The overlap between libel and malicious falsehood
Peter Cruddas -v- (1) Jonathan Calvert (2) Heidi Blake (3) Times Newspapers Ltd – [2015] EWCA Civ 171OverviewThis case focused on the 'single meaning rule' in libel and the overlap with the tort of
Peter Cruddas -v- (1) Jonathan Calvert (2) Heidi Blake (3) Times Newspapers Ltd – [2015] EWCA Civ 171
Overview
This case focused on the 'single meaning rule' in libel and the overlap with the tort of malicious falsehood.
In libel claims, the single meaning rule dictates that while a publication will be understood in different ways by each reader, and the law recognises that a publication is capable of bearing two or more separate and distinct meanings, the approach in libel claims is that the court is required to find a single or "right" meaning of the words complained of, or a single or right meaning of each separate and distinct allegation within the words complained of. However, in malicious falsehood claims, the single meaning rule does not apply. The court will identify the reasonably available meanings and decide if a substantial number of, or many, people would reasonably have understood the words complained of in a damaging way.
The Claimant was the former Treasurer of the Conservative party who had been covertly recorded on video by journalists from The Sunday Times who were posing as potential donors to the Conservative Party. The Claimant sued in libel and malicious falsehood on the subsequent articles published in The Sunday Times and was awarded £180,000 in damages.
On appeal from the Defendants, the Court of Appeal reduced the award to £50,000 after holding that one of the meanings (out of three meanings arising from three separate allegations in the Sunday Times articles), that of corrupt conduct, was true. The other meanings, including the finding of malice for the purpose of malicious falsehood, were upheld.
The Court specifically ruled on the overlap between malicious falsehood and libel in circumstances in which a libel claim may fail, but a malicious falsehood claim may succeed on the basis that the single meaning rule does not apply in malicious falsehood claims.
Facts
Four articles were published on 25 March 2012 by the Defendants under the headlines "Tory treasurer charges £250,000 to meet PM", "Cash for Cameron: cosy club buys the PM's ear", "Pay the money this way and the party won't pry" and "Rotten to the Core". At first instance the Court held that the articles meant:
Meaning 1: in return for cash donations to the Conservative Party, the Claimant corruptly offered for sale the opportunity to influence government policy and gain unfair advantage through secret meetings with the Prime Minister and other senior ministers (the “cash for access” meaning);
Meaning 2: the Claimant made the offer, even though he knew that the money offered for secret meetings was to come, in breach of the ban under UK electoral law, from Middle Eastern investors in a Liechtenstein fund; and
Meaning 3: further, in order to circumvent and thereby evade the law, the Claimant was happy that the foreign donors should use deceptive devices, such as creating an artificial UK company to donate the money or using UK employees as conduits, so that the true source of the donation would be concealed.
These meanings were the single meanings for the purpose of Mr Cruddas' libel claim. However, the "cash for access" meaning also had a second, more serious meaning for the purpose of the malicious falsehood claim in that the allegation of corruption signified criminal corruption (which can be called 'Alternative Meaning 1').
The Defendants denied that the words bore these meanings and pled justification on 'lesser' meanings. In relation to malicious falsehood, the Defendants denied malice and relied on their justification plea to the libel claim to deny falsity of the allegations.
At first instance Tugendhat J found for the Claimant on both the libel and malicious falsehood claims and awarded £180,000 in damages.
The Defendants appealed and the Court of Appeal was required to answer three questions:
Judgment
Meaning 1 – Libel
The Court of Appeal determined, after an in-depth consideration of the transcript of the covert recording, that Meaning 1 was substantially true. Jackson LJ concluded that "Mr Cruddas was effectively saying to the journalists that if they donated large sums to the Conservative Party, they would have an opportunity to influence Government policy and to gain unfair commercial advantage through confidential meetings with the Prime Minister and other senior ministers. Mr Cruddas was not suggesting any form of criminal offence under the Bribery Act 2010. Nevertheless, what he proposed was unacceptable, inappropriate and wrong. Therefore meaning 1 was substantially true”. Mr Cruddas' libel claim in respect of Meaning 1 was rejected.
Meaning 1 – Malicious Falsehood
Mr Cruddas argued that his claim for malicious falsehood in respect of Meaning 1 should still succeed. The Court of Appeal had held that that the journalists knew that a second more serious meaning could be understood by some readers to mean that the Claimant was proposing criminal bribes (i.e. Alternative Meaning 1), even though this was not the 'natural and ordinary' meaning of the words. It was accepted that Alternative Meaning 1 was false. Therefore, as the single meaning rule does not apply to a claim of malicious falsehood, the Claimant argued that he should succeed on the basis of Alternative Meaning 1 in malicious falsehood.
This argument was rejected by Jackson LJ. For a claimant to fail in his libel claim but then succeed in malicious falsehood in respect of the same words would be an unacceptable expansion of the ambit of the malicious falsehood tort.
Jackson LJ stated: “In my view, if (a) an article has one correct meaning which is true but is susceptible to a second incorrect interpretation by some cynical readers which is untrue, (b) the author intends the article to convey its correct meaning but foresees that some cynical readers will place upon it the incorrect interpretation, then that does not constitute malice for the purpose of malicious falsehood.”
The Court held that a defendant will only be liable in malicious falsehood if the falsehood is one of the possible meanings of the defendant's words and the defendant intended to convey that falsehood.
Therefore, in these circumstances, where the Defendants intended to convey the true meaning (Meaning 1), their awareness that some readers would interpret the articles in the second, untrue, way (i.e. Alternative Meaning 1), did not constitute malice for the purposes of malicious falsehood. The Defendants cannot have had the dominant intention to injure the Claimant (i.e. acting with malice) if they knew that Meaning 1 was true.
Accordingly, the malicious falsehood claim in respect of Meaning 1 was rejected.
Meanings 2 and 3
The Court of Appeal upheld the first instance decision in respect of the claims of libel and malicious falsehood for Meanings 2 and 3. The Defendants failed to justify either meaning. These allegations damaged the Claimant's reputation even though Meaning 1 was true.
Damages
In light of its judgment, the Court of Appeal awarded damages for the Claimant for libel in relation to Meaning 1 in the sum of £50,000 (£43,000 in general damages and £7,000 in aggravated damages). In making the assessment the court considered how the damages awarded at trial should be split between Meaning 1 and Meanings 2 and 3, and the mitigating impact of the Defendants having justified Meaning 1. The injunction in relation to Meaning 1 was discharged, that in relation to Meanings 2 and 3 remains in place.
Comment
The Court of Appeal's decision appears to constrain the ambit of its earlier ruling in Ajinomoto Sweeteners Europe SA v Asda Stores Ltd [2011] QB 497 which held that the single meaning rule was not to be imported into malicious falsehood. On the basis of Ajinomoto, different outcomes when both libel and malicious falsehood are pleaded are possible given that libel uses the single meaning rule but there can be additional possible meanings in malicious falsehood. However, after Cruddas, it now appears that provided a publisher can prove that he intended to convey a meaning that would be the single meaning for libel purposes (which was true) then consequently he will not be found to have had a dominant malicious purpose in publishing that statement even though he foresaw some readers would understand the publication to bear an alternative false meaning.
Overview
This case focused on the 'single meaning rule' in libel and the overlap with the tort of malicious falsehood.
In libel claims, the single meaning rule dictates that while a publication will be understood in different ways by each reader, and the law recognises that a publication is capable of bearing two or more separate and distinct meanings, the approach in libel claims is that the court is required to find a single or "right" meaning of the words complained of, or a single or right meaning of each separate and distinct allegation within the words complained of. However, in malicious falsehood claims, the single meaning rule does not apply. The court will identify the reasonably available meanings and decide if a substantial number of, or many, people would reasonably have understood the words complained of in a damaging way.
The Claimant was the former Treasurer of the Conservative party who had been covertly recorded on video by journalists from The Sunday Times who were posing as potential donors to the Conservative Party. The Claimant sued in libel and malicious falsehood on the subsequent articles published in The Sunday Times and was awarded £180,000 in damages.
On appeal from the Defendants, the Court of Appeal reduced the award to £50,000 after holding that one of the meanings (out of three meanings arising from three separate allegations in the Sunday Times articles), that of corrupt conduct, was true. The other meanings, including the finding of malice for the purpose of malicious falsehood, were upheld.
The Court specifically ruled on the overlap between malicious falsehood and libel in circumstances in which a libel claim may fail, but a malicious falsehood claim may succeed on the basis that the single meaning rule does not apply in malicious falsehood claims.
Facts
Four articles were published on 25 March 2012 by the Defendants under the headlines "Tory treasurer charges £250,000 to meet PM", "Cash for Cameron: cosy club buys the PM's ear", "Pay the money this way and the party won't pry" and "Rotten to the Core". At first instance the Court held that the articles meant:
Meaning 1: in return for cash donations to the Conservative Party, the Claimant corruptly offered for sale the opportunity to influence government policy and gain unfair advantage through secret meetings with the Prime Minister and other senior ministers (the “cash for access” meaning);
Meaning 2: the Claimant made the offer, even though he knew that the money offered for secret meetings was to come, in breach of the ban under UK electoral law, from Middle Eastern investors in a Liechtenstein fund; and
Meaning 3: further, in order to circumvent and thereby evade the law, the Claimant was happy that the foreign donors should use deceptive devices, such as creating an artificial UK company to donate the money or using UK employees as conduits, so that the true source of the donation would be concealed.
These meanings were the single meanings for the purpose of Mr Cruddas' libel claim. However, the "cash for access" meaning also had a second, more serious meaning for the purpose of the malicious falsehood claim in that the allegation of corruption signified criminal corruption (which can be called 'Alternative Meaning 1').
The Defendants denied that the words bore these meanings and pled justification on 'lesser' meanings. In relation to malicious falsehood, the Defendants denied malice and relied on their justification plea to the libel claim to deny falsity of the allegations.
At first instance Tugendhat J found for the Claimant on both the libel and malicious falsehood claims and awarded £180,000 in damages.
The Defendants appealed and the Court of Appeal was required to answer three questions:
- Was Meaning 1 for the purposes of the libel claim true?
- Were the Defendants liable in malicious falsehood in respect of Meaning 1 (or Alternative Meaning 1 if Meaning 1 was true)?
- Were the Defendants liable for libel or malicious falsehood in respect of Meanings 2 and 3?
Judgment
Meaning 1 – Libel
The Court of Appeal determined, after an in-depth consideration of the transcript of the covert recording, that Meaning 1 was substantially true. Jackson LJ concluded that "Mr Cruddas was effectively saying to the journalists that if they donated large sums to the Conservative Party, they would have an opportunity to influence Government policy and to gain unfair commercial advantage through confidential meetings with the Prime Minister and other senior ministers. Mr Cruddas was not suggesting any form of criminal offence under the Bribery Act 2010. Nevertheless, what he proposed was unacceptable, inappropriate and wrong. Therefore meaning 1 was substantially true”. Mr Cruddas' libel claim in respect of Meaning 1 was rejected.
Meaning 1 – Malicious Falsehood
Mr Cruddas argued that his claim for malicious falsehood in respect of Meaning 1 should still succeed. The Court of Appeal had held that that the journalists knew that a second more serious meaning could be understood by some readers to mean that the Claimant was proposing criminal bribes (i.e. Alternative Meaning 1), even though this was not the 'natural and ordinary' meaning of the words. It was accepted that Alternative Meaning 1 was false. Therefore, as the single meaning rule does not apply to a claim of malicious falsehood, the Claimant argued that he should succeed on the basis of Alternative Meaning 1 in malicious falsehood.
This argument was rejected by Jackson LJ. For a claimant to fail in his libel claim but then succeed in malicious falsehood in respect of the same words would be an unacceptable expansion of the ambit of the malicious falsehood tort.
Jackson LJ stated: “In my view, if (a) an article has one correct meaning which is true but is susceptible to a second incorrect interpretation by some cynical readers which is untrue, (b) the author intends the article to convey its correct meaning but foresees that some cynical readers will place upon it the incorrect interpretation, then that does not constitute malice for the purpose of malicious falsehood.”
The Court held that a defendant will only be liable in malicious falsehood if the falsehood is one of the possible meanings of the defendant's words and the defendant intended to convey that falsehood.
Therefore, in these circumstances, where the Defendants intended to convey the true meaning (Meaning 1), their awareness that some readers would interpret the articles in the second, untrue, way (i.e. Alternative Meaning 1), did not constitute malice for the purposes of malicious falsehood. The Defendants cannot have had the dominant intention to injure the Claimant (i.e. acting with malice) if they knew that Meaning 1 was true.
Accordingly, the malicious falsehood claim in respect of Meaning 1 was rejected.
Meanings 2 and 3
The Court of Appeal upheld the first instance decision in respect of the claims of libel and malicious falsehood for Meanings 2 and 3. The Defendants failed to justify either meaning. These allegations damaged the Claimant's reputation even though Meaning 1 was true.
Damages
In light of its judgment, the Court of Appeal awarded damages for the Claimant for libel in relation to Meaning 1 in the sum of £50,000 (£43,000 in general damages and £7,000 in aggravated damages). In making the assessment the court considered how the damages awarded at trial should be split between Meaning 1 and Meanings 2 and 3, and the mitigating impact of the Defendants having justified Meaning 1. The injunction in relation to Meaning 1 was discharged, that in relation to Meanings 2 and 3 remains in place.
Comment
The Court of Appeal's decision appears to constrain the ambit of its earlier ruling in Ajinomoto Sweeteners Europe SA v Asda Stores Ltd [2011] QB 497 which held that the single meaning rule was not to be imported into malicious falsehood. On the basis of Ajinomoto, different outcomes when both libel and malicious falsehood are pleaded are possible given that libel uses the single meaning rule but there can be additional possible meanings in malicious falsehood. However, after Cruddas, it now appears that provided a publisher can prove that he intended to convey a meaning that would be the single meaning for libel purposes (which was true) then consequently he will not be found to have had a dominant malicious purpose in publishing that statement even though he foresaw some readers would understand the publication to bear an alternative false meaning.