Full case report
Lait v Evening Standard Ltd (No 2)
Reference  EWHC 3239 (QB)
Court Queen's Bench Division
Judge Eady J
Date of Judgment 9 Dec 2010
Libel – Defamation – Honest comment – Abuse of process – Summary judgment – Meaning
L sued for libel in respect of an article published when she was an MP. That article quoted a letter to The Times in which L and others criticised proposed reforms of the parliamentary expenses system. It suggested L’s criticisms “may risk the ire of some”, in view of alleged facts about her own use of parliamentary expenses. L argued that the article meant, among other things, that she had ‘milked’ the expenses system, and that in opposing certain reforms of that system she had acted hypocritically. She applied for summary judgment on the defences of fair comment and justification put forward by D. D applied for summary judgment on its defence of fair comment, and for the remainder of the claim to be struck out as an abuse of process under the Jameel jurisdiction.
(1) Whether the fair comment and justification defences had any real prospect of success;
(2) Whether the fair comment defence was bound to succeed;
(3) If so, whether the remainder of the claim should be struck out as an abuse of process.
(1) Dismissing C’s application: the first step was to decide the meaning to which the defence of fair comment was alleged to apply. The next stage was to decide whether the meaning could honestly be made in light of the facts. Of the two meanings relied on by D, it was unlikely that D would be able to make good the charge of hypocrisy. However, C could not establish at this stage that a jury could not find that the alternative meaning was fair comment.
(2) Allowing D’s application: save for the ‘hypocrisy’ element, D’s defence of fair comment was bound to succeed. This meaning fell within the margin of robust fair comment on a matter of undoubted public interest. There was a particular importance to be attached to the defence of fair (or honest) comment in the context of public affairs and in relation to those who hold a public office or position of public trust. It was unduly theoretical to leave it to the jury to decide if the words also bore the hypocrisy meaning. It was unrealistic to suppose that a jury would conclude that C should be compensated for an additional unsubstantiated implication of hypocrisy. There was nothing left in the complaint about the factual error in relation to the ‘capital gain’ allegation, the defamatory sting in that respect being the making of a profit with the aid of subsidised mortgage payments, which she was not willing to forgo.
The judgment is an interesting example of the application of established principles to an unusual set of facts. In the absence of a plea of malice, a claim may fail if the jury is bound to find the words complained of to be, or to include, fair comment in one meaning even if the words are capable of implying a further and different comment, for which the defendant is unlikely to be able to prove sufficient factual support. Even if factual allegations are complained of, not all of which are justified, the claim may still be dismissed if, bearing in mind the true facts, there is nothing of substance left that is worthy of a trial.
Carter-Ruck for the Claimant; Taylor Wessing LLP for the Defendant
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.