The claimant, an MP, complained in defamation of the defendant’s description of his rejected expenses claim regarding an assistant’s charitable donation. The paper pleaded a Reynolds defence. The claimant said that when published the defendant knew that the article was untrue. The defendant sought summary judgment.
Held: It was not possible to say there was no prospect that a jury would find the defendant guity of malice,and therefore that element must be allowed to proceed. Similarly, on justification it was possible that the defence would fail as to the meaning that the claimant had set out to exploit the expenses system, and nor was it yet established whether a Reynolds privilege can apply to a comment.
As to jury trial, the court considered the effect of the CPR on the discretion under 69(3) to order jury trial, and ‘once the 28 days provided for in CPR 26.11 have expired, it is for the court to decide the mode of trial, and the court must do so starting with the predisposition in favour of a trial without a jury. And this is so whatever the parties may have agreed or may wish. The wishes of the parties are of course a factor. But the court should not abstain from addressing its mind to all the relevant factors, including in particular those of case management, simply because the parties agree between themselves.’
 EWHC 763 (QB)
Senior Courts Act 1981 69, Civil Procedure Rules 1
England and Wales
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – Reynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
Cited – Turner v Metro-Goldwyn-Mayer Pictures Ltd (MGM) HL 1950
A letter was published which criticised a film critic’s review of the week’s films.
Held: A person (including a corporation) whose character or conduct has been attacked is entitled to answer the attack, and the answer will be protected by . .
Cited – Spiller and Another v Joseph and Others SC 1-Dec-2010
The defendants had published remarks on its website about the reliability of the claimant. When sued in defamation, they pleaded fair comment, but that was rejected by the Court of Appeal.
Held: The defendants’ appeal succeeded, and the fair . .
Cited – Myerson v Smith’s Weekly 1923
(New South Wales) The court considered the distinction between fact and comment. Ferguson J said: ‘To say that a man’s conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things and that his . .
Cited – London Artists Ltd v Littler CA 10-Dec-1968
The defence of fair comment on matters of public interest is not to be defined too closely. Lord Denning MR said: ‘Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going . .
Cited – Kemsley v Foot CA 14-Dec-1950
Pleading of Fair Comment Defence
The plaintiff newspaper proprietor complained that the defendant had defamed him in a publication ‘The Tribune’ with a headline to an article ‘Lower than Hemsley’ which article otherwise had no connection with the plaintiff. He said it suggested . .
Cited – Kemsley v Foot HL 25-Feb-1952
Fair Comment Crticism of Newspaper Publisher
The plaintiff alleged that the headline to an article written by the defendant which criticised the behaviour of the Beaverbrook Press, and which read ‘Lower than Kemsley’ was defamatory. The defendant pleaded fair comment. The plaintiff appealed. . .
Cited – British Chiropractic Association v Dr Simon Singh CA 1-Apr-2010
The defendant appealed against a ruling that the words in an article – ‘This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments’ – were statements of fact, and were not comment.
Cited – Jameel and Another v Wall Street Journal Europe Sprl (No 2) CA 3-Feb-2005
The claimant sought damages for an article published by the defendant, who argued that as a corporation, the claimant corporation needed to show special damage, and also that the publication had qualified privilege.
Held: ‘It is an established . .
Cited – Branson v Bower QBD 15-Jun-2001
Eady J considered that: ‘Mr Price argues that the objective test for fair comment cannot be fulfilled (at any point) if the facts pleaded by the Defendant might take on a different significance when set against other facts not referred to in the . .
Cited – Rothermere v Times Newspapers Ltd CA 1973
The court considered whether to order a defamation trial to be heard by judge alone, rather than before a jury.
Held: The criterion that the trial requires a prolonged examination of documents is basic and must be strictly satisfied, and it is . .
Cited – Fiddes v Channel Four Television Corporation and Others CA 29-Jun-2010
The claimants in a defamation case made an interlocutory appeal against an order for trial by judge alone. The parties had agreed for trial by jury, but the defendants made a late application for trial by judge alone.
Held: The claimant’s . .
Cited – Beta Construction Ltd v Channel Four Television Co Ltd CA 1990
When considering the number of documents to be considered when deciding whether a defamation case should proceed before a judge or judge and jury, the court was entitled to look also at any specialised technical content of the documents and also . .
Cited – Times Newspapers Ltd and others v Armstrong CA 13-Jun-2006
May LJ noted: ‘an action which does not come within section 69(1) has to be tried without a jury, unless the court in its discretion orders it to be tried with a jury. The discretion is now very rarely exercised, reflecting contemporary practice. . .
Cited – Right Hon Aitken MP and Preston; Pallister and Guardian Newspapers Ltd CA 15-May-1997
The defendants appealed against an order that a defamation trial should proced before a judge alone.
Held: ‘Where the parties, or one of them, is a public figure, or there are matters of national interest in question, this would suggest the . .
Cited – Dow Jones and Co Inc v Jameel CA 3-Feb-2005
Presumption of Damage in Defamation is rebuttable
The defendant complained that the presumption in English law that the victim of a libel had suffered damage was incompatible with his right to a fair trial. They said the statements complained of were repetitions of statements made by US . .
Applied – Lewis v Commissioner of Police of The Metropolis and Others (Rev 1) QBD 31-Mar-2011
The defendant sought a ruling on the meaning of the words but using section 69(4) of the 1981 Act. The claimant solicitor was acting in complaints as to the unlawful interception of celebrity voicemails by agents of the press. There had been debate . .
Cited – McGrath v Independent Print Ltd QBD 26-Jul-2013
The claimant alleged defamation in an article on the defendant’s web-site discussing a failure of his earlier defamation action. He now sought directions for a jury trial. . .
See Also – Cook v Telegraph Media Group Ltd QBD 9-May-2011
The claimant sought damages in defamation against the defendant newspaper after articles regarding his expenses claims whilst an MP. . .
See Also – Cook v Telegraph Media Group Ltd QBD 16-Jun-2011
Trial of preliminary issues in defamation claim. . .
Lists of cited by and citing cases may be incomplete.
Defamation, Litigation Practice
Updated: 02 November 2021; Ref: scu.431294