Defamation – Libel – Striking Out – Defence – Justification – Basis on which it was proper to advance plea of justification – defences of justification and fair comment form part of the framework by which free speech is protected
Appeal against Judge’s order striking out defence of justification on grounds that their was no clear and sufficient evidence to support the plea before it was put on the record.
At what stage of the action and on what basis can the defence of justification be struck out.
A plea of justification was not required to be supported by ‘clear and sufficient evidence’ before being placed on the record, and should not be struck out unless it could be clearly demonstrated to be incurably bad. Before pleading justification a defendant should (i) believe that the words complained of were true; (ii) intend to support the defence at trial; and (iii) have reasonable evidence to support the plea or reasonable grounds to suppose that sufficient evidence to prove the allegations would be available at trial.
The decision of the Court of Appeal frustrated McDonald’s attempts to knock out most of the Defence without a trial. The case contained a useful early reminder that the defences of justification and fair comment form part of the framework by which free speech is protected and that no unnecessary barriers to the use of these defences should be erected.
