Lord Ashcroft KCMG v Stephen Foley and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill and Mrs Justice Sharp,Lord Justice Elias |
| Judgment Date | 04 April 2012 |
| Neutral Citation | [2012] EWCA Civ 423 |
| Docket Number | Case Nos: A2/2011/2166 & A2/2011/0761 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 April 2012 |
[2012] EWCA Civ 423
Lord Justice Pill
Lord Justice Elias
and
Mrs Justice Sharp
Case Nos: A2/2011/2166 & A2/2011/0761
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE EADY
Royal Courts of Justice
Strand, London, WC2A 2LL
Paul Epstein QC (instructed by David Price Solicitors & Advocates) and David Price QC (of David Price Solicitors & Advocates) for the Appellants
Mark Warby QC and Adam Speker (instructed by Davenport Lyons) for the Respondent
Hearing dates : 1–2 February 2012
Introduction
The defendants, Stephen Foley, Independent News & Media Limited and Roger Alton, appeal from two interlocutory orders made by Eady J, in a libel action brought against them by the claimant, Lord Ashcroft. The first appeal is from an order dated 17 March 2011 striking out the defendants' defences of justification and honest comment. The second appeal is from an order dated 1 July 2011 refusing the defendants' application to amend their defence to add revised defences of justification and honest comment. The orders were made following reserved judgments which were handed down on the 18 February 2011 and the 1 July 2011.
The first appeal relates to a draft defence produced in November 2010 (the November draft) which by consent of the parties was considered at the first hearing in place of the original defence; the second appeal relates to a draft produced in March 2011 (the March draft). This appeal is principally concerned with the March draft. However it is necessary to consider both the judge's rulings since the March draft re-incorporated parts of the November draft, which the judge had already struck out and in relation to which, by agreement between the parties, there was no further argument at the second hearing. There is therefore a considerable degree of overlap between the two appeals. We accept that in the situation as it developed, the defendants have adopted an appropriate procedure in proceeding in that way.
Before the appeal we were invited to consider some material which was not before the court below, some contained in proposed further amendments to the March draft, and some not. We declined to do so, since the issue for this court is whether the March draft should have been permitted in the form in which it was presented to the judge, and the material was therefore irrelevant.
The issues raised on these appeals centre principally on the judge's determination as to the clarity and adequacy of the pleadings of the defences of justification and honest comment and whether the words complained of are capable of bearing certain of the meanings which the defendants wish to justify. In addition, a respondent's notice for the second appeal raises two discrete additional grounds for dismissing the appeals.
The claimant is a businessman, a life peer and a supporter and former Deputy Chairman of the Conservative party. At the time of the publications complained of in this action the second defendant was the publisher of the Independent newspaper, the first defendant Mr Foley was a journalist employed or engaged by the second defendant, and the third defendant, Mr Alton was the Editor of the Independent.
The action is brought in respect of two prominent articles written by Mr Foley which appeared in the Independent on the 19 and 20 November 2009. An important part of the background to their publication was the imposition of direct rule on the Turks & Caicos Islands ("TCI") by the British Government in August 2009 as a result of a critical report on its governance under the then Premier, Mr Michael Misick, published by a commission of inquiry headed by Sir Robin Auld.
The articles themselves concerned in broad terms the claimant's business interests and dealings in the TCI particularly through the British Caribbean Bank ("BCB"). As can be seen from their headlines they focussed in particular on loans said to have been made by BCB to Mr Misick seen against the background to which we have referred and the claimant's relationship with the Conservative Party. The words complained of also referred to a letter said to have been written by Mr Shaun Malcolm, described as former chairman of the PDM, the political party that was in opposition during Mr Misick's premiership, and sent by him to Mr David Cameron. The letter apparently expressed alarm about reports of a close relationship between the claimant and Mr William Hague. An extract from the letter was quoted in the headline on the second page of the first article.
The article of 19 November, billed as an exclusive, occupied the whole of the first and second pages. The banner headline on the front page was " Ashcroft's bank lent millions to disgraced premier – Loans helped fund Turks and Caicos leader's lavish lifestyle – Alarm raised over Tory donor's influence if Cameron wins power". The headline on the second page was " Ashcroft 'puts any hope of democracy here at risk''". The article of 20 November occupied 3 pages of the Independent (pages 36, 37 and 38). Its headline was " How Ashcroft became the banker to paradise", with the sub-heading: " Much is known about Lord Ashcroft's involvement in the Caribbean territory of Belize. But the British public has heard less about his interests in the Turks and Caicos islands."
The second article also included, set out separately on page 36, in a black box headed " Michael Ashcroft and the Independent", what were said to be points made on the claimant's behalf by his lawyers following publication of the first article (though there is a dispute about whether those points fairly characterised what the lawyers said).
The action was begun on 14 December 2009. The claimant's case in summary is that the words selected from both articles firmly implicate him as a participant in corrupt activities in the TCI. It is also said that as a result of the juxtaposition of the points made in the black box, and the allegations in the main body of the article, the second article implicitly accuses him of telling a series of blatant lies in an attempt to cover up such conduct.
The following natural and ordinary meanings are attributed by the claimant to the first article in the Particulars of Claim:
"7. (1) …the Claimant is guilty of engaging in corrupt dealings with Michael Misick, the notoriously corrupt ex-premier of the Turks and Caicos islands by (a) procuring companies that he controls to provide vast loans to Mr Misick to finance the building of Mr Misick's palatial home and fund his lavish lifestyle, all with a view to buying illicit political influence to serve the Claimant's private interests; and (b) corruptly exploiting the influence he acquired in this way so as to serve his own interests and to subvert democracy in the Turks and Caicos Islands;
(2) … the Claimant was thereby party to the culture of political amorality under the Misick regime which was uncovered by an official report, and which made it necessary for the British Government to impose direct rule; and further
(3) … the Claimant's behaviour in the Turks and Caicos Islands provided good grounds to fear that he would, if the Conservatives were to win the forthcoming General Election, exploit his wealth and influence in such a way as entirely to undermine any prospect of democracy in the islands by causing the Foreign Office to alter its policy towards the Islands so as to facilitate further political corruption there by the Claimant in furtherance of his private interests".
For the purposes of the second article the claimant relies on the meanings pleaded at paragraph 7(1) and (2) above, and on these additional meanings
"11. (3) … the Claimant's behaviour in the Turks and Caicos Islands provided good grounds to fear that if the Conservatives came to power at the next election the Claimant would bring about a premature abandonment of direct rule from the United Kingdom and resume his corrupt activities in the Islands; and
(4) … the Claimant had told blatant lies in an attempt to cover up his corrupt dealings with Mr Misick, by falsely denying that the British Caribbean Bank had lent Mr Misick $5m, and by claiming that neither he nor any company associated with him had lent money to Mr Misick".
A defence was served on 11 February 2010. It did not admit that the words were defamatory, and denied that the words bore the meanings complained of. Substantive defences of Reynolds privilege (responsible journalism on a matter of public interest), statutory privilege, justification (truth) and honest comment were relied on. On the 18 June 2010, after the provision by the defendants of answers to a Part 18 Request for Further Information, the claimant issued an application to strike out the defences of justification and honest comment (and one sentence from the Reynolds defence, though this is not the subject of appeal). On 19 November 2010 the defendants produced a draft amended defence (the November draft) which made a number of significant amendments to the Lucas Box meanings, and which incorporated the further information provided in answer to the claimant's Part 18 request.
The defendants set out the meanings they intended to justify (the so-called Lucas-Box meanings). At that stage, the meanings justified for the first article were these:
"7.1 The Claimant's bank ("BCB") lent millions of dollars to Michael Misick, the notoriously corrupt former Premier of the TCI (to the...
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