Hamilton & Anor v Clifford

Factual and Procedural Background

Plaintiff Mr and Mrs Hamilton seek remedies for six alleged slanders and seven alleged libels attributed to Defendant Mr Clifford, described as "a top publicist". The defamatory words were spoken to journalists, leading to published libels, with one distinct category being defamatory words spoken by Defendant during a televised interview on 15 August 2001.

The background involves the Plaintiffs' arrest on 10 August 2001 following serious allegations made months earlier by a woman identified as the complainant, who fabricated claims that the Plaintiffs were present during a rape incident and had participated in criminal acts. The complainant was later convicted and sentenced for her false allegations.

Before the alleged rape date, the complainant sought Defendant's advice on selling a story to tabloids and financial gain. Defendant initially sought a percentage cut but insisted on proof or corroboration, advising the complainant to report the matter to the police. The police investigation ensued, but no corroboration emerged, with subsequent information undermining the complainant's story.

Following the Plaintiffs' arrest, media attention intensified with widespread publicity. Defendant is alleged to have made defamatory statements in this context. Defendant's counsel categorized the defamatory statements into three groups: alleged slanders and libels published on 11-12 August 2001, the GMTV broadcast on 15 August, and further alleged slanders and libels on 20-21 August 2001.

Legal Issues Presented

1. Whether the words complained of are capable of bearing the defamatory meanings alleged by the Plaintiffs.
2. Whether the defence of justification on the basis of "reasonable grounds to suspect" applies to the words spoken by Defendant.
3. The applicability and scope of the repetition rule in relation to the defamatory meanings and defences.
4. Whether the defence of fair comment is available given the factual nature of the words.
5. The applicability of qualified privilege as a defence, particularly in the context of "reply to attack".
6. The admissibility and relevance of evidence relating to general bad reputation for mitigating damages.

Arguments of the Parties

Defendant's Arguments

• Claims that the defamatory meanings alleged by the Plaintiffs are not capable of being borne by the words, arguing that no reasonable reader could infer guilt of rape or participation.
• Asserts defences of justification, fair comment, and qualified privilege.
• In justification, pleads a lesser meaning that there were reasonable grounds to suspect the Plaintiffs of guilt.
• Relies on the repetition rule to argue that mere repetition or endorsement of allegations does not amount to justification unless the underlying facts are proven.
• Contends that the Plaintiffs were not engaged in a relevant business or calling at the time, affecting the actionability of slanders.
• Claims that the police investigation and arrest provide reasonable grounds to suspect the Plaintiffs.
• Invokes fair comment defence based on recent developments in law allowing opinions on matters of public interest, referencing the "Branson revolution".
• Asserts qualified privilege on the basis of responding to public attacks by the Plaintiffs against Defendant's character.
• Relies on evidence of general bad reputation for mitigation of damages.

Plaintiffs' Arguments

• Submit that the only possible meaning of the words is that the Plaintiffs were guilty of complicity in rape.
• Argue that the defence of justification fails as the particulars do not establish reasonable grounds to suspect.
• Challenge the defence of fair comment, asserting the words are factual, not comment.
• Contest the defence of qualified privilege, denying any duty or interest on Defendant's part to publicly voice defamatory allegations.
• Seek to exclude evidence of general bad reputation as irrelevant to the defamatory allegations.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Chase v News Group Newspapers Ltd [2003] EMLR 218	Clarification of reasonable grounds to suspect in defamation justification	Referenced for principles governing the pleading and proof of justification based on reasonable grounds to suspect
Gillick v BBC [1996] EMLR 267	Test for striking out defamatory meanings pre-trial	Applied to emphasize that meanings should not be struck out unless perverse
Skuse v Granada Television [1996] EMLR 278	Assessment of defamatory meanings at pre-trial stage	Used to guide on whether meanings are capable of being upheld by a jury
Mapp v News Group Newspapers [1998] QB 520	Defamation meaning and justification principles	Supported the legal framework for assessing defamatory meanings
Jameel v Wall Street Journal Europe SPRL [2004] EMLR 6	Threshold for court intervention on defamatory meanings pre-trial	Reiterated that courts should only intervene to prevent perverse meanings
Jones v Skelton [1973] 1 WLR 1362	Definition of strained or forced interpretation in defamation	Cited for the standard of interpretation of defamatory meanings
Stern v Piper [1997] QB 123	Repetition rule in defamation law	Explained the prohibition on justifying defamatory meanings by mere repetition of allegations
Shah v Standard Chartered Bank [1999] QB 241	Application of repetition rule and objective test for reasonable grounds to suspect	Applied to restrict reliance on hearsay and subjective belief in justification
Adam Musa King v Telegraph Group Ltd [2004] EWCA Civ 613	Requirements for pleading justification of defamatory meanings	Used to assess compliance of Defendant's particulars of justification
Branson v Bower (No 1) [2001] EMLR 800 and (No 2) [2002] QB 737	Development of fair comment defence and distinction between fact and comment	Considered in assessing availability of fair comment defence for Defendant
Lewis v Daily Telegraph [1964] AC 234	Meaning of words as understood by ordinary reader	Quoted to emphasize that meaning is a matter of impression for jury
Horrocks v Lowe [1975] AC 135	Qualified privilege and malice in defamation	Applied to consider whether Defendant's statements exceeded privilege and issue of malice
Adam v Ward (1917) AC 309	Scope of qualified privilege and relevance of alleged extraneous material	Referenced regarding exclusion of privilege on plain irrelevance
Scott v Sampson (1882) 8 QBD 491; Goody v Odhams Press [1967] 1 QB 333	Evidence of general bad reputation in mitigation of damages	Discussed in relation to relevance of bad reputation evidence to defamatory subject matter

Court's Reasoning and Analysis

The court carefully analysed each group of alleged defamatory words, assessing whether the Plaintiffs' meanings were capable of being borne by the words. It applied established tests from appellate authorities, emphasizing that meanings should only be struck out pre-trial if no reasonable reader could interpret them as alleged.

The court rejected the Defendant's application to strike out the Plaintiffs' meanings, holding that reasonable readers could infer guilt or complicity from the statements, particularly noting the unequivocal endorsement in the televised interview.

The repetition rule was a pivotal principle, precluding justification by mere repetition or endorsement of unproven allegations. The court held that the Defendant could not justify the defamatory meanings by relying solely on the complainant's assertions or subjective belief.

Regarding the plea of justification based on "reasonable grounds to suspect," the court found the particulars insufficient. The Defendant relied primarily on the complainant's assertions, the ongoing police investigation, and the Plaintiffs' arrest, none of which objectively established reasonable grounds to suspect guilt. The court emphasized the objective nature of this test and struck out the justification plea.

The defence of fair comment was rejected because the words were factual rather than opinion or comment. The court acknowledged recent jurisprudential developments but underscored the distinction between value judgments and factual allegations, especially those of criminal conduct.

Qualified privilege was considered viable only insofar as it constituted a proportionate response to public attacks on Defendant's character. The court noted that Defendant's statements endorsing the false allegations could exceed the privilege's scope and that issues of malice and relevance should be left to the jury.

Evidence of general bad reputation was deemed irrelevant as it did not relate to the specific defamatory allegations and was thus struck out.

Overall, the court narrowed the issues for trial, leaving outstanding questions of meaning and malice to be resolved by the jury, with qualified privilege as the only substantive defence remaining.

Holding and Implications

The court REJECTED the Defendant's applications to strike out the Plaintiffs' defamatory meanings and the plea of justification based on reasonable grounds to suspect.

The defence of fair comment was struck out, and the plea of general bad reputation was excluded as irrelevant.

The court held that qualified privilege may apply only as a proportionate defence to public attacks on Defendant's character, but whether Defendant exceeded this privilege and whether malice is present are questions for the jury.

The decision narrows the scope of the case, focusing trial issues on meaning, justification, malice, and privilege. No new legal precedents were established, but the ruling reinforces existing principles regarding the repetition rule, the objective test for reasonable grounds to suspect, and the limits of fair comment and qualified privilege in defamation law.