Thornton v Telegraph Media Group Ltd (No 3)
Reference:  EWHC 159
Court: Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 4 Feb 2011
Summary: Defamation – Malicious falsehood – Amendment – Application to amend defence to malicious falsehood claim to plead honest comment – Whether amendment should be permitted
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Justin Rushbrooke KC (Claimant)
Instructing Solicitors: Taylor Hampton for C; David Price Solicitors & Advocates for D
The Claimant (C) was the authoress of a non-fiction book, ‘Seven Days in the Art World’. She sued the publishers of the Daily Telegraph (D) on a review written by Lynn Barber. One of the allegations complained of (“the copy approval allegation”) was the subject of both a libel and a malicious falsehood claim. The defence of honest comment pleaded to the former was struck out by Sir Charles Gray on 12 November 2009. However, the libel claim was subsequently struck out by Tugendhat J on 16 June 2010.
D applied to amend its Defence to the malicious falsehood claim to incorporate honest comment. The material wording was: “For the avoidance of doubt, the Defendant will allege that the words on which the malicious falsehood claim is based … were comment and that an honest person could express the comment on the basis of the facts set out below. Accordingly, the words cannot be regarded to be false.” No Control Risks meaning was pleaded.
Whether the amendment to the Defence should be permitted.
Refusing the application:
The proposed amendment was irrelevant to the question of falsity in the context of malicious falsehood, and would have been struck out under CPR 3.4(2)(a) if originally pleaded. The burden of proof was on a claimant in a malicious falsehood claim was to establish (i) falsity, (ii) malice and (iii) damage or likelihood of damage under s.3 Defamation Act 1952. There was no authority for the proposition that words complained of cannot be regarded as false if they are comment which an honest person could express on the basis of the facts identified.
Moreover, the effect of introducing the objective test into malicious falsehood would be that if a defendant draws a false inference of fact, then provided an honest person could have believed that inference to be true, he is not liable, even if the claimant could prove that the defendant did not believe the inference to be true. Such a reform of the law was not open to a first instance judge and ran counter to the Supreme Court’s decision in Spiller v Joseph.
The Judge rejected the Defendant’s argument that as a matter of principle Article 10 ECHR justified a different treatment for malicious falsehood defences than for libel, observing that there is “no public interest in the assertion of facts and opinions which the writer does not believe or does not hold”.