Tony Greenstein v Campaign Against Antisemitism
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dingemans,Lady Justice Carr,Lord Justice Popplewell |
| Judgment Date | 09 July 2021 |
| Neutral Citation | [2021] EWCA Civ 1006 |
| Docket Number | Case No: A2/2020/1997 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1006
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MEDIA & COMMUNICATIONS LIST)
The Honourable Mrs Justice Tipples
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Popplewell
Lord Justice Dingemans
and
Lady Justice Carr
Case No: A2/2020/1997
David Mitchell (instructed by Public Access Scheme) for the Appellant
Adam Speker QC (instructed by RPC LLP) for the Respondent
Hearing date: 24 June 2021
Approved Judgment
Introduction
This is an appeal by Tony Greenstein against an order of Tipples J. (“the judge”) dated 11 November 2020, following a judgment dated 6 November 2020 [2020] EWHC 2951 (QB), striking out particulars of malice pleaded in paragraph 26 of the amended reply, among other determinations. Judgment was then entered in favour of the Campaign Against Antisemitsm (“CAA”) in respect of a claim for libel. The limited issue on the appeal for which permission has been granted is whether the judge was right to strike out the plea of malice set out in paragraph 26 of the amended reply.
The reference to the spent convictions
The claims made by Mr Greenstein arose in respect of the publication of five articles on the website “antisemitism.uk” dated 26 February 2017, 30 July 2017, 25 September 2017, 3 January 2018 and 24 January 2018. The first article was headed “Tony Greenstein's attempt to shut down Campaign against Antisemitism showcases the similarities between far-left and far-right”. It was published in response to a public petition by Mr Greenstein demanding that the Charity Commission remove CAA's charitable status.
The meaning of the five articles was determined by Nicklin J. in a judgment dated 15 February 2019, [2019] EWHC 281 (QB). It is not necessary to set out those meanings in this judgment.
So far as is relevant the first article highlighted Mr Greenstein's petition and then made a series of points against Mr Greenstein. The article referred to previous convictions of Mr Greenstein, which were spent convictions pursuant to the provisions of the Rehabilitation of Offenders Act 1974 (“the 1974 Act”). The spent convictions were included in a paragraph which started “Mr Greenstein is not above lying” and reference was made to two statements made by Mr Greenstein which were said to be lies. The article continued:
“In this context, then, it is entirely relevant to mention that Mr Greenstein has criminal form for brazen deception, having past convictions for credit card theft and subsequent use, vandalism, drug possession and a number of other petty crimes.”
In the amended defence it was pleaded that these allegations of fact were true. This is because Mr Greenstein, when he was about 30 years old, had pleaded guilty at Brighton Magistrates' Court to stealing a credit card and using it to obtain toys worth £46. Seven other offences of dishonestly obtaining goods to the value of £200 were taken into account. Mr Greenstein had also pleaded guilty to damaging a photocopier and possession of cannabis. He pleaded guilty to another offence of possession of cannabis a year later.
Although these matters of fact were admitted in the amended reply, it was denied that the CAA was entitled to rely on the defence of truth. This was because the convictions were spent, within the meaning of the 1974 Act, and it was pleaded that the spent convictions were published maliciously in the article.
The relevance of malice to the defence of truth and spent convictions
Section 8(3) of the 1974 Act provides that nothing in section 4(1) of the Act (which relates to the effect of rehabilitation when convictions have become spent) shall prevent a defendant from relying on a defence of truth “subject to subsections (5) and (6) below”.
Section 8(5) of the Act provides that a defendant may not rely on a defence of truth “if the publication is proved to have been made with malice”.
In these circumstances if Mr Greenstein can show that the publication of the spent convictions in the article was “made with malice”, the CAA would not be able to rely on the defence of truth.
The test for malice
The common law test for malice was considered by the House of Lords in Horrocks v Lowe [1975] AC 135. This was a case arising from words spoken by one councillor about another councillor in a council meeting, which was an occasion attracting qualified privilege. The trial judge found that the councillor honestly believed that what he had said in the meeting was true but had become so anxious to have the other councillor removed from a Committee that he did not consider fairly and objectively whether the evidence he had in his possession justified his conclusions or comments, see page 144c. This meant that the statements were published maliciously and the defence of qualified privilege failed. The Court of Appeal allowed an appeal by the defendant, and the House of Lords upheld the decision by the Court of Appeal.
So far as is relevant to the test of malice in this case Lord Diplock referred at 150f-g to malice being proved where “the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames.” Lord Diplock gave as possible examples of malice: a desire to obtain a private advantage, see page 150g; and the incorporation of irrelevant defamatory matter, see page 151g.
Lord Diplock had earlier warned at page 150d-e, in the context of considering whether a person held an honest but unreasonable belief, that “in ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value … they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach”. In relation to the inclusion of irrelevant matter Lord Diplock emphasised that the test was not whether it was “logically relevant” but whether the defendant had “seized the opportunity to drag in irrelevant defamatory matter to vent his personal spite or for some other improper motive”, see page 151g-h.
In Herbage v Pressdram Ltd [1984] 1 WLR 1160 there was a publication of articles which referred to spent convictions. Griffiths LJ confirmed that “malice” for the purposes of section 8(5) of the 1974 Act meant that the convictions had been “published with some irrelevant, spiteful or improper motive”, adapting the test set out in Horrocks v Lowe to section 8(5) of the 1974 Act.
In KJO v XIM [2011] EWHC 1768 (QB), Eady J explained that to advance a plea of malice for the purposes of the 1974 Act “any plea of malice, therefore, would have to be advanced on the alternative ground, canvassed by Lord Diplock in Horrocks v Lowe [1975] AC 135, that the defendant, while knowing the words to be true, published them with the dominant motive of injuring the claimant's reputation. That is almost untrodden territory in the (more usual) context of qualified privilege ….”.
The pleading of malice
An allegation of malice is an allegation of dishonesty and should not be lightly made, see Duncan and Neill on Defamation, Fifth Edition, at 19.18. The rules of pleading allegations of malice are therefore strict. Practice Direction 53B requires at paragraph 4.8(2) that where a claimant alleges that a defence is not available because of the defendant's state of mind “the claimant must serve a reply giving details of the facts and matters relied on”. A pleading of malice “requires a high degree of particularity”, see Thompson v James [2013] EHWC 585 (QB) at paragraph 16.
Where the claimant is relying on an inference, the claimant must allege specific facts from which it is alleged the inference is to be drawn, see generally Gatley on Libel and Slander, Twelfth Edition, at paragraph 28.6. The pleaded particulars must be more consistent with the existence of malice than with its non-existence, see Bray v Deutsche Bank AG [2008] EWHC 1263 (QB); [2009] EMLR 12 at paragraph 35. This is because otherwise the particulars cannot prove malice. Mere assertion will not be sufficient.
The relevant allegation of malice
The allegation of malice is pleaded in paragraph 26 of the amended reply in the following terms:
“26. … the defendant was actuated by an irrelevant, spiteful or improper malice which was the dominant purpose for the publication. Whilst the defamatory article is unattributed and the defendant has not disclosed the author(s), if required to...
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