The paragraphs of the Defence setting out the particulars of honest opinion should be struck out, and permission for the amendments refused.
On strike out, the principles to be applied were those in Higginbotham v Leech  10 M&W 361, which apply equally to a plea of honest opinion as to one of truth: Ashcroft v Foley  EMLR 25. Particulars must be set out with clarity and precision. Particulars must be both sufficient and pleaded with proper particularity.
The particulars of the defence of honest opinion were loose and ineffective. The Defendant needed to, and had failed to, set out clearly what the Claimant was alleged to have done. It is possible to rely upon inference but to do so it must be properly pleaded. Similarly the particulars needed to, but did not, clearly state what benefit the Claimant was alleged to have obtained, and how.
Any fact relied upon in support of an honest opinion defence must be a true fact that existed at the time the statement was published. Obiter: The proper construction of section 3 was not that a defence could succeed if, even though every fact set out in the publication was wrong, some other entirely unrelated fact existed upon which the opinion could be based. This would be a radical departure from the previous law. The requirement in section 3(3) that the statement should indicate, whether in general or specific terms, the basis of the opinion is an important safeguard, and means that there must be a nexus between the opinion and the subject upon which it is expressed: Burki v Seventy Thirty Ltd & Ors  EWHC 2151 (QB).
One result of the diffuse nature of the Defendant’s case was that the Claimant had ended up advancing evidence to seek to disprove hypotheses that might be found within the vague pleading – that was to reverse the burden of proof, and was not permissible.
The Defendant’s approach of grafting on some additional particulars after the meaning ruling was inappropriate and had failed. If the Defendant was to plead a defence of honest opinion it was required to return to the drawing board, setting out the facts relied upon to support the case: (1) that the Claimant had exploited his position; and (2) had lined his own pockets. If the repleaded particulars advanced a valuation of the properties, then the application to amend must be supported by proper evidence of that valuation.
The Defendant’s filing of a defence before the Court had determined meaning and fact/opinion had “reverberations” that continued to complicate the case, and led to a situation where substantial costs had been incurred before the close of pleadings.
Whilst it is, in theory, open to a Defendant to seek to rebut an inference of serious harm, in a mass media case this is virtually impossible.
The summary judgment application was refused.