David Hunt- Times Newspapers Limited- TNL- defamation- Reynolds privilege- justification- strike out application- Flood v Times Newspapers Ltd [2012] UKSC 11
D had published an article entitled “Taxpayers fund land purchase from crime lords”, essentially alleging that C was a “crime lord” controlling a vast criminal network involved in murder, drug trafficking and fraud, and that when he was prosecuted over ten years earlier he was responsible for a violent assault on the main witness and intimidation of his family.
D’s pleas of justification and Reynolds privilege had already been the subject of two partially successful strike-out applications. The most recent of which [2012] EWHC 110 (QB)) involved the strike out of substantial passages of the Defence, including those pleaded: (1) in relation to the justification defence which were not sufficiently particularised; and (2) in relation to the Reynolds defence, where the matters had not been verified as required by responsible journalism.
Following that decision D reformulated the Defence, mainly with respect to its Reynolds plea.
C subsequently made a further strike out application in respect of various passages in that re-amended Defence.
The Judge heard oral argument in the application, and received written submissions from Counsel as to the effect of the Supreme Court’s decision in Flood v Times Newspapers Ltd [2012] UKSC 11 (which was imminent at the time that oral argument was heard).
Whether or not the passages of the Defence in question should be struck out.
The application was refused.
(1) In respect of the passage concerning justification, the Judge held that it was a legitimate plea and so ought to stand [10].
(2) In respect of the passages concerning Reynolds privilege the Judge, after outlining the requirements of the defence and considering whether those were fulfilled by each of the passages in question, coupled with consideration of the relevant evidence, refused to strike them out. All of the passages in question could potentially form the basis for a plea of ‘responsible journalism’ and, as a result, they ought to be left for consideration by the trial judge.
Whilst this strike out decision is very fact specific, the judgment provides a useful overview of Reynolds privilege following the Supreme Court’s decision in Flood. The Judge’s recital of the constituent elements of the defence at [12] that he felt were ‘common ground’ between Counsel following Flood will be of note to media law practitioners and investigative journalists.