Nicklin J explained how circumstantial evidence might be admissible to prove the truth of a Chase level 2 meaning: ‘The ‘conduct rule’ and ‘circumstantial evidence’ have been further elucidated.
(i) While it is an essential requisite of a Chase level 2 defence . . that the particulars must focus on the conduct of the claimant said to give rise to the suspicion, in a complicated case it may be necessary to portray some of the background and to connect the main facts relied upon. But the fundamental – and ultimate – question is: whether taken as a whole the particulars demonstrate conduct of the claimant that gives rise to the suspicion: in other words, on the facts pleaded, a person could suspect that the claimant was implicated: Miller -v- Associated Newspapers Ltd [2012] EWHC 3721 (QB) per Sharp J; and Miah -v- British Broadcasting Corpn [2018] EWHC 1054 (QB) [33]-[34] per Warby J.
(ii) In JSC BTA Bank -v- Ablyazov (No.8) [2013] 1 WLR 1331, Rix LJ said:
‘It is, however, the essence of a successful case of circumstantial evidence that the whole is stronger than individual parts. It becomes a net from which there is no escape. That is why a jury is often directed to avoid piecemeal consideration of a circumstantial case: R -v- Hillier (2007) 233 ALR 634 . . Or, as Lord Simon of Glaisdale put it in R -v- Kilbourne [1973] AC 729, 758, ‘Circumstantial evidence . . works by cumulatively, in geometrical progression, eliminating other possibilities’.’
I have no difficulty with the interplay between circumstantial evidence and the ‘conduct rule’. To take an example, in a drugs importation conspiracy it is usual for the prosecution to rely upon a number of sources of evidence including, typically: (1) cell-site analysis showing the presence of mobile telephones at various locations; (2) calls and messages passing between those telephones; and (3) ANPR and CCTV ‘hits’ of various vehicles at particular places. If the same factual issues arose in defence of a libel claim, including alleged facts from these three categories, there would be some evidence in each that did not focus on the conduct of the claimant; indeed, there is likely to be evidence relating to the activities of the other alleged conspirators. However, the strength of the case, and why it gives rise to suspicion falling on the claimant is that, cumulatively and taken together, the evidence implicates the claimant because of his connection to the evidence as a whole. What matters, and what would be essential for the truth defence to have a realistic prospect of success, is the evidential link to the claimant. Without that, the rest of the evidence cannot give rise to a reasonable suspicion.
Nicklin J
[2018] EWHC 2032 (QB), [2018] WLR(D) 502, [2019] 2 WLR 232, [2019] EMLR 6, [2019] QB 861
Bailii, WLRD
Defamation Act 2013
England and Wales
Citing:
See Also – Bokova v Associated Newspapers Ltd QBD 21-Feb-2018
. .
Cited by:
Cited – Turley v Unite The Union and Another QBD 19-Dec-2019
Defamation of Labour MP by Unite and Blogger
The claimant now a former MP had alleged that a posting on a website supported by the first defendant was false and defamatory. The posting suggested that the claimant had acted dishonestly in applying online for a category of membership of the . .
Cited – Hijazi v Yaxley-Lennon (Orse Tommy Robinson) QBD 22-Jul-2021
No Valid Evidence to Support Serious Accusations
The claimant was filmed being assaulted in the school playground. The film was published on the internet, and the defendant right wing politician re-published it, but falsely said that the claimant had himself been violent.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 July 2021; Ref: scu.620611
