McPhilemy v Times Newspapers Ltd
Reference:  EWCA Civ 1464;  3 All ER 775;  EMLR 751
Court: Court of Appeal
Judge: Lord Woolf MR & May and Judge LJJ
Date of judgment: 21 May 1999
Summary: Defamation - Libel - Amendment - Justification - Lucas Box Meanings - Proportionality - proper role of pleadings
James Price QC - Leading Counsel (Claimant)
Instructing Solicitors: Bindman & Partners
The Defendants applied to re-amend their defence to the Claimant’s libel action. The Claimant had brought libel proceedings on a Sunday Times article which suggested that he had fabricated a TV documentary exposing what was alleged to be a sinister Committee which colluded with the security forces in Northern Ireland to murder Republicans. By their proposed amendment, the Defendants wanted to plead justification with a Lucas-Box meaning that the Claimant was a reckless journalist who had produced a programme the central thesis of which was false. The Claimant resisted the amendments on the ground that the article was not capable of bearing the limited meaning of recklessness/incompetence. The article alleged that he had participated in a deliberate hoax.
(1) Whether the Defendants’ meaning was one the words could bear; (2) Whether the Particulars of Justification should be allowed; (3) Whether the Court should nevertheless exclude the issue of truth/falsity on the grounds that its investigation was disproportionate.
(1) The article implicitly asserted that the programme’s central thesis was untrue. It was relevant to the defamatory sting to say, not only that the main content of the programme was based on obviously worthless evidence, but that it was or probably was, untrue. As such the Defendants’ meaning was one the words were capable of bearing. The particulars of justification were permissible under this meaning.(2) Libel actions should, by proper case management, be confined within manageable and economic bounds, and the court would strive to manage the case so as to minimise the burden on litigants of slender means. Although this meant excluding all inessential peripheral material, it did not extend to excluding potentially important evidence which was central to a legitimate substantial defence. Libel actions should not be allowed to descend into wide-ranging investigations akin to public inquiries.
Despite the Court of Appeal’s warning about libel actions turning into public inquiries, the trial of this case started to look just like that. The issue of truth/falsity of the Committee thesis was litigated at the trial, with the jury finally concluding that the Defendants had not proved that the Committee did not exist. Their appeal to set aside this verdict as perverse was dismissed as an abuse of process and the subsequent Court of Appeal criticised the consequences of this decision. Lord Woolf has an attack on libel pleadings and skirmishes, suggesting that pleadings should be concise and leave the details for witness statements.