Cruddas v Calvert & Ors

In this action for libel and malicious falsehood both the Claimant and Defendants issued application notices which were listed before me on 18^th April 2013. As it happened, there was time only to consider the Claimant’s application for permission to amend the Particulars of Claim. At the conclusion of the hearing I reserved my decision. One further matter, the Defendant’s application for further information about the Claimant’s pleading of financial loss, was dealt with by consent and while my order will incorporate the agreed terms, there is no need for me to say any more about it in this judgment.

The Claimant is a businessman and in March 2012 he was the Co-Treasurer of the Conservative Party. The Third Defendant is the publisher of the Sunday Times. The 1^st and 2^nd Defendants are journalists and part of that paper’s ‘Insight’ team. The 1^st and 2^nd Defendants put together a plan whereby they would pretend to be agents for foreign investors who wanted to explore making donations to the Conservative Party. They hired a lobbyist called Sarah Southern and, through her, arranged to have a meeting with the Claimant on 15^th March 2012. Unknown to him, each Defendant carried a concealed camera with an audio recording facility as well. Consequently, although I am told the quality is imperfect in places, there is a comprehensive record of the meeting and a transcript of it has been prepared.

As a result on 25^th March 2012 the Sunday Times published four articles. The first began on page 1 and continued on page 2 under the headline ‘Tory treasurer charges £250,000 to meet PM.’ Page 1 also had a photograph of the Claimant. A sub-heading further reported that the day before ‘Cameron’s fundraiser [had been] forced to resign’. The second article was on pages 8 and 9 under the headline ‘Cash for Cameron: cosy club buys the PM’s ear’. The third article, also on page 9, had the headline, ‘Pay the money this way and the party won’t pry’. Page 9 carried the fourth article as well. This was written by Mark Adams under the headline ‘Rotten to the Core’. These four articles in substantially the same form were also carried by the newspaper’s website. The Sunday Times also published an editorial in the same issue on the theme ‘Sack the Treasurer and Clean Up Lobbying.’

The claim form issued on 24^th July 2012 complained of the first three articles, their republication on the website, but not the fourth article or the editorial. The original Particulars of Claim were served two days later on 26^th July 2012. the first three articles (but not the fourth article or the editorial) were alleged to be defamatory of the Claimant. The first three articles were also said to be malicious falsehoods. Malice is an essential ingredient of malicious falsehood and it is the Claimant’s case that the 1^st and 2^nd Defendants each published those first three articles maliciously and that the 3^rd Defendant is vicariously responsible for their torts. The Claimant pleads that the meanings attributed to the articles (for the purpose of his claims in both defamation and malicious falsehood) 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, in breach of the ban under UK electoral law, from Middle Eastern investors in a Lichtenstein fund; 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 Defendants’ defence in summary takes issue with the meanings attributed to the words by the Claimant, pleads justification in alternative meanings to the defamation claims, denies that the articles were false, were published maliciously or that they were calculated to cause him pecuniary damage in respect of his profession or business. While not accepting that the articles did have the following meanings, the Defendants are prepared to justify them if they did have those meanings:

“ (1) That what the Claimant said in the course of a meeting on 15^th March 2012, as co- Treasurer and Board member of the Conservative Party, in claiming:

a)

that the Conservative Party would accept large donations from persons whose sole purpose in making the donations was to advance their business interests by obtaining direct access to the Prime Minister, by lobbying on policy areas affecting their business and by moving in circles where they would pick up useful intelligence to progress their business strategy;

b)

That in return for six-figure donations, such persons would be able to achieve that purpose in the ways they wanted; and

c)

That in return for donations of £250,000 a year, they would obtain special access to the Prime Minister and senior governments ministers, would get noticed and be taken really seriously, would be able to operate at a higher level within the Party (and, thus, the Government) and would have things open up’ for them;

was inappropriate, unacceptable and wrong and gave rise to an impression of impropriety.

“(2)

That the Claimant, when faced with the prospect of donations being made to the Conservative Party from an overseas fund (which was not itself eligible to make donations under the relevant law), was prepared to contemplate ways in which donations from that source could be made to the Party, namely;

(a)

Through using a legal loophole that would permit a UK company, carrying on business within the jurisdiction, to make donations from such a source; or

(b)

By having individuals on the UK electoral register make donations in their own name;

even though the use of either route would result in the concealment of the true source of the donation, contrary to the spirit of the law which was intended to ensure that the source of any donation over £7,500 would be made public.”

Alternatively, if (which the Defendants deny) the words complained of had the following meaning, the Defendants say they were also true,

“in return for cash donations to the Conservative Party, the Claimant corruptly offered for sale the opportunity to seek to influence government policy and gain unfair advantage through secret meetings with the Prime Minister and other senior ministers.”

For the most part the amendments which the Claimant wishes to make to the Particulars of Claim are to the particulars of malice (in paragraph 7.8 onwards). The Claimant explains that they have been prompted by disclosure which the Defendants have provided.

The Defendants object only to some of the proposed amendments and it is therefore only those which I need to consider.

The starting position is that

“Amendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon provided that any prejudice to the other party can be compensated for in costs, and the public interest in the administration of justice is not significantly harmed.” – see Cobbold v Greenwich LBC 9 August 1999 unreported, CA.

As is apparent from the date of that case it was decided very shortly after the introduction of the Civil Procedure Rules, but Ms Rogers QC, on behalf of the Defendants, did not suggest it had been overtaken in a way material to this case. Nor did she argue that the Defendants would be prejudiced in a way which could not be compensated in costs because the matters which the Claimant wished to plead were coming in by way of amendment rather than in the original pleading.

Mr Browne QC, on behalf of the Claimant, also accepted that permission to amend could be refused if the proposed pleaded case would be liable to be struck out or subject to summary judgment on that aspect in the Defendants’ favour. In those circumstances, giving permission to amend would be fruitless and lead to wasteful expense.

The test for summary judgment in CPR 24.2 is that there is no realistic prospect of success for the issue in question and there is no other compelling reason why that issue should be tried. There is a complication in this case that the Defendants have exercised their rights under s.69(1) of the Senior Courts Act 1981 for trial by judge and jury. At trial, issues of malice will (largely) be ones of fact for a jury to decide. One of the other applications which the Claimant has made is for mode of trial to be changed to judge alone, but for the time being, I must assume that the trial will involve a jury. That fact does not preclude the possibility of summary judgment (or the refusal of leave to amend because the pleading would be vulnerable to an application for summary judgment) but it does mean that a more circumspect view should be taken as to whether there is or is not a realistic prospect of the issue in question being successful. In essence the question becomes whether a reasonable jury could (if properly directed) find in favour of the party advancing the issue. If, on the contrary, any such verdict would be perverse, the fact that the ultimate trial would be by judge and jury is no barrier to granting summary judgment – see for instance Alexander v Arts Council of Wales [2001] 1 WLR 1840. Correspondingly, if the proposed amendment could only lead to a perverse verdict on that issue in favour of the party seeking to amend, then that would be a good reason for refusing the amendment.

Mr Browne observed that some of the authorities on which Ms Rogers relied, involved the question as to whether a trial judge had been right to leave an issue to the jury. It is right that by that stage the evidence will be closed. When considering an application for summary judgment (or opposition to an application for permission to amend) because there is no realistic prospect of success it is right, up to a point, to bear in mind that the evidence may develop if the case is allowed to proceed. It is, though, well established, that it is not enough for some Mr Micawber to observe that something might turn up. Where the pleading is of dishonesty (of which malice is an example), the scope for anticipating further evidence is very limited – see for instance Three Rivers DC v Bank of England [2003] AC 1 per Lord Hobhouse at [160]. And, after making due (but no more than due) allowance for the possibility of further evidence the test at the stage where summary judgment or leave to amend is sought is still whether there is a realistic prospect of a verdict on the contested issue (in favour of the party seeking to amend or opposing summary judgment) which would not be perverse. I bear in mind that another consequence of the issue being one of malice is that the burden of proof is not easily satisfied – see e.g. Bray v Deutsche Bank [2009] EMLR 12 at [32]-[36].

The Defendants are not seeking summary judgment in their favour on the malicious falsehood claim (at least not at this stage). They are not objecting to all of the proposed amendments. They do submit that each of the particulars of malice must be more consistent with the existence of malice than its absence. I did not understand Ms Rogers to argue that this involved a mechanistic breakdown of the pleading into the numbered paragraphs or sub-paragraphs, each of which had to pass muster. Rather she was submitting that each theme or strand of the Claimant’s case in malice had to do so. She relied on a passage from the speech of Lord Porter in Turner v MGM [1950] 1 All ER 449 at p.455

“ Where [an allegation of malice] is made it is the duty of the plaintiff to establish the existence of malice and, unless he does so, the defendant succeeds. If, however, the plaintiff can show an example of spite or indirect motive, whether before or after the publication, he would establish his case provided that the examples given are so connected with the state of mind of the defendant so as to lead to the conclusion that he was malicious at the date when the libel was published. No doubt, the evidence must be more consistent with malice than with an honest mind, but this does not mean that all the evidence adduced of malice towards the plaintiff on the part of the defendant must be set against such evidence of a favourable attitude towards him as has been given and the question left to, or withdrawn from, the jury by ascertaining whether the scale is tipped when they are weighed in the balance one against the other. On the contrary, each piece of evidence must be regarded separately, and even if there are a number of instances where a favourable attitude is shown, one case tending to show malice would be sufficient on which a jury could find for the plaintiff. Nevertheless, each particular instance of alleged malice must be carefully analysed, and, if the result is to leave the mind in doubt, then that piece of evidence is valueless as an instance of malice whether it stands alone or is combined with a number of similar instances, Maule J delivering the judgment of the court in Somerville v Hawkins (1851) 10 C.B. 583 and referring to the facts in that case, said (10 C.B. 590):

‘…the facts proved are consistent with the presence of malice, as well as with its absence. But this is not sufficient to entitle the plaintiff to have the question of malice left to the jury…It is certainly not necessary in order to enable a plaintiff to have the question of malice submitted to the jury, that the evidence should be such as necessarily leads to the conclusion that malice existed, or that it should be inconsistent with the non-existence of malice; but it is necessary that the evidence should raise a probability of malice, and be more consistent with its existence than with its non-existence.’”

Mr Browne relied on other authorities which say that the test is whether the evidence, taken as a whole, is such that a reasonable jury could find malice – see Lord Cooke sitting as a Non-Permanent Member of the Court of Final Appeal of Hong Kong in Next Magazine Publishing Ltd v Ma 5^th March 2003 at [131] and Alexander v Arts Council of Wales [2001] 1 WLR 1840 at [37] adopting the approach to submissions of no case to answer in criminal prosecutions as established by R v Galbraith [1981] 1 WLR 1039.

It seems to me that there is a danger in this becoming a semantic argument and the reality of the nature of evidence being lost. When a Claimant relies on intention to harm as malice it will commonly be the case that he invites that conclusion to be drawn as a matter of inference. There will be cases (of which the House of Lords no doubt thought Turner v MGM was one) where the differing strands of evidence on which the Plaintiff relied were so independent of each other that they could not be mutually supporting. Consequently, if one, individually examined, did not lead to at least the probability of the existence of malice it was nothing to the point that there were other strands which also did not lead to the probability of its existence. As Lord Greene said in the same case at p. 468 (though in connection with a different aspect) “nought plus nought still equals nought.” But there will be other factual situations where the position is, or may be, different and where two or more strands of evidence are capable of leading to an inference which could not reasonably be drawn if the strands were looked at individually. An example of this is what Lord Diplock had to say in Horrocks v Lowe [1975] AC 135 at 151 about the inclusion of extraneous defamatory material on an occasion of qualified privilege. In itself it may or may not show malice: the proper course is to consider this aspect together with all the other circumstances of the case in deciding whether an inference of malice can properly be drawn. Horrocks v Lowe was a decision on the meaning of malice in the context of qualified privilege, but the Court of Appeal has said that the same tests apply for the purpose of malicious falsehood – see Spring v Guardian Assurance [1983] 2 All ER 273 (the decision of the House of Lords did not touch on this point).

A further issue on which some of Ms Rogers’ opposition depended, was whether malice could be established by an intention to injure someone other than the Claimant. The Claimant wished to advance as part of his case of malice that the Defendants’ intention in publishing the articles was to harm others (as well as himself) and in particular to charge the Prime Minister, Mr Cameron, with hypocrisy because what the articles said had been revealed was contrary to Mr Cameron’s public opposition to secret political donations being used to secure preferential advantage for the donors. Mr Browne submitted that if there was a malign motive on the part of the Defendants it was unnecessary for it to be directed at the Claimant. He commented that some of the decisions on malice speak of “intention to injure” or “improper purpose” without being specific as to who must be the object of the Defendant’s intentions - see Gatley on Libel and Slander 11^th edition para 21.7 and the cases cited at note 50. Mr Browne argued that I should draw an analogy from the criminal law where the concept of “transferred malice” means that a defendant will be guilty of intentional injury if his intention was to injure X and, inadvertently, he injures Y.

However, there are decisions which do assume that the intention must be to injure the Claimant. Thus in Horrocks v Lowe at p. 149, Lord Diplock said,

“'Express malice' is the term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove.”

This was followed by the Court of Appeal in Alexander v Arts Council of Wales at [34].

This aspect of Ms Rogers’ objection is really that permission to amend should be refused because the proposed reference to an intention to injure people other than the Claimant is not capable of assisting him to establish malice as part of his cause of action. In other words, it is a submission that this part of the proposed amendment should be disallowed because it would otherwise be vulnerable to a strike out application under CPR r.3.4(2)(a). So far as this aspect of her objection is concerned, it does not, therefore, turn on predicting whether a jury could rationally decide the matter in the Claimant’s favour. If she is right, this part of the evidence which the Claimant wishes to lead simply should not be before the jury at all.

As I have tried to show, the authority on which she principally relied (the Wilts Dairies case) did not have to confront the precise issue. Nor, so far as I have been able to discover, has any other decided case. Even so, the assumption that it will be an intention to injure the Claimant which constitutes malice, where there is any reference to the object of the defendant’s malign intentions, does somewhat assist her. Thus, while the authorities are not decisive, I do consider that overall, their balance of authority favours her position. I did not find the criminal law analogy helpful. The purpose of the criminal law is to protect the public interest. In that context it makes obvious sense for the law to be indifferent whether the intention was to injure the actual victim or someone else. The purpose of tort law is different: it is to provide redress to individual claimants for individual wrongs to them. In any case, the limits of the tort of trespass are different to those of malicious falsehood. Malice is an essential ingredient of the latter but not of the former. Furthermore, the other elements of the tort of malicious falsehood must clearly relate to the Claimant. Thus the words published must concern the Claimant, or his property or his economic interests and the publication must have caused him pecuniary loss (or in circumstances covered by Defamation Act 1952 s.3(1) be calculated to cause him pecuniary loss). I consider that it would be anomalous if the third element, malice, could be sufficiently established by an intention to injure, not the Claimant, but some third person. Thus, in my judgment, what the Claimant is here seeking would be a novel extension of the law and that is not a step which I would be justified in taking. I consider also that it would be particularly inappropriate to do so in a context where the third party in question is the Prime Minister. Of course, he, like anyone else has individual rights which he is entitled to protect, but in the present case it is the private rights of Mr Cruddas, not Mr Cameron, which are in issue. The courts should be particularly careful about novel extensions of the law which impinge on areas of political debate, as Horrocks v Lowe itself was at pains to emphasise.

The Claimant wishes to add to the current pleading regarding the extracts from the covert recordings which it provided on its website a reference to a further article published in the Sunday Times on 1^st April 2012 and the words “the Tories could hardly dispute Cruddas’ words as they were crystal clear on video footage of him talking to the undercover reporters.” The Defendants say this is irrelevant. The Claimant submits it goes to aggravation of damages.

The original pleading says that sections of the extracts from the covert recordings were shown on BBC and Sky. The proposed amendment adds a reference to News Corporation owning a controlling stake in Sky. The Defendants say this is irrelevant. The Claimant says it is relevant that both the Sunday Times and Sky are owned ultimately by News Corporation.

This, and all the following proposed amendments to which the Defendants take objection, concern the Claimant’s particulars of malice. Paragraph 7.9 presently alleges that the 1^st and 2^nd Defendants knew that the allegations against the Claimant as set out in the pleaded meanings were false. The Claimant wishes to add (and, to this, the Defendants do not object) that the 1^st and 2^nd Defendants published the Articles complained of intending to cause serious harm to the Claimant. The Defendants do object to the further plea that they also published the Articles “for their own advantage”. Ms Rogers argues that it is not malice to act for one’s own advantage. Wilts United Dairies v Thomas Robinson Sons and Company Ltd is one of many authorities for that proposition. Mr Browne accepts that as a general proposition but argues that this was not legitimate journalism. The Defendants gave a particular slant to the exercise because they wanted to try and demonstrate that Mr Cameron was a hypocrite because of what he had said in a speech in 2010 about secret political lobbying.

These paragraphs set out the 9 earlier drafts of the first article and 5 earlier drafts of the second article. In themselves they say nothing of significance but they are preliminary to matters which the Claimant wishes to plead later in the particulars of claim and which he wishes to argue demonstrate malice on the part of the Defendants. It is convenient to postpone detailed consideration of those matters until later, but for the reasons which I give below I consider that some of these amendments should be allowed. It follows that these preliminary averments should also stand.

This paragraph refers to a memorandum which the 1^st Defendant sent to Mr Hymas, the Managing Editor News. This, too, is only introductory. Again I will postpone detailed discussion until later of the substantive matters which arise from this memo. Since I will allow at least some of those amendments, I will allow this amendment.

Paragraph 7.10 of the original pleading refers to a public brochure which spoke of various ways in which supporters of the party could make donations. They were labelled as “groups”. One of them was called “the Leader’s Group” and was for those who donated £50,000. Paragraph 7.10 currently says that a copy of the brochure had been handed to the first two Defendants at the meeting with the Claimant. A contrast is drawn between this and the description in the second article of a “secretive group of donors who pay £50,000 a head to attend dinners with Cameron in private houses.” The existing defence denies paragraph 7.10 (see paragraph 9.13.1 of the Defence). It is accepted that the fact of the Leader’s Group was public (Defence paragraph 9.13.3), although its membership and activities were said not to be (ibid and paragraph 7.51). In proposed paragraph 7.10A the Claimant wishes to allege that the 1^st and 2^nd Defendants knew all about the Leader’s Group because of what they were told about it in a document from Ms Southern. The Defendants submit that this amendment is unnecessary. They say there is no dispute that the two journalists knew about the Leader’s Group. Mr Browne argues that if there is no dispute then the Defendants can admit the allegation in their amended Defence, but it is important for his client to establish what the 1^st and 2^nd Defendants actually knew.

This refers to the Hymas memo in which the 1^st and 2^nd Defendants said the existence of the Leaders’ Group was openly acknowledged. The Defendants again say this is not in dispute and therefore should not be pleaded. However, as I said in relation to the previous proposed amendment, the Claimant is entitled to plug what may be a pleading gap between information publicly known and information known to the 1^st and 2^nd Defendants and plead that this shows that both were the case. This paragraph goes on to quote a further comment from the Hymas memo that the 1^st and 2^nd Defendants believed their investigation provided a vivid confirmation of what Sir Christopher Kelly and others had long suspected. The Defendants submit this is at least consistent with an honest belief that the Leader’s Group was a matter of concern (including for Sir Christopher’s investigation into party funding). Mr Browne argues that this helps to demonstrate that the 1^st and 2^nd Defendants thought that something significant had come out of their meeting with the Claimant. I consider this to be marginal. However, in paragraphs 7.10E-7.10F (to which the Defendants do not object) the Claimant will plead particulars of a conversation which the 2^nd Defendant had with Sir Christopher on 23^rd March 2012, their expectation of what his reaction would be, what his reaction in fact was and what the Defendants did or did not do in consequence. Since all this will be part of the Claimant’s pleaded case, I consider that he is also entitled to plead the remainder of paragraph 7.10B

The Claimant wishes to allege that the first and second articles were progressively edited so as to downplay the significance of the Leader’s Club and indeed to remove all reference to it so as to make it appear as if the group was secret. This was said to support the charge of corruption which they were making against the Claimant and hypocrisy against the Prime Minister. The Defendants argue (a) The changes made in interim drafts could be for many reasons and so cannot support a plea of malice; (b) In any case these changes are anodyne; (c) A plea of malice cannot rely on an intention to injure a third party.

Paragraph 7.15 of the original Particulars of Claim already pleads that a section of the second article which said that the Defendants had presented to the Claimant a shopping list of what they wanted in return for a large donation was completely false and known to the Defendants to be false. Proposed paragraph 7.15A wishes to allege further that this part of the second article was not in the first version but was added at the second stage and was further altered in the fourth version to make specific the allegation that the Defendants said they wanted to influence policy for the sake of their business. The Claimant argues that this is another example of the ramping up of the allegations in the article and is evidence from which the jury could conclude that the Defendants intended to injure the Claimant. The Defendants submit that the changes are anodyne and incapable of proving malice. More fundamentally they argue that changes in the course of editing could be for many reasons. This strand of evidence on which the Claimant wishes to rely is not therefore more consistent with the existence of an intent to injure the Claimant than its absence. To that the Claimant responds that the Defendants can set out their alternative explanation in their pleading and evidence and the jury can decide, but he should be entitled to argue that this is one part of the corpus of evidence from which he will ask the jury to infer a malicious intention towards the Claimant. Mr Browne argued that he could not have been stopped at trial from asking the Defendants questions about the evolution of their articles in order to demonstrate their intentions. All that these particulars are doing is giving advance notice of that line of questioning.

In his meeting with the Defendants the Claimant referred to a “premier league” group of donors who gave around £250,000 each. The existing paragraph 7.19 says that he used that description because they were, in the context of donations to the party as a whole, very significant. This amendment wishes to add that this fact was confirmed by Ms Southern prior to publication. The Defendants object that the amendment serves no purpose. Mr Browne put forward no specific argument for this change. I agree with the Defendants.

This proposed paragraph pleads that Mr Hymas instructed the Defendants to add elements to the story including “Past scandals using proxy donors including Abrahams”. Abrahams was someone who notoriously had made donations to the Labour Party through his secretary. Paragraph 7.26B would continue, “From this it is clear that he and the First and Second Defendants intended that the Articles should convey a clear allegation that the Claimant had been guilty of soliciting and funnelling a foreign donation to the Conservative Party from a concealed source in breach of electoral law.” Ms Rogers argues that this paragraph is irrelevant. The state of mind of Mr Hymas is not what the Claimant has to prove. Times Newspapers Ltd was the employer of Mr Hymas as well, but the Claimant puts his case as to why it is liable on the basis of its vicarious responsibility for the 1^st and 2^nd Defendants alone. As published the articles complained of made no mention of Abrahams or other past scandals of proxy party donors. The omission is therefore equally consistent with the lack of any intention to make this allegation. In any event the meaning pleaded in this paragraph is not any of the meanings which the Claimant pleads the ultimately published articles bore. Mr Browne accepted that he did not seek to make the 3^rd Defendant vicariously responsible for malice on the part of Mr Hymas, but, he argued, Mr Hymas’ frame of mind tainted that of the two journalists.

In these paragraphs the Claimant wishes to refer to a conversation which the 1^st Defendant had with a Mr Karim Aziz of the Electoral Commission. It is alleged that the Defendants hoped to get a quote from the Electoral Commission that a payment whose source was a foreign fund would be contrary to electoral law and Mr Cruddas should not have even contemplated it. The 1^st Defendant is said to have presented Mr Aziz with a hypothetical case of a foreign company making a donation to a UK political party through a UK subsidiary or a UK director. Mr Aziz is said to have responded that a donation through a UK subsidiary would be lawful, but the article made no mention of his views because it undermined the case the Defendants wished to present in the articles, namely that the Claimant’s conduct was a breach of electoral law.

Mark Adams was the author of the fourth article which appeared in the same edition. In these proposed paragraphs the Claimant wishes to refer to an email exchange between Mr Adams and the 1^st Defendant in which Mr Adams said he was thinking of making a complaint to the police. Paragraph 7.26F pleads that the 1^st Defendant did not tell him that the Electoral Commission considered there would be no breach of electoral law and this was because he wanted to add a news angle to the coverage of his scoop and cause further damage to the Claimant.

Over several sub-paragraphs the Claimant proposes to show how the articles heightened and increased the severity of the allegation of the Claimant’s willingness to accept a foreign donation in breach of election law and to permit devices to conceal its true source. The Defendants repeat their objection that changes over the course of drafting the articles could have been due to many reasons, they are not more consistent with malice than its absence. Furthermore the changes themselves are anodyne. In addition, paragraph 7.28A.7 refers to a change made by Mr Hymas, but, as appears from 7.28A.8 his addition was deleted shortly afterwards.

The beginning of this proposed paragraph (to which the Defendants do not object) refers to a statement by the Conservative Party that it would not accept donations from a shell company but only from a fully operational UK company. It is to be pleaded that the 1^st and 2^nd Defendants omitted to mention this even though it was important. Again no objection is made. The final sentence of the paragraph (which is challenged) says “It is to be inferred this was because this ran counter to the impression [the 1^st and 2^nd Defendants] wanted to create of the Conservative Party’s willingness to accept an illegal foreign donation.” Ms Rogers objects on two grounds: the Defendants’ alleged attitude to the Conservative Party (as opposed to the Claimant) is not material to malice. In any event, they say, the 1^st article did say that the Conservative Party insisted that donations complied with electoral law. Mr Browne made no specific submissions on this aspect and I agree with Ms Rogers.

The Defendants’ objection here is limited to the fourth sentence which they say misquotes the document to which it refers. That document was a record of a committee established by the 3^rd Defendant to consider certain types of journalistic activities. The passage concerns the views of the editor, Mr Witherow.

The existing pleading says that the Defendants deliberately delayed contacting the Claimant until 3pm on the afternoon prior to publication. The amendment proposes to allege that they also delayed contacting others affected by the proposed publication.

In this proposed paragraph the Claimant wishes to add detail as to the time table in which the articles were prepared and that they did not turn until late on Friday 23^rd March to dealing “perfunctorily with their obligations as journalists to give the subjects of highly damaging allegations an opportunity to respond.” Ms Rogers objects to this last part only on two grounds. First she says that it extends beyond the Claimant to others who were referred to in the article. Second, she argues that a failure to abide by journalistic obligations is not the same as malice.

In this paragraph the Claimant alleges that the Defendants did not get back to him to discuss Ms Southern’s proposal that the foreign fund, for which the 1^st and 2^nd Defendants purported to be acting, could make donations through the two of them. The amendment would go on to say,

“In consequence of the deliberate refusal to confirm the Claimant’s position with him, a clumsy (and in the circumstances wholly ineffective) legal paragraph had to be added to the end of the Third Article: ‘As Cruddas was not directly consulted on this point it is unclear what his view was’. But even that was misleading - and known to be misleading by the First and Second Defendants – given the Claimant’s clear statement in the meeting that third-party payments were not an acceptable way of making a donation to the Party.”

Ms Rogers argues that there is no real prospect of establishing that the quotation from the end of the 3^rd article was misleading given what the Claimant had said in the meeting. She also objects to the characterisation of the quoted paragraph as a “legal” addition which she says is wholly speculative.

These proposed paragraphs concern the drafting of letters which the Defendants sent to the Claimant and Ms Southern in advance of publication, what are referred to as “Front-ups”. The final emailed letter to the Claimant itself was, of course, known about at the time the original Particulars of Claim were prepared and is quoted at paragraph 73F.6 (and the amendments to that paragraph are not the subject of any objection). The Claimant pleads that the earlier draft of the letter to him specifically alleged that he knew what was proposed was a foreign donation which would break election rules, but he offered a way around this by setting up a UK subsidiary company. The Claimant goes on to allege that the suggestion of criminality or breach of the rules concerning political donations was removed from the Front-up so as to give no idea to the Claimant that these allegations were to be included in the articles.

This proposed paragraph refers to an instruction from Mr Hymas to the 1^st and 2^nd Defendants to delay sending the front-ups until the timing of them had been approved by John Witherow, the editor. It also elaborates on the duty of journalists to give advance notice to those who were to be the subject of criticism. It would go on to say that the delay was to avoid the risk of an injunction.

This proposed paragraph and its sub-paragraphs plead further matters in relation to the front-ups. The Defendants do not object to 7.31F. 5 and 7.31F.6 because these concern the front-up to the Claimant. They do object to the other sub-paragraphs because they concern front-ups to other people and, as such, they are irrelevant to malice.

and 7.33

The proposed amendments to these paragraphs in summary expands what is presently pleaded in relation to the front-up to the Claimant to all the various front-ups referred to in paragraph 7.31F.

and 7.35

The Claimant wishes to plead that the Defendants were concerned that the articles might be injuncted if proper advance notice was given to the Claimant and this was why the Claimant was sent the front-up so shortly before the publication time and why strict embargoes were placed on broadcasters to whom the 3^rd Defendant sent extracts of the covert filming of the meeting. The Claimant refers to a passage in the 2^nd Defendant’s notebook in which she says ‘could be injunct’.

-7.38

The Claimant wishes to argue that the Defendants’ investigation into him involved a great deal of expense, the Defendants were aware of this, they were under pressure to deliver stories to justify the expense and he will invite the court to infer that their willingness to publish false and damaging allegations against him was driven by a desire to ensure that the Sunday Times got its money’s worth. In paragraph 7.38 it is to be pleaded that the 3^rd Defendant required a fee from other news organisations after the first 24 hours. This, too, was with an eye to recouping the costs of the investigation.

In paragraph 9.1 of the original Particulars of Claim the Claimant relies on the plea of malice in support of his claim for damages. At times during his submissions Mr Browne argued that, even if the amendments were not capable of supporting malice, they were nonetheless relevant for the purpose of damages. Ms Rogers argued that it was only if the Claimant was aware of what had happened that they could be relevant for damages.

Ms Rogers has also asked me to consider the proposed amendments in the light of the principle of proportionality. The pleadings in this case are already extensive. The amendments will make them significantly longer still. However, they are not disproportionate. I bear in mind the importance of the matter for the Claimant (and, for that matter, the Defendants). In addition, as Ms Rogers reminded me, the task of proving malice is an onerous one. In light of these matters it would not be right to exclude any of the proposed amendments on which the Claimant wishes to rely on grounds of proportionality.