Reference:  EWHC 3721 (QB)
Court: Queen's Bench Division
Judge: Sharp J
Date of judgment: 21 Dec 2012
Summary: Defamation - libel - justification - cronyism - willing beneficiary - Chase level 2 meaning - reasonable grounds to suspect - what has to be proved - whether proof made out - abuse of process - disproportionate cost - damages
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Appearances: Adam Speker KC (Defendant)
Instructing Solicitors: Simons Muirhead Burton for C; Reynolds Porter Chamberlain for D
C was a friend of Sir Ian Blair, the former Commissioner of the Metropolitan Police. D, the publisher of the Daily Mail, published an article in the newspaper and online entitled “Met Boss in new ‘Cash for a friend’ storm”. C sued for libel.
C originally complained that the article would be understood to bear two defamatory meanings: that he had corruptly exploited his friendship with Sir Ian Blair to obtain an improper payment of a five-figure sum from public funds; and that he had, on behalf of his company, agreed to act as Sir Ian Blair’s image consultant under a ‘vanity contract’ knowing that his company had no relevant knowledge or experience, thus improperly obtaining payment for work that his company was not competent to carry out. D sought a ruling that the words complained of were incapable of bearing either or those meanings, or any meaning capable of being defamatory of C. Eady J heard the application and struck out both of C’s original meanings.
However, C amended to plead that the words complained of meant that he was a willing beneficiary of cronyism in relation to the vanity contract only. D pleaded in its defence that the words were not defamatory but if they were then they meant no more than that there were reasonable grounds to suspect that C was a willing beneficiary of cronyism in relation to the vanity contract and also the other contracts referred to in the article.
After the parties agreed the case would be heard by Judge alone, D applied for the meaning of the words to be tried as a preliminary issue. Tugendhat J held in November 2011 that (1) the words complained of meant that there were (at the date of publication) reasonable grounds to suspect that C was a willing beneficiary of improper conduct and cronyism because of his friendship with Sir Ian Blair in respect of the award of a number of Metropolitan Police Service contracts to Mr Miller’s company worth millions of pounds of public money and (2) that meaning was defamatory of Mr Miller.
D amended its Defence to add an abuse of process argument on the basis that the meaning found by Tugendhat J was one of which C had not chosen to complain, and that the action involved costs disproportionate to any legitimate aim.
The issues of justification, abuse of process and damages were tried by Sharp J on 21 to 25 May 2012.
(1) Whether the defence of justification succeeded
(2) Whether the claim was an abuse of process
(3) If both defences failed, what award of damages should be made.
Entering judgment for C
(1) The defence of justification failed. Whilst it might be said that the key parts of D’s case, looked at in isolation and without the relevant context, would merit some inquiry or raise questions which were worthy of investigation, they did no more than that. Standing back from the detail and focussing on the key parts of D’s case the defence of justification was not made out.
(2) The claim was not an abuse of process. Although C had chosen to sue over a Chase level 1 meaning in relation to a specfic contract, and Tugendhat J had found a lower Chase level 2 in relation to a number of contracts, it did not follow that the action was an abuse if pursued in respect of a lower meaning than that originally complained of. Moreover, the allegation was a very unpleasant one against a professional man in his position and was published as a front page splash in one of the most popular newspapers in the country with a circulation of millions.
(3) C was awarded damages in the sum of £65,000. C was entitled to rely upon D’s failure to apologise; D’s persistence in its plea of justification; the cross-examination of him although it was courteous; the prominence of the article; and the failure to contact him prior to publication. Further, C had suffered considerably as a result of the publication and was very distressed and hurt by it.
This is the first time that there has been a trial of a Chase Level 2 justification since the Court of Appeal approved a series of principles relating to Chase level 2 meanings in King v Telegraph Group Ltd  EWCA Civ 613. The judgment exemplifies some of the difficulties defendants can face in establishing such a defence.