Sheldon Gary Adelson v. Kate O'Keeffe

HCA 342/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO. 342 OF 2013

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Before: Deputy High Court Judge Leung in Chambers

Date of Hearing: 28 August 2013

Date of Decision: 12 August 2014

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D E C I S I O N

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1.This is a defamation action. Before me are the applications by the plaintiff to strike out part of the defence and by the defendant to amend her defence.

THE CLAIM

2.The plaintiff is a businessman.  He is the founder and chairman of Las Vegas Sands Corp (“LVS”), a public company listed on the New York Stock Exchange, and Sands China Limited (“SCL”), a company listed on the Hong Kong Stock Exchange.  The companies operate casino business in Las Vegas and Macau respectively.

3.The defendant is a journalist, who writes materials for, among others, the publications of the Dow Jones Group including the Wall Street Journal, The Wall Street Journal Asia and The Wall Street Journal Europe.

4.The claim arises out of an article under the headline “Fired Executive Rankles Casino Industry” published in the US edition of The Wall Street Journal on 6 December 2012.  The defendant was one of the co-authors.  Similar articles were published in the Asian and European editions of The Wall Street Journal on the following days.

5.They all contained the following paragraph, which is the one in question, as set out in the statement of claim:

“In some ways, Mr Jacobs, a 6-foot-5-inch-tall Ivy League graduate who colleagues say rarely curses, couldn’t be more different from Mr Adelson – a scrappy, foul-mouthed billionaire from working-class Dorchester, Mass ……”[1]

6.The Mr Jacobs referred to in the articles used to be the Chief Executive of Sands Casino Macau, who was dismissed in July 2010.  He has filed a wrongful termination lawsuit against the plaintiff in Nevada, USA, in 2010 (“the US Lawsuit”).  According to the articles, the allegations in the lawsuit spawned the US bribery investigations into LVS and SCL and the casino business in Las Vegas and Macau.

7.The plaintiff has the following contentions:

(1)   The description of him as “foul-mouthed” is defamatory and untrue[2].  In the context of the article, the description meant or was understood to mean that he, in his office as the chairman of his companies, used in business meetings when addressing colleagues and subordinates (i) obscure, profane, or scurrilous language; (ii) abusive, blasphemous, coarse and offensive language; (iii) rude and lewd language[3].

(2)   This was libel, which became more damaging as it was published to the readers, who are predominately members of the business community worldwide, with the intention of disparaging him in his office as chairman of his companies[4].  All those impact on the reputation and standing of the companies and their capitalisation[5].

8.The plaintiff claims injunctive relief and damages, which includes aggravated, exemplary and special damages.

THE DEFENCE

9.In defence, the defendant has the following contentions:

(1)   The plaintiff was selective in suing her, notwithstanding the fact that she was one of the named co-authors of the article[6] and that there was another named contributor to the article.

(2)   The reference to “foul-mouthed” in the article was not understood or capable of being understood to bear any meaning defamatory of the plaintiff[7].

(3)   In any event, the description was true in substance and in fact[8].

(4)   Further or alternatively, the description was a fair comment in the context of the article on matters of public interest[9].

(5)   The plaintiff has a reputation for “bullying” person, and in particular representatives of the press; and the present proceedings were brought out of his ulterior motive[10].

(6)   In the event that the defendant is liable, she alleges various instances of facts in mitigation of any damages[11].

THE APPLICATIONS

10.By summons dated 23 May 2013, the plaintiff applies to strike out paragraphs 13, 14(1) to (9), 15, 16, 17 and 24.2 of the defence.  The essence of these paragraphs is set out in paragraphs 9(2) to (6) above. 

11.During the adjournment of the summons for argument, the defendant sought to amend her defence.  Failing to obtain consent of the plaintiff, she took out the summons on 14 August 2013 for leave to amend those paragraphs of the defence under attack.

12.Mr Chow SC for the plaintiff accepts that with the amendments, it becomes unnecessary for his client to pursue parts of the striking out application; and in those cases, the remaining issue will be one of costs.  His client opposes some of the proposed amendments.

THE PRINCIPLES

13.The order for striking out will be made only in clear and obvious case.  Amendment should be allowed if it is relevant and necessary for the just resolution of the dispute.  In arguing that the proposed amendments should not be allowed, the plaintiff effectively suggests that had such proposed amendments been part of the existing defence, they would have been liable to be struck out as well.

§13 of the defence

14.By this paragraph, the defendants denies the term “foul-mouthed” in the articles was understood or capable of being understood to bear any meaning defamatory of the plaintiff.

15.The plaintiff complains about the last sentence of the paragraph:

“The Defendant will rely, inter alia, on the subsequent media reports of these proceedings (including the particulars under paragraph 14(8) below) to demonstrate that the term complained of has not been understood to bear or be capable of bearing any meaning defamatory of the Plaintiff.”

16.Where it is the natural and ordinary meaning of the words being complained of, no evidence is admissible to show what the words mean or are capable of meaning or whether they are defamatory: see Gatley on Libel and Slander (11^th ed) at §§34.25; 35.30; 35.39.  This sentence is objectionable.

17.The defendant now proposes to delete this sentence.  Mr Chow confirms that this part of the application becomes unnecessary.

§14 of the defence

18.§14(1) to (9) are instances of other publications and documents in court proceedings pleaded by the defendant in support of the defence of justification.

19.By the proposed amendments, all of them will be deleted[12].  Mr Chow confirms that those parts of the summons will not be pursued.

20.In place of the particulars under the original §14(1) to (9), the defendant now proposes to plead 8 instances in justification of the description of the plaintiff as “foul-mouthed”.  Mr Chow has no objection to the pleading of 4 of them, namely, §14(2), (4), (7) and (8).  In dispute are the following:

§14(1)

The plaintiff allegedly verbally abused a synagogue Rabbi in Las Vegas in 1999 to the extent that the Rabbi was reduced to tears.

§14(3)

The plaintiff allegedly used foul language, as particularised, in the conversation with the Nevada Governor during a dinner in Hong Kong in 2002.

§14(5)

The plaintiff allegedly launched an abusive tirade against his former security staff and personal driver in March 2011, which caused the latter to resign.

§14(6)

The plaintiff was allegedly discourteous, rude and arrogant during a US court deposition taken by a law firm Campell & Williams in 2006.

21.Mr Chow’s major criticism is that unlike the proposed new §14(2), (4), (7) and (8), the proposed new §14(1), (5) and (6) fail to set out the words allegedly used by the plaintiff which are said to support the allegation that he is “foul-mouthed”.

22.Mr Chow submits that it is no answer by suggesting that particulars could always be provided subsequently, when one is seeking leave to amend: see Perak Pioneer Ltd v Carrian Holdings Ltd, CACV 59/1985 (13 June 1985) at page 5, per Fuad JA, which was cited in Heeson Development Ltd v Tang Ki Fan Tso, HCA 5584/1998 (30 September 2013) at §10, per Chu J (as she then was).  There is no argument in respect of the above authorities as far as the general principles are concerned.

23.In the context of the present action, the actual words allegedly used by the plaintiff are part of the primary facts.  Nevertheless, does the lack of them therefore render the pleading so bad or so vague that it will be embarrassing to expect the opponent to answer?  I tend to think not.

24.Those instances are pleaded in justification of the term “foul-mouthed” in the defamatory meaning as alleged by the plaintiff[13]. To say that the plaintiff berated (in §14(1)) or launched an abusive tirade (§14(5)) or was rude (§14(6)) against certain person fits the kind of language referred to in the defamatory meaning alleged by the plaintiff.  The identities of the persons involved, the occasions and the time are set out.  That the actual words used are not set out arguably does not render the case that the plaintiff has to meet vague or embarrassing.  Apparently the plaintiff even managed to obtain an affidavit from one of those persons named for the purpose of the present application (as will be discussed below).  The circumstances differ from the cases cited above by Mr Chow, which were not in a similar context.

25.Mr Chow also submits that a plea of justification should not be lightly made.  The defendant is expected not only to believe  that the words complained of are true, but also to support the plea at trial with reasonable evidence or reasonable grounds to suppose that sufficient evidence will be produced to substantiate the plea: see Gatley at §29.5.  The plaintiff seeks to rely on further affidavits, notice of which was given to the defendant just less than a week before the hearing.

26.The instance pleaded under the proposed new §14(1), according to the original pleading, was apparently based on reports in 2 articles in 1999 and 2008.  Now the plaintiff managed to obtain an affidavit from the Rabbi in question who confirms that the plaintiff did not make him cry on the occasion.

27.As to the proposed new §14(3), the plaintiff seeks to rely on an affidavit of the (former) Governor of Las Vegas referred to, who deposed that he has not been to Hong Kong since mid-1980s; and was not at any dinner in Hong Kong in 2002 with the plaintiff or anyone else.  Nor has he heard the plaintiff use the kind of language in front of him on any occasion.

28.The proposed new §14(1) and (3) plead the incidents as fact.  It will be for the defendant to prove them.  Mr Chow submits that the defendant has not responded positively as to what contrary evidence she will be producing in these respects.  I do not hold that against the defendant, in view of the fact that the plaintiff informed the defendant of the new affidavits just less than a week before the hearing.  Further, for the present purpose, I view the newly obtained evidence as simply heightening the factual dispute between the parties. Whether the defendant manages to prove the alleged facts at trial does not determine whether the allegations could be made in pleading: see the reminder of Neill LJ in McDonald’s Corp v Steel [1995] 3 All 615 (referred to in footnote no.20 to Gatley at §29.5 cited by Mr Chow).

29.I therefore allow the proposed amendments.

§15 of the defence

30.§15 repeats the defence of justification. 

31.The same particulars pleaded under the existing §14(1) to (9) are relied on.  With their removal as mentioned above, Mr Chow also confirmed that this part of the summons will not be pursued.

32.As to the proposed amendments, Mr Chow opposes the introduction of §15.2[14].  However, Mr Yu indicated at the hearing that his client will not pursue that for the time being, without prejudice to her seeking to introduce that in the future.

§16 of the defence

33.By this paragraph, the defendant raises the alternative defence of fair comment on a matter of public interest.

34.The public interest element is said to lie with development from the US Lawsuit which spawned the US regulatory investigations into the gaming industry in the US and Macau.  §16(1) to (4) essentially say that.  §16(5) then explains that the term “foul-mouthed” was used to contrast the temperament of the plaintiff and Mr Jacobs, which is said to set the stage for those developments.

35.§16(6) refers to the particulars pleaded under §14(1) to (8) mentioned above and (at least) 10 sources from whom the defendant allegedly learned about incidents in which the plaintiff had used foul language in their presence; and that the term “foul-mouthed” was a truthful description of the plaintiff.  The defendant therefore says that the term was a fair comment in the context of the article.

36.The defendant now proposes to delete §16(5) and reference to the particulars under the original §14(1) to (8).  In place of them, she proposes the following new paragraphs:

§16(5)

The plaintiff has sought for himself a reputation in the eyes of the public to be a man of noble character and a philanthropist (as pleaded in the statement of claim).  The term complained of, in context, is relevant to such reputation and therefore in the public interest.

§16(6)

The term complained of, in context, was used to describe the character, personality, disposition and style of the plaintiff and hence a comment.

§16(7)

The term complained of, in context, clearly indicates that the factual basis for the comment was the plaintiff’s general behaviour in respect of language.

§16(8)

Reliance is placed on the incidents pleaded under the proposed §14(1), (5) and (6) mentioned above and the (at least) 10 sources of information pleaded under the original §16(6) mentioned above.  The proposed new §15(2) is also referred to; but as mentioned, is now withdrawn from the proposed amendments.

37.The proposed new §16(5) together with existing §16(1) to (4) forms the basis for the alleged public interest element.

38.In his submissions, Mr Chow focuses not so much on the public interest element but more fundamentally on the fair comment. He relies on Cheng v Paul Tse (2003) 3 HKCFAR 339.  The major issue before the final court in that case was whether malice could deprive a defendant of the defence of fair comment.  Lord Nicholls NPJ set out (at 347C-348A) what were said to be non-controversial matters about the well established ingredients of the defence of fair comment.  What Mr Chow submits above in this respect is based on the 2^nd and the 4^th ingredients of the defence as set out by his lordship, namely:

(1)   The comment must be recognisable as comment, as distinct from an imputation of fact.

(2)   The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made.  The reader or hearer should be in a position to judge for himself how far the comment was well founded.

39.Mr Chow submits that Cheng is binding on this court.  In the present case:

(1)   the term “foul-mouthed” is not recognisable as comment as distinct from an imputation of fact; and

(2)   the underlying facts relied on in support of the defence of fair comment are not indicated in the articles.

40.On the other hand, Mr Yu submits that the term complained of in the present case was an opinion and comment expressed by the defendant.  Hence the proposed new §16(6) of the defence.  For the defence of fair comment, the term in context, he submits, clearly indicates the factual basis for the comment, namely, the plaintiff’s general behaviour in respect of language.  Hence the proposed new §16(7) of the defence.

41.Mr Yu relies on Kemsley v Foot [1952] AC 345, Cheng v Paul Tse (2003) 3 HKCFAR 339 and Joseph v Spiller [2011] 1 AC 852, the last one being decision of the UK Supreme Court.  Mr Yu submits that Lord Nicholls’ formulations in Cheng were obiter, which were doubted and qualified by the UK Supreme Court in Joseph.  Further, the case of Kemsley, which was not considered in Cheng, is a case directly on the point here.

42.In Joseph, Lord Nicholls’ propositions were indeed said (at §98) to be obiter.  That may be understood in the sense that those were set out as non-controversial matters and therefore not specifically argued before the final court here.  But the present applications are not going to be decided eventually by reference to the binding authority of Cheng as opposed to the reference value of Joseph.

43.A statement may be fact or comment, depending on the context.  Mr Yu argues whether this issue is a question of fact that should be left to the jury. Nevertheless, for the purpose of the present applications, I am asked to consider whether the term is capable of being a comment[15]; and perhaps more importantly, whether it is clearly and obviously one way or the other.

44.Lord Nicholls NPJ cited the illustrative example given by Ferguson J in the New South Wales case of Myerson v Smith’s Weekly (1923) 24 SR (NSW) 20 at 26:

“To say that a man’s conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things and that his conduct was dishonourable is a statement of fact coupled with a comment.”

45.In Joseph, Lord Phillips (at §5) considered that the above example merited elaboration. His lordship considered that the example is not a simple statement of fact but a comment coupled with an allegation of unspecified conduct upon which the comment is based.  However, his lordship acknowledged that for such a comment, the defence of fair comment does not run.  The defendant must prove the existence of facts that justify his comment.  This is also what Mr Chow submits to be a bare comment.

46.Lord Phillips then (at §§87-89) described the development of common law in respect of a general or bare comment; and found that the defence of fair comment could not be invoked in relation to a comment that inferred that the claimant had conducted himself in some unspecified discreditable way.  The courts have always held that the only defence to a bare comment which infers the existence of discreditable conduct but does not identify it is justification.

47.So Lord Nicholls and Lord Phillips did not differ in that for imputation of fact or bare comment, the available defence is justification (or perhaps privilege in an appropriate case) but not the defence of fair comment.  The arguments of counsel, as I understand, boils down to whether the term complained of, in the articles in the present case, was such mere assertion of fact or, albeit comment, comment inferring the existence of discreditable conduct without identifying it.  That depends on the extent of facts upon which the comment was based that has to be identified by the comment.

48.Lord Phillips continued his discussion (at §§92-105).  He first referred to Kemsley, which, as mentioned, was not cited in Cheng.  In Kemsley, an article was published under the heading “Lower than Kemsley” criticising the conduct of a newspaper unconnected to him.  On appeal from the application to strike out the defence of fair comment on the ground that no facts appeared in the article to support the statement, the House of Lords (at 356, per Lord Porter) decided that in order to admit the plea of fair comment, it was unnecessary that all the facts on which the comment was based should be stated in the alleged libel.

49.Lord Phillips described Kemsley as a difficult case to analyse.  At the end, whilst his lordship concluded that Lord Nicholls’ 4^th proposition (above) could not be reconciled with Kemsley, each observation he considered was obiter.  But his lordship found no case in which a defence of fair comment has failed on the ground that the comment did not identify the subject matter on which it was based with sufficient particularity to enable the reader to form his own view as to its validity.  Having said that, his lordship acknowledged that the cases have emphasized the requirement that the comment should identify the subject matter on which the comment is based.  The comment must identify at least in general terms what it is that has led the commentator to make the comment, so that the reader can understand what the comment is about.  If challenged, the commentator can give particulars of the subject matter of his comment why he expressed the views he did.  On this basis, his lordship would rewrite this proposition of Lord Nicholls’ as following;

“……the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based.”

50.Also relevant to how to approach the questions is the importance of the freedom of speech and expression in both Cheng (at 345, per CJ Li) and Joseph; and in the latter case, Lord Phillips stressed (at §104) that a fair balance must be struck between allowing a critic the freedom to express himself as he will and requiring him to identify to his readers why it is that he is making the criticism.

51.In the examples of “dishonourable conduct” quoted by Lord Nicholls in Cheng, or the examples of “disgrace to human nature” or “disgrace to the profession” referred to by Lord Phillips in Joseph, they were but bare comment about conduct, which the reader has no way of understanding what about the person’s conduct that led to such comment.  In the present case, it is at least arguable that the term “foul-mouthed” carries with it, at least implicitly and generally, the reference to the plaintiff’s use of foul or bad language to others.  This was specified in the articles to be different from the case of Mr Jacobs, his opponent in the US Lawsuit, whom his colleagues allegedly described to rarely curse.  In such context, it is not plainly and obviously that the term complained of was mere factual imputation or bare comment about the plaintiff without any specification of the conduct under criticism.  Nor is it obvious that the reader would have no idea what the subject matter of the comment about the plaintiff is about.  Arguably the proposed new §16(7) is not plainly tautological, as Mr Chow argues.

52.I allow the amendments.

§17 of the defence

53.By this paragraph, the defendant denies the alleged libel and the alleged considerable distress and embarrassment so caused to the plaintiff.

54.In this context, the defendant pleaded alleged instances of the plaintiff’s reputation for “bullying” person, and in particular representatives of the press whom he perceives as his opponents or potential opponents, as well as his ulterior motive in bringing these proceedings against the defendant.

55.§17.1(1) of the defence refers to 8 other defamation lawsuits commenced by the plaintiff over the past 7 to 8 years.  It says:

“Full particulars (which will be known to the Plaintiff) can be provided at trial if and as necessary.”

56.He who pleads reliance on instances of fact must do so with necessary identification and particulars. Pleading that the instances would be within the knowledge of the opponent is objectionable.  So is the pleading that particulars will be provided only at trial and if necessary.

57.§17.1(2) and (3) of the defence refer to the articles in which the writers expressed their views on the defamation suits commenced by the plaintiff, of which §17.1(2) actually refers to the present action.  On their face, those instances may be relevant for the purpose of the alleged reputation of the plaintiff.

58.§17.1(4) refers to the alleged telephone call by the PR representative of LVS enquiring whether the defendant would be removed from covering LVS and SCL as a consequence of her being named as a defendant in the present action.  It was an alleged fact, but does not go to establish the alleged reputation.

59.With the proposed amendments, §17.1(2) to (3) are removed; and Mr Chow confirms that this part of the application will not be pursued.

60.The defendant now re-drafts §17.1.  The allegation in respect of the “bullying” reputation is removed, leaving behind the allegation that the present action was actuated by ulterior motive.  Now it reads:

“the Plaintiff’s history of filing defamation suits indicates that this action was actuated by the ulterior motive pleaded in paragraph 17.2 of this Defence below.”

61.In support, the defendant retains §17.1(1), though the number of past litigations is reduced from 8 to 6.  §17.2 is retained with (i) added reliance on §11 (namely, that the plaintiff selectively sues her) and (ii) the particulars under the original §17.1(4) above under this subparagraph.  These make up the particulars of the allegation of ulterior motive of the plaintiff in commencing the present action.

62.Mr Yu argues that it is premature to conclude that the jury should not take into account those past litigations as the same could be relevant to the alleged ulterior motive of the plaintiff in commencing the present action.  He relies on Eastern Express Publisher Ltd v Mo Man Ching (1999) 2 HKCFAR 264.  In that case, the plaintiff was complaining about the statement by the defendants that every time other people mentioned about the plaintiff, the plaintiff would sue, which was akin to frightening people into keeping their mouths shut.  In issue was such alleged defamatory meaning of the statement.

63.In the present case, the reference to the other past defamation lawsuits brought by the plaintiff is made here in support of her contention that the commencement of the present action was actuated by ulterior motive; and hence, according to the defendant, in support of her denial of the alleged considerable distress and embarrassment as a result of the defendant’s defamatory description of him in the articles.  The context in which the past lawsuits are said to be relevant differs from Eastern Express Publisher Ltd.

64.The mere fact that the plaintiff has brought other defamation lawsuits in the past 7 to 8 years could not found the allegation that the present action was actuated by ulterior motive.  Without identification and particulars of those actions, including the circumstances in which those lawsuits were brought, what transpired during them and their outcomes, the fact that those lawsuits were brought tells no pattern or feature suggesting ulterior motive.  As mentioned, the plea that those litigations were known to the plaintiff and that the particulars could be provided at the trial if necessary adds to the objection.

65.§17.1(1) is not improved by the proposed amendment and therefore remains objectionable. The allegation that the present action is actuated by ulterior motive as pleaded in the amended §17.2 may remain, whereas the references to of §17.1 and 17.1(1) may not.  Mr Chow has no objection to the proposed amended §17.2.

§24.2 of the defence

66.§24 sets out the facts relied on in mitigation of the amount of damages claimed by the plaintiff.

67.§24.2 refers to the alleged general bad reputation of the plaintiff, the particulars of which are those set out under §14(1) to (8), §16, §17.1 and §17.2 as mentioned above.  §24.3 refers to the contextual background in which the article was published, the particulars of which are again those set out under §14(1) to (8) and §16.  The plaintiff takes issue as to §24.2, not §24.3.

68.In mitigation of damages, it is permissible to show that the plaintiff has a bad reputation but only in that sector or sphere of his character or life to which the libel is directed is admissible: see Gatley at §§35.30 to 35.33; Plato Films v Speidal [1961] AC 1090.  §24.2 of the existing defence simply pleads the plaintiff’s general bad reputation in mitigation of the damages.  Mr Chow criticises that.  I agree such plea is bad as a matter of law.

69.With the proposed amendments, the defendant effectively merges §24.3 into §24.2, which now becomes reference to the plaintiff’s reputation in the directly relevant background context.  Mr Chow accepts that whilst the tuned pleading addresses the above complaint, it is still objectionable because of the particulars sought to be relied on.

70.By the proposed amendments, the defendant now incorporates what used to be the particulars pleaded under §14(1) to (6) of the original defence (now deleted) as particulars under this subparagraph:

§24.2(1)

An article dated 27 December 1999 in the Las Vegas Review-Journal reporting how the plaintiff had verbally abused the synagogue Rabbi.  The incident was also reported by another in the New Yorker dated 30 June 2008.

§24.2(2)

The US judge presiding in the family dispute of the plaintiff in his decision of the Superior Court of Massachusetts observed the display of deplorable rancor, bad feelings and loutish behaviour of all the parties.

§24.2(3)

A report in the Bruck Profile of a meeting between the plaintiff and the director of Brookings Institution’s Saban Center for Middle East Policy in late 2007 during which the plaintiff berated the director for hosting terrorists.

§24.2(4)

An article in the Review-Journal dated 14 June 2011 reporting the lawsuit by the plaintiff’s former security staff and personal driver, who resigned after an alleged particularly abusive tirade by the plaintiff.

§24.2(5)

An article in Las Vegas Sun dated 2 October 2011 reporting the plaintiff’s application for a contempt order against the law firm Campell & Williams for airing of a 2006 video showing the plaintiff’s deposition in US court proceedings; and video was said to depict the plaintiff as a petulant, rude and dictatorial witness.

§24.2(6)

A deposition of the plaintiff in the US Lawsuit on 23 October 2012, in which he allegedly used foul language.

71.In addition, references to the particulars pleaded under the existing §16, 17.1 and 17.2 remain.  They were discussed above.

72.Evidence of bad reputation of a person is admissible, but not evidence of specific acts of misconduct in that person’s life which are said to have given rise to his bad reputation: see Scott v Sampson (1882) 8 QBD 491 and Hobbs v Tinling [1929] 2 QB 491.

73.In practical terms, evidence can be called to testify as to the person’s reputation in the relevant sphere of his character to which the libel relates. But no evidence (in chief) can be elicited as to the specific acts or conduct in that person’s life which gave rise to such reputation: see Gatley at §§35.37-35.38.

74.The court has since considered and applied the evidential prohibition laid down in Scott, which is now not absolute.  What were apparently specific acts of misconduct of the claimant have been held to be admissible in mitigation of damages.  That was not contradiction of the evidential prohibition as such; but admission of such evidence for a specific reason, namely, the specific facts were directly relevant to the contextual background in which the defamatory publication came to be made: see Burstein v Times Newspapers Ltd [2001] 1 WLR 579; Turner v News Group Newspapers Ltd & Anor [2006] 1 WLR 3469; Excel Concrete Limited v The Concrete Producers Association of Hong Kong Limited & Ors, HCA 938/2011 (18 July 2013) at §§41-47, per DHCJ Marlene Ng.

75.Facts or evidence are admissible if they are relevant to the subject matter of the libel or the claimant’s reputation or sensitivity in that part of his life that there would be a real risk of the jury assessing damages on a false basis.  But the defendant does not have to show a causal link between the facts or evidence sought to be adduced and the publication of the libel: see Burstein; Turner; and Excel Concrete (above).  The balancing exercise must be case specific: see Excel Concrete Limited at §65.

76.The traditional evidential prohibition, as explained by the subsequent authorities, was largely predicated on practical concern about case management.  As acknowledged in the authorities, the court nowadays is better equipped in this respect.  Meanwhile, the court should still be cautious in the determination and guard against too creatively the concept of “directly relevant background context”: see Turner; Excel (above).

77.Are the particulars relied on by the defendant under the proposed amendments to §24.2 specific facts directly relevant to the contextual background, as now pleaded by the defendant?  I will not say that they plainly are not.  It should also be noted that some of the particulars under the proposed new §24.2 actually overlap with those in support of the defence of justification under the new §14.

78.As to the proposed amendment to §24.2(3), the plaintiff has no objection.

CONCLUSION

79.No order needs to be made in respect of §§1, 2, 3, 4, 5 and 7 of the summons for striking out.  I allow the amendments proposed to §§13, 14, 16 (which relates to §6 of the plaintiff’s summons), 17.2 (save and except the references to §17.1), 24.2 and 24.3 of the defence as per the draft defence. Amended Defence to be filed in 7 days as requested.

80.The parties reserve their submissions on costs.  Apparently, there should be the issues of the costs of the application for striking out, the application for amending the defence, the costs of the hearing of the applications and the costs occasioned by the amendments allowed.  Unless the costs are resolved by consent, the plaintiff shall lodge and serve succinct submissions in this respect within 14 days; and the defendant shall do so within 14 days thereafter.  Unless otherwise directed, costs shall be decided on paper.

Mr Anderson CHOW SC, instructed by Deacons for the plaintiff

Mr Benjamin YU SC ad Mr Bernard MAN, instructed by Clifford Chance for the defendant