Chase Level 2 justification defence
The case of Miller v Associated Newspapers Ltd [2012] EWHC 3721 (QB) is the first Chase Level 2 justification defence trial since the Court of Appeals principles relating to Chase level 2 meanings in King v Telegraph Group 2004. The Daily Mail published an article regarding the Claimant a Managing Director of a Management Consultancy Company, the subject of the Article. C, a friend of the former Commissioner of the Metropolitan Police, Sir Ian Blair, issued a claim over an article in the Daily Mail entitled “Met Boss in new ‘Cash for a friend’ storm”.
C amended his original claim, and contended that the article meant he was a willing beneficiary of cronyism, on the basis that he had agreed to act as Sir Ian’s image consultant, knowing that his company had no relevant knowledge or experience to be able to do so. He therefore improperly obtained payment for something his company was not competent to do.
It was determined as a preliminary issue that the papers article had the defamatory meaning that there were reasonable grounds to suspect that M was a willing beneficiary of improper conduct and cronyism because of his friendship with the Scotland Yard chief in respect of the award of the police contracts to C which were worth millions of pounds of public money.
The Daily Mail relied on the defence of justification arguing that the Claimant and the Scotland Yard Chief were friends, the Company was awarded the Contract and that both the Claimant and the Scotland Yard Chief were involved in the tendering process.
Judgement was given to the Claimant. If the Daily Mail was to succeed in a defence of justification it had to justify reasonable grounds to suspect guilt rather than actual guilt which followed the decision in Chase v Newsgroup Newspapers Ltd [2003] EMLR 218, [2002] EWCA Civ 1772 at 45.
- “The sting of a libel may be capable of meaning that a claimant has in fact committed some serious act, such as murder. Alternatively it may be suggested that the words mean that there are reasonable grounds to suspect that he/she has committed such an act. A third possibility is that they may mean that there are grounds for investigating whether he/she has been responsible for such an act.”
In King v Telegraph Group Ltd [2004] EWCA Civ 613 considered the evidence, it is open to a defendant to adduce in support of a Chase Level 2 meaning:
“(1) There is a rule of general application in defamation (dubbed the “repetition rule” by Hirst LJ in Shah) whereby a defendant who has repeated an allegation of a defamatory nature about the claimant can only succeed in justifying it by proving the truth of the underlying allegation – not merely the fact that the allegation has been made;
(2) More specifically, where the nature of the plea is one of “reasonable grounds to suspect”, it is necessary to plead (and ultimately prove) the primary facts and matters giving rise to reasonable grounds of suspicion objectively judged;
(3) It is impermissible to plead as a primary fact the proposition that some person or persons (e.g. law enforcement authorities) announced, suspected or believed the claimant to be guilty;
(4) A defendant may (for example, in reliance upon the Civil Evidence Act 1995) adduce hearsay evidence to establish a primary fact – but this in no way undermines the rule that the statements (still less beliefs) of any individual cannot themselves serve as primary facts;
(5) Generally, it is necessary to plead allegations of fact tending to show that it was some conduct on the claimant’s part that gave rise to the grounds of suspicion (the so-called “conduct rule”).
(6) It was held by this court in Chase at [50] – [51] that this is not an absolute rule, and that for example “strong circumstantial evidence” can itself contribute to reasonable grounds for suspicion.
(7) It is not permitted to rely upon post-publication events in order to establish the existence of reasonable grounds, since (by way of analogy with fair comment) the issue has to be judged as at the time of publication.
(8) A defendant may not confine the issue of reasonable grounds to particular facts of his own choosing, since the issue has to be determined against the overall factual position as it stood at the material time (including any true explanation the claimant may have given for the apparently suspicious circumstances pleaded by the defendant).
(9) Unlike the rule applying in fair comment cases, the defendant may rely upon facts subsisting at the time of publication even if he was unaware of them at that time.
(10) A defendant may not plead particulars in such a way
It was also necessary to prove the primary facts which were relied on to support their defence. It was not sufficient to prove reasonable grounds to suspect the existence of those primary facts and the position as it was failed to establish reasonable grounds to suspect the Claimant of improper conduct and cronyism because of his friendship with the Scotland Yard Chief. The defence of justification failed.
A number of matters relied on by the Daily Mail could not be regarded as strong circumstantial evidence having used a sustainable defamatory defence against the Claimant who was an honest witness.
In the evidence the Company was found to be well suited to the role appointed and there was no evidence of any other tender more suited to the role.
There was no abuse of process, the Claimant continued with the action after the Daily Mail’s open offer which did not contain any apology and low damages.
The Claimant was awarded £65,000.00 which reflected the judge’s findings that the defamatory allegations were serious and that the extent of publication was substantial. She also took account of the Daily Mail’s failure to publish any correction or apology, its persistence in pursuing a justification defence to trial and its argument at trial that the Claimant was abusing the court’s processes. In all, there was “substantial aggravation” None of the matters relied on in justification reduced the damages and there were no mitigating factors.