Reaffirming the Strict Pleading Standards for Malice in Defamation Cases: Greenstein v. Campaign Against Antisemitism [2021] EWCA Civ 1006

Introduction

The case of Greenstein v. Campaign Against Antisemitism ([2021] EWCA Civ 1006) presents a critical examination of the standards required to plead malice in defamation litigation within the jurisdiction of England and Wales. The appellant, Tony Greenstein, contested an order by Tipples J. that struck out his plea of malice in the Campaign Against Antisemitism's (CAA) defense against a libel claim. The core issue revolved around whether the inclusion of Greenstein's spent convictions in defamatory articles constituted malice, thereby negating the CAA's defense of truth under the Rehabilitation of Offenders Act 1974.

Summary of the Judgment

The Court of Appeal upheld the lower court's decision to strike out Greenstein's plea of malice. The appellate judges determined that the plea lacked sufficient factual underpinning and was primarily composed of assertions without the necessary particularity. They concluded that the CAA was entitled to rely on the defense of truth because the inclusion of Greenstein's spent convictions was contextually relevant to the accusations of dishonesty, rather than being motivated by spite or an improper intent.

Analysis

Precedents Cited

The judgment extensively referenced several key cases to delineate the boundaries of malice within defamation law:

• Horrocks v Lowe [1975] AC 135 – Established the common law test for malice, emphasizing that malice exists when the dominant motive is personal spite rather than a legitimate interest.
• Herbage v Pressdram Ltd [1984] 1 WLR 1160 – Adapted the Horrocks test to the context of the Rehabilitation of Offenders Act, specifying that reference to spent convictions is malicious if done with spiteful or improper motives.
• KJO v XIM [2011] EWHC 1768 (QB) – Clarified that asserting malice requires demonstrating an improper motive beyond the defendant's duty or legitimate interest.
• R v Brewster [2010] EWCA Crim 1194; [2011] 1 WLR 601 – Highlighted the relevance of bad character in assessing credibility, drawing parallels to defamation contexts.

These precedents collectively reinforced the necessity for claimants to provide detailed and specific factual allegations to substantiate claims of malice, rather than relying on broad or generalized assertions.

Legal Reasoning

The court scrutinized the plea of malice presented by Greenstein, dissecting each paragraph to assess compliance with the stringent pleading standards. The primary reasoning was as follows:

• The inclusion of spent convictions was not inherently malicious as it was contextually relevant to the accusations of dishonesty, which were pertinent to the defamation claim.
• Many of the arguments presented in the plea were deemed mere assertions lacking factual substantiation. For example, statements like "the defendant's motive was to smear the claimant as a criminal" did not provide specific evidence of spite or improper intent.
• The court emphasized that to establish malice, the claimant must demonstrate that the defendant acted out of personal spite or an improper motive, rather than a legitimate interest or duty. Greenstein failed to present such evidence convincingly.

Consequently, the court found that the malice plea was improperly pleaded, as it lacked the required factual detail and specificity, leading to its dismissal.

Impact

This judgment reinforces the high threshold required to successfully plead malice in defamation cases, particularly when invoking the defense of truth under the Rehabilitation of Offenders Act 1974. It serves as a precedent that claimants must meticulously detail and substantiate claims of improper motive, rather than relying on general allegations or assertions. This decision may lead to stricter scrutiny of malice pleadings in future defamation litigation, ensuring that only well-founded claims based on specific facts can challenge defenses such as truth.

Complex Concepts Simplified

Spent Convictions

Under the Rehabilitation of Offenders Act 1974, certain criminal convictions become "spent" after a rehabilitation period, meaning they do not need to be disclosed and are treated as if they never occurred for most purposes, including in defamation cases. However, there are exceptions where spent convictions can be referenced if they are relevant to the defamatory statements and not brought up maliciously.

Defense of Truth

In defamation law, the defendant can defend against a libel claim by proving that the defamatory statements are true. However, if the claimant can demonstrate that the defendant published the defamatory statements with malice, this defense can be negated.

Malice

Malice in defamation involves an improper motive for publishing defamatory statements, such as personal spite or an intention to harm the claimant's reputation beyond a legitimate interest or duty. Proving malice requires detailed factual evidence rather than mere assertions of ill intent.

Conclusion

The Court of Appeal's decision in Greenstein v. Campaign Against Antisemitism underscores the critical importance of precise and well-substantiated pleadings when alleging malice in defamation cases. By reaffirming the necessity for specific factual allegations over broad assertions, the court has reinforced the integrity of the legal process, ensuring that defenses such as truth are not unjustly undermined without compelling evidence. This judgment serves as a pivotal reference for future defamation litigation, promoting fairness and accountability in the presentation of legal arguments.