Partial truth, common sting and alternative meanings: Polly Peck, Hore-Lacy and Lucas-Box

Most defamation cases are fought over meaning before they are fought over truth. The plaintiff pleads the imputations, that is the defamatory meanings, said to be conveyed by the publication. The defendant may think the publication meant something less serious, or that several allegations share a single sting that can be proved even if each individual detail cannot. Whether and how a defendant can plead and justify its own version of the meaning has produced a line of cases with memorable names: Polly Peck, Lucas-Box and Hore-Lacy.

This article is more technical than most in this library. It explains what each doctrine does, how the High Court and the state appellate courts have treated them, why New South Wales differs from Victoria and Queensland, and why the 2021 amendment to the contextual truth defence has made much of the debate less important in practice.

The starting point: the plaintiff’s imputations

Under the uniform defamation legislation the cause of action is the publication of the defamatory matter, not each imputation, but imputations remain the currency of pleading. The justification defence in s 25 of the Defamation Act 2005 is directed at “the defamatory imputations carried by the matter of which the plaintiff complains”.¹ The plaintiff therefore frames the case, and the defendant’s task in the first instance is to prove that the plaintiff’s imputations are substantially true.

The plaintiff is not held rigidly to the pleaded words. In Chakravarti v Advertiser Newspapers Ltd the High Court accepted that a plaintiff may rely at trial on a meaning that is comprehended in, less injurious than, or a mere variant of the pleaded meaning, provided the defendant is not unfairly disadvantaged; a substantially different meaning, or one resting on a different factual basis, is another matter.² Kirby J put it this way: a more serious allegation will generally be taken to include a less serious one unless the less serious allegation is of a substantially different kind, and no complaint can arise where additional imputations found represent nothing more than nuances or shades of meaning of those pleaded.²

That flexibility for plaintiffs is the foundation of the Hore-Lacy doctrine for defendants, discussed below.

Lucas-Box: pleading the meaning to be justified

The English Court of Appeal decided in Lucas-Box v News Group Newspapers Ltd in 1986 that a defendant who wishes to rely on justification must make clear the case it is seeking to set up and must state clearly and explicitly the meaning it seeks to justify, if that meaning differs from the plaintiff’s.³ The principle is one of fairness: the plaintiff must know what case it has to meet.

Australian courts apply the same rule wherever a defendant is permitted to justify a meaning of its own. In David Syme & Co Ltd v Hore-Lacy, Charles JA said that if the defendant indicates an intention to justify a meaning different from those relied on by the plaintiff, it should be required to state what that meaning is, with the necessary particulars of the facts on which the justification is based.³ A defendant cannot simply deny the plaintiff’s meanings and lead evidence of some other version of events at trial.

Polly Peck: the common sting

In Polly Peck (Holdings) plc v Trelford, also decided in 1986, the English Court of Appeal held that a defendant was entitled to plead that, in their context, the words complained of were true in any meaning the jury could find they bore, and that where a publication contained several defamatory allegations with a common sting, and the plaintiff complained of some but not all of them, the defendant was entitled to justify that sting.³ The plaintiff could not, on this approach, pick out the one allegation that could not be proved and sue on it in isolation.

The High Court of Australia was unreceptive. In Chakravarti, Brennan CJ and McHugh J described the Polly Peck approach as contrary to the basic rules of common law pleading, said it would in many contexts raise issues which can only embarrass the fair trial of the action, and rejected the proposition that a defendant may justify a common sting by joining otherwise severable defamatory allegations.² Charles JA in Hore-Lacy summarised the criticisms: the practice allows the defendant to raise false issues and can unfairly prevent a plaintiff from pursuing a claim.³

The result is that Polly Peck in its full form is not applied in Australia. A defendant cannot answer a claim about one allegation by proving the truth of a different allegation on the basis that both carry a common sting. What the defendant can do instead is rely on the contextual truth defence, discussed below, which was designed to deal with exactly this situation in a controlled way.

Hore-Lacy: justifying a variant meaning

David Syme & Co Ltd v Hore-Lacy was a 2000 decision of the Victorian Court of Appeal. The majority declined to follow Polly Peck but recognised a narrower principle. Because a plaintiff can succeed at trial on a meaning that is a nuance or variant of the pleaded meaning, not substantially different and not more serious, fairness requires that the defendant be allowed to plead and justify such a meaning too.³ Ormiston JA explained that the plaintiff should be kept within the broad confines of the complaint, while the defendants would be able to say that the articles have a not more serious and not substantially different meaning which they are able to justify on the facts.³ Charles JA added that limiting the defendant to a meaning on which the plaintiff could itself go to the jury raises no false issue; the issues are instead identified and confined.³

A Hore-Lacy plea therefore has three limits. The defendant’s meaning must not be substantially different from the plaintiff’s, must not be more injurious than the plaintiff’s, and must be pleaded with particulars in the Lucas-Box manner. It is a tool for a defendant who says the publication meant something slightly less serious than the plaintiff alleges, and who can prove that slightly less serious meaning.

The split between New South Wales and other states

Whether a Hore-Lacy plea survived the enactment of the uniform legislation in 2005 has been answered differently in different states.

In Victoria, the Court of Appeal held in Setka v Abbott that it did. The majority concluded that Hore-Lacy justification can be pleaded in a proceeding under the Defamation Act 2005 (Vic), preferably as a common law defence preserved by the Act, or otherwise as an available pleading in a s 25 defence.⁴ The court described the permissible plea as one directed to a meaning that a jury, properly instructed, might find to be a variant or nuance of the imputations pleaded by the plaintiff, or comprehended by them, and which is no more injurious than the plaintiff’s imputations.⁴

In Queensland, Daubney J followed Setka v Abbott in Baboolal v Fairfax Digital Australia and New Zealand Pty Ltd, holding that the position in Queensland is different from New South Wales because there are no rules of court or pleading rules in Queensland which affect the common law position, and refusing to strike out a Hore-Lacy plea.⁵

In New South Wales, the Court of Appeal reached the opposite conclusion in Fairfax Media Publications Pty Ltd v Bateman. The majority held that the Uniform Civil Procedure Rules require a justification defence to specify the plaintiff’s imputations to which it is pleaded, that nothing in the rules permits a defendant to plead its own version of the plaintiff’s imputations, and that the premise on which Hore-Lacy was founded was not engaged given the practice and procedure in New South Wales.⁶ Macfarlan JA observed that a defendant whose alternative meanings are truly to the same effect as the plaintiff’s is adequately protected by its ability to submit that the evidence establishes the substantial truth of the plaintiff’s imputations, and that where its meanings differ in substance the appropriate vehicle is contextual truth under s 26.⁶ McColl JA dissented.⁶

The Judicial Commission of New South Wales summarises the position as being that the Hore-Lacy variant of justification is unavailable in New South Wales but available in most other states and territories.⁷ The Full Courts of Western Australia and South Australia accepted pleas of this kind in decisions that predate the uniform Act.¹⁵ There is no appellate decision in terms under the uniform Act in Tasmania or the territories, and practitioners there generally proceed on the basis that Setka v Abbott represents the common law unless local rules of court provide otherwise.

The Federal Court now hears a significant share of defamation trials. Its pleading requirements are found in the Federal Court Rules 2011 and the Defamation Practice Note rather than in any state’s rules, so the reasoning in Bateman, which turned on the New South Wales rules, does not automatically apply. Whether a variant meaning may be pleaded in a particular Federal Court proceeding is a matter to be assessed against those rules and the case management directions made, and a defendant intending to run such a plea should raise it early.

How contextual truth now does the work

The practical importance of all of this has diminished since 1 July 2021. The original s 26 allowed a defendant to rely only on contextual imputations that were “in addition to” those the plaintiff pleaded, which the New South Wales Court of Appeal in Besser v Kermode held meant imputations different in substance from the plaintiff’s.⁸ A plaintiff could neutralise the defence by pleading every imputation the publication conveyed.

The amended s 26 removes that restriction. Section 26(2) makes clear that the contextual imputations a defendant relies on may include imputations the plaintiff also complains of.⁹ As the Federal Court observed in Al Muderis v Nine Network Australia Pty Ltd, a defendant may now rely on any imputations carried by a publication, whether the same as, permissible variants of, carrying a common sting with, or entirely different in substance from, the imputations of which the plaintiff complains.¹⁰

That language deliberately occupies the ground the Polly Peck and Hore-Lacy doctrines were designed to address. A defendant who can prove the serious allegations in a publication, but not a lesser one, no longer needs to argue that the lesser one shares a common sting, or that its own variant meaning should be substituted for the plaintiff’s. It pleads the serious allegations as contextual imputations, proves them, and asks the court to find that the unproven lesser imputation does no further harm.⁹ The court’s focus in that assessment is on the facts proved rather than on the wording of the competing imputations.¹¹

The doctrines still matter at the margins. In Victoria and Queensland a Hore-Lacy plea remains a way for a defendant to meet a plaintiff’s exaggerated version of the meaning head on, rather than through the “no further harm” test. In Western Australia, where the original s 26 still applies, the limits identified in Besser v Kermode remain and a defendant’s ability to plead its own meanings is correspondingly more important.¹²

Partial justification and damages

Where a defendant proves some but not all of the plaintiff’s imputations, and the contextual truth defence does not succeed, the plaintiff recovers damages only in respect of the harm caused by the imputations the defendant failed to prove. The New South Wales Court of Appeal in Besser v Kermode, construing the original s 26, listed partial justification among the courses open to a defendant under the Act: to the extent the defendant fails to prove all the imputations, it may rely on those proved to be true in mitigation of damages.⁸

Evidence led on a justification or contextual truth defence that fails is not disregarded. In Holt v TCN Channel Nine Pty Ltd the Court of Appeal confirmed that evidence properly before the court on another issue, including a failed truth defence, may be taken into account in assessing damages, provided it relates to the relevant sector of the plaintiff’s reputation.¹³ Section 38 of the Act lists particular mitigating factors but expressly does not limit the matters a court can take into account in mitigation.¹⁴

Practical pleading points

For a defendant, the sequence is usually this. First, decide whether the plaintiff’s imputations can be justified under s 25 as pleaded, bearing in mind that substantial truth means proving the sting rather than every detail. Second, if the publication conveys other, more serious imputations that can be proved, plead them as contextual imputations under s 26 with full particulars. Third, in Victoria or Queensland, consider whether a Hore-Lacy variant of the plaintiff’s meaning should also be pleaded, with Lucas-Box particulars. Fourth, in every jurisdiction, make sure the particulars of truth are capable of proving the imputations they are directed to, because courts strike out particulars that are not.

For a plaintiff, the choice of imputations should be made with the amended s 26 in mind. Outside Western Australia, it is no longer a safe strategy to sue on a narrow, hard to prove imputation while ignoring the serious and true parts of the publication.

Getting advice

These doctrines operate at the pleading stage, and errors there are expensive to correct. Which meanings are pleaded, by whom and in which jurisdiction, can determine the result before any witness is called. Advice on the framing of imputations and defences, taken before the pleadings close, is usually the most cost effective advice in a defamation case.