The Defence of Common Sting (Polly-Peck, Hore-Lacy and Lucas-Box)

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The term ‘common sting’ or ‘defamatory sting’ in defamation law refers to claims where a publication made contains multiple defamatory statements, and each statement carries the same meaning in that the imputations conveyed are not separate and distinct[1]. In such circumstances, the publication will be held to provide a ‘common sting’ as opposed to conveying multiple, separate ‘stings’.

Where it can be established that a publication provides a common sting, depending on that factors that otherwise apply with respect to each individual publication, the courts have recognised three defences that a defendant may be able to rely on in defence of the publication made:

  1. The Polly Peck Defence;
  2. The Hore-Lacy Defence; or
  3. The Lucas-Box Defence.

This article outlines the main elements required in order to establish each of the defences and the main differences between them.

Common Sting Generally

Where the concept of common sting applies, the imputations that can be derived from the publication as said to be conveyed as a whole, and accordingly, may equally be justified by the defendant as a whole[2]. Where the plaintiff has limited a claim to a specific part of a publication, and the publication when read as a whole can be said to carry one common sting, the defendant may justify that common sting by treating it as one distinct ‘issue of complaint’[3].

Determining whether the imputations conveyed by a particular publication can be said to carry one common sting or whether they are separate and distinct from one another will be a matter of assessing fact and degree based on the facts that apply in each individual case[4]. In circumstances where the imputations are found to be based on similar fact evidence, the defendant will generally be in a position to plead common sting[5].

In the case of Khashoggi v IPC Magazines Ltd[6], the plaintiff claimed she had been defamed when the defendant published that her marriage had dissolved because she had had an affair with a friend. The court held that the common sting of the article was that the plaintiff was promiscuous, and whether she had had an affair with one person as opposed to another person would not further defame her character beyond that common sting.

There are three main cases in Australian defamation law that have been particularly influential with respect to the concept of common sting and its application and effect:

  1. Polly Peck (Holdings) plc v Trelford [1986] QB 1000[7];
  2. David Syme & Co Ltd v Hore-Lacy [2000] 1 VR 667[8]; and
  3. Lucas-Box v News Group Newspapers [1986] 1 WLR 147[9]. 

These three cases have generated what has come to be known as the ‘Polly Peck Defence’ (also referred to as the ‘Polly Peck Pleading’), the ‘Hore-Lacy Defence’ (also referred to as the ‘Hore-Lacy Pleading’), and the ‘Lucas-Box Defence’ (also referred to as the ‘Lucas-Box Pleading’).

The Polly Peck Defence

The infamous UK case of Polly Peck (Holdings) v Trelford[10]established the highly controversial ‘Polly Peck Defence’.

In Polly Peck[11], the plaintiff brought a claim for defamation against the defendant based on a number of articles published in a newspaper. The plaintiff’s pleadings specifically complained about certain defamatory matters contained in the articles published, but not the publications as a whole. The defendant pleaded the defence of justification, but in its defence, the defendant relied on certain matters contained in the publications that the plaintiff had not, in fact, included in its own pleadings. The defendant justified the inclusion of the additional matters pleaded on the basis that the articles had a “common sting” in that the articles may have raised numerous defamatory imputations, but when the publication was considered as a whole, all the imputations had at least one common ‘sting’ or imputation arising from them.

The court held that where a publication contains two or more separate and distinct defamatory statements, the plaintiff is entitled to select one statement for complaint, and the defendant will not be able to assert the truth of the other statements contained in the publications by way of justification. Accordingly, in the Polly Peck case, the Polly Peck Defence failed.

The Polly Peck Defence may be applied in circumstances where the plaintiff has failed to sufficiently particularise the imputations complained of the imputations are not sufficiently separate and distinct from one another, and the imputations have the effect of providing a common sting.

There has been serious criticism of the application of Polly Peck Defence in Australian defamation law. In the High Court case of Chakravarti v Advertiser Newspapers[12], Chief Justice Brennan and Justice McHugh stated in their joint judgement that the pleading of justification to a meaning or statement that has not, in fact, been raised by the plaintiff in the plaintiff’s pleading does not provide a good defence as such a defence would breach the principles of pleadings and would therefore cause issues in practice[13].

In line with the decision in Chakravarti[14], the Polly Peck Defence is widely held as being largely impermissible at common law due to its conflicting nature with respect to general common law practices of pleadings[15]. With the further implementation of the national, uniform defamation laws in Australia in 2005, the defence of contextual truth appears to have prevailed over the Polly Peck Defence[16].

The Polly Peck defence was initially rejected in Queensland primarily because of the centrality of the requirement under the now superseded Defamation Act 1889 (Qld) for a plaintiff seeking to bring a claim for defamation to expressly plead the imputations complained of. Although the imputations themselves were not held as being the main cause of action under the Defamation Act 1889 (Qld), the term “defamatory matter” was defined by reference to the imputations pleaded, and according to the court in Robinson v Laws[17], it was the “invariable practice” for plaintiffs in Queensland defamation cases to particularise the meanings upon which they relied[18].

Except in very limited and confined circumstances, the Polly Peck Defence has largely been discarded as an applicable defence in most Australian states.

The Hore-Lacy Defence

The Hore-Lacy Defence is similar to the Polly Peck Defence in many aspects. However, contrary to the Polly Peck Defence, the Hore-Lacy Defence is largely regarded as a more applicable defence in most jurisdictions in Australia, notwithstanding that there is still some debate as to the implications of a strict application of the defence.

In the case of David Syme & Co Ltd v Hore-Lacy[19], the Victorian Court of Appeal discussed at great length the implications of a defendant attempting to justify a publication made by reference to imputations not actually complained of by the plaintiff, and the extent to which the defendant should do so, with specific reference to the cases of Polly Peck[20], Chakravarti[21], and Lucas-Box[22].The court remarked that where the defendant’s pleaded imputations are not substantially different to, nor more serious than, those complained of in the plaintiff’s pleadings, the defendant may rely on those imputations in justification of the publication made. It was noted that this approach deviated from the decision in Polly Peck[23], which had been heavily criticised for contravening the fundamental principles of pleading in common law by allowing a defendant to raise false issues.

By following the decision in Hore-Lacy[24], a defendant may accordingly be able to plead certain imputations not otherwise pleaded or complained of by the plaintiff in justification of the publication made, provided the defendant’s imputations, as pleaded, do not substantially deviate from the plaintiff’s imputations, nor cause further harm to the plaintiff’s reputation other than that which results from the plaintiff’s pleaded imputations[25].

Due to the distinctions made between the decision in Polly Peck[26]and the findings in Hore-Lacy[27], the approach adopted by the court in Hore-Lacy[28] is widely regarded as a limited version of the Polly Peck Defence and is generally distinguished from its predecessor by reference to the ‘Hore-Lacy Defence’ or the ‘Hore-Lacy Pleading’.

While the Hore-Lacy Defence has largely been accepted as an applicable defence or pleading in most states across Australia, New South Wales case law regards the defence as a breach of the New South Wales Court Procedure Rules 2005 in relation to pleadings by reason that a defendant will not generally be permitted to plead its own imputations[29]. Accordingly, the Hore-Lacy Defence is not presently available to defendants in New South Wales.

In the New South Wales case of Fairfax Media Publications Pty Ltd v Bateman[30], Justice Basten commented on this position as follows:

The Hore-Lacy principle does not apply in New South Wales. The defendant is not permitted to plead its own imputations, or version of the plaintiff’s imputations. The defendant does not have an unqualified entitlement to plead imputations which it claims to be true”.

In the case of Baboolal v Fairfax Digital[31], Justice Daubney quoted the court’s decision in Setka v Abbott[32]and further applied the principles discussed in that case as follows:

 “Hore-Lacy contemplates a situation in which the plaintiff pleads certain meanings. The defendant wishes to contend that those meanings simply do not arise. It is not a question of admitting that the imputations arise and then seeking to justify them. But the defendant is aware that the trier of fact is entitled to find for the plaintiff on permissible variants of the pleaded meanings. He, the defendant, has identified variants; and those variants, he says, he can justify. In order to expose this situation, and set a full framework for trial, he needs to be able to deny the plaintiff’s pleaded imputations, specify the variants which he has identified, and seek to justify them.”

The Lucas-Box Defence

The case of Lucas-Box v News Group Newspapers[33] is an English case that was heard around the same time as Polly Peck[34] and which had an impact on the courts’ decisions in both Polly Peck[35]and Hore-Lacy[36].

In Lucas-Box v News Group Newspapers[37], the defendant had published an article about a suspected terrorist arrested outside the plaintiff’s home. The plaintiff brought proceedings against the defendant for defamation on the grounds that the article alleged that she knowingly assisted and was associated with terrorists.

The defendants sought to rely on the defence of justification by reference to matters or imputations that the plaintiff had not specifically addressed in her pleading. The defendant offered to provide particulars in justification of the imputations pleaded, which the court allowed.

The court ultimately held that the defendant was entitled to plead distinct imputations or meanings if those meaning were capable of arising from the publication made, even if those meanings did not strictly address or respond to a pleaded allegation complained of by the plaintiff.

It has since been made clear in law that ultimately, it is for the court to decide what meaning or imputation an ordinary, reasonable reader would have attached to the statements, and the court is not limited solely to the meaning for which either the Plaintiff or Defendant seeks to place on the words of a particular publication[38].

Contact Harris Defamation Lawyers

The defence of common sting can be difficult and complex to establish in light of its multiple variants and differing applications. The extent to which the defence of common sting should apply is still heavily debated in Australian defamation law today, and the extent to which it applies (if at all) varies between jurisdictions.

If you are a defendant in a defamation case and you believe you may have a defence under the defence of common sting, contact Harris Defamation Lawyers for a no-cost, obligation-free consultation to discuss your legal rights and options.

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