Alexander Economou v David de Freitas
| Jurisdiction | England & Wales |
| Judge | Lady Justice Sharp,Lord Justice Lewison,Lord Justice Ryder |
| Judgment Date | 21 November 2018 |
| Neutral Citation | [2018] EWCA Civ 2591 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2016/3703 |
| Date | 21 November 2018 |
[2018] EWCA Civ 2591
Lord Justice Lewison
Lord Justice Ryder
and
Lady Justice Sharp
Case No: A2/2016/3703
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
The Honourable Mr Justice Warby
HQ15D01507
Royal Courts of Justice Strand, London, WC2A 2LL
Desmond Browne QC, Jonathan BarnesandGervase de Wilde (instructed by Public Access) for the Appellant
Manuel Barca QC and Ian Helme (instructed by Hanover Bond Law) for the Respondent
Hearing dates : 17–18 April 2018
Approved Judgment
Introduction
Mr Alexander Economou, the claimant, appeals with the permission of Sir Christopher Clarke, against the Order of Warby J, made after a trial, dismissing his claim for libel, against the defendant, Mr David de Freitas.
The claim was made in respect of seven publications in the national media, four of which were published between the 6 to 8 November 2014 and three of which were published between the 6 to 10 December 2014. Five of those publications are now the subject of this appeal. 1
This is a difficult case, which stems from two events: a serious allegation of criminality against the claimant, namely an allegation of rape made to the police in 2013, and a truly dreadful tragedy for the defendant, the suicide of his daughter, Ms Eleanor de Freitas. As the claimant's counsel says, there has been no monopoly of misery in relation to these events or their outcome, which has seen this bitterly contested action, raising strong emotions on both sides.
Ms de Freitas killed herself in April 2014, shortly before she was due to be tried for perverting the course of justice. She was 23 years' old. The charge was that she had made a false allegation of rape against the claimant, with intent to pervert the course of justice, contrary to common law. The prosecution had been initiated by the claimant, but in December 2013 it was taken over and continued by the Crown Prosecution Service (the CPS).
The five publications with which we are concerned are two articles, one appearing in the Guardian and one in the Daily Telegraph, where the words complained of consisted of verbatim parts of two separate Press Releases issued by or on behalf of the defendant; a further article in the Guardian written by the defendant and published under his name, and words spoken by the defendant during the course of two interviews broadcast by the BBC, one on BBC Radio 4, and one on BBC Television. The claimant complained of selected words from the publications in question, each of which resulted from a media strategy pursued by the defendant following the death of his daughter in relation (in broad terms) to the scope of the inquest to be held into her death and the decision of the CPS to take over her prosecution.
The claimant was not named in these publications. His case however, not challenged in this appeal, was that the words complained of referred and were understood to refer to him by reason of a reference innuendo, that is, because there were people who read them who knew certain facts, namely that he was the target of Ms de Freitas' rape allegation and/or the person who had pursued the private prosecution against her.
In order of appearance the publications were:
i) An article appearing on the Guardian website on 6 November 2014. It was written by Ms Sandra Laville, a Guardian journalist, and appeared in a materially similar version in the hardcopy edition of the Guardian newspaper for 7 November 2014 (the First Guardian article) [44] 2. The headline of the website article was “Call for prosecutors to answer for trial of alleged rape victim who killed herself” with the sub-headline “Eleanor de Freitas died days before she had to go on trial accused of lying about rape claim, despite lack of evidence”. The headline in the hardcopy edition was “Woman who alleged rape killed herself on eve of trial” with two sub-headlines: “CPS decision to pursue case called into question” and “Police said there was no evidence woman had lied.” The claimant's complaint related to three paragraphs, which reproduced verbatim, a Press Release drafted and issued by the defendant on the afternoon of 6 November 2014 (the First Press Release);
ii) An interview given by the defendant to John Humphrys, broadcast on 7 November 2014, shortly after 8 a.m. by the BBC on Radio 4 on the Today programme (the Today item). The interview had been recorded a few hours before it was broadcast [49]. The words complained of were (some of) the answers given by the defendant to questions put to him by Mr Humphrys;
iii) An interview given by the claimant, broadcast live on the BBC TV News Channel on 7 November 2014 (the BBC TV interview) a few hours after the broadcast of the Today item. Again, the words complained of were (some of) the answers given by the claimant to questions put to him by the interviewer;
iv) An article appearing online on the Daily Telegraph website from about 6 p.m. on 9 December 2014, under the headline: “Eleanor de Freitas rape case: victim wrote of her “disbelief” at prosecution” (the Telegraph article). As a result of a complaint by the claimant, the headline was altered to substitute the word “complainant” for “victim” in the headline. The words complained of consisted of four paragraphs which repeated verbatim a second Press Release issued on behalf of the defendant on 9 December 2014 (the Second Press Release). The order of the four paragraphs was not the same as that in the Second Press Release, but nothing material turns on this, or the altered headline for present purposes. The Second Press Release was issued in response to a Press Statement issued by the Director of Public Prosecutions (the DPP) on the 9 December 2014 (the DPP's Press Statement), following her investigation into complaints made publicly and to her privately by the defendant about the CPS's decision to take over the prosecution of his daughter;
v) An article written by the defendant, and published on the Guardian website on 10 December 2014, under the defendant's name (the de Freitas article). This appeared under the headline: “My daughter killed herself after being charged over rape claims” and with the sub-headline: “Eleanor de Freitas died on the eve of her trial for perverting the course of justice – but why did the CPS pursue the case?”
I shall refer to the first three of these as the November publications, and the latter two as the December publications. The relevant words from each are set out in an Appendix to this judgment with the words selected for complaint highlighted in bold.
The two publications which were dealt with at trial, but which do not form part of this appeal, were articles appearing in the Guardian on 7/8 November 2014 and on 9 December 2014, which were called the Second and Third Guardian articles, respectively, in the judgment below. The judge decided that the words complained of in each were not defamatory of the claimant and did not refer to him and there is no appeal against those findings.
The issues at trial and their resolution below
It is helpful to start by setting out a brief overview of the issues raised at trial, and the manner of their resolution by the judge.
Apart from his claim that the words complained of referred to him, the claimant's pleaded case was that the words complained of were seriously defamatory of him and that each publication had caused him serious harm, within the meaning of section 1(1) of the Defamation Act 2013 (the 2013 Act). The defamatory meaning the claimant attributed to the publications with some variation of detail was, in essence, that he had prosecuted Ms de Freitas for perverting the course of justice on a false basis, and was guilty of her rape, or there were strong grounds for suspecting that he was.
By his defence, the defendant accepted he was responsible for the publication of the words complained of. However he took issue with various aspects of the claimant's case on identification and meaning; he disputed that any of the publications complained of had caused the claimant's reputation serious harm in the statutory sense, and for each publication, relied on the defence of publication in the public interest provided by section 4 of the 2013 Act (the public interest defence). The public interest defence was the only substantive defence relied on: the truth or falsity of the allegations complained of was not therefore in issue at trial.
The judge's ‘headline’ conclusions were these:
i) The five publications referred to the claimant and bore meanings that were seriously defamatory of him (in the common law sense) albeit in a lesser defamatory meaning than that of which he complained. These meanings are set out at para 14 below;
ii) The claimant had failed to establish that the November publications had caused him serious harm within the meaning of section 1(1) of the 2013 Act. The claimant's name was not public at the time of those publications, he was not therefore widely identified as the subject of the relevant words and the November publications had not (on the evidence) caused serious harm to his reputation among those who did identify him (see [65] to [77]). Since serious harm to his reputation was not established, it followed that the November publications were not defamatory of the claimant in the statutory sense, and the claim in respect of them failed;
iii) By way of contrast, the December publications had caused the claimant serious harm. By the time they appeared, the claimant had been named in prominent articles appearing in the national media in connection with these matters including one in the Mail on Sunday on 29/30 November 2014 (called the Second Daily Mail article in the judgment below). This consisted of an interview with the...
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