. “Aggregating” rumour and hearsay will not serve to enhance the status of the evidence. What does not emerge from the judgment was the extent to which the newspaper contended that the related injunction proceedings had tied its hands in its own defence.