The Court of Appeal has allowed in part the Defendants’ appeal against a decision of Tugendhat J in which he had found for the Claimant in a claim for libel and malicious falsehood. The award of damages has been reduced from £180,000 to £50,000. Jackson LJ gave the only judgment, with which the other Lords Justices (Ryder LJ and Christopher Clarke LJ) agreed.
The Defendants/Appellants were Times Newspapers Ltd, and two undercover journalists working for The Sunday Times. On 15 March 2012 the journalists had a meeting with the Claimant/Respondent, who was then the 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 Claimant brought a claim for libel and malicious falsehood in respect of the whole of the first two, and most of the third, published articles. The articles carried two strands of allegations, 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). In respect of ‘cash for access’, the single meaning, for the purposes of libel, did not involve any imputation of criminal corruption, but since a number of reasonable readers might have read the articles in that way, the Claimant was entitled to rely on that more serious imputation in his claim for malicious falsehood: Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd  QB 497 followed. In respect of ‘foreign donations’, there was no difference between the meanings in libel and malicious falsehood.
At trial in July 2013 ( EWHC 2298), Tugendhat J rejected the defences of justification, and held the Defendants liable in both libel and malicious falsehood. He awarded £180,000 in damages for libel (including £15,000 by way of aggravated damages). There was no separate award for the malicious falsehoods. The Judge granted a permanent injunction and ordered the Defendants to pay the Claimant’s costs, including costs on the indemnity basis for a certain period of the proceedings.
The appeal in relation to ‘cash for access’ succeeded, both in libel and malicious falsehood. The Judge’s decisions in respect of ‘foreign donations’ were upheld. Damages were reduced to £50,000 (including £7,000 by way of aggravated damages) and the injunction granted at trial was discharged in part. The costs order below was also varied, with the Defendants now being liable to pay 50% of the Claimant’s costs at first instance on the standard basis. The Claimant was ordered to pay two thirds of the Defendants’ costs of the appeal.
‘Cash for Access’ – libel
The Court considered the transcript of the 15 March 2012 meeting and concluded that the Claimant was effectively saying to the journalists that, if they donated large sums to the Conservative Party, they would have an opportunity to influence Government policy and to gain unfair commercial advantage through confidential meetings with the Prime Minister and other senior ministers. Having reviewed the law and practice governing donations to political parties, the Court concluded that this conduct was unacceptable, inappropriate and wrong. Therefore, for the purposes of the libel action, the ‘cash for access’ allegation was substantially true.
‘Cash for Access’ – malicious falsehood
It was accepted that the imputation of criminal corruption was false. The journalists realised that some cynical readers would understand the articles to carry that false imputation. This, however, was not sufficient to support a finding of malice. Having considered Horrocks v Lowe  AC 135, Loveless v Earl  EMLR 530, and Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd  QB 497, Jackson LJ said at :
“In my view, if (a) an article has one correct meaning which is true but is susceptible to a second incorrect interpretation by some cynical readers which is untrue, (b) the author intends the article to convey its correct meaning but foresees that some cynical readers will place upon it the incorrect interpretation, then that does not constitute malice for the purpose of malicious falsehood.”
So far as ‘cash for access’ was concerned, Jackson LJ therefore rejected the Judge’s conclusion that the journalists had had a dominant intention to injure the Claimant: . At  he added:
“A defendant should only be liable for malicious falsehood if the falsehood represents one of the possible correct meanings of the defendant’s words and the defendant intended to convey that falsehood.”
‘Foreign Donations’ – libel
The Court held that the Judge had been plainly correct to reject the defence of justification in respect of the ‘foreign donations’ allegations. Further, s5 of the Defamation Act 1952 did not avail the Defendants, because the Claimant had been falsely accused of countenancing a specific criminal offence (a breach of s61 of the Political Parties, Elections and Referendums Act 2000) whereas the ‘cash for access’ allegation (for the purposes of libel) did not amount to an allegation of criminality. Therefore the ‘foreign donations’ allegations materially injured the Claimant’s reputation, despite the fact that the ‘cash for access’ allegation was true.
‘Foreign Donations’ – malicious falsehood
The Judge had held that the journalists knew the Articles bore the ‘foreign donations’ allegations and knew them to be untrue. He had also made findings about a number of other matters which supported his conclusion that the journalists were malicious in relation to these allegations. The Court of Appeal considered that there was no basis for overturning these findings, nor, it followed, the Judge’s decision on malicious falsehood in respect of the ‘foreign donations’ allegations.
The Court considered that the Judge’s award of general damages should be treated as comprising £100,000 in respect of ‘cash for access’ and £65,000 in respect of ‘foreign donations’. The court then reduced the £65,000 damages attributable to the ‘foreign donations’ allegations by £22,000, because the Claimant had been shown to be someone who had not conducted himself properly when talking to potential donors about the rewards available in return for political donations. This diminished the damage that the Claimant had suffered by reason of the false ‘foreign donations’ allegations: Pamplin v Express Newspapers Ltd  1 WLR 116 applied.
No complaint could now be made about the way in which the Defendants had conducted their defence of the ‘cash for access’ allegation. Accordingly, the award of aggravated damages should be reduced from £15,000 to £7,000.
The judgment is available here.