Andre v Price
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE TUGENDHAT |
| Judgment Date | 11 October 2010 |
| Neutral Citation | [2010] EWHC 2572 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Claim no HQ09D04716 |
| Date | 11 October 2010 |
[2010] EWHC 2572 (QB)
Mr Justice Tugendhat
Claim no HQ09D04716
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
MR D SHERBORNE (instructed by Lee & Thompson) appeared on behalf of the Claimant
MR M NICKLIN (instructed by Sheridans) appeared on behalf of the Defendant
RULING
Two separate occasions have given rise to the Claimant's complaints in this action. The one first pleaded is an interview the Defendant gave to a journalist on the basis of which there were published words complained of in the issue of Heat magazine dated 10 to 16 October 2009.
Before I go any further, this is going to be an open judgment, but it probably ought to be subject to a postponement of reporting until I have finished it and decided what further applications to hear.
MR SHERBORNE: My Lord, yes.
The claim was in slander and libel, but is now in libel alone. There is an issue as to whether the words were defamatory, and the Defendant has raised a defence of fair comment as it is traditionally called, or honest comment as it is better described.
The second occasion was the recording of the BBC programme The Graham Norton Show on 14 October 2009. The BBC did not broadcast the words complained of, but there was a studio audience. The Claimant claims the publication to them was a slander. The Claimant pleads a natural ordinary meaning and two innuendo meanings in respect of this occasion. Again, there is an issue as to whether the words were defamatory, and a further issue as to whether any publishee knew of the extrinsic facts relied on by the Claimant to support each of the innuendos. The Defendant has raised no positive defence to this claim.
In judgments delivered on Friday, 8 October, which was listed as the first day of the trial, I was able to dispose of two out of seven applications made by the Defendant by an application notice dated 15 September. Another two were disposed of by agreement. I heard argument on two more points relating to the defence of honest comment.
There are two further points which remain to be argued and decided. One of them is the seventh point raised in the Defendant's application notice, and is the only one relating to The Graham Norton Show. The other is an issue as to whether the comment, if such it be, is on a matter of public interest. This relates to words allegedly spoken to the journalist for Heat magazine. This issue arises in any event in the trial, and was not the subject of an application notice until this morning. In my judgment it did not need to be.
I heard further argument this morning, Monday, 1 October. The jury is due to be empanelled tomorrow, Tuesday, subject to further delays that may arise.
The parties describe themselves in the Particulars of Claim in terms which are agreed as follows:
"The Claimant is a pop singer and television personality who is currently the subject of a television documentary entitled "Peter Andre: the Next Chapter", which is presently broadcast on the ITV2 channel ("The Programme"). The Claimant is managed by CAN Associates Limited ("CAN Associates"), and in particular by Claire Powell who is regularly seen in that role on the programme.
"The Defendant is a model and television personality (formally known as Jordan), and is the estranged wife of the Claimant, with whom she has two young children. She was formerly managed by Miss Powell of CAN Associates."
In addition to the two children of the marriage, the Defendant had a child from a previous relationship. I shall refer to him as H. He is in need of regular medical treatment and specialist childcare.
The main principles relating to honest comment are summarised by the editors of Duncan and Neill on Defamation, 3rd ed, in paragraph 13.07, as derived from the case of Cheng v Paul [2001] EMLR 777 at paragraphs [16] to [21]. As set out in Duncan and Neill they are:
"(1). The comment must be on a matter of public interest.
"(2). The comment, though it can consist of or include inferences of fact, must be recognisable as comment as to distinct from an imputation of fact.
"(3). To this end, it is generally necessary that the words complained of should explicitly or implicitly indicate, at least in general terms, the factual basis for the comment.
"(4). The comment must be based on facts which are true or protected by privilege.
"(5). The comment must be one which an honest person could have made on the proved facts.
"(6). Even though the comment satisfies these objective criteria, the defence can be defeated if the Claimant proves that the Defendant was actuated by express malice."
There are issues under all but the third of these. A further issue arises under the Defamation Act 1952, Section 2. That provides as follows:
"In an action for slander in respect of words calculated to disparage the Claimant in any office, profession, calling, trade or business held or carried on by him at the date of publication, it shall not be necessary to allege or prove special damages, whether or not the words are spoken of the Claimant in the way of his office, profession, calling, trade or business."
Rulings are now required from me on the following points. The first three arise on the defence of honest comment to the alleged libel published in Heat magazine. They are, (1) whether the words complained of in paragraph 3 of the Particulars of Claim are capable only of being comment or opinion, and are incapable of being fact, so that the issue of whether they are fact on the one hand, or comment or opinion on the other, should not be left to the jury. By way of explanation, the only defence raised by the Defendant is honest comment, so if these words complained of are capable of being fact, and if the jury were to find that they are fact, there would be no affirmative defence. (2) whether six specified passages from the Reply should be struck out pursuant to CPR 3.4(2)(a). (3) if the words complained of are comment, whether they are on a matter of public interest. (4) Finally, in respect of the words complained of in The Graham Norton Show, whether these words complained of, in their natural and ordinary meaning, were calculated to disparage the Claimant in respect of any office, et cetera, within Section 2 of the 1952 Act. By way of explanation, if they are not, then since there is no plea of special damage, this slander claim must fail in respect of the natural and ordinary meaning relied on for The Graham Norton Show. But Mr Nicklin accepts that I should leave the issue to the jury in any event in any event, in accordance the guidance in the case of Alexander v The Arts Council [2001] 1 WLR 1840.
The relevant parts of the particulars of claim to be noted at this stage are the following, paragraph 3:
"(3) In the course of an interview given to journalist (whose precise identity is unknown), engaged or retained by or on behalf of Heat magazine on or about 10 October 2009, the Defendant spoke and thereby published the following words defamatory of and concerning the Claimant in response to a question as set out below for the purposes of context. '[What do you really think of Pete's music? Do you like any of his songs at all?]' 'The one song that I don't think really represents very well is "Unconditional", the one he did for H, because he chose only to see him two nights every two weeks and that is not unconditional love'.
"(4) In their natural and ordinary and/or inferential meaning, the words complained of in paragraph 3 above meant and were understood to mean that despite publicly professing his unconditional love for H in a song written for his new album, the Claimant had in fact only sought contact with H for two nights every two weeks; he was therefore a blatant hypocrite and liar."
Relevant parts of the defence are in paragraph 7, which is referred to below. The relevant parts of the reply for the purposes of this judgment are set out below.
Whether the words complained of in paragraph 3 of the Particulars of Claim are capable only of being comment or opinion:
Mr Nicklin, for the Defendant, accepts the test is the high one, as in the case of Galbraith. A judge cannot withdraw an issue from a jury unless satisfied that no jury could properly conclude that the words complained of are fact in the context of this case. Mr Nicklin relies on a number of propositions of law which are not in dispute. They are set out in the case of British Chiropractor Association v Singh [2010] EWCA Civ 350 referred to in paragraph 77 of page 22 of the skeleton argument dated 5 October, and Keays v Guardian [2003] EWHC 1565 (QB) [45] at paragraph 79, page 23 of his skeleton argument. Both of these paragraphs should be incorporated into this judgment should it ever be reported.
There is a further proposition set out in by the editors of Duncan and Neill at paragraph 13.14 which reads as follows:
"On the other hand, if the commentator 'sets out the facts correctly, and then gives his inference, stating it is as his inference, from those facts such inference will, as a rule, be deemed a comment'."
Mr Nicklin submits that the words complained of are a statement that the Claimant's love for H is not unconditional. That is not capable of verification one way or the other. Therefore it can only be an expression of the Defendant's opinion, that is to say a value judgment.
Mr Nicklin submits that this is not a case where the Defendant stated simply that the Claimant was a hypocrite and a liar, without identifying any facts of the...
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