THE EXPRESSION "reason to believe" in section 4(3) of the Defamation Act 1996 did not apply to anything short of recklessness.
The Court of Appeal dismissed the appeal of Andrew Milne against the refusal of his application to amend his reply to an offer of amends, made by Express Newspapers in his libel action.
In an action for libel brought by the claimant, the defendant made an unqualified offer to make amends under section 2 of the Defamation Act 1996, which the claimant rejected. The defendant accordingly had a statutory defence to the claim under section 4, which it duly pleaded. Section 4 provided:
(1) If an offer to make amends under section 2, duly made and not withdrawn, is not accepted by the aggrieved party, the following provisions apply. (2) The fact that the offer was made is a defence (subject to subsection (3)) to defamation proceedings in respect of the publication in question by that party against the person making the offer . . . (3) There is no such defence if the person by whom the offer was made knew or had reason to believe that the statement complained of - (a) referred to the aggrieved party or was likely to be understood as referring to him, and (b) was both false and defamatory of that party; but it shall be presumed until the contrary is shown that he did not know and had no reason to believe that was the case.
In his reply, the claimant sought to rebut the defence, relying on section 4(3). The defendant's application under CPR 3.4 to strike out that part of the reply which relied on section 4(3), on the basis that the matters relied on were insufficient in law to rebut the defence, was granted (the first judgment - see  1 All ER 482).
On the claimant's application for permission to amend his reply, the defendant contended that the proposed second version of the pleading still failed to measure up to the requirements of section 4(3). …