Defamation & Malicious Falsehood – discussing the Peter Cruddas case - part 1

31 July 2013

Last year Peter Cruddas, former Conservative Party co-treasurer, commenced proceedings against the Sunday Times for defamation and malicious falsehood following the publication of a series of articles about him in March 2012. Prior to publication, Mr Cruddas met with two undercover journalists (Jonathan Calvert and Heidi Blake) posing as representatives of Middle Eastern investors and these meetings formed the basis of the articles published about him. Mr Cruddas argued that the meaning of the words used in the Sunday Times’ articles were defamatory, as they implied that Mr Cruddas was engaged in and encouraged illegal and corrupt activity.

In June this year, the court looked at defining, as a preliminary issue, the actual meaning of the words used in the Sunday Times’ articles.

Mr Cruddas’ allegations

Mr Cruddas alleged that the articles were defamatory because the natural and ordinary meaning of the words published following the newspaper sting were as follows:

  1. In return for cash donations to the Conservative Party, the claimant corruptly offered for sale the opportunity to influence government policy and gain unfair advantage through secret meetings with the Prime Minister and other senior ministers.
  2. The claimant made the offer, even though he knew that the money offered for secret meetings was to come from Middle Eastern investors in a Liechtenstein fund (in breach of the ban under UK electoral law; and
  3. Further, in order to circumvent and thereby evade the law, the claimant was happy that the foreign donors should use deceptive devices, such as creating an artificial UK company to donate the money or using UK employees as conduits, so that the true source of the donation would be concealed.

The newspaper disagreed with these meanings attributed by Mr Cruddas. Instead, they argued that the actual lesser meaning of the articles was that his behaviour had been 'inappropriate, unacceptable and gave rise to an impression of impropriety'. The newspaper relied on the defence of justification.

How to determine the meaning of words – don’t overegg the pudding 

In defamation cases, the 'single meaning rule' requires the court to find a single or right meaning of the words complained of. Whether or not defamation has taken place may only be determined once this meaning has been ascertained.

For malicious falsehood allegations, the single meaning rule cannot be applied (Ajinomoto Sweeteners Europe SAS v ASDA Stores Ltd [2010] EWCA Civ 609). Instead the court must establish the number of 'possible meanings'.

On this basis, Tugendhat J held that:

  1. for libel Mr Cruddas' meanings were the relevant single meanings and the meanings were such that they connoted conduct of a criminal nature;
  2. for malicious falsehood they were possible meanings (within the range of meanings which reasonable readers could understand the words complained of to bear); and
  3. the newspaper had pleaded the defence of justification to the less serious meaning of the words that they had attributed and therefore it was appropriate to strike out this part of the newspaper's defence.

The Court of Appeal part overturned Tugendhat J's decision. In particular, Longmore LJ said that 'it overeggs the pudding to say that the natural and ordinary meaning of the words used is that offering access to Ministers for cash is to commit a criminal offence'. The defence of justification was therefore reinstated for the libel claim.

Longmore LJ used the opportunity to identify a possible 'tension' or 'incompatibility' between the proposition that a particular meaning is wrong but that it remains a possible meaning suggesting the reason to lie in the difference between libel and malicious falsehood. Longmore LJ said that 'in malicious falsehood every reasonably available meaning, damaging or not, has to be considered. In libel, the artifice of a putative single meaning requires the court to find an approximate centre-point in the range of possible meanings'.

Following the decision of the Court of Appeal (Peter Cruddas v (1) Jonathan Calvert (2) Heidi Blake (3) Times Newspapers), the newspaper called for Tugendhat J to step down citing that a 'reasonable and fair minded observer apprised of all the facts' would have 'a reasonable suspicion' that a fair trial would not be possible. Tugendhat J rejected the application that he should recuse himself and ordered the trial to be listed to start on 2 July 2013.

What next? 

The Court of Appeal decision will certainly have come as something of a relief to the newspaper who have always denied that the articles ever accused Mr Cruddas of breaking the law. With the defence of justification reinstated they are now tasked with proving that the single meanings that have been determined from the published articles were substantially true. The trial concluded on 12 July 2013. The judgement was delivered today. An update will follow shortly.

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