In last month’s unanimous judgment in Rothschild v Associated Newspapers Limited ( EWCA Civ 197) the Court of Appeal upheld a decision that the defence of justification had been established in a claim brought by the financier Nat Rothschild against the Daily Mail. The case provides interesting guidance on the circumstances in which a defendant need prove only part of the defamatory allegations which have been made.
The case concerned an article published in the Daily Mail headed “Mandelson: an oligarch and a £500m deal“. The article was about a dinner in Moscow attended by Mr Rothschild, Oleg Deripaska and representatives of the American aluminium company Alcoa and the Russian aluminium company Rusal, which was controlled by Mr Deripaska (the “Alcoa Dinner”). A multimillion pound deal (the £500m deal referred to in the article’s heading) had earlier been concluded between Rusal and Alcoa for the sale of Russian aluminium plants to Alcoa. Lord Mandelson, then EU Trade Commissioner, did not attend the dinner but having been flown out to Russia by Mr Rothschild, was having dinner in the same restaurant with a Russian Government minister, as arranged by Mr Rothschild with the assistance of Mr Deripaska or his office.
It was common ground that while Lord Mandelson looked in on the Alcoa Dinner before the Russian minister arrived, he did not partake in it and nor did he discuss EU tariffs on aluminium or assist with the £500m deal.
The same night, Mr Rothschild, Lord Mandelson and Mr Deripaska all flew to Siberia in Mr Deripaska’s private jet and stayed in Mr Deripaska’s chalet. They accompanied Mr Deripaska on a visit to an aluminium smelter and foil plant. The next morning Lord Mandelson returned to Brussels on Mr Rothschild’s plane.
At trial, Tugendhat J found ( EWHC 177 (QB) that the article had two meanings. The first was that Mr Rothschild flew Lord Mandelson to Moscow for the Alcoa Dinner when he knew, or should have known, that it would give rise to reasonable grounds for suspicion that Lord Mandelson would engage in improper discussion with the representatives of Rusal and Alcoa about tariffs on aluminium imports from Russia into the EU. The second meaning was that the incident was “an example of how Mr Rothschild sought to impress and keep close to him Mr Deripaska, the billionaire businessman who controlled the Russian aluminium producer Rusal, of whose advisory board Mr Rothschild is a member.”
What does the law say where, as argued by the defendant in this case, the specific example given is false but the general accusation is true?
The leading judgment given by Lord Justice Laws identified 5 interlocking principles which govern the defence of justification. To quote from his judgment,
“They are: (1) A justification defence will run if the defendant shows that what he has alleged is substantially true. This general rule is given more concrete effect by the other principles. Thus it is limited by principle (2): a libel cannot be justified by proof of obliquity on the claimant’s part which is unconnected with the accusation complained of. (3) However a defendant is entitled to justify a common sting derived from parts of a publication, taken as a whole – but there must be a common sting. (4) An instance of (3) arises where a general charge is justified by proved examples, even where the published example is unproved. But (5) in such a case the sting of the instance or instances which are proved must in essence be as sharp as the published, unproved libel: so that the claimant has no more reputation to lose by force only of the published, false accusation.” 
The case on behalf of Mr Rothschild was that there was no general charge in the article; that it was about “one event” (the Alcoa Dinner) which was essential to the article’s sting. Furthermore, it was submitted that there was nothing wrong in playing the part Mr Rothschild did in facilitating the dinner with the minister and in particular the trip to Siberia; or if there was, it “paled into insignificance” beside the Alcoa Dinner accusation. The case on behalf of the defendant was that the Alcoa Dinner was an example of the way in which Mr Rothschild was prepared to use his friendship with Lord Mandelson as a means “to impress and keep close to him Mr Deripaska” – and in doing so should have foreseen that he would “bring Lord Mandelson’s public offices and personal integrity into disrepute.” The defendant submitted that the Siberian trip was another example of this.
The argument put forward on behalf of Mr Rothschild did not find favour with Laws LJ. While he accepted that the greater part of the article was taken up with the Alcoa Dinner, in his view it was not confined to “one event” and the trial judge was right to conclude that it contained wider themes, namely “Lord Mandelson’s relationship with Mr Deripaska and Mr Rothschild’s facilitating role” of which the Alcoa Dinner was just an example. It was held that in acting as he did Mr Rothschild knew or should have foreseen that he would expose Lord Mandelson to suspicion or accusations of conflict of interest and improper discussions – suspicions or accusations which in fact eventuated. That was held to be both the sting of the Siberia trip (the proved instance of the general charge) and the sting of the unproved instance (the Alcoa Dinner). Accordingly, in his judgment, principle (5) was met as given the proved instance of the general charge, Mr Rothschild had no more reputation to lose by the false story of the Alcoa Dinner.
McCombe LJ agreed with Laws LJ.
Mr Justice Eady agreed that the appeal should be dismissed but expressed doubt about the need for the fifth principle identified by Laws LJ i.e. that the sting which is proved must in essence be as sharp as the published, unproved libel. In his view, a defence of justification to a general charge should not necessarily have to fail merely because a supposed example of it, contained in the published article, happens to be more serious than that ultimately proved at trial. In his view it should be a matter for the Court to decide on a case by case basis but that the law need not be stated so prescriptively so as to provide that the sting of the instance which is proved must in essence be as sharp as the published, unproved libel.
There is a strong argument that the circumstances in which it will be fair to justify a false defamatory allegation on the basis of a less damaging true example should be few and far between. Even taking into account the rationale for the principle that a defamatory allegation need only be proved to be substantially true and the policy factors underlying the Article 10 jurisprudence, as Laws LJ said, without principle 5 the balance would be swung too far in favour of the defendant. If there is no redress against a false allegation, it is only fair that the substitute example is equally damaging to that person’s reputation so that the grounds for assessment of that person’s character are like for like. As it is, reputation is finely balanced on nuance. The fact that the true example used to justify the general charge need not be asserted in the publication is of no concern. It follows that if the reality, albeit unknown to the reader, is that the essence of the general allegation is true, the offended party should not be afforded any protection of the law in relation to it. However, that is only fair where the sting of the true example is “as sharp” so that the false example adds no further reputational damage.
Valerie Paisner is a solicitor at Taylor Hampton