Subject: Landmark Decision in Mclibel
Appeal Date: Jan 4, 1994
"It is a landmark decision which has particular importance to media defendants and investigative journalism. It may well serve as a bulwark of free speech." From the "Solicitor's Journal", (British Legal Journal) 1/4/94
Defamation: LANDMARK DECISION IN MCLIBEL APPEAL
Two environmentalist campaigners being sued for libel by the McDonalds fast food chain have won a landmark decision over the use of the defense of fair comment, and justification in libel cases. Lord Justice Neill, sitting with Lord Justices Steyn and Peter Gibson, overturned the requirement that 'clear and sufficient evidence' is required before a plea of justification or fair comment can be put on the record.
They introduced a new test for determining whether defense witness statements can be struck out before trial. Last November Mr Justice Bell struck out part of the witness statements of environmentalists Dave Morris and Helen Steel which supported their claims about the use McDonalds had made of the rainforest. He did so on the basis that they did not disclose 'clear and sufficient evidence' to support what was pleaded. This would have prevented them from using the statements at trial. But the Court of Appeal ruled that the witness statements should not be struck out. The practice of requiring clear and sufficient evidence to support pleas of justification of fair comment is inadequate because, if applied literally, it would impose an unfair and unrealistic burden on the defendant. Lord Justice Neill said: "The defenses of justification and fair comment form part of the framework by which free speech is protected." In considering whether evidence is available or is likely to be available to prove allegations, regard may be had to all of the different forms of evidence on which the defendant may be entitled to reply at trial. This will include evidence contained in documents disclosed by the plaintiff on discovery, answers to interrogatories, evidence on subpoena and evidence elicited from the plaintiff or the plaintiff's witnesses in the course of cross examination. The Court of Appeal did, however, emphasize that a plea of justification or fair comment should not be put lightly or without careful consideration of the evidence available.
Richards Butler partner Michael Skrein, who acted for the defendants as part of the pro bono scheme being operated by Liberty (British ACLU), told Solicitor's Journal: "It is a landmark decision which has particular importance to media defendants and investigative journalism. It may well serve as a bulwark of free speech." Andrew Puddephatt, general secretary of Liberty said: "No longer can individuals who wish to sue for libel keep documents which may be valuable to the defense from the court." Lord Justice Neill ruled against the defendants' appeal to secure a trial by jury, asserting that scientific evidence concerning nutrition would be too complex for a jury to understand.