Law Report: Newspaper can be sued for malicious falsehood: Joyce v Sengupta and another - Court of Appeal (Sir Donald Nicholls, Vice-Chancellor, Lord Justice Butler-Sloss and Sir Michael Kerr), 31 July 1992

A plaintiff who had more than one cause of action against a defendant was not obliged to pursue the one which seemed most appropriate. Thus if claims were available in both defamation and malicious falsehood, the plaintiff was entitled to pursue the malicious falsehood claim, for which legal aid was available, and not the defamation claim, for which it was not, even though the defendants were thereby deprived of an automatic right to trial by jury.

The Court of Appeal allowed an appeal by the plaintiff, Linda Joyce, against the decision of Gilbert Gray QC, sitting as a deputy High Court judge on 12 December 1990, to strike out, as an abuse of the process of the court, her statement of claim for damages for malicious falsehood against the defendants, Kim Sengupta, chief crime correspondent of Today, and News (UK) Ltd, the newspaper's publishers. The court also granted the plaintiff leave to amend her claim.

Geoffrey Robertson and Andrew Nicol (Stephens Innocent) for the plaintiff; Desmond Browne QC and Heather Rogers (Theodore Goddard) for the defendants.

SIR DONALD NICHOLLS V-C said the plaintiff's claim concerned an article by Mr Sengupta, published in the newspaper on 25 April 1989. It was headed 'Royal Maid Stole Letters' and clearly referred to the plaintiff, who was then employed by the Princess Royal as a lady's maid. The article asserted that she had stolen her royal employer's intimate letters and handed them to a national newspaper, that she had since been ordered not to go into rooms where there might be confidential papers and that she had been or was about to be dismissed.

The article was grossly defamatory and one might have expected libel proceedings to follow. But the plaintiff did not have the money to pursue such a claim, and legal aid was not available for defamation proceedings: see Legal Aid Act 1988, Schedule 2, part 2, paragraph 1.

Nothing daunted, the plaintiff's advisers formulated a claim for malicious falsehood, a different cause of action with different ingredients, for which legal aid was available and was obtained. But the judge struck it out on the ground that a case of defamation had been forced into the ill-fitting garb of an action for malicious falsehood. The case could not be pleaded properly as malicious falsehood because it was in essence a libel claim.

The plaintiff's case was that the article contained serious untruths about her and that it had been published maliciously: the defendants were recklessly indifferent about the truth or falsity of the allegations. She claimed damages and an injunction against repetition.

The difference between defamation and malicious falsehood was as follows. The remedy provided by law for words which injured a person's reputation was defamation. But words might injure a person without damaging his reputation. The remedy for this was malicious falsehood, sometimes called injurious falsehood or trade libel.

Falsity and malice were essential ingredients of this tort. Proof of financial loss was also essential at common law, but the rigour of this requirement had been relaxed by Section 3 of the Defamation Act 1952. The false statement might or might not also be defamatory. The fact that it was would not exclude a claim for malicious falsehood, though a plaintiff could not recover damages twice for the same loss.

It was plain as a pikestaff that, had legal aid been available, this would have been a straightforward defamation action. If so, the plaintiff would not have had to prove malice, but the defendants would have had to prove the truth of the assertions if they relied on the defence of justification.

One consequence of the action being a claim for malicious falsehood and not defamation was that there was no absolute right to a trial by jury.

The defendants argued that trial by jury in defamation actions was a constitutional right of newspapers, and that they were deprived of this legitimate juridical advantage in the present action because it was based on a 'secondary tort', which had only been relied on to secure a collateral purpose (legal aid) unrelated to the merits of the claim.

His Lordship could not accept that submission. The concept of a 'legitimate juridical advantage' came from the field of conflict of laws, in disputes over which country's court a case should be determined in, and had no place in wholly domestic proceedings.

English law had marked out causes of action on which plaintiffs might rely. Many overlapped. A plaintiff might have claims in both tort and breach of contract, for example. Usually, he pursued all available causes of action, but he did not have to and could choose one to the exclusion of others. He was not obliged to pursue the most appropriate remedy, at the risk of having his claim otherwise struck out.

Besides, the plaintiff was not seeking to avoid trial by jury, which she did not oppose, and which in any case the court had a discretion to order.

The defendants also submitted, inter alia, that the claim was an abuse because the plaintiff would only recover nominal damages and the amount would be wholly out of line with the huge costs each side would incur. The action was 'economic lunacy'.

In his Lordship's judgment, this was a hopeless submission. The plaintiff's main purpose was to clear her name, and even if the damages she recovered were small, she was entitled to pursue such a claim. In reality, the defendants were unhappy that she had obtained legal aid. But that was a matter for the Legal Aid Board, not the court. Lord Justice Butler- Sloss and Sir Michael Kerr agreed.

Paul Magrath, Barrister