The claimant issued libel proceedings against the defendant newspaper following the publication of an article. The judge rejected the newspaper’s defence of justification and entered judgment for the claimant. The newspaper appealed.
Miller v Associated Newspapers Ltd: Court of Appeal, Civil Division: 24 January 2014
In October 2008, the defendant newspaper published an article. The claimant issued libel proceedings against the defendant. In November 2011, it was determined that the words complained of meant that, at the date of publication, there were reasonable grounds to suspect that the claimant was a willing beneficiary of improper conduct and cronyism because of his friendship with then Deputy Metropolitan Police Commissioner, B, in respect of the award of a number of Metropolitan Police Service contracts to the claimant’s company worth millions of pounds of public money, and that the article was defamatory (see  All ER (D) 02 (Dec)).
The words complained of contained a Chase Level 2 imputation, namely, that there was an implied statement that there were reasonable grounds for suspecting that the claimant was a willing beneficiary of cronyism and improper conduct on the part of B, not that he was in fact willing to benefit from such conduct, much less that he had actually done so.
In December 2012, the judge held that the defendant’s defence of justification had not been made out, rejected the submission that the proceedings were an abuse of process and awarded the claimant £65,000 in damages (see  All ER (D) 15 (Jan)). The defendant appealed on grounds including that: (i) the judge had erred in considering the claimant’s actual state of mind and her use of the word ‘actual’ indicated that she had approached the matter as if the defendant had had to establish actual impropriety as was the case for Chase Level 1 imputations; and (ii) the judge had failed to deal with the evidence correctly, as she had erred in relying on the claimant’s evidence, including his hindsight, lay opinion and witness evidence rather than documentary evidence.
It fell to be determined: (i) whether the judge had required the defendant to establish actual impropriety; and (ii) whether the judge had failed to deal with the evidence correctly. The appeal would be dismissed.
(1) It was settled law that, since it was no defence to an allegation of a Chase Level 2 kind to prove that others had formed such a suspicion, the sting of the imputation was that the claimant had, by his own conduct, brought such suspicion upon himself. In order to succeed in a defence of justification, the defendant had to prove conduct on the part of the claimant which, viewed in context, provided reasonable grounds for suspicion. Further, the question for the court when considering a defence of justification was whether, viewed at the date of publication, the claimant had behaved in a way that would give a reasonable person grounds for suspecting him of the wrongdoing in question.
The reasonable person was to be taken to be aware of all the primary facts and matters subsisting at the date of publication. A person’s conduct could be observed and assessed, but his state of mind could not, except by inference from other primary facts. Therefore, the claimant’s subsequent account of what he had thought, had believed or had intended, even though, in one sense, it was evidence of a fact subsisting before the date of publication, was not relevant because it was not itself a primary fact for those purposes.
However, if it was possible to draw an inference about the claimant’s state of mind at the time from other primary facts, there was no reason why the reasonable person, or the court acting in that capacity, should not do so (see , , ,  of the judgment).
In the instant case, the judge had not lost sight of the important distinction between Chase Level 1 and Chase Level 2 imputations. The use of the word ‘actual’ might, if taken out of context, appear unfortunate, but it was clear that the judge had directed her mind to establish reasonable grounds for suspicion. It could not be read as indicating that she had been directing her attention to the claimant’s actual state of mind. The whole emphasis was on the need for the defendant to adduce evidence of conduct on the part of the claimant sufficient to bring suspicion on himself, rather than relying on circumstantial evidence of a more general and unfocussed nature (see , ,  of the judgment).
Shah v Standard Chartered Bank  4 All ER 155 applied; Chase v News Group Newspapers  All ER (D) 20 (Dec) applied; King v Telegraph Group Ltd  All ER (D) 242 (May) applied.
(2) It was established principle that there was no correct approach other than to weigh up all the evidence and make findings that were properly supported by it. If the judge’s findings of fact were not supported by the evidence, then they were liable to be set aside (see , ,  of the judgment).
In the circumstances, insofar as the claimant had sought to explain his thinking at the time of the tender process, his evidence had been irrelevant and inadmissible, but since it had been given without objection, it had been appropriate for the judge to have referred to it. However, it had not affected her decision. Whether the claimant’s state of mind at that time had or had not been a relevant matter for the judge to take into account, it had clearly pre-dated publication of the article and any criticism on the grounds of hindsight was, therefore, misplaced. The lay opinion was not relevant to the question the judge had had to decide and there had been no need for the defendant to challenge it.
However, it had not significantly affected her decision. Given the nature of the defendant’s case and the evidence before the court, the judge could not be criticised for failing to give greater weight to the documents or for making findings of fact partly on the statements of witnesses. Further, the judge had not overlooked or failed to properly take into account important items of evidence (see , , , , , ,  of the judgment).
The judge had reached the right conclusion. The observable facts at the date of publication had not provided reasonable grounds for suspecting that the claimant had been a willing beneficiary of improper conduct and cronyism on the part of B (see  of the judgment).
Armagas Ltd v Mundogas SA, The Ocean Frost  3 All ER 795 applied.
Decision of Sharpe J  All ER (D) 15 (Jan) affirmed.
Manuel Barca QC (instructed by Simons Muirhead & Burton) for the claimant; Mark Warby QC and Adam Speker (instructed by Reynolds Porter Chamberlain LLP) for the defendant.