Alison Morgan v Times Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Soole |
| Judgment Date | 02 July 2019 |
| Neutral Citation | [2019] EWHC 1525 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2018-000715 |
| Date | 02 July 2019 |
[2019] EWHC 1525 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Soole
Case No: QB-2018-000715
William Bennett QC (instructed by Brett Wilson LLP) for the Claimant
David Price QC (instructed by David Price Solicitors and Advocates) for the Defendant
Hearing dates: 13, 15 May; 14 June 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is the trial of three preliminary issues in this libel action brought by the Claimant barrister against the Defendant publisher of The Times newspaper and its associated website in respect of an article published on 15 August 2018. The issues are (i) the true meaning of the article; (ii) whether the article in its true meaning is defamatory of the Claimant at common law; and (iii) whether the article in its true meaning has a tendency to cause serious harm to the reputation of the Claimant.
The third issue reflects the decision of the Court of Appeal in Lachaux v. Independent Print Ltd [2018] QB 594 on the interpretation of s.1 Defamation Act 2013. For the purposes of the preliminary trial, s.1 was only in play to that extent. On 12 June 2019, two days after my draft judgment was supplied to Counsel, the Supreme Court handed down its judgment which overturned the reasoning of the Court of Appeal: [2019] UKSC 27. On behalf of the Defendant, Mr David Price QC submitted that the third issue had thereby been rendered irrelevant to the limited preliminary trial and should not be determined. Given that the inherent tendency of the words remains a relevant factor in the overall factual issue raised by s.1 (see Lord Sumption at paragraphs [12], [14] and [21]), I have concluded that the issue should be retained and determined.
On 15 August 2018 the Defendant published an article, starting at the top of the front page of The Times, headed ‘Senior Prosecutor under fire after Stokes is cleared of affray’. As becomes apparent ‘Senior Prosecutor’ means the Claimant and ‘Stokes’ the cricketer Mr Ben Stokes. The article followed Mr Stokes' acquittal the previous day by the jury at Bristol Crown Court on a charge of affray. Its full terms were (like the parties, I have added paragraph numbers for ease of subsequent reference):
(1) A senior government lawyer faces scrutiny over her decisions in the prosecution of Ben Stokes, the England cricketer who was cleared yesterday of affray.
(2) The all-rounder was recalled to the national squad hours after the not-guilty verdict and could play in the third Test against India on Saturday.
(3) Mr Stokes, 27, was acting in self-defence when he punched Ryan Ali, 28, and Ryan Hale, 27, at 2.30am outside a Bristol nightclub last September, the jury concluded. The cricketer walked across to Mr Ali in the dock at Bristol crown court and shook his hand after 1 they were both cleared after the jury, had deliberated for two and a half hours.
(4) Minutes before the start of the trial Mr Stokes's legal team had defeated an attempt to charge him with two counts of assault, which could have left him facing total sentences of up to 13 years in jail, it has emerged.
(5) Lawyers for Mr Hale demanded to know why Alex Hales, an England batsman, was also not charged after he was filmed apparently kicking Mr Ali in the head during the fight, it can now be reported.
(6) The initial decision on charges was taken by one of the country's most senior prosecutors, Alison Morgan, who was promoted to first junior treasury counsel in
February, decided that Mr Stokes, Mr Ali and Mr Hale should all be charged with affray, which carries a maximum sentence of three years in jail. Nicholas Corsellis, the prosecutor in the trial, applied on Monday last week for Mr Stokes to be charged also with two counts of assault.(7) Judge Peter Blair expressed surprise that decisions in the relatively low-level case had been transferred from the local crown prosecution service to the organisation's headquarters in London.
(8) He said that Ms Morgan had access to all the key evidence when she made a decision to charge Mr Stokes with affray and indicated that assault charges would have been allowed if requested at a pretrial hearing in February. The judge noted that Ms Morgan had not attended the pretrial hearing but sent a member of her chambers, Lucy Organ.
(9) The court was told that Mr Stokes and had gone out with other England players including Mr Hales, James Anderson, Jonny Bairstow, Liam Plunkett and Jake Ball to celebrate their victory over the West Indies in a one-day game.
(10) Mr Stokes said that he had “at least ten drinks”, including beer, vodka and Jagerbombs but denied that he was “really drunk”. He told the court that he had intervened after hearing homophobic abuse directed at two young men, Kai Barry and William O'Connor. They were not called to give evidence.
(11) Mr Barry, 27, told ITV News in an interview broadcast yesterday: “When I realised who he [Mr Stokes] was, I thought fair play, because he's obviously put his career at risk for someone that he never knew.”
(12) Tony Miles, the solicitor for Mr Ali, said that the emergency services worker and Mr Ryan, his best friend, were relieved at the verdict. Both had denied making any homophobic comments and Mr Hale was acquitted on the orders of the judge last week after he ruled that there was no evidence that the former soldier used or threatened violence. Mr Miles said: “Our clients are delighted. They just want to get on with their lives.”
(13) Mr Ali and Mr Hale were treated in hospital for injuries. Mr Stokes had no obvious injuries except for swelling over the metacarpals on his right hand. The England and Wales Cricket Board announced that it would resume a disciplinary hearing into Mr Stokes and Mr Hales.
(14) Paul Stunt, the solicitor for Mr Stokes, said: “Ben would like to thank his friends, team-mates, family and in particular his wife, Clare, for their unerring support. [Ben's] intervention that night has cost him the England vice-captaincy, his place on an Ashes tour and in a number of other England matches.” He said Mr Stokes had been the victim of “pre-determined guilty”.
(15) A Crown Prosecution Service spokeswoman said: “We selected the charge of affray at the outset in accordance with the code for crown prosecutors. Upon further review we considered that additional assault charges would also be appropriate.
(16) “The judge decided not to permit us to add these further charges. The original charge of affray adequately reflected the criminality of the case and we proceeded on that.”
The article was also published on the newspaper's associated website 2. The web version also included an embedded video immediately below the headline. If played the video showed CCTV footage from the night of the incident. The Claimant's case is that this shows Mr Stokes punching a man to the ground and then continuing to punch him whilst he is on the ground, whilst another man (Mr Alex Hales) kicks him. Her case is that the reasonable viewer read the text of the web article and watched the video; alternatively that the web version had two groups of readers, those who watched the video and read the article and those who only read the article.
Meaning
In any event the Claimant's pleaded meaning is the same for readers of the print version and both groups of readers of the web version, namely that the Claimant is ‘reasonably suspected of having been professionally negligent in regard to her decisions as to who should be prosecuted and for what offences in the trial of Ben Stokes and that those decisions had meant that Mr Stokes had not been charged with the correct offences, that Alex Hales had not been charged at all despite film of him kicking one of the victims in the head and that the prosecution had thereby not been properly mounted.’
Whilst noting that it is not required to advance any non-defamatory meaning, the Defendant in its ‘Outline Grounds’ served pursuant to the Order of Warby J dated 14 March 2019 ‘accepts that it is implicit in the information given in the Article that it would have been open to the Claimant, as the person responsible for the charging decisions, to have included charges of assault against Stokes and possibly also Hales, which may have resulted in their convictions. Accordingly, she may have made an error of judgment in not having done so.’
As the parties agree, the relevant law on meaning is conveniently summarised by Nicklin J in Koutsogiannis v. The Random House Group Limited [2019] EWHC 48 (QB) at [10]–[15]. The Court's task is to determine the single natural and ordinary meaning of the words complained of, which is the meaning that the hypothetical reasonable reader would understand the words to bear. The key principles distilled by Nicklin J from the authorities are:
‘i) The governing principle is reasonableness.
ii) The intention of the publisher is irrelevant.
iii) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. A reader who always adopts a bad meaning where a less serious or non-defamatory
meaning is available is not reasonable: s/he is avid for scandal. But always to adopt the less derogatory meaning would also be unreasonable: it would be naïve.iv) Over-elaborate analysis should be...
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