Bokova v Associated Newspapers Ltd

These are libel proceedings brought by the Claimant against the publisher of the Daily Mail and MailOnline arising from the publication of articles published by the Defendant concerning the Claimant on 13 April 2016. The online article was longer than the print version.

The Claim was commenced on 29 June 2017 and a Defence was served in October 2017. The Defence relied upon a defence of truth pursuant to s.2 Defamation Act 2013. On the pleadings, there was a dispute between the parties as to the meaning of the articles. As is conventional, the Defendant set out the meaning that it contended was true (“the Lucas-Box meaning”) together with “particulars of truth” (the facts relied upon alleged to prove the truth of the meaning advanced).

When libel actions were conventionally tried by jury, rival contentions as to the meaning that a publication bore arose in almost every case. As the actual ‘single-meaning’ of the publication was a matter of fact, it was reserved for determination by the jury at the ultimate trial. The circumstances in which the determination of meaning could be advanced to any pre-trial stage were very limited. In consequence, any defence (or other issue) that depended upon the final decision as to meaning, in particular a defence of truth (or justification), had to proceed on the basis of the meanings the publication was capable of bearing. This substantially impaired the ability of the Court to exercise meaningful case management and was one of the reasons why defamation actions took so long and were so costly.

The enforced postponement to trial of the determination of meaning meant that a large body of case law has grown up governing the parameters of, what was, the defence of justification. One of the cardinal principles was that the defendant was entitled to justify any defamatory meaning the words complained of were capable of bearing: Prager -v- Times Newspapers Ltd [1988] 1 WLR 77.But, asPurchas LJ made clear, that was in the context of cases where actual meaning remained to be resolved (at p.86):

“… it is still open to a defendant to plead so as to justify any reasonable meaning of the words published which a jury, properly directed, might find to be the real meaning… At the heart of this case, of course, is the proposition which asserts that the scope of the defence of justification should not depend upon the way in which the plaintiff pleads his case, but on the meanings which the words published are capable of bearing.”

That principle was subject to exceptions. Where a publication contained two or more ‘separate and distinct’ defamatory imputations, a claimant was entitled to select one for complaint, and the defendant was not entitled to assert the truth of the others by way of justification. Whether a defamatory imputation was separate and distinct from other defamatory statements contained in the publication was a question of fact and degree in each case. If the several defamatory imputations, in their context, had a common sting, the defendant was entitled to justify this general sting as a meaning the words were capable of bearing: Polly-Peck -v- Trelford [1986] QB 1000, 1032per O’Connor LJ; Warren -v- Random House [2009] QB 600 [102] per Sir Anthony Clarke MR.

The scope for the words complained of to bear a range of capable meanings meant that: “an action for libel can be converted into a game of skill in which the contestants choose their own rules and the court is content to apply those rules as umpire”: Slim -v- Daily Telegraph [1968] 2 QB 157, 176-177 per Lord Diplock.

Where the defendant sought to defend the publication as true in a meaning different from that advanced by the claimant, he was obliged to specify that meaning: Lucas-Box -v- News Group Newspapers Ltd [1986] 1 WLR 147, 153 per Ackner LJ. However, the eponymous Lucas-Box meaning, conventionally pleaded, was not an averment by the defendant that the words did bear that alternative meaning, merely that that was the meaning he intended to prove to be true: Prager p.86:

“[The defendant] does not have to identify the precise meaning for which he contends; but he must make clear to the plaintiff what case he proposes to make in precise detail. This may well, and in most cases probably will, disclose one or more meanings of the words which he is prepared to justify; but he is not obliged to plead specifically any meaning for which he contends.”

Indeed, there even appears to have been a rule preventing the defendant from pleading the meaning he said the words bore: see Viscount de L’Isle -v- Times Newspapers Ltd [1988] 1 WLR 49, 58C-D per Mustill LJ referring to §11.11 in Duncan & Neill on Defamation (2^nd edition, 1983, Butterworths):

“A defendant is not allowed, however, to set out in his defence what he says the words mean, though, it is submitted that this rule needs re-examination; in many cases one of the crucial issues at the trial is the meaning of the words and it would be clearly convenient if the precise issue between the parties was placed on the record in the pleadings before the hearing.”

That eminently sensible point, made 35 years ago, has still not been embraced even after the advent of the CPR and the increased importance of identification of the disputed issues at the earliest stage. In Armstrong -v- Times Newspapers Limited[2008] EWHC 1614 – at the time a rare example of a Judge alone determining meaning as a preliminary issue – Gray J said, plaintively ([15]): “it would be desirable if defendants were to identify in the Defence the meaning for which they contend, in the same way that claimants are required to do”. But it is still unusual to see a positive case as to the meaning of the words complained of advanced in the Defence. Defendants have historically been reluctant to so. Often, that was because they did not want to be tied to a meaning that might subsequently be used against them or because they wished to preserve the argument that the words bore no meaning defamatory of the claimant. Those reasons for not pleading or advancing a positive case as to what the publication meant were sensible – or at least justifiable – when meaning was ultimately to be decided by a jury. But when meaning is disputed and tried as a preliminary issue by a judge, defendants would be well-advised to make very clear what meaning they contend the words bear, including any ‘common sting’ meaning. This is for the very important reason that, once the court has determined meaning as a preliminary issue, it will usually be too late further down the line to start raising issues on the meaning of the publication.

To an extent, this represents a culture shift in defamation pleadings, but it is one that has to be embraced in the new era where meaning will regularly be tried as a preliminary issue. Since the abolition of the ‘right’ to trial by jury in defamation proceedings, by s.11 Defamation Act 2013, libel actions now fall to be determined (and case managed) in the same way as any other civil proceedings in the High Court. One of the principal benefits of the change in mode of trial is that the way is now clear for the Court to determine the actual meaning of a publication as a preliminary issue. Indeed, as the natural and ordinary meaning of a publication is a matter upon which no evidence beyond the words themselves is admissible, in most cases meaning can be determined as soon as it is clear that the issue of meaning is disputed between the parties.

The benefits are obvious. Indeed, if there is no factual dispute on the issue of publication (e.g. a dispute over the actual words published, reference or innuendo), I struggle to see circumstances in which the parties would want to proceed through the stages of defamation litigation without having meaning determined. Its determination can lead to the parties resolving the dispute without the need for further litigation. Even if the claim cannot be settled at that stage, there remain significant benefits for the future conduct of the case. A defendant would know, for example, what would be required for any truth defence to have a real prospect of success. Equally, if meaning is determined before a Defence is served, it remains open to a defendant to make an offer of amends under s.2 Defamation Act 1996 (an opportunity that is lost “after serving a defence” (s.2(5)). But most importantly, it avoids the spectre of hugely wasteful litigation (perhaps requiring up to a year’s preparation and several weeks of trial) of a meaning that the words are found not actually to bear. Some of the pitfalls of pleading a defence before the determination of meaning became apparent in Morgan -v- Associated Newspapers Ltd [2018] EWHC 1725 (QB).

In this case, for example, a fully-pleaded defence of truth has been advanced in a 50-page Defence to support a meaning which was not the meaning complained of by the Claimant. No Reply has been served. Instead, by an Application Notice dated 30 November 2017, the Claimant sought a determination of the meaning of the articles as a preliminary issue (“the Preliminary Issue”).

Separately, on 5 February 2018, notwithstanding that meaning had still not been determined, the Defendant issued an application seeking permission to amend several paragraphs of the particulars of truth that were relied upon.

All of this pleading activity – and its associated cost – occurred before Dingemans J determined the meaning of the articles as a preliminary issue on 21 February 2018 [2018] EWHC 320 (QB). The judgment sets out the terms of both the online article [13] and print version [14]. The Judge found ([53]) that the natural and ordinary meaning of the online article was:

The meaning of the print version of the article was found by the Judge to be that set out in sub-paragraph (i) above: [52].

Included within the Application Notice of 30 November 2017, the Claimant had also sought orders striking out the defence of truth pursuant to CPR 3.4(2)(a) and/or (b) on the grounds, amongst others, that the particulars of truth were incapable of proving the truth of the (anticipated) meanings and seeking judgment to be entered against the Defendant.

Consequent on his decision as to meaning, on 21 February 2018, the Judge ordered:

The Claimant served Amended Particulars of Claim on 28 February 2018. Save for some minor adjustments to the words complained of (to reflect what are alleged to be changes made to the online article since its original publication), the amendments simply replaced the meanings that the Claimant had originally advanced with the meanings found by the Judge.

The Defendant served an Amended Defence on 23 March 2018. Perhaps surprisingly, in light of the court having now determined the meaning, it included amendments to the Lucas-Box meaning. With the amendments to the original Defence shown with underlining and striking out, the Defendant now advances its truth defence in these terms:

“6.

Insofar as the Online Article bore the following meanings, in whole or in part, and the Daily Mail Article bore meaning 6(1), they wereit was in substance true pursuant to s.2 of the Defamation Act 2013:

PARTICULARS OF MEANING

(1)

There are reasonable grounds to suspect that the Claimant was guilty of fraud (i.e.knowingly and culpably involved in the seriously improper and wrongfuldishonest preferment) in the appointment of the under-qualified Ana Luiza Thompson-Flores to the post of UNESCO’s Assistant Director-General for the Bureau of Strategic Planning and that the issues merited a comprehensive external independent investigation given that the Claimant’s integrity was seriously in issue.

(2)

There wereare reasonable grounds to suspect that some sources of the Claimant’sfamily finances werehas been in knowing receipt of tainted monies and has used those moniesto her knowledge by impropriety and, in particular, by her undue proximity to the oppressive and dictatorial Azerbaijan regime including in the context of the to purchase property and/or to help her son pay off a £540,000 mortgage of several expensive foreign properties by the Claimant and her family within a narrow timeframe;

(3)

There were reasonable grounds to question the honesty of theThe Claimant’sclaim thatamade dishonest false statements about her having been Bulgaria’s Foreign Minister, when she had never held that office but had only been acting Minister and even then not for the period claimedwhich was were made in the Claimant’sin her curriculum vitae as published on UNESCO’s website was a mistake; alternatively, there were reasonable grounds to suspect that the said false statements had been published by her dishonestly;

(4)

During her period as Director-General of UNESCO, the Claimant has personally supported a government, namely Azerbaijan, whose conduct is notorious and an affront to the core values which UNESCO was established to preserve and protect, and whose endorsement by the Claimant accordingly served to damage UNESCO’s international credibility and to bring the organisation into disrepute.

Leaving aside for the moment the question whether these amendments could properly be described as “consequential” on Dingemans J’s ruling on meaning, I confess to being quite baffled by this approach. Mr Caldecott QC suggests that, on the conventional basis, the Lucas-Box meaning is signalling clearly the meaning that the Defendant seeks to prove true. One of the issues I shall have to decide is whether, once meaning has been determined, this is still legitimate or necessary. It has, however, required a word-by-word comparison of the amended Lucas-Box meanings now advanced with the meanings actually found by Dingemans J; a task which can really only be done (conveniently or effectively) by putting the meanings next to each other in a table – see Appendix A to this judgment.

On 13 April 2018, pursuant to the Order of 21 February 2018, the Claimant issued a further Application Notice revising the terms of the Strike Out Application. The terms of the (now revised) Application Notice are set out below ([47]), but, in summary, the Claimant sought the striking out of the following paragraphs, pursuant to CPR 3.4(2)(a) and/or (b):

I will not set out the paragraphs of the full particulars of truth that are the target of the Strike Out Application, as they are extensive (and would run to over 30 pages). Instead, I will use the headings for each section of the particulars of truth, and cross-reference them to the meanings (in Appendix A) the truth of which they are alleged to prove. Where necessary, I set out some of the particulars of truth below.

Paragraph 36, relied upon in mitigation of damages, is under the heading: “The public criticisms of the Claimant’s governance and transparency contained in the Department for International Development’s Multilateral Development Review”:

There is little discernible dispute between the parties as to the relevant principles governing striking out applications.

The “conduct rule” and “circumstantial evidence” have been further elucidated.

I have no difficulty with the interplay between circumstantial evidence and the ‘conduct rule’. To take an example, in a drugs importation conspiracy it is usual for the prosecution to rely upon a number of sources of evidence including, typically: (1) cell-site analysis showing the presence of mobile telephones at various locations; (2) calls and messages passing between those telephones; and (3) ANPR and CCTV ‘hits’ of various vehicles at particular places. If the same factual issues arose in defence of a libel claim, including alleged facts from these three categories, there would be some evidence in each that did not focus on the conduct of the claimant; indeed, there is likely to be evidence relating to the activities of the other alleged conspirators. However, the strength of the case, and why it gives rise to suspicion falling on the claimant is that, cumulatively and taken together, the evidence implicates the claimant because of his connection to the evidence as a whole. What matters, and what would be essential for the truth defence to have a realistic prospect of success, is the evidential link to the claimant. Without that, the rest of the evidence cannot give rise to a reasonable suspicion.

I have set out above the test for striking out particulars of truth. Similar principles apply when a party seeks to amend a statement of case under CPR Part 17.3. The Court will only grant permission where it is satisfied that the proposed amendment has a real prospect of success. If a proposed amendment falls foul of the rules set out above, then it would be refused.

The requirements of a defence of truth have now been placed on a statutory footing under s.2 Defamation Act 2013:

The parties are agreed that, in respect of the obligation to show that the relevant defamatory imputation is “substantially true” under s.2(1), the established common law principles continue to apply to the new statutory defence. That was also the conclusion of Jay J in Serafin -v- Malkiewicz [2017] EWHC 2292 (QB) [103].

Finally, the Defendant seeks to resist the striking out of parts of the Amended Defence on the basis that the Defendant is entitled to rely upon the facts alleged under the particulars of truth in mitigation of damages. Mr Caldecott QC, in my judgment correctly, draws together the following principles from Burstein -v- Times Newspapers Ltd [2001] 1 WLR 579; Turner -v- News Group Newspapers Ltd [2006] 1 WLR 3469; Warren -v- Random House Group Ltd [2008] EWCA Civ 834; and Dhir -v- Saddler [2018] 4 WLR 1:

I turn therefore to consider the various parts of the Amended Defence (and the amendments that are sought by the Defendant) and whether they ought to be allowed to remain/be added.

I have set out the role and function of a Lucas-Box meaning above ([3]-[7]). Lord Garnier QC contends that there is no point in tinkering with Lucas-Box meanings now that meaning has been determined. Either these meanings are totally irrelevant, or they impermissibly seek to gloss the actual meanings found by the Court. His submission is succinct: to succeed with a defence of truth the Defendant has to prove the actual meanings are substantially true (within the latitude given by s.2(3)).

In his skeleton argument, Mr Caldecott QC explained the proposed amendments to the Lucas-Box as follows:

“… the Lucas-Box meanings address the imputations found in the Judge’s meanings at (1), (2), (4) and (5). D does not seek to defend the truth of the Judge’s meaning (3), but denies that it caused any serious harm to C’s reputation having regard to the matters which are alleged and proved to be true and the provisions of s.2(3) of the Defamation Act 2013...”

The verb “address” left unclear what, exactly, is the purpose of amending a Lucas-Box meaning after the actual meaning has been determined. Mr Caldecott QC sought to defend this approach on two bases:

I am quite satisfied that the first objective can be achieved without amending the Lucas-Box meaning and the second justification ceases to apply once the Court has ruled on the actual meaning of the words. It is not a question of bearing ‘fidelity’ to the meaning found by the Court, the meaning has to be proved substantially true.

In the following paragraphs I will refer to the meanings as they are numbered in Appendix A. That is to avoid the confusion that would follow if I used the numbering of the paragraphs in the Amended Defence, as they do not correspond to the meanings found by the Court.

The Defendant has stated, clearly, in Mr Caldecott QC’s skeleton, that it is not seeking to prove true meaning (3) found by the Court. It contends, nevertheless, that ultimately its defence of truth will prevail relying upon s.2(3). That is a clear statement of position. If it is to be stated in the Amended Defence, then it can be done so expressly, in that simple way, and not left to be deduced from omissions from the amended Lucas-Box meanings.

As for the balance, in my judgment, advancing Lucas-Box meanings that are at variance with the actual meaning found by the Court is wrong in principle.

There was some suggestion in argument by Mr Caldecott QC that variance between the actual meanings and pleaded Lucas-Box meanings was legitimate in order to encapsulate the “sting” of what the Defendant sought to prove true in accordance with the principle in Simpson -v- MGN Ltd [2016] EMLR 26 (e.g. “dishonest preferment”).

I reject that submission. If the principle in Simpson adds anything to the concept of proving the substantial truth of an imputation, then it operates at the point the Court comes to consider whether, on the evidence, the defence of truth succeeds. At one point, I feared the spectre looming that, having determined meaning, the Court would then have to go on and interpret that meaning to divine the ‘sting’: a sort of linguistic Russian doll – a sting, inside an imputation, borne of a meaning, arising from a publication. However, Mr Caldecott QC disavowed that he was advocating such a course.

Since it was decided, Simpson has not benefited from any application in practice. For my part, I am doubtful that it extends much beyond the established principle that it is sufficient to prove the substantial truth of a defamatory imputation. In argument, I tried to think of a case in which Simpson might have application. I came up with a meaning: “the claimant, a care worker in a hospice, had stolen thousands of pounds from residents”. What is the ‘sting’ of that meaning? That the claimant stole money? In breach of trust? From vulnerable people? Would proof that he had stolen money from co-workers and visitors be sufficient? If not, would proof also of a theft from one resident make the difference? This example seems to me to demonstrate that the search for a sting, quickly collapses into the question of whether proof of the various elements contained in the meaning is sufficient for the court to be satisfied that the allegation was substantially true. Plainly, it will be a highly fact-sensitive exercise.

Whatever the answer to this interesting point, it does not arise on the facts of this case. The tinkering with the Lucas-Box meanings is not to tease out an alleged “sting”, the proof of which is said really to matter. The amendments either appear to have no purpose or they are impermissible attempts to reinterpret the meaning (e.g. “dishonest preferment” as a proxy for “fraud”). If Simpson has any application in this case, it would be at a trial if the Court comes to decide whether the defence of truth has been made out. It is not at the pleading stage.

Lucas-Box meaning (6), is of a different type. Although it was pleaded (in substance) at the time of the preliminary issue on meaning, it was not included in the meaning found by the Judge. Mr Caldecott QC submits that the Court was focusing on the Claimant’s meaning. He submits that it is a ‘common sting’ meaning that the Defendant is still entitled to justify (see [5] above).

In my judgment, the Defendant is not entitled to seek to defend Lucas-Box meaning (6). It is not part of the single-meaning found by the Court. If it was the Defendant’s case that the words, in addition to the Claimant’s meanings, also bore meaning (6) as a common sting, then it should have argued for it to be part of the meaning found by the Court at the preliminary issue trial. It is too late now to resurrect an alleged ‘common sting’ meaning. At what point would the Court determine if this ‘common sting’ meaning was part of the actual meaning of the words complained of? At trial? At a second round of preliminary issue meaning determination? What happens in the meantime? Does the pleading remain viable as a capable meaning, with all the consequences that entails? All these questions satisfy me that it is simply too late for the Defendant to seek now to tinker with the meaning. I repeat what I said in [8]. If a defendant contends that a ‘common sting’ imputation is (or is part of) the single-meaning, it needs to argue for that conclusion at the trial of the preliminary issue. The actual single-meaning in this case was determined by Dingemans J on 21 February 2018 and it did not include Lucas-Box meaning (6).

Notwithstanding my conclusion above that it is simply too late, I would in any event have rejected the argument that the words complained of by the Claimant bore Lucas-Box meaning (6) as a ‘common sting’. It plainly is not a ‘common sting’, but an effort to insert an additional distinct meaning. The only meaning to which Lucas-Box meaning (6) even vaguely connects is meaning (5) and only then if the words “and to bring the organisation into disrepute” are added at the end of Lucas-Box meaning (6) (as is sought by amendment). Given that meaning (5) is a very specific allegation, arising from the alleged inappropriate naming of a prize, it is the most unpromising basis upon which to try and erect a common sting. The other imputations in the meaning found by the court are also very specific: (1) suspected fraud in relation to the appointment of Ms Thompson-Flores; (2) dishonest and false statements on a CV; (3) dishonest and false statements about the number of visits the Claimant had made to Russia; (4) suspected use of tainted monies. None of these provides a platform for the alleged ‘common sting’ in Lucas-Box meaning (6).

For those reasons, paragraphs 6(1) to 6(4) of the Amended Defence will be struck out. Following the determination of the actual words complained of, they serve no legitimate purpose and they are likely to obstruct the just disposal for the proceedings. Permission to amend these paragraphs is refused. If it wishes, the Defendant can state, as an introduction to its defence of truth, that it is not seeking to prove true meanings (3) and (5) found by the Court.

I will deal below with the issue of whether the paragraphs of the particulars of truth that were pleaded ostensibly to support Lucas-Box meaning (6) ought to be struck out in consequence.

The Claimant has launched a very substantial and detailed attack on the particulars of truth. I have been concerned at the proportionality of this exercise. The Application Notice seeks orders striking out substantial parts of the plea of truth. It seeks:

“(1)

An order pursuant to CPR 3.4(2)(a) and (b) and/or the inherent jurisdiction striking out paragraphs 6 (except for 6(3) and any reference to it in paragraph 6) and [paragraphs] 9 – 27.3.2 and 31 – 32.4 in that they disclose no reasonable grounds for defending the claim and/or are an abuse of the Court’s process and/or are otherwise likely to obstruct the just disposal of the proceedings on the grounds that:

(A)

in relation to the Lucas-Box meanings 6(1) and 6(4) proof of the same could not prove the truth of the actual meaning (determined by Mr Justice Dingemans…) and/or defamatory sting (if different) of the words complained of and it could not show that any of the imputations conveyed by the statements complained of are substantially true pursuant to the defence at s.2(1) Defamation Act 2013 – see Schedule attached to this Application Notice (“the Schedule”) for further details of this and other grounds as indicated below;

(B)

the Particulars of Truth contained in paragraphs 9 – 27.3.2 (in support of Lucas-Box meanings 6(1) and (2)) and 31 – 32.4 (in support of Lucas-Box meaning 6(4)) of the Amended Defence are not sufficient in that they are not capable of proving the actual meaning and/or defamatory sting (if different) of the words complained of and they are not capable of showing that any of the imputations conveyed by the statements complained of are substantially true pursuant to the defence at s.2(1) Defamation Act 2013 – see the Schedule;

(C)

the Particulars of Truth in paragraphs 11 – 27.3.2 are not properly particularised in that they do not plead a sufficiently clear and coherent relevant case against the Claimant – see the Schedule;

(D)

paragraphs 24.3.5 impermissibly pleads as a primary fact in support of reasonable grounds to suspect the subjective concern of a third party (Credit Suisse);

(E)

paragraphs 12.3.1 – 12.3.3 impermissibly speculate as to the factual position in support of a defence of reasonable grounds to suspect and/or improperly place the burden on the Claimant to clarify her state of knowledge and disprove one or other of the speculative hypothetical factual scenarios pleaded;

(F)

paragraphs 22.3.6 and 24.3.7 impermissibly rely on post-publication conduct in order to establish reasonable grounds to suspect;

(G)

paragraphs 12.3.2(a) and the Lucas-Box meaning at paragraph 6(4) and paragraphs 31 – 32.4 are not confined as they ought to be to matters strictly necessary for the fair determination of the dispute between the parties and/or the matters contained in 6(4) and paragraphs 31 – 32.4 ought not to be permitted to be relied upon by the Defendant in support of its defence of Truth pursuant to s.2(1) Defamation Act 2013 whether as a matter of law or case management – see the Schedule.

(2)

A further order that the matters pleaded at paragraph 36 – 36.2 of the Amended Defence are not admissible as directly relevant background context in relation to the Court’s assessment of damages and ought to be struck out pursuant to CPR 3.4(2)(b) and/or the inherent jurisdiction of the Court.

The Schedule attached to the Application Notice runs to 7 pages. It is set out in Appendix B to this judgment. I am going to address the Amended Defence by section (using the headings in the pleading). I should make clear that any person referred to in this judgment on the basis that s/he is referred to in the Amended Defence has, obviously, not had any opportunity to respond to any allegations that may be made against him/her. At this early stage in the proceedings, no evidence has been produced even to substantiate what are presently only allegations made in a statement of case. The Court is certainly not making any findings against these individuals.

The Claimant’s role in the appointments of Ms Thompson-Flores

The summary of the case advanced in the particulars of truth in paragraphs 9-12 (and the sub-paragraphs thereunder) is as follows.

The Claimant owed certain duties and bore certain responsibilities as Director General of UNESCO, in particular as set out in the Standards of Conduct for the International Civil Service and UNESCO’s Staff Rules. Those provided for matters such as avoidance of conflicts of interest, acting with integrity, independence and impartiality. UNESCO has an Ethics Office that provides guidance to members of the organisation and oversees key policies to mitigate the risk of non-compliance with the applicable standards. The Ethics Office maintains a Declaration of Interest and Financial Disclosure Programme. The Claimant was required annually to disclose her financial interests and activities in respect of the previous calendar year.

Candidates for professional posts in UNESCO were ordinarily required to hold an advanced university degree in a field of study relevant to the functions of the relevant vacancy. The post of Director of the Bureau of Human Resources was initially advertised in December 2009 and it required the stated qualification. At that time, Ms Thompson-Flores was the Deputy Director of the Bureau Human Resources and she sat on the pre-selection committee tasked with shortlisting applicants for the post. Ms Thompson-Flores, it is alleged, did not have a relevant qualification. However, on 1 February 2010, it is alleged that the Claimant appointed Ms Thompson-Flores to the role of acting Director of the Bureau of Human Resources. The Claimant decided to re-advertise the post, a decision that was announced on 11 May 2010.

The vacancy was not re-advertised until 15 October 2010, a delay which it is alleged benefited Ms Thompson-Flores because during that period she gained in-post experience. The revised vacancy notice, approved by the Claimant, lowered the educational requirement that had previously been stipulated by including “or equivalent extensive professional experience”.

Ms Thompson-Flores submitted an application for the post on 15 December 2010, not previously having given any prior indication that she intended to apply. It is alleged that Ms Thompson-Flores had a conflict of interest because she had been actively involved in drafting the vacancy notice for the post for which she had now applied. That conflict of interest would have been apparent both to the Claimant and to Ms Thompson-Flores, but no disclosure was made in what is alleged to be a breach of the Human Resources Manual of UNESCO.

In her application, Ms Thompson-Flores claimed to hold an MBA from John Cabot University in Rome. However, the qualification she in fact held was a “Certificate in Management”, which it is alleged could not properly have been characterised or understood to be a degree (“the MBA issue”).

Ms Thompson-Flores’ application was considered by an evaluation panel and she was successful, being appointed by the Claimant to the post on 17 April 2011.

No particular misconduct is alleged against the Claimant in relation to the appointment of Ms Thompson-Flores to this post, but it is relied upon as background for Ms Thompson-Flores’ subsequent appointment as UNESCO’s Assistant Director-General for the Bureau of Strategic Planning (“the BSP post”).

The BSP post was advertised on 4 August 2014 with a closing date for applications of 4 October 2014. Ms Thompson-Flores, as Head of the Bureau of Human Resources, and the Claimant participated in the preparation of the relevant vacancy notice. It is alleged that the BSP post had historically required the successful candidate to have a PhD as a minimum requirement. However, the vacancy notice indicated that a PhD was only a ‘desired qualification’. The Claimant is said not to have consulted the Executive Board of UNESCO, as she was required to do, before making this change.

Ms Thompson-Flores applied for the BSP post on 3 October 2014. The Claimant interviewed the candidates on 4 November 2014 and decided to appoint Ms Thompson-Flores. Paragraph 12.2.2 of the Amended Defence relies upon conclusions of a subsequent internal investigation that Ms Thompson-Flores was unqualified for the BSP post, lacking two essential requirements:

It is alleged that, at some point prior to Ms Thompson-Flores’ application for the BSP post, the MBA issue became apparent. Ms Thompson-Flores received a letter of censure on 15 September 2015. It is alleged that UNESCO’s Executive Board had no knowledge of the MBA issue until shortly before its meeting on 22 April 2015.

Paragraph 12.3.2 of the Amended Defence is in the following terms

“The Claimant’s letter of censure is also silent as to when the Claimant first knew that Ms Thompson-Flores had corrected her curriculum vitae and it makes no assertion that Ms Thompson-Flores had failed to tell the Claimant of the initial misrepresentation and the correction. However:

(a)

If Ms Thompson-Flores had failed to alert the Claimant (and UNESCO’s Ethics Office) when she corrected her curriculum vitae, that continued attempt to conceal the true position would have amounted to a further gross dereliction of duty by Ms Thompson-Flores, which would have increased the gravity of her offence still further and should have disqualified Ms Thompson-Flores from holding any (or at the very least any senior) post within UNESCO.

(b)

Alternatively, if Ms Thompson-Flores had informed the Claimant of the fact of the misrepresentation prior to her appointment to the BSP post, the Claimant clearly should have not appointed her to that very senior post and should have instead taken immediate disciplinary action.”

The Defendant alleges that the Claimant allowed Ms Thompson-Flores to remain in a senior post within the organisation as the Director of UNESCO’s Regional Bureau for Science and Culture in Europe in Venice “with only a modest reduction in her salary” and ignored what is alleged to have been the clear conflict interest of Ms Thompson-Flores having taken a role in drafting the vacancy notices for both positions.

At the UNESCO Executive Board meeting on 22 April 2015, following concern regarding Ms Thompson-Flores’ appointment to the two posts, the Claimant promised that there would be an investigation into the matter by the Internal Oversight Service of UNESCO (“the IOS”) and that she would inform the Bureau of the Executive Board (“the Bureau”) when it had reported. The IOS Report was delivered to the Claimant and subsequently forwarded to the Chair of the Executive Board on 23 June 2015. The Bureau considered the Report the following day and decided that it should be dealt with by the full membership of the Executive Board. However, it is alleged, in August 2015, the Claimant took the independent decision formally to withdraw the IOS Report and invited the Executive Board to disregard its findings on the basis that its contents might cause reputational and financial damage to Ms Thompson-Flores, an issue upon which the Claimant had taken external legal advice. The legal advice was not disclosed to the Executive Board, despite requests that it should be. The Defendant claims that:

“… the Claimant’s suppression of the IOS Information Report was unwarranted, whether on the basis of any informal legal advice allegedly received by her in a personal capacity or otherwise, and evidences an unjustifiable readiness:

(a) to place Ms Thompson-Flores interests before those of UNESCO; and

(b)

to seek to limit the damage to the Claimant’s own reputation and interests which was liable to be caused by the formal circulation of a report that analysed her role in Ms Thompson-Flores’ appointment in detail at a time when she was positioning to be a candidate to be UN Secretary-General”

Paragraph 12.5 sets out the Defendant’s case as to the alleged truth of meaning (1):

“Having regard to the above and in particular:

12.5.1

the Claimant’s aforesaid role in enabling Ms Thompson-Flores to apply for and obtain the BSP post (despite her transparently unqualified status) and her failure to report the conflict of interest which arose as a consequence to UNESCO’s Ethics Office;

12.5.2

the Claimant’s aforesaid role in enabling Ms Thompson-Flores previously to apply for and obtain the DHR post and her failure to report the conflict of interest which arose in that context to the Ethics Office;

12.5.3.

the Claimant’s aforesaid action and inaction in relation to the serious disciplinary issues to which Ms Thompson-Flores’ conduct gave rise; and

12.5.4

the Claimant’s unjustifiable decision formally to withdraw the IOS Information Report into those matters and the conduct of herself and Ms Thompson-Flores in that context;

there are reasonable grounds to suspect the Claimant of dishonest preferment in the appointment of Ms Thompson-Flores to the BSP post.”

Lord Garnier QC contends that paragraphs 9-12 should be struck out in their entirety as being incapable of proving the truth of meaning (1). He submits that the facts relied upon fail to specify adequately or at all what is said to be conduct of the Claimant that gives reasonable grounds to suspect her of fraud. In particular, he contends that it fails to identify any element of personal gain or advantage for the Claimant. In the alternative, he raises specific points of challenge to paragraphs 12.3.1 – 12.3.3 as impermissibly speculating as to the factual position in support of a defence of reasonable grounds to suspect and puts the burden of the Claimant to disprove one or other of the hypothetical factual scenarios.

Mr Caldecott QC contends that “fraud” in meaning (1) must be seen in the context of that meaning as a whole. It is specifically linked to the conduct of the Claimant in relation to the appointment of Ms Thompson-Flores to the BSP post. He submits that “dishonest preferment”, if proved, should be accepted as a sufficient justification of meaning (1), because “fraud” takes its meaning from the context. In relation to the absence of an alleged financial gain, Mr Caldecott QC submits that the ‘benefit’ to the Claimant was that it secured the appointment of her preferred candidate.

In my judgment (subject to one point – see [72]), paragraphs 9-12 are permissible and I refuse to strike them out.

Although it will ultimately be a matter for trial, applying the principles in [28] above, I accept Mr Caldecott’s broad submission that the matters pleaded, if they are proved to amount to “dishonest preferment” are capable of proving the substantial truth of meaning (1). It is important to assess the pleaded case as a whole. On their own, the circumstances that led to Ms Thompson-Flores being appointed Director of the Bureau of Human Resources may not have been capable of proving the truth of the allegation, but it is arguable that the case becomes stronger with the addition of the facts relating to the BSP post and then the treatment of the IOS Report.

I do not consider that the alternative hypotheses relied upon in paragraph 12.3.2 ([59]) impermissibly cast the burden onto the Claimant to disprove facts. This is not a case of two options, where (a) leads to a conclusion that incriminates the Claimant but (b) does not. The Defendant’s case is that whichever of the scenarios is correct, it adds weight to the pleaded case as a whole.

In relation to objections under Ground 1(C) (i) to (x) (Appendix B), the arguable force of the pleaded facts is not that, at the time, the Claimant knew various matters or did various things, but that by the end of the process, the Claimant must have recognised that Ms Thompson-Flores had acted in conflict of interest. The fact that, on the Defendant’s case, Ms Thompson-Flores was then able to act in largely the same way in relation to the BSP post is capable of giving rise to a suspicion that the Claimant was content with this.

The balance of the objections in Ground 1(C) directed at these paragraphs of the Amended Defence appear to me to be arguments as to the weight to be attached to the various facts that are alleged. They are not a basis on which the Court should strike them out at this stage.

Objectively judged, it is arguable that the actions of the Claimant taken as a whole are capable of providing reasonable grounds to suspect dishonest preferment of Ms Thompson-Flores. I do not consider that the absence of a pleaded direct gain for the Claimant is material. If the facts are proved, it may well give rise to the inference that the motivation of the Claimant was at least some benefit that she perceived.

Even had I considered that they were liable to be struck out as particulars of truth, I would have allowed the Defendant to rely upon them in potential mitigation of damages (applying the principles in [29]). In Tesco Stores Ltd -v- Guardian News & Media Ltd [2009] EMLR 5 Eady J stated ([56]) that “one has to be very careful as a judge at this stage of proceedings in shutting out matters which may be arguable in the context of Burstein and the principles it expounds: see, e.g. Birchwood Homes Ltd -v- Robertson [2003] EWHC 293 (QB).” The matters relied upon by the Defendant, even if they were ultimately not held to prove the substantial truth of meaning (1), are so closely connected with the Claimant’s conduct in relation to the appointment of Ms Thompson-Flores to several posts in UNESCO that, in my judgment, there would be a real risk of the Court assessing damages in blinkers if the evidence were excluded. What mitigating effect (if any) they have would be a matter to be assessed at trial. It would be wrong to strike them out now.

I will, however, strike out part of paragraph 12.2.2 as a breach of the repetition rule. It is permissible for the Defendant to contend that Ms Thompson-Flores was unqualified for the BSP post; it is not permissible to rely upon the fact that the IOS Report concluded that she was. In consequence, the words “as an internal investigation…” to “… (‘the IOS Information Report’) that” will be struck out. The definition of the IOS Information Report will need to be re-inserted later in the pleading.

The propriety of the Claimant’s family finances

Paragraphs 13-27 of the Amended Defence are divided up into four further sections: (i) the Republic of Azerbaijan; (ii) the ‘Azerbaijan Laundromat’; (iii) the Claimant’s husband and the Azerbaijan Laundromat; and (iv) the Claimant’s property acquisitions. They are relied upon to support the plea of truth in respect of meaning (4). Largely, they seek to provide the grounds upon which to suspect that the Claimant had used “tainted monies” in respect of the transactions identified.

Mr Caldecott QC summarises the Defendant’s case advanced in these paragraphs as follows.

Paragraphs 22.3 and 24.3 of the Amended Defence are pleaded in the following terms:

“22.3

There are reasonable grounds to suspect that the Claimant knew at all material times of the nature of her husband’s consultancy work in Azerbaijan and the provenance of the money which he received as a consequence, not least given:

22.3.1

The duration, logistical complexity and intensity of that work according to the description given on Mr Mitrev’s own account;

22.3.2

The work which Mr Mitrev claimed to have undertaken on the Kura-Aras programme must, by its nature, have necessitated regular visits to the country;

22.3.3

The very substantial contribution which that work made to her family’s income between at least 2012 and 2014;

22.3.4

The Claimant’s obligations, including under the express terms of the Standards at Paragraph 9.3 above, to ensure that familial financial interests did not conflict with her role as an employee of UNESCO and therefore to keep herself fully informed about her husband’s business activities, particularly in the context of Azerbaijan given:

(a)

The Claimant’s own close involvement with that country, including meetings and visits at which Mr Mitrev also attended in person (as to which Paragraph 15 above is repeated);

(b)

Azerbaijan’s international reputation for extravagant and improper international lobbying (referred to at Paragraph 14 above).

22.3.5

Mr Mitrev’s corresponding obligation to keep his wife informed about the same, given the nature and obligations of her office as Director-General of UNESCO;

22.3.6

Mr Mitrev’s refusal to answer pointed questions posed by journalists for the Berlingske newspaper as to whether the Claimant was aware of the said payments;

22.3.7

Spouses engaging in very substantial spending (including joint purchases of the magnitude of the property acquisitions referred to at Paragraphs 25 and 26 below) would be expected to discuss the nature and provenance of their combined assets and the potential sources of the required funding. Moreover, the Claimant was obliged to do so here in order to identify actual or possible conflicts of interests with her position as UNESCO Director-General; and

22.3.8

The Claimant’s personal involvement in the oversight of her family’s financial investments (including, specifically, matters relating to the properties which she and Mr Mitrev have acquired), a reality which is apparent from an entry on the French Commercial Court Registry Agency which confirms that:

(a)

On 1 January 2016, the Claimant established a company in her married name: ‘Madame Irina Mitrev’;

(b)

The said company’s trading activity is defined as ‘rental housing’ and the company address is said to be 11, Place Vauban, 75007, Paris 7.”

24.3

The said payments were made on behalf and/or at the behest of the individuals associated with Azerbaijan Government to Mr Mitrev to the Claimant’s knowledge and in order to solicit the favourable political, diplomatic and cultural influence which the Claimant could exert internationally on Azerbaijan’s behalf as a consequence of her visible public profile and platform as UNESCO Director-General. In further support of this suspicion, the Defendant will rely on Paragraph 22.3 above and the following facts and matters:

24.3.1

It is apparent that the Core Laundromat Companies were used by the Azerbaijan government and its associates as a ‘slush fund’ and that many substantial payments which were made from them were to remunerate individuals and entities who were publicly and politically supportive of Azerbaijan’s interests on the international stage and/or who were prepared to issue statements which were sympathetic to President Aliyev’s government. For instance, substantial payments were made from the Core Laundromat Companies to:

[particulars are given of 4 entities or individuals alleged to have received payments for such activities]

24.3.2

Several of the payments to Mr Mitrev took place from the same Core Laundromat Company bank account and on the same day as payments to the individuals at Paragraph 24.3.1 above. For instance: [particulars are given]

24.3.3

Even allowing for the acknowledged desire for UNESCO to work and maintain good relations with its member states, the support and assistance which the Claimant has offered to Azerbaijan generally, and the President and First Lady in particular, on both an official and personal level during her time as Director-General is very notable, not least given Azerbaijan’s dire record on issues such as human rights, democratic reform and freedom of expression (values which UNESCO was established to safeguard and promote as an organisation). In addition, her support is also of a piece with the similar support and public endorsement which the individuals referred to at Paragraph 24.3.1 above made whilst receiving remuneration from the Azerbaijani state (including through payments made through the Core Laundromat Companies).

24.3.4

Both the Kura-Aras programme and similar emergency relief and reconstruction efforts aimed at mitigating the effect of a devastating 2012 earthquake in the Zadatala and Baleken regions of Azerbaijan have been beset by allegations of official corruption and widespread misappropriation of funds. In this regard:

(a)

The budgets for both the Kura-Aras and Zadatala earthquake relief programmes were managed and overseen by the MES and, in particular, by Kamaleddin Heydarov, the Minister of Emergency Solutions and Civilian Defence (a hugely powerful oligarch within Azerbaijan and a long-time close associate of the Aliyev family).

(b)

A substantial proportion of the AZN 450 million budget which was originally allocated to the MES for use on the Kura-Aras programme never reached its intended recipients, many of whom have been forced to bring legal complaints against the MES before both the Azerbaijan national courts and also the European Court of Human Rights as a consequence.

(c)

Mr Heydarov and his family have played an integral role in co-ordinating and financing Azerbaijan’s programme of international lobbying. For instance, his son, Taleh Heydarov, established and manages the European Azerbaijani Society (TEAS), a lobby group whose work aims to promote the political and cultural aspirations of Azerbaijan on the international stage, including by funding lavish trips for foreign politicians and influential individuals to Azerbaijan and luxury stays at hotels owned by the Heydarov family.

24.3.5

As noted at Paragraphs 19.6 and 19.7 above, two attempted payments were rejected by Credit Suisse ‘due to sensitivities’ (a term which, it is inferred, reflected concern on the bank’s part that the provenance and nature of the payments was ostensibly suspicious and potentially contrary to its due diligence and proceeds of crime protocols and which serves to undermine Mr Mitrev’s public position that there was no basis to impugn the legitimacy of payments which had been channelled to him through the Core Laundromat Companies).

24.3.6

Had the Claimant referred her husband’s business activities in Azerbaijan to UNESCO as an actual or possible conflict of interest as she was obliged to do, these matters would, or should, have been the subject of a full investigation.

24.3.7

Despite promising to do so, UNESCO’s media office has failed (it is inferred on the instructions of the Claimant) to answer the Defendant’s reasonable requests for clarification as to which of the Claimant’s visits to Azerbaijan (including those referred to under Paragraph 15 above) were undertaken with Mr Mitrev also in attendance.

Lord Garnier QC contends:

In answer, Mr Caldecott QC argues (using the same sub-paragraphs):

Save for some specific issues identified below, I reject the Claimant’s application to strike out paragraphs 13-27 of the Amended Defence. Largely, I accept Mr Caldecott QC’s submissions.

The starting point is that the meaning that has to be proved to be substantially true is that there are reasonable grounds to suspect the Claimant has used tainted monies to purchase the Manhattan properties and help her son to pay off a mortgage. Mr Caldecott QC accepts that the Defendant must also prove knowledge on the part of the Claimant; i.e. if the Claimant had no knowledge of the provenance of the funds then the meaning would not be defamatory of her. The particulars relied upon must therefore provide objective grounds upon which to suspect that the funds were tainted (and known to be so by the Claimant).

Although necessarily detailed and to some extent complicated, the nub of the Defendant’s case is that her husband received very large payments from the 4 Azerbaijan Laundromat companies; funds from the same source – described in the pleading as a “slush fund” – were used to “remunerate individuals and entities who were publicly and politically supportive of Azerbaijan’s interests on the international stage” (paragraph 24.3.1); the Claimant’s husband’s explanation that these were payments for consultancy services was not credible; he had refused to answer questions about the payments; and the Claimant had “engaged in significant and visible displays of public support for Azerbaijan’s ruling regime” (paragraph 15). From the particulars provided, the Defendant’s case as to the substantial truth of meaning (4) is summarised in paragraph 24.1 – 24.3:

“In the circumstances, the Defendant will contend that there are reasonable grounds instead to suspect that:

24.1

Mr Mitrev did not in fact undertake consultancy work for Avuar-Co in respect of the Kura-Aras programme and that his public explanation to the contrary at Paragraph 21 above was an attempt to evade legitimate enquiries which have been raised about the true provenance and propriety of those payments.

24.2

In the circumstances, there was no proper commercial explanation for the payments to be routed from Azerbaijan through the Core Laundromat Companies.

24.3

The said payments were made on behalf and/or at the behest of the individuals associated with Azerbaijan Government to Mr Mitrev in light of his familial proximity to the Claimant’s knowledge and in order to solicit the favourable political, diplomatic and cultural influence which the Claimant could exert internationally on Azerbaijan’s behalf as a consequence of her visible public profile and platform as UNESCO Director-General.”

If those matters are substantially proved at trial then, in my judgment, they are capable of proving that there are reasonable grounds to suspect that the monies used in the Manhattan property transactions were tainted, and that the Claimant – because she was married to the Mr Mitrev and aware of the payments from the Azerbaijan Laundromat companies – would have had sufficient knowledge that they were.

At the hearing, I was concerned that paragraph 23.4.1, and in particular its reliance on what are alleged to be payments to 4 people or entities from a ‘slush fund’ to remunerate them for their actions in publicly and politically supporting of Azerbaijan, was objectionable on the basis that it introduced a potentially significant factual dispute which had only limited relevance to the particulars of truth. Where the potential cost of investigating factual issues is disproportionate to their importance to the truth defence, the Court can justifiably exclude the issues on case management grounds. However, Mr Caldecott QC has satisfied me that, at this stage, the Court should not strike out the paragraph. I accept that, if the Defendant can establish that this ‘slush fund’ was used to remunerate others who provided valuable service to the promotion of Azerbaijan, this is an important element upon which the grounds to suspect case is founded.

There is one paragraph in the particulars of truth need that will require amendment if it is to be relied upon. Paragraph 22.3 pleads that “there are reasonable grounds to suspect that the Claimant knew at all material times the nature of her husband’s consultancy work in Azerbaijan and the provenance of the money which he received as a consequence”. What is required is for the Defendant to establish that the Claimant did know (not that there were grounds to suspect) about her husband’s alleged consultancy work in Azerbaijan. It is the proof of these facts that – with the other particulars relied upon – provide the ultimate grounds upon which to suspect that the monies were tainted. If the Claimant had no knowledge of the payments to her husband, then it is difficult to see how the Defendant’s case could succeed in demonstrating the objective grounds to suspect that the funds were tainted and known to be so by the Claimant. I will strike this paragraph out. It will be for the Defendant to decide whether and how the pleading can be amended to reflect this. It may be as simple as amending the introduction of paragraph 22.3 to say: “It is to be inferred that the Claimant knew...”, but I will leave that to the Defendant to decide.

I reject the complaint that the conduct rule prohibits the Defendant from relying upon transactions and payments relating to the Claimant’s husband. It is an essential part of the defence that the Defendant establish the circumstances of these transactions. Properly understood, therefore, there is no breach of the conduct rule. Even if there were, then the fact that they relate to transactions of the Claimant’s husband means that there is a sufficient nexus for the particulars to provide an arguable basis on which the suspicion could be founded. I am satisfied that, taken as a whole, the particulars are capable of demonstrating conduct of the claimant that gives rise to the suspicion that the monies paid to her husband were tainted and that she knew they were.

I do not accept the criticism that the Defendant is running two contrary cases. The case advanced in paragraph 22 is that, even if Mr Mitrev’s account that he was carrying out legitimate consultancy work was accepted, the funds were still tainted because of what is alleged to be a very clear conflict of interest given the Claimant’s “vocal personal support” for President Aliyev and the Azerbaijan regime as Director General of UNESCO. This is an alternative case (and it might perhaps be regarded as weaker), but the Defendant is entitled to advance it under its defence of truth.

Paragraph 24.3.5 will be struck out for the reason given by Lord Garnier QC. It might be a material averment if the Claimant had known that the two payments had been rejected, as a basis upon which objectively to suspect that the funds were tainted, but without that this paragraph is a way of seeking to introduce an indirect statement by Credit Suisse that the transactions were suspicious which offends the repetition rule. If Mr Caldecott QC is right that there are other primary facts are pleaded which provide grounds for suspecting that the payments were improper, then there is no need to rely upon the implied statement that they were by Credit Suisse. The references to the rejection of these transactions by the bank in paragraphs 19.6 and 19.7 will also be struck out.

I decline to strike out paragraphs 22.3.6, 24.3.6 and 24.3.7 on the grounds that the matters relied upon post-date the publication. Mr Caldecott QC is correct that where continued publication is relied upon those publications that post-date the events are admissible as grounds to suspect from that date. This does raise theoretical problems of the admissible evidence changing as time moves on, but in this case these paragraphs could hardly be regarded as adding much to the existing particulars and so the problem is unlikely to present any real issue.

The Claimant’s support for controversial regimes and projects which are at odds with UNESCO’s core values

Ostensibly, paragraphs 31-32 of the Amended Defence were directed at supporting the Lucas-Box meaning (6), which I have struck out. However, Mr Caldecott QC submits that the Defendant should be allowed to rely upon them because they also support the case that the Claimant has given “notable and vocal support for the regime of President Aliyev in Azerbaijan” which is a plank of the defence advanced to prove the substantial truth of meaning (4) (see above). I accept that submission, although that justifies retention of only paragraph 32. Paragraph 31 is tied directly to the struck out meaning and will itself be struck out. For the structure and intelligibility of the Amended Defence, consideration should be given to moving the facts alleged in paragraph 32 to paragraph 15 (to which cross-reference is made).

The public criticisms of the Claimant’s governance and transparency contained in the Department for International Development’s Multilateral Development Review

Paragraph 36 relies upon allegedly ‘grave concerns’ expressed in a DfID review in December 2016 which are said to have “reflected directly on the competence and credibility of the Claimant’s leadership and governance” of UNESCO.

This paragraph will be struck out. First, it is reliance upon not primary facts, but on a report of the alleged facts. That would be prohibited by the repetition rule in a defence of truth. There is no difference in principle when the matters relied upon in purported mitigation of damage are sought to be established as facts (even if those facts were admissible in mitigation of damages under Burstein). Second, insofar as the paragraph seeks to rely upon the fact that the Claimant has been exposed to published criticism elsewhere that has been damaging to her reputation, then the principle in Dingle -v- Associated Newspapers Ltd[1964] AC 371 prevents it. Either way, the paragraph is impermissible.

All of the proposed amendments to the Defence which survive the rulings above have been agreed, bar one. The Defendant wishes to add the following paragraph to the Defence dealing with publication:

The objection to this amendment is that “the words were not in the form of reinstating what was originally in the Online Article, but amount to a new allegation and a re-writing of the Online Article”.

I will allow the amendment. There appears to be no dispute as to what was changed, it is a dispute as to how that should be described. That is a matter for submission.

Appendix A – referred to in paragraph 19 of the judgment