Nicklin J will try the first tranche of issues in the case of Harcombe & Kendrick v Associated Newspapers Ltd
On 3 March 2019, the Mail on Sunday published a feature article entitled “The deadly propaganda of the statin deniers”, together with some related material. The Claimants, respectively a freelance researcher and practising GP, claim that these articles were defamatory of them.
The Defendants, Associated Newspapers, the publishers of the Mail on Sunday, and Barney Calman, the health editor of the newspaper who wrote the main article, put forward as defences to the claim:
(1) reasonable belief that publication was in the public interest;
(2) honest opinion;
(3) truth
(4) qualified privilege under s.15 Defamation Act 1996 in respect of certain statements in the articles attributed to Matt Hancock MP, then the Secretary of State for Health and Social Care; and
(5) privilege under s.6(5) of the Defamation Act 2013 in respect of some statements in the articles which are said to be fair and accurate summaries of peer-reviewed scientific material published in the British Medical Journal.
The issue of meaning is, unusually, yet to be determined. The court decided at an earlier CMC that owing to the “complicating factor” of the principle in Curistan v Times Newspapers Ltd [2009] QB 231, the privilege issues would need to be ruled on before meaning could be decided.
In the light of the wide range of issues that fell to be determined, Nicklin J described these proceedings in his judgment following the CMC as “the most significant piece of defamation litigation that [he has] seen in a very long time”. His response was to split the triable issues into two tranches (“Trial 1” and “Trial 2”). It is Trial 1 that begins this week at which the court will consider the following issues:
(i) reasonable belief that publication was in the public interest;
(ii) qualified privilege under s.15 Defamation Act 1996;
(iii) privilege under s.6(5) Defamation Act 2013;
(iv) whether the Claimant’s plea of malice under s.3(5) defeats any honest opinion defence that is established; &
(v) meaning and fact or opinion.
Only one of these issues is capable of being determinative of the action, namely (i) reasonable belief that publication was in the public interest under s.4 of the Defamation Act 2013. If that issue is not resolved in the Defendants’ favour, it is at Trial 2 that the court will go to consider the defences of honest opinion and truth (as appropriate in the light of the court’s rulings at Trial 1), serious harm, and (depending upon the decision on liability) damages and other remedies.
Trial 1 is scheduled to last until 11 July and is being heard by Nicklin J.
5RB’s Adrienne Page KC and Godwin Busuttil act for the Claimants, instructed by Carter-Ruck.