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Cite as: [2004] EWHC 1542 (QB)

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Neutral Citation Number: [2004] EWHC 1542 (QB)
HQ02X02599

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand
London WC2
Tuesday, 22 June 2004

B e f o r e :

MR JUSTICE EADY
____________________

CHRISTINE HAMILTON
NEIL HAMILTON (CLAIMANTS)
-v-
MAX CLIFFORD (DEFENDANT)

____________________

Tape Transcription of Smith Bernal WordWave Limited.
190 Fleet Street London EC4A 2AG.
Tel No: 020 7404 1400 Fax No: 020 7831 8838.
(Official Shorthand Writers to the Court)

____________________

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

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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 might appear.
  6. 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.
  7. 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 proceedings.
  8. 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.
  9. The words complained of
  10. 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:
  11. "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."
  12. 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:
  13. "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".
  14. In paragraph 15 are set out the words attributed to the defendant during the GMTV interview broadcast on 15 August:
  15. " .... 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 strange.
    .... .
    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 that time?
    .... .
    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?"
  16. 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:
  17. "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."
  18. 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 indirect speech:
  19. "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."
  20. 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:
  21. "Miss Milroy-Sloan is more confident that than ever she will have her day in court with the Hamiltons."
  22. 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:
  23. "She was pleased with the discussion she had with the police. She is more than ever convinced she will face the Hamiltons in court."
    The pleaded issues.
  24. 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.
  25. 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 [2003] EMLR 218, 230 at [45]. 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.
  26. A summary of the present applications
  27. 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.
  28. 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 [1996] EMLR 267, Skuse v Granada Television [1996] EMLR 278, Mapp v News Group Newspapers [1998] QB 520, Gillick v Brook Advisory Centres [2001] EWCA Civ 1263 and Jameel v Wall Street Journal Europe SPRL [2004] 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.
  29. 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 [1973] 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.
  30. 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".
  31. 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 pursued.
  32. 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 [2004] EWCA Civ 613 at [22].
  33. 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".
  34. 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.
  35. 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 [1882] 8 QBD 491, Goody v Odhams Press [1967] 1 QB 333 and Burstein v Times Newspapers Ltd [2001] 1 WLR 579.
  36. The repetition rule
  37. 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 [1997] QB 123, 135H-136A:
  38. " ... 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?"
  39. 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 that rule.
  40. 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.
  41. 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 [1999] QB 241, 263B-C:
  42. "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."
  43. 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.
  44. 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.
  45. 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 [2003] EMLR 218 and Adam Musa King v Telegraph Group [2004] 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".
  46. The Lucas-Box meaning in the present case
  47. 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 [1964] AC 234 at 285:
  48. "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 [2001] EWCA Civ 1251 at [16] 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).

  49. 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.
  50. The plea of justification
  51. 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.
  52. I need not set out again the list of principles identified in Musa King v Telegraph Group Ltd at [22]. 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 [1996] 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 reasonable onlooker.
  53. 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.
  54. 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 [41]-[44]. 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 judged objectively.
  55. 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".
  56. 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.
  57. 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.
  58. 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.
  59. 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 bare assertion.
  60. 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 [2003] EMLR 11 at [65]. It was a point made also by May LJ some years earlier in McPhilemy v Times Newspapers Ltd [1999] EMLR 751, 774.
  61. 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.
  62. 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 complainant's story.
  63. 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 [51] it was recognised that:
  64. "A defendant may, for example, rely on strong circumstantial evidence implicating the claimant which might amount objectively speaking to the requisite grounds for reasonable suspicion." (check)

    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".

  65. 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.
  66. Mr Moloney relies upon the following words as providing reasonable grounds to suspect:
  67. "[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 of justification.

  68. 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.
  69. 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.
  70. The defence of fair comment
  71. 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.
  72. 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) [2001] EMLR 800 and Branson v Bower (No 2) [2002] 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.
  73. 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 [2001] 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 later.
  74. 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.
  75. 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 [1952] AC 345; Hunt v Star Newspaper Company Ltd (1908) 2 KB 309, 319.
  76. 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 [1998] 25 EHRR 1 ; Nilsen and Johnsen v Norway [1999] 30 EHRR 878.
  77. 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: [2001] EMLR 800, 805 at [8]. 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) [2002] QB 737, 740 at [1]:
  78. "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 [27].

  79. 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 such circumstances.
  80. Here, the supposed comment is identified in paragraph 6 of the defence:
  81. " .... 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 figures."

  82. 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.
  83. Qualified privilege
  84. 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".
  85. 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.
  86. 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."
  87. 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 [2003] 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.
  88. 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.
  89. 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 the police.
  90. 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 [1975] 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.
  91. 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.
  92. 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.
  93. 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 allegations:
  94. "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 [1950] 1 All ER 449, 470-1: see also Watts v Times Newspapers Ltd [1997] QB 650 at 671.

  95. 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.
  96. 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.
  97. 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.
  98. 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.
  99. 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 [2002] EWHC 1600(QB) at [1089].
  100. 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.
  101. 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 [2000] 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 [1995] EMLR 140: see also Kennet v Farmer [1988] VR 991.
  102. 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.
  103. The Scott v Sampson plea
  104. 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 [1961] AC 1090; Goody v Odhams Press [1967] 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.
  105. 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.
  106. 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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