Full case report
Rath v Guardian News & Media Limited & Anor
Reference  EWHC 398 (QB)
Court Queen's Bench Division
Judge Tugendhat J
Date of Judgment 5 Mar 2008
Libel – Striking out – Summary judgment – Defence – Justification – Severable and distinct allegation – Fair comment – Error in facts stated – s.6 Defamation Act 1952 – Damages – Reliance on other articles publishing similar allegations
The Claimant sued on three articles published in the Guardian in January and February 2007 contending that they alleged that he was selling ridiculous vitamin pills to vulnerable AIDS victims in South Africa on the back of his false claim that they were better than antiretroviral drugs (ARVs) in treating AIDS and HIV and was therefore substantially responsible for the needless deaths of hundreds of thousands of people. The Defendant pleaded defences of justification and fair comment and also sought to rely on earlier articles which published similar allegations against the Claimant in mitigation of damages. The Claimant applied to strike out various parts of the Defence.
(1) Whether one of the meanings sought to be justified was severable and distinct and therefore impermissible;
(2) Whether the particulars of justification were incapable of supporting the meaning that the Claimant was responsible for killing hundreds of thousands of people;
(3) Whether the article made an allegation of fact rather than comment, alternatively, if the article conveyed a comment, whether the fact that the Claimant did not sell vitamins in South Africa as stated in the article meant that a comment defence had no realistic prospect of success; and
(4) Whether the Defendant could rely upon earlier articles which published similar allegations about the Claimant in mitigation of damages.
(1) The third Lucas-Box meaning shared a common sting with the second pleaded meaning – that the Claimant had vigorously and irresponsibly campaigned against ARV medication being made available in South Africa – and would not be struck out; Polly-Peck v Trelford  QB 1000 applied.
(2) It was not right to strike out the justification defence as to the consequences of the Claimant’s activities. This was based upon an inference and whether that inference was properly to be drawn was a matter for trial.
(3) It was not possible to say that the article was incapable of bearing the comment pleaded by the Defendants. The Defendants had a real prospect of being able to rely upon s.6 Defamation Act 1952 if, notwithstanding the error about sale, they could demonstrate sufficient true facts to support the comment.
(4) The Defendants were not entitled to rely upon earlier articles in mitigation of damages; Dingle v Associated  AC 371 applied.
This decision deals with a number areas of defamation practice. Of particular significance is the decision relating to the ambit of s.6 Defamation Act 1952 to afford relief to a Defendant whose comment is based on facts stated in the article which turn out to be false. Both Kemsley -v- Foot  AC 345 and the more recent decision of Lowe v Associated Newspapers suggest that error in facts stated would undermine the defence of fair comment. The Court ruled that s.6 could potentially rescue a Defendant in such a circumstance. The Defendants’ attack on Dingle v Associated was rejected.
Eversheds for the Claimant; Olswang for the Defendants
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