But Mr Justice Nicklin rejected an application by the claimant, Steve Morgan, for summary judgment, although he did strike out elements of the defence.
The moves, reported by legal information service Lawtel, were the latest developments in a defamation battle between Mr Morgan and Associated Newspapers over an article headlined “Building tycoons using discounts to snap up family homes”, which included phrases such as “morally unacceptable” and “fat cat bought six houses and rents four back to staff”, which was published in the Daily Mail in August 2017.
Mr Morgan was the chairman of a construction company referred to in the article.
At a hearing in June, Mr Justice Nicklin found that the article meant that Mr Morgan was able to take advantage of an opportunity to buy six houses built by his company that were intended to be sold to less well-off buyers, but which had failed to sell, after his company succeeded in getting planning rules changed; that he bought the houses at a substantial discount and thereby stood to make a very large personal gain; and that as a result, he had exploited his position to line his own pockets in a greedy, unethical and morally unacceptable way.
The first two elements were factual in nature but the element was an expression of opinion based on Mr Morgan’s conduct, the judge said. Overall, the court found that the article was defamatory of Mr Morgan.
Associated Newspapers, which is pleading defences of honest opinion and truth, applied to amend its defence to include that there had been material benefits to Mr Morgan as he had bought the houses at a discount from their true value and had used them for staff accommodation.
Mr Morgan argued that the defence did not disclose any foundation for the defamatory meaning the court had found that the article bore, and that it lacked clarity and particularity and was incoherent. There was, he said, no evidence from Associated Newspaper about the price of the houses on the open market and the defence only set out a vague case of his alleged benefits.
Held (Lawtel summary): Defence – Associated Newspapers had to show that the proposed amendments had a real prospect of success. In defamation cases, allegations of misconduct should be drafted as if they were counts on an indictment, Hickinbotham v Leach (152 ER 510) applied.
There was a need for clarity and precision when raising the defence of honest opinion, Foley v Lord Ashcroft ( EWCA Civ 423) followed.
It was not in the public interest for a case to proceed on a muddled basis. Loose and ineffective pleadings obscured the issues.
A defence of truth had to be pleaded with proper particularity and there should be a succinct and clear summary of the facts relied on, Atkinson v Fitzwalter ( 1 WLR 201) followed.
Under Practice Direction 53 of the Civil Procedure Rules, a defence relying on honest opinion required specificity. It needed to have facts regarding Mr Morgan’s personal gain which were capable of supporting the third meaning. The defence failed to show succinct, particularised important facts and instead made loose assertions – the defendant should
start again and set out the particulars of its defence from scratch, Lawtel reported the judge as saying.
On the issue of a strike out or summary judgment, the judge held that it could not be said that the defence of honest opinion had no realistic prospect of success.
A paragraph of the defence regarding a councillor’s opinion was struck out as what individuals thought was irrelevant – the test for honest opinion was objective and could not be based on an individual’s criticisms.
This was not a case where there was no prospect of the defendant succeeding if the defence was properly pleaded.
The judge allowed Associated Newspapers’ proposed amendment on the issue of damages, and its application to amend, apart from the paragraph which was struck out.
The defence of honest opinion should be re-pleaded.
Steve Morgan v Associated Newspapers
Queen’s Bench Division, Mr Justice Nicklin
Hearing and ex tempore decision: December 7
Justin Rushbrooke QC, instructed by Himsworth Legal Ltd, for the
claimant; Catrin Evans QC, instructed by Wiggin LLP, for the defendant.
This report originally appeared on the online subscription service Media Lawyer and is reproduced with permission and thanks.