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||Neutral Citation Number:  EWHC 1542 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
||Tuesday, 22 June 2004
B e f o r e :
MR JUSTICE EADY
Tape Transcription of Smith Bernal WordWave Limited.
190 Fleet Street London EC4A 2AG.
Tel No: 020 7404 1400 Fax No: 020 7831 8838.
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MR R HARTLEY QC AND MS S PALIN (instructed by Pinkerfields, London W4) appeared on behalf of the CLAIMANT
MR P MOLONEY QC AND MS C EVANS (instructed by Clintons, London WC2B) appeared on behalf of the DEFENDANT
HTML VERSION OF JUDGMENT
Crown Copyright ©
MR JUSTICE EADY:
The factual background to the litigation
- Mr and Mrs Neil Hamilton seek remedies in
respect of no less than six alleged slanders and seven alleged libels,
all of which are attributed to Mr Max Clifford, who has been described
as "a top publicist". In six instances what is said against him is that
he spoke defamatory words to at least one journalist which led to the
publication of corresponding libels in the relevant newspaper. In a
distinct category are the words spoken by Mr Clifford on the morning of
15 August 2001 in the course of a GMTV interview which, if defamatory,
would be classified by statute as libel rather than slander.
- I need to set out each group of words
separately because I shall have to address them individually for the
purposes of the various applications now before me. Before doing so,
however, I should set the scene briefly by explaining that the
background to this flurry of journalistic activity was the arrest of Mr
and Mrs Hamilton on 10 August 2001 in circumstances which attracted
enormous publicity and became notorious. They had been accused of
serious misconduct several months earlier by a woman called Nadine
Milroy-Sloan. She dishonestly cooked up allegations that they had been
present in Ilford on 5 May 2001, when she claimed to have been raped.
She reported to police that they had in effect been encouraging or
participating in the criminal acts. The police, of course, had no
choice but to take such allegations seriously and to investigate them
thoroughly, however ludicrous they might appear to the ordinary reader.
- It duly emerged after a long interval
that the whole thing was fantasy and no doubt motivated by a desire to
make money. Miss Milroy-Sloan was eventually convicted at the Central
Criminal Court and sentenced to three years' imprisonment.
- Two days before the occasion of the
alleged rape, she had already approached Mr Max Clifford for advice on
selling a story to the tabloids and how much she could hope to make. It
seems that at that stage she was seeking to implicate the Hamiltons in
some sort of consensual group sexual activities, although nothing
criminal was alleged. Again, it was complete fantasy.
- When first confronted with the
allegations, Mr Clifford saw the potential value of the story and was
hoping for a "cut" of about 20 per cent for himself. But, according to
the evidence, he made it clear to Miss Milroy-Sloan that she, or he if
he was to represent her interests, would need proof or corroboration.
Three days later on 6 May 2001 she came back with a telephone call to
say that she had now been raped in their presence. Since it was clearly
more appropriate to report a "rape" to the police than to "a top
publicist", Mr Clifford advised her to take that course. When she went
to the police it was, as I have already noted, clearly necessary for
them to take her allegations at face value, however far-fetched they
- Matters dragged on and there is no
evidence before me of anything emerging by way of corroboration.
Indeed, by early August it seems that allegations were being made which
tended to undermine her story. It is said that on 11 August a witness
confirmed to police officers that he had been at a party at Claridge's
attended by Mr and Mrs Hamilton on the evening of 5 May; that the next
day the former husband of Miss Milroy-Sloan revealed that she had a
large number of debts, that she had previously made a false accusation
of rape, and that she also enjoyed a wide range of sexual activities
with a multiplicity of partners. It also appears that on 13 August an
uncle, who had accompanied her on her visit to Max Clifford's office on
3 May, described her as a "blatant liar" who had invented the story to
make money. Finally, it is said that the man she was accusing of
actually committing the rape in the presence of the Hamiltons turned
out to be a sufferer from arthritis who was physically incapable of
adopting the kneeling position she described.
- Meanwhile Mr and Mrs Hamilton were
arrested for interview on 10 August 2001. It was at that stage, only,
that they learned that the allegation against them was one of
participating in rape. Although they were released on bail, someone had
apparently informed the media and there were assembled dozens of
photographers and several television crews outside the police station.
There was a welter of publicity and press speculation on what had taken
place. It was against that background that Mr Clifford is said to have
published the defamatory allegations complained of in these
- His counsel, Mr Patrick Moloney QC, has
conveniently divided them into three groupings. The first group
consists of alleged slanders and newspaper libels published on 11 or 12
August 2001, the second solely of the GMTV broadcast on 15 August, and
the third is a further cluster of alleged slanders and newspaper libels
taking place over 20 and 21 August. It is necessary for me to set them
out fairly fully in order to address the various detailed submissions
made in relation to each of them.
The words complained of
- In paragraphs 3 and 4 of the particulars
of claim complaint is made of words spoken on 11 August to a Cole
Moreton and/or other reporters from the Independent on Sunday, which
found their way into the edition of 12 August:
"The police were looking into it. The fact that after three
months' investigation they decided to bring the Hamiltons in -- you
make your own conclusions."
- Paragraphs 5 and 6 are concerned with
words spoken the same day to David Leppard and/or Maurice Chittenden
and/or other reporters from the Sunday Times, which were duly repeated
in the next day's edition of that newspaper:
"It's a difficult question really. Obviously the fact of
what happened on Friday would tend to suggest that the police believe
there is something in all this because they have been working on it for
a few months".
- In paragraph 15 are set out the words attributed to the defendant during the GMTV interview broadcast on 15 August:
" .... It did have sexual implications and did involve the Hamiltons but it was nothing criminal.
Secondly, you know as to whether the Hamiltons are telling
the truth or not, I don't know. It's up to them. All I can say to you
is this, that if I had allegations put against me at the beginning of
May, I would check very carefully where I was on that day -- three
months ago. They suddenly remembered they were at Claridges, very
Yeah, but they had over three months and they'd forgotten
all about that and Christine said a few minutes ago we've never been at
Claridges before. Would you not think that if you were accused of
something serious, you would very carefully analyse where you were at
So you know, you make up your own minds and the public
will. All I would say is that when it comes to judging who's telling
the truth I totally believe what the young lady told me. The police
obviously believe there is something in it they wouldn't have spent all
this time investigating. And what I would also say is that to who's
telling the truth, their colleagues, his colleagues in Parliament when
they said the same thing about Cash for Questions didn't believe them,
who does believe them? Very few people, certainly the public don't.
They were found guilty by their own colleagues the people that he
worked with for many years, what does that say about?"
- Paragraphs 7 and 8 allege that the
defendant spoke words on 20 August to Alexandra Williams and/or Jan
Disley and/or other reporters from The Mirror, which were incorporated
in an article the following day under the heading "Hamilton rape case
is still on, say police". The words are as follows:
"Nadine telephoned me after leaving the police station to
say that, contrary to a press report, investigations were very much
ongoing. The appointment was arranged some time ago. She said she was
very happy with the police reaction and believes more than ever that
she will face the Hamiltons in court."
The article continued:
"Mr Clifford ... added that officers had denied reports that the Hamiltons' mobile records had put them in the clear."
- On the same day it is pleaded in
paragraphs 9 and 10 that the defendant made allegations to John Twomey
and/or other reporters for The Daily Express which were reported the
following day in that newspaper, partly in direct and partly in
"My client is pleased with how her police interview has
gone and I am confident the case will go to trial. She was accompanied
by her father for a routine discussion about the case. The
investigation is ongoing and she was pleased with the discussion she
had with them. She is more than ever convinced that she will face the
Hamiltons in court."
- Again on 20 August it is said in
paragraphs 11 and 12 that the defendant spoke the following words to
Daily Mail reporters which were reported in that newspaper next day:
"Miss Milroy-Sloan is more confident that than ever she will have her day in court with the Hamiltons."
- Finally, in paragraphs 13 and 14 the
pattern is repeated. A similar allegation is said to have been made to
Tania Branigan and/or other reporters from The Guardian, which were
used in an article next day headed "Hamilton accuser 'will face couple
in court'". The words are:
"She was pleased with the discussion she had with the
police. She is more than ever convinced she will face the Hamiltons in
The pleaded issues.
- In its proper context each separate
publication is said to have borne the same natural and ordinary, or
inferential, meaning; namely that the allegations made by Miss
Milroy-Sloan were true. Publication is admitted although the claimants'
meaning is denied. The defence also denies that the slanders are
actionable because (a) they do not impute guilt of a criminal offence
(or in Mrs Hamilton's case unchastity) and/or (b) they are not
calculated to cause pecuniary loss.
- Defences are also pleaded of fair
comment, qualified privilege and justification. The plea of
justification relates to a lesser meaning, namely that "there were
[reasonable] grounds to suspect the claimants and each of them of guilt
of those criminal offences". The word in square brackets was added in
the course of Mr Moloney's submissions. This corresponds to the second
tier of gravity identified by Brooke LJ in Chase v News Group Newspapers Ltd  EMLR 218,
230 at . Accordingly it is not suggested that the words bear a
meaning corresponding to the third tier of gravity, ie grounds merely
to investigate. No doubt this is something to do with the fact that, by
the time the words were spoken, the police investigation had been under
way for some three months.
A summary of the present applications
- There are now before me a number of
applications which will require in due course more detailed
consideration of the statements of case. It is convenient first to
consider the defendant's application of 2 March 2004 to strike out the
claimants' meaning as one which, in no single instance, are the words
capable of bearing.
- The principles to be applied by a judge
on any such application are clear from a number of Court of Appeal
authorities, including Gillick v BBC  EMLR 267, Skuse v Granada Television  EMLR 278, Mapp v News Group Newspapers  QB 520, Gillick v Brook Advisory Centres  EWCA Civ 1263 and Jameel v Wall Street Journal Europe SPRL
 EMLR 6 In the latter case Simon Brown LJ (as he then was)
summarised the position conveniently by saying that the court should
only intervene at this stage to pre-empt perversity. In other words, a
judge should refuse to preclude any meaning being canvassed before the
jury at trial unless the position is such that jurors would be perverse
to uphold it.
- Here Mr Moloney invites me to conclude
that this stringent test has been passed in respect of the claimants'
meaning, since no reasonable reader could infer from any of the
publications complained of that the Hamiltons were guilty of, or
participating in, the rape of Miss Milroy-Sloan. As it is sometimes
put, that would be a "strained or forced or utterly unreasonable
interpretation": see eg Jones v Skelton  1 WLR 1362, 1370-1 (per Lord Morris) and Gillick v Brook Advisory Centres,
cited above. In my judgment it would be quite wrong for me to hold in
respect of any of the pleaded words that the claimants' meaning should
be struck out. It should clearly be left for the jury.
- One possible interpretation of the
allegations is that Mr Clifford was "putting the boot in" to the
Hamiltons and inviting his listeners or readers to side with Miss
Milroy-Sloan as the "victim". One of the points judges are enjoined in
the cases to bear in mind on such applications is that reasonable
readers are capable of "reading between the lines" or taking a hint.
One must allow for nudges and winks. A reader might think in some of
the cases where Mr Clifford has expressed himself less than directly
that any obliqueness was aimed at getting his message across while
trying to minimise the risk of a claim for libel. It is not ultimately
for me to decide whether that is so or not, but I cannot say that any
such inference would be perverse. In any event, in the course of the
GMTV broadcast there is little scope for misinterpreting the words "I
totally believe what the young lady told me".
- Mr Moloney's second application of the
same date was to some extent linked with the first. He accepts, for
example, that if I am against him on the claimants' meaning, as I am,
part of his attack on the slander claims will also fall. For so long as
the words are capable of imputing guilt of complicity in rape, the
claimants should be allowed to contend that they are actionable for
that reason without proof of special damage. His alternative attack,
based on the proposition that the Hamiltons were not carrying on any
relevant business, trade or calling at the material time, cannot be
determined at this stage. It is hotly disputed in any event and may
have to be resolved in the light of evidence at trial, if still
- There are several applications on the
claimants' part. Yet again meaning looms large. Their primary
submission is in a sense the obverse of the defendant's, namely that in
each case the only possible meaning is that of complicity in rape.
Accordingly, the meaning which Mr Moloney wishes to justify is one
which the words are simply not capable of bearing. Alternatively, Mr
Richard Hartley QC for the claimants has argued that the particulars of
justification would not in any event be capable of supporting
"reasonable grounds to suspect". There are a number of respects in
which they fail to comply with the principles governing justification
of a meaning in that form: see eg Adam Musa King v Telegraph Group Ltd  EWCA Civ 613 at .
- Mr Hartley attacks the defence of fair
comment too, for a variety of reasons. Primarily, he says, the words
are simply not comment at all and are factual in character. Thus they
would only be susceptible to a plea of justification. Secondly he
submits that there would, in any event, be no "facts truly stated" on
which any such comment could be based. Thirdly, the mischievous
allegations of a scoundrel would in themselves not be such as to fall
within the concept of "a matter of public interest".
- The defence of qualified privilege is
also challenged on the basis that there was no conceivable duty or
interest on Mr Clifford's part to voice publicly the defamatory
allegations about the Hamiltons; nor could they fall within the notion
of "reply to attack", whether considered from the defendant's point of
view or that of Miss Milroy-Sloan.
- Finally, Mr Hartley wishes to exclude
certain material from the defence which is relied upon by way of
"general bad reputation" in accordance with the principles explained in
such cases as Scott v Sampson  8 QBD 491, Goody v Odhams Press  1 QB 333 and Burstein v Times Newspapers Ltd  1 WLR 579.
The repetition rule
- I shall turn shortly to the least
straightforward of the claimants' applications, which is concerned with
the defendant's meanings. It is appropriate at the outset of this
discussion to remind myself of what has come to be described in recent
years as the "repetition rule". It is a long established rule, the
policy of which was explained in the following terms by Simon Brown LJ
in Stern v Piper  QB 123, 135H-136A:
" ... a rule of law specifically designed to prevent a jury
from deciding that a particular class of publication - a publication
which conveys rumour, hearsay, allegation, repetition, call it what one
will - is true or alternatively bears a lesser defamatory meaning than
would attach to the original allegation itself. By definition, but for
the rule, those findings would otherwise be open to the jury on the
facts; why else the need for a rule of law in the first place?"
- The relevance of this rule here is that
Mr Clifford was not purporting to give direct evidence of the "rape".
He was not in Ilford on 5 May 2001. What he was doing, or arguably
doing, in making his public pronouncements was to adopt or endorse the
allegations of the "victim", the nature of which by then would have
been generally understood by viewers and readers. If the claimants
prove to be correct in their attribution of meaning, it follows that he
could only justify by proving the rape and the Hamiltons' complicity,
and not by merely proving that the allegations had been made or that he
thought that they were, or might be, true. I must therefore be alert to
prevent any strategy in the defence which is designed to circumvent
- The question I am about to consider is
whether any or all of the relevant publications could convey to a
reasonable reader or listener a defamatory meaning of less gravity than
actual guilt. Is the pleaded Lucas-Box meaning, as amended,
such that one should be categorised as perverse if construing the words
in that sense? The test is exactly the same as that to which I have
referred in the context of the claimants' meanings.
- I have already expressed a view as to
the content of the GMTV broadcast on 15 August 2001. The material words
were "I totally believe what the young lady told me". That can only be
regarded as an endorsement or adoption of her allegation of criminality
against the Hamiltons. It is not permitted to justify merely by showing
that Mr Clifford did at the time believe it. Allowing for the
repetition rule, I must approach it as tantamount to the original
defamatory allegation that Mr Clifford chose to endorse (for the policy
reasons discussed by Simon Brown LJ in Stern v Piper). As it was put by Hirst LJ in Shah v Standard Chartered Bank  QB 241, 263B-C:
"I am satisfied that it is a rule of law which governs not
only meaning, but also the pleading and proof of a defence of
justification. Stern v. Piper is a very good illustration,
since the ultimate decision was that the defence of justification
should be struck out. Moreover, I consider that the repetition rule
reflects a fundamental canon of legal policy in the law of defamation
dating back nearly 170 years, that words must be interpreted, and the
imputations they contain justified, by reference to the underlying
allegations of fact and not merely by reliance upon some second-hand
report or assertion of them."
- Here it may be said that Mr Clifford's
utterance on the television programme was just such a second-hand
assertion of the underlying charge of complicity in rape. Accordingly I
do not see that I should permit the Lucas-Box meaning to
survive in relation to that broadcast. Mr Hartley succeeds in my
judgment in passing the high test identified in the Court of Appeal
cases I have identified; that is to say I should preclude it on the
basis of pre-empting perversity.
- Matters were taken a little further in Shah v Standard Chartered Bank,
at pages 267-270, where May LJ went on to address an argument raised on
the bank's behalf to the effect that a defendant may, in certain
circumstances, adduce evidence of what he was told provided he does so
for the purpose of proving the existence of reasonable grounds to
suspect. Quite expressly, at page 269B-C, May LJ, with whom Sir Brian
Neill expressed his agreement, held that it is impermissible in such a
context "to rely on what you have been told by someone else". He
referred to an earlier decision of his own in Hinduja v Asia TV Ltd
(unreported), 1 October 1996. The particulars in that case had been
struck out in their entirety for the very reason that they mainly
consisted of repetition of hearsay statements, many of them from
newspaper articles, coupled with unsubstantiated assertions that the
reported statements were credible. He ruled that what others had said
about the underlying facts did not advance their inherent credibility,
nor did bare assertions of credibility. It is for a defendant to prove
objectively reasonable grounds to suspect the claimant and what was
relied upon there was irrelevant to that task. It went only to matters
of subjective judgment.
- What may be pleaded to support a plea
of justification in the context of "reasonable grounds to suspect" has
been subsequently addressed in greater detail in Chase v News Group Newspapers  EMLR 218 and Adam Musa King v Telegraph Group  EWCA Civ 613.
I shall need to consider those principles in further detail when I come
to the issues of justification. For the moment I simply take note of
the fact that the repetition rule is of relevance also in the context
of meaning. That emerges particularly from the passages I cited from
Hirst LJ in Shah at page 263 and from Simon Brown LJ in Stern
at pages 135-6. It is thus a rule which necessarily circumscribes the
considerable latitude a jury otherwise has in relation to ascribing a
meaning or meanings to defamatory words. Where it so operates, it might
be more accurate to describe the role of a judge in delimiting the
possible meanings as not so much "pre-empting perversity" as precluding
an otherwise possible meaning through the implementation of a rule of
public policy. It may not be "perverse" to ascribe to a particular
article the meaning "A said that B murdered C". It is nonetheless not
permitted to plead it as a Lucas-Box meaning for the reason that a defendant is required, if choosing to justify, to plead and prove that "B murdered C".
The Lucas-Box meaning in the present case
- I must now consider the Lucas-Box
meaning pleaded here and whether it is applicable to the words pleaded
in the particulars of claim at paragraphs 3-14, or to any of them.
Subject to the repetition rule, I have to consider that question in
accordance with the principles identified in Skuse v Granada and the other cases I have listed. As Lord Devlin put it in Lewis v Daily Telegraph  AC 234 at 285:
"what is the meaning that the words convey to the ordinary man: you cannot make a rule about that."
It is to a large extent a matter of impression but always subject to the caveat of Sedley LJ in Berezovsky v Forbes Inc  EWCA Civ 1251
at  for judges grappling with such issues at the pre-trial stage.
It is a matter of impression, in a sense, but at one remove. I must not
substitute my own impression as a reader for that of the jury. I can
only exclude a Lucas-Box meaning if it would either offend against
the repetition rule or can be categorised as such that no reasonable
person could so construe the relevant words. It is "an exercise in
generosity, not in parsimony" (per Sedley LJ, ibid).
- I see great force in Mr Hartley's
submissions. He may well be right that any reasonable reader, at the
period in question, would read Mr Clifford's remarks loud and clear and
infer that he was attributing guilt to the Hamiltons, rather than
making an objective and measured appraisal of the evidence as it then
stood. Having considered each of the publications individually, which
naturally differ between themselves to an extent, I have come to the
conclusion that I should be exceeding my function at this stage if I
were to rule that no reasonable reader could -- and I emphasise that
word -- construe any of the words complained of in paragraphs 3-14 as
conveying no more than "reasonable grounds to suspect". In other words,
readers could, without necessarily being perverse, come to the
conclusion that Mr Clifford was saying that the police had reasonable
grounds for continuing to pursue their inquiries and/or that there must
have been some factors supporting suspicion over and above the bare
assertions of Miss Milroy-Sloan.
The plea of justification
- Next, therefore, I must address Mr
Moloney's pleading and rule on whether it measures up to the recently
articulated requirements for a defendant who seeks to prove reasonable
grounds to suspect a claimant.
- I need not set out again the list of principles identified in Musa King v Telegraph Group Ltd
at . Some are more relevant than others. Mr Hartley does submit
that the pleading offends a number of those rules. Perhaps the starting
point is the reminder of Stuart-Smith LJ in Evans v Granada Television
 EMLR 429 that the quality of the grounds relied upon must be
judged objectively. In the present context, for example, it does not
matter what Mr Clifford believed or whether he thought the grounds
reasonable. Facts have to be pleaded such that they would give rise to
suspicion of the claimants' guilt when addressed by a hypothetical
- It was apparently accepted in Musa King,
as a general proposition, that the mere fact that someone has said that
a claimant is guilty, or that someone believes it to be so, cannot in
itself constitute reasonable grounds to suspect. Mr Moloney queried the
authority for that proposition, but it would appear to follow from the
need for the grounds pleaded to be tested by objective criteria. The
point is closely related to the repetition rule. The fact that someone
has asserted "X is guilty of murder" does not in itself go to provide
reasonable grounds for suspicion. Something more is required.
- The point was, after all, considered by the Court of Appeal in Shah.
It will not do to regurgitate allegations from newspaper articles and
add the assertion that the allegations are credible: see especially
pages 269-270. There is no need for the discussion to become confused
by references to hearsay evidence and the changes brought about by the
Civil Evidence Act 1995: see eg the observations of Brooke LJ in Chase at -. The essence of May LJ's remarks in Shah
was that the setting out of subjective views and judgments is
irrelevant to the establishment of grounds to suspect, which are to be
- Mr Moloney says it is different if the
assertions relied upon are those of an eye-witness. If one wishes to
rely on the eye-witness, of course, one is fully entitled to plead that
what she says is true. So here, Mr Moloney could have pleaded that the
Hamiltons participated in the rape of Miss Milroy-Sloan and called her
in due course to prove it. He does not do that, for obvious reasons.
She made it all up. Can he fall back on her bare assertion, albeit now
known to be false, for the purpose of showing reasonable grounds to
suspect at the time of publication and before she had been rumbled? If
so, it would enable media defendants generally to plead reasonable
grounds to suspect merely on the basis that a crank or scoundrel has
chosen to blackguard a person who happens to be in the public eye. All
they would need to do is bear in mind the in-house lawyer's advice that
they should publish no more than "there are reasonable grounds to
suspect X of murder because Y has accused him".
- Mr Moloney suggests that there would be
an additional element over and above the bare assertion. She had after
all taken her allegations to the police and persisted in them.
Reasonable readers would say to themselves "There must be something in
it because no one would be so stupid or dishonest as to make such a
serious allegation if there was nothing in it." This comes close to
arguing that the bigger the lie, the more reason to believe it. It
would be surprising if this were indeed the law, and it would certainly
appear to be inconsistent with the policy underlying the repetition
rule, to which I have already referred, and with the need to comply
with the objective test of reasonableness.
- Another way Mr Moloney put it was to
say that it was not simply a question of adopting or repeating what
Miss Milroy-Sloan had alleged; nor was it simply a question of what
were called in Shah "unsubstantiated assertions that in all the
circumstances the reported statements were credible": see page 269D.
That plainly would not do. Nor is it a case of Mr Clifford merely
asserting his own subjective belief. That would be irrelevant too, as
May LJ explained.
- Mr Moloney has additionally relied here
on Miss Milroy-Sloan's demeanour as providing in some way independent
corroboration for her assertions. This would involve Mr Clifford giving
evidence of her demeanour, not to explain why he found her story
credible, which would be inadmissible, but to prove why any
hypothetical reasonable listener would also have believed her if he or
she happened to be sitting alongside him when she gave her account.
- I find it difficult to understand how
that theoretical distinction is supposed to work in practice. (I note
that there is no suggestion here that anything she told Mr Clifford was
part of what used to be called the res gestae.) So far it seems
to me that these are simply ingenious arguments directed at trying to
avoid the reality that Mr Clifford actually has nothing to support the
allegation against the Hamiltons over and above Miss Milroy-Sloan's
- It is necessary to consider what other
facts he has pleaded. He relies also upon the fact that the police have
been unable to disprove her allegations despite careful investigation.
That is a curious way to approach the burden of proof, and I am
reminded in this context that in Chase Brooke LJ made the very
point that a defendant should not be permitted to plead particulars of
justification in such a way as to have the effect of transferring the
burden to the claimant of making a positive case to disprove them: see
 EMLR 11 at . It was a point made also by May LJ some years
earlier in McPhilemy v Times Newspapers Ltd  EMLR 751, 774.
- Mr Moloney supplemented the argument,
albeit in relation only to the GMTV broadcast, by pleading that the
claimants had been apparently unable to establish a clear alibi for the
period on 5 May 2001, when the rape was supposed have taken place. That
falls foul of the same objection.
- It is further pleaded that the police
had arrested the claimants on 10 August 2001 and that fact in itself
provides reasonable grounds to suspect. They had precious little
choice, given the serious allegations being made, but it adds nothing
to the fact that they had been made. Naturally if the police had found
some element of corroboration and Mr Clifford knew of it, he would be
able to plead that, but the arrest does not as such corroborate the
- It is to be noted that nothing pleaded
would qualify under the so-called "conduct rule". That is to say, there
is no sense in which the conduct of either claimant has provided
grounds to suspect: see eg Shah at page 261 (Hirst LJ), 226,
(May LJ) and 270 (Sir Brian Neill). Mr Moloney correctly submits,
however, that this is not now regarded as a sine qua non of this form of defence. In Chase at  it was recognised that:
"A defendant may, for example, rely on strong
circumstantial evidence implicating the claimant which might amount
objectively speaking to the requisite grounds for reasonable
To that extent, therefore, it may be said that the conduct rule is
not a "rule" at all. Moreover, submits Mr Moloney, since Brooke LJ in
that passage used the words "for example", it must follow that there
could be other examples. Mr Moloney has to rely on that particular
straw in the wind because he does not have any circumstantial evidence
to rely upon, let alone "strong circumstantial evidence".
- Finally, and again solely for the
purposes of the GMTV broadcast, Mr Moloney prays in aid what looks
remarkably like a plea of general bad reputation. Since I have already
concluded that the GMTV broadcast is only capable of bearing the
highest defamatory meaning, I do not strictly need to address it. I
will do so, however, for the sake of completeness.
- Mr Moloney relies upon the following words as providing reasonable grounds to suspect:
"[Mr Hamilton's] general bad reputation as an untruthful
and unreliable person whose Parliamentary career had ended under a
cloud of sleaze and who had unsuccessfully brought libel proceedings."
I do not need to try to ascribe a clear meaning to the phrase "cloud
of sleaze". Its obscurity is perhaps convenient in some ways, but
although it might serve in a tabloid headline it has no place in a plea
- There is no doubt much that has been
said about Mr Hamilton's career which he would wish to challenge if it
were relevant and necessary to do so. That might be thought, however,
to be some way from what are the "real issues" in this litigation.
Whatever it means, "sleaze" is something quite different from an
allegation of rape. What is more, losing a libel action against Mr
Mohamed Fayed, in the context again of "sleaze", can hardly be said to
provide reasonable grounds to suspect Mr Hamilton of rape.
- In the result, I am therefore satisfied
that none of the particulars of justification is capable of supporting
"reasonable grounds to suspect" either claimant of participating in the
rape of Miss Milroy-Sloan. For that reason the plea of justification
must be struck out.
The defence of fair comment
- Next I must deal with the defence of
fair comment. Mr Hartley's primary submission is that the words are
factual in character rather than comment. I agree, and that is
sufficient in itself to dispose of the defence. I need to address the
arguments, however, in a little further detail.
- It was submitted by Mr Moloney that in the light of what he called "the Branson
revolution" some at least of Mr Clifford's observations were
susceptible to a fair comment defence. What he had in mind was the
litigation brought some years ago by Sir Richard Branson against Mr Tom
Bower over remarks he had made in the Evening Standard about Sir
Richard's motivation for bidding, a second time, for the national
lottery franchise in December 1999. In the course of that litigation
there were two interlocutory decisions that were reported, Branson v Bower (No 1)  EMLR 800 and Branson v Bower (No 2)  QB 737.
The first is a decision of the Court of Appeal in May 2001, dealing
with whether the words in that case were capable of being defended as
fair comment. It was argued that allegations about motive should be
regarded as being factual and thus only defended by way of
justification, since the state of a man's mind was traditionally
supposed to be "as much a fact as the state of his digestion": see eg Edgington v Fitzmaurice
(1885) 29 Ch D 459, 483. That argument failed at first instance and on
appeal. The second decision was at first instance only, in June 2001,
and was concerned primarily with the next stage of whether the pleaded
comment was such that it could be expressed honestly by a person
knowing the facts pleaded. The defence passed that test also and the
decision was not appealed.
- Mr Moloney said that the effect of
these decisions was that it is nowadays permitted to defend beliefs or
inferences about a state of affairs as comment. I believe that to be a
little sweeping. In so far as there was any development of the law in
the first of those cases, it was intended to clarify the law of fair
comment and to ensure that English law was marching in step with the
jurisprudence of the European Court of Human Rights. As to the second
decision, at first instance, there was the additional purpose of
reflecting the analysis of the law by Lord Nicholls in Cheng v Tse Wai Chun Paul
 EMLR 777 in the Hong Kong Court of Final Appeal. This important
decision was not referred to in the Court of Appeal judgment in Branson
because the ruling appealed from had been given on 21 November 2000,
only a matter of days after the decision was handed down in Hong Kong.
It only came to the attention of practitioners in England a little
- For present purposes what matters is
that English law needs to accommodate the strand of Article 10
jurisprudence which is intended to protect libel defendants, and
journalists in particular, from having to prove the unprovable. It is
consistent with established English principles in drawing a clear
distinction between fact and comment. There is nothing inherently
inconsistent with Article 10 in a body of law which requires
journalists to treat facts as sacred and to be prepared to prove them
where necessary. By contrast, there would be an undesirable inhibition
on the journalist's role if he were also required to justify matters
which are incapable of objective verification: see eg Lingens v Austria (1986) 8 EHRR 407.
- So far as opinion and value judgments
are concerned, English law has long recognised, through the defence of
fair comment, that in that context honesty is the touchstone provided
the facts are accurately stated or sufficiently indicated. If that
requirement is fulfilled, then readers are in a position to assess the
comment for themselves: Kemsley v Foot  AC 345; Hunt v Star Newspaper Company Ltd (1908) 2 KB 309, 319.
- The rules were, however, more opaque,
or at least less readily accessible, when it came to inferences drawn
about facts, and especially facts which are in practice unverifiable.
The classic example is of course inferences about a person's motives,
reasoning or thought processes. That was the subject of Tom Bower's
article in the Branson case. Although on one view assertions
about a person's state of mind are factual in character, they are in
important respects analogous to value judgments, not least because they
are generally unverifiable and perceived by readers to be in their
nature subjective: see eg De Haes and Gijsels v Belgium  25 EHRR 1 ; Nilsen and Johnsen v Norway  30 EHRR 878.
- It was held, for example, in Branson
that any reasonable reader of Mr Bower's piece would see straight away
from the nature of the allegations, relating as they did to Sir Richard
Branson's state of mind, that the author could not have direct knowledge, and that accordingly he must have been expressing his own views or inferences:  EMLR 800,
805 at . That is why it was held that the article was susceptible to
a defence of fair comment but not one of justification. The principle
was succinctly expressed in Branson v Bower (No 2)  QB 737, 740 at :
"A defendant should not be required to justify value
judgments or opinions expressed on matters of public interest as though
they were matters of objectively verifiable fact."
See also at .
- I understand it to be this point that Mr Moloney now prays in aid. It should perhaps be emphasised that nothing in the Branson
decisions was intended to conflict with or undermine the repetition
rule. They were not supposed to provide a way round the disciplines
which the law imposes in respect of factual allegations which are
objectively verifiable, eg to the effect that a claimant has committed
a criminal offence. There is a fundamental difference in kind between
saying, as Mr Bower did in the Evening Standard, "Revenge rather than
pure self-righteousness has motivated Richard's Branson's latest bid to
run Britain's lottery", and alleging that someone has been raped. For
reasons of policy, as explained in the recent authorities in the Court
of Appeal cited above, one is not permitted to seek shelter behind a
defence of fair comment when the defamatory sting is one of verifiable
fact. Depending on the meaning of the particular words complained of, a
defendant has either to justify the primary factual allegation, eg of
rape, or comply with the necessary disciplines to establish "reasonable
grounds to suspect". Fair comment does not provide an escape route in
- Here, the supposed comment is identified in paragraph 6 of the defence:
" .... the police investigation and subsequent arrest of
the Claimants gave rise to grounds to suspect the Claimants and each of
them of guilt of those criminal offences."
That is expressed to be an opinion held by the defendant. It is also
said to have been expressed on a matter of public interest, identified
as being " .... the allegations of serious criminal offences made by
Miss Milroy-Sloan against the Claimants, who are well-known public
- I am quite satisfied that for the
purposes of the law of defamation the remarks attributed to Mr Clifford
in the various paragraphs of the particulars of claim must be treated
as fact rather than comment. It is well established that "reasonable
grounds to suspect" require to be proved objectively. That rule cannot
be bypassed by putting in front the formula "in the defendant's
opinion". The defence of fair comment must also be struck out.
- There still remains one substantive
defence to be addressed. Qualified privilege is advanced on a number of
alternative bases. Perhaps the central fact pleaded is that, before the
defendant made any statement on the subject, the claimants had chosen
to defend themselves against Miss Milroy-Sloan's allegations by means
of what is described as "a campaign of publicity".
- It is necessary to recall that the
media had been alerted by someone at about the time of their arrest on
10 August 2001. In those circumstances it may not be surprising that
they chose to make their position plain from the outset or, given the
gravity of the charges which they knew to be false, they did so in
pungent and unequivocal terms. They had been given to understand that
Mr Clifford had become involved as a result of information given to
them during police interviews. Be as that it may, Mr Clifford cites the
fact that their public remarks included attacks upon himself.
- The so-called "campaign" apparently
began on the evening of 10 August after they left Barkingside police
station. Mr Hamilton is alleged on that occasion to have said, "The
whole thing is a monstrous lie ... As the name of Max Clifford has been
mentioned, this is the man that brought us 'Freddy Starr Ate My
Hamster'. There is absolutely no truth in it." Mrs Hamilton is said to
have added "The allegations are a fabrication .... Can I remind you
that Mr Clifford is employed by Mr Mohamed Fayed."
- It is hardly capable of challenge that
each of those remarks, which are said to have been subsequently
republished, is reasonably to be described as a "public attack". In
those circumstances a defence of qualified privilege could be deployed
in accordance with the authorities governing "reply to attack": for a
recent example see Vassiliev v Frank Cass  EMLR 33. The defendant would be entitled to protect his reputation by a
proportionate response which was appropriate both in terms of subject
matter and scale of publication. In order for a defendant to avail
himself of this form of privilege, the response should not go into
irrelevant matters or, in particular, cross over into an attack on the
integrity of the claimant if it is not reasonably necessary for
defending his own reputation.
- Where this line is to be drawn is not
always easy to define. Much will depend on the particular facts. As the
learned editors of Gatley on Libel and Slander, 10th edition, put it at
paragraph 14.61: "Everything will turn on the facts of the particular
case, and the question of relevance is one of judgment and degree", and
in this context they cite Bellino v Australian Broadcasting Corporation
(1996) 135 ALR 368 at 417, High Court of Australia. Here, Mr Hartley
argues that the defence is not open to Mr Clifford because he has been
reported in the past as having admitted to telling lies for the sake of
a good story. I do not see, however, that he is therefore to be
regarded in some sense as an outlaw, or that his reputation is beyond
protection of any kind.
- The Hamiltons were plainly entitled to
defend themselves against Miss Milroy-Sloan's lies and to attack her
character in no uncertain terms. One may understand, given their
background and the history of their involvement with Mr Fayed, how they
came to speak in the heat of the moment as they did. Nevertheless, it
was not necessarily the case that the circumstances warranted tying in
Mr Fayed or Mr Clifford into the dishonest fabrications of Miss
Milroy-Sloan. There is some evidence to the effect that they were
waiting on the sidelines and were willing to exploit the story if it
turned out to be true. Whether attractive or not, there is nothing as
yet to suggest that their conduct extended to encouraging her or
assisting her in actually fabricating allegations of rape. Indeed,
there is evidence to suggest that Mr Clifford was keeping in the
background, until 10 August, and telling her to take her allegations to
- I have no doubt that Mr Clifford was
entitled to respond to the allegations of dishonesty against him under
cover of privilege, provided his response was necessary and
proportionate. He would certainly be entitled, it seems to me, to have
responded publicly to the effect eg that he had been approached with
allegations about the Hamiltons by Miss Milroy-Sloan, that he was not
going to comment on the matter while they were being investigated by
the police, but that it was quite untrue to suggest that he had been a
party to anything dishonest. There is thus a reasonable argument that
the occasions on which he spoke the words would be protected by
privilege. Whether he went too far is a matter which would appear to be
relevant to an allegation of malice, according to Lord Diplock at
least, in Horrocks v Lowe  AC 135 at 151. A jury might be
invited to infer from what he said about the Hamiltons that he was
eagerly seizing the opportunity to go beyond rebutting their
allegations of dishonesty against himself and, as it were, "giving
legs" to Miss Milroy-Sloan's allegations by encouraging readers to
believe that they might well be true.
- There is a powerful argument that he
did go too far and that there was no occasion to endorse, in any degree
at all, the allegations of rape which he was personally in no position
to verify. The question is whether I am in a position to dispose of
this defence also at the pre-trial stage, or whether there are issues
requiring the attention of a jury.
- If the matter concerns only the
question of whether the occasions of publication attracted privilege,
that is for the judge to resolve. It may be possible to do so at an
early stage if there is no material dispute as to the facts or if the
judge is in a position to rule on the basis of all factual assumptions
being made in the defendant's favour. If, however, there are disputed
facts on which a finding has to be made before the judge can decide
whether the occasion was privileged at all, or if there is a finding to
be made on a plea of malice as to the defendant's state of mind, then
in either event the judge cannot pre-empt the matter at so early a
stage as this.
- Given the accusations of dishonesty
against Mr Clifford, he must be allowed a degree of latitude in
responding and as to how he puts his defence to those public
"If you are attacked with a deadly weapon you can defend
yourself with a deadly weapon or with any other weapon which may
protect your life. The law does not concern itself with niceties in
such matters. If you are attacked by a prize fighter you are not bound
to adhere to the Queensberry rules in your defence."
Per Lord Oaksey in Turner v MGM Pictures  1 All ER 449, 470-1: see also Watts v Times Newspapers Ltd  QB 650 at 671.
- Mr Hartley suggests that here Mr
Clifford was not defending himself at all. He was not denying his
complicity in a plot to fabricate the allegations. He was merely
endorsing Miss Milroy-Sloan's allegations. I find that argument very
persuasive, speaking for myself. Yet when the issue is whether or not a
particular defendant has ventured into entirely irrelevant or
extraneous material, going beyond what is germane in repelling the
original charge of dishonesty against himself, it would seem that this
is a factor to be taken into account in assessing malice and
accordingly for the jury to decide.
- There appears to be clear authority for this proposition in the speech of Lord Diplock in Horrocks v Lowe
at 151. There may be circumstances in which it would be possible for
the judge to rule, on uncontroversial facts, that the allegations
against the claimant were in no sense germane to the subject matter and
thus exclude privilege: see eg Adam v Ward (1917) AC 309 at 327, Lord Dunedin and 348, Lord Shaw. But the irrelevance would need to be plain and obvious.
- Where the allegations do relate to the
subject matter of the original attack, privilege cannot be excluded
purely on the basis of a cool and objective analysis as to logical
relevance. As Lord Diplock pointed out in Horrocks v Lowe, the
protection afforded by the defence of qualified privilege might prove
illusory if it were to be lost on the basis that the defamatory matter
could be shown, upon logical analysis, to be irrelevant to the
protection of the right upon which the privilege is founded, for
example the right, as here, to defend oneself again charges of
dishonest fabrication. Therefore it will generally be appropriate for
the jury to assess the relevance, or otherwise, as a factor in
resolving any plea of malice.
- In some cases it is possible to
conceive of a jury holding a defendant malicious where he included
irrelevant material, despite believing it to be true, because he wished
to create prejudice against the claimant, or perhaps to muddy the
waters, so as to lend credibility to another defamatory charge which he
had known to be false or in respect of which he was reckless. This
would now seem to be where irrelevance fits into the framework. The
matter is fully discussed in Gatley on Libel and Slander, 10th edition,
at paragraphs 14.61-14.66.
- In so far as there may be any inconsistency between Lord Diplock's approach and that of their Lordships in Adam v Ward,
it would appear to be appropriate to lean towards the later
interpretation, which is the more generous in favour of free speech: cf
Lillie and Reed v Newcastle City Council  EWHC 1600(QB) at .
- Here I am satisfied that I would be
exceeding my role at this stage of the proceedings to rule that Mr
Clifford's statements about the Hamiltons were "obviously and wholly
extraneous" to his purported defence of his character, or more
specifically to his denial of fabrication, and thus outside privilege
altogether. I believe it will be for the jury to decide if he was
deliberately putting the boot into the Hamiltons by lending credibility
to what are now known to be false accusations of criminality.
- There is another aspect of the defence
of privilege which I can address altogether more shortly. In so far as
it is attempted to construct for Mr Clifford a defence of privilege on
the basis that he was defending Miss Milroy-Sloan's reputation, by way
of analogy with the solicitor's position in Regan v Taylor  EMLR 549, I rule this to be quite untenable. Not only does Mr Clifford state, as part of his own case, that he was not
acting as her agent (see the defence at paragraph (1)) but, more
importantly, I cannot see any basis on which she could possibly be
protected by privilege in defaming the Hamiltons. She made the whole
thing up. If any authority were needed for such a proposition, one can
point to the discussion of Simon Brown LJ (as he then was) in Fraser-Armstrong v Hadow and Nelson  EMLR 140: see also Kennet v Farmer  VR 991.
- In so far as the privilege defence
survives, therefore, it must be put on the footing of Mr Clifford's
defence of his own reputation rather than on any derivative or
parasitic protection, depending on a right of Miss Milroy-Sloan to
defend hers. Nor in my judgment could it be suggested, more generally,
that Mr Clifford was under a social or moral duty to repeat or adopt or
endorse her allegations against the Hamiltons.
The Scott v Sampson plea
- Finally Mr Hartley attacks that part of
the defence which is said to support a plea of general bad reputation.
It is well settled that evidence may be introduced, by way of
mitigating damages, of a claimant's general bad reputation: Scott v Sampson (1882) 8 QBD 491; Plato Films v Speidel  AC 1090; Goody v Odhams Press
 1 QB 333. Yet the material sought to be produced must be related
to the sector of the claimant's character relevant to the libel: see eg
Gatley at paragraph 33.32 and the authorities there cited.
- In the instant case the court is
concerned with the underlying allegation by Miss Milroy-Sloan of
participation in her rape and possibly also with whether there were
reasonable grounds to believe it. Nothing pleaded by way of general bad
reputation is remotely connected with either claimant having a
reputation for violent or sexual misconduct, still less with having a
previous conviction (as was the case in Goody v Odhams Press). The plea is therefore in my judgment irrelevant and should be struck out.
- The upshot of my rulings is thus that
the issues in the case should be fundamentally narrowed and that it
should proceed to trial for the jury to resolve outstanding questions
of meaning and malice. The only defence of substance remaining is that
of qualified privilege on the limited ground of the defendant's right
to reply to attacks upon his own character.
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