The Applicants were two undercover journalists working for The Sunday Times and the newspaper’s publisher, Times Newspapers Ltd. On 15 March 2012 the journalists had a meeting with the Respondent, who was the then Treasurer of the Conservative Party, during which they posed as representatives of international financiers considering making a donation to the Conservatives. The meeting was videotaped by the journalists, and four articles were published in The Sunday Times on 25 March 2012 as a result.
The Respondent brought a libel and malicious falsehood claim against the journalists in respect of the whole of the first two, and most of the third, published articles. The articles carried ‘two strands of allegations’, namely the ‘cash for access’ strand and the ‘foreign donations’ strand. The meaning of the words complained of was determined in June 2013 as a preliminary issue, first by Tugendhat J ( EWHC 1427) and then on appeal ( EWCA Civ 748). (See para 3 of the permission hearing judgment where the versions are set out in full).
At trial by judge alone, the Applicants relied on a justification defence. This was rejected by Tugendhat J, and £180,000 was awarded to the Respondent by way of damages. Tugendhat J also found the malicious falsehood claim made out (on the basis that the journalists were malicious, knowing that the allegations were false in the meanings which they knew them to bear and having a dominant intention to injure the respondent), although there was no separate award of damages for this.
The Applicants were refused permission to appeal on the papers in November 2013, and made a renewed oral application for permission to appeal. In accordance with the direction of the Court, the Respondent submitted a written response to the application and attended the hearing.
Permission to appeal granted.
The ‘cash for access’ allegation
The Judge appeared to have proceeded on the basis that if it was shown that the Respondent went no further than was contemplated by the Conservative Party literature on donations, the defence of justification was simply not available. The Applicants’ position was that the Respondent had indeed acted contrary to the party line on donations, and was prepared to contemplate the receipt of donations in return for the prospect of commercial advantage through secret meetings with politicians which was itself ‘inappropriate, unacceptable and wrong’, whatever the rights and wrongs of the Conservative policy were. (para 10 and 11)
The Applicants had to show a better than fanciful prospect of persuading the Court that the judge went wrong on the facts to a radical degree. This was a hard test but the Court noted some ‘singular features’ of the case. This included that the Applicants, in their meeting with the Respondent, had made it clear that their interest was entirely commercial. On the Applicants’ case, these approaches had not been rebuffed, but rather had been encouraged by the Respondent. The Court concluded that this was enough to justify permission to appeal in relation to the cash for access allegation. “He [the Applicants’ counsel] may well face formidable difficulties; but I have an uneasy sense that the judge may not, despite his painstaking treatment of the case, have confronted the realities of the exchange on 15 March 2012.” (para 16)
The ‘foreign donations’ allegation
There was also an uphill task in relation to the foreign donations allegations, and the Court would not have granted permission to appeal on this aspect alone. However, there was force in the submission that if the Applicants gained a ‘fair wind’ on cash for access, that might affect the court’s approach to the Respondent’s attitude to the means of getting cash into this country from foreign donors. Permission to appeal was therefore granted in relation to this part of the case also. (para 17)
The malicious falsehood claim
Similarly, the Court would not have granted permission to appeal on the malicious falsehood claim alone. However, it could not be fanciful to suppose that if the Applicants’ case was good on the cash for access allegation, that might have an important influence on the malice charge. Further, the finding of actual malice was a serious matter even though no damages were awarded in respect of it. Permission to appeal against the conclusions on malicious falsehood was accordingly granted. (para 18)
The only point on which permission would not be granted was the judge’s findings as to the likelihood of pecuniary damage for the purposes of s.3 Defamation Act 1952 in respect of the malicious falsehood claim. (para 19)
The judgment is available here.