Arnold Mballe Sube v News Group Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 24 May 2018 |
| Neutral Citation | [2018] EWHC 1234 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ17M03217 |
| Date | 24 May 2018 |
[2018] EWHC 1234 (QB)
Mr Justice Warby
Case No: HQ17M03217
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Mark Engelman & Robert Whittock (instructed by Debenhams Ottaway) for the Claimants
David Price QC & Robin Hopkins (instructed by David Price QC) for the First Defendant
Christina Michalos (instructed by Express Newspapers) for the Second Defendant
Hearing date: 14 May 2018
Judgment Approved
This judgment rules on the nature and scope of the claims that can properly be pursued against the publishers of The Sun, the Daily Express and the Daily Star, in respect of a series of articles they published about the claimants in late 2016.
The background
The claimants, Arnold and Jeanne Mballe Sube, are a married couple with 8 children. In the late Summer and Autumn of 2016, they were in dispute with Luton Council about the adequacy of the housing which the Council had offered the family. They seem to have approached a local newspaper about the issue, to publicise their case. There was an article about the matter in the MK Citizen for 8 September 2016, which featured a picture of the family apparently posing for the camera in their then home. The consequences were evidently unexpected, and certainly unwelcome. Between 7 September 2016 and 2 November 2016, the family's situation was the subject of extensive national newspaper coverage, in print and online. Articles appeared in at least one of those forms in The Sun, The Mirror, the Daily Express, and the Daily Star. The general flavour of the coverage that is the subject of this action can be gathered from the headlines of two of the articles. One, published in The Sun for 7 September 2016, was headed, “Are they serious? First picture of four-bed house that jobless couple with eight kids slammed council for offering.” Another, published on the website of the Daily Express the following day, bore the headline, “Shameless French family-of-10 demand MANSION: benefits dad rejects 5-bed as ‘too cramped’”.
Readers posted responses to these and other similar articles (“Posts”), in the comment sections of the newspaper websites (“Comment Posts”) and on third-party websites (“Third-Party Posts”). Many were highly offensive. For example, Comment Posts responding to the “Are they serious?” Sun article included one from “Nick”, saying “Ungrateful liberty taking benefit claiming scumbags…” Maureen Ballard wrote of “leaches on society…” (sic) and another commentator said, “spongers are raping the economy…”. One Third Party Posts described Mr Sube as a “cunt” from “Bogo-Bogo Land”, suggesting that “he and his tribe should fuck off back there”. It hardly needs saying that the Subes are black. Some of the Posts were not just abusive but also threatening in content.
The action
On 5 September 2017, solicitors for the claimants issued the claim form in this action, claiming damages in respect of a number of articles published in the print and online versions of the newspapers I have mentioned. The claimants also claimed injunctions to restrain the repetition of such publications. The complaint made at that stage was that the articles complained of were libellous and involved harassment of the claimants contrary to the Protection from Harassment Act 1997 (“PHA”).
The claimants have since settled with the publisher of The Mirror. Their claims in respect of The Sun continue against its publisher, the first defendant (“News Group”). So do the claims in respect of the Daily Express and Daily Star, against the second defendant (“the Express”) which is the publisher of both titles. The claimants have also sought to expand their case by adding claims in respect of further articles published by the Express; by complaining of Comment Posts as harassment; and by claiming that the publications complained of also amounted to malicious falsehoods and/or involved breaches of the Equality Act 2010 (“ EA”) and/or breaches of duty under the Data Protection Act 1998 (“ DPA”). A range of additional remedies is sought, in reliance on these additional claims.
The proposed expansions of the claimants' case have come in two phases. First, on 22 December 2017, the claim form was amended and Particulars of Claim were drafted, to add the further claims and causes of action that I have mentioned. The claim form was amended under CPR 17.1, which allows a party to amend his statement of case at any time before it has been served on any other party. But the Court may disallow such an amendment: CPR 17.2(1). A party can apply for an order disallowing an amendment within 14 days after service of the amended statement of case: CPR 17.2(2). Following an agreed extension of time, News Group did that. Phase two was more recent. The claimants applied, by application notice issued in February 2018, to amend various aspects of the pleaded claims. The purpose of that application is, in part at least, to meet some of the criticisms levelled at the claims by the defendants.
This hearing
This has been the trial of meaning and related issues as preliminary issues in the libel claims. I also have to resolve applications by the defendants for orders disallowing the amendments by which the malicious falsehood and Equality Act claims were added and/or striking out those claims; applications by the defendants to have the data protection claims disallowed, struck out, or stayed; and the claimants' cross-application for permission to amend their claim form and Particulars of Claim. The claimants also apply for extensions of time in respect of claims which were not pleaded until after the expiry of the applicable primary limitation periods. That is the position in respect of the additional libel claims against the Express, and all of the malicious falsehood and Equality Act claims.
There is no attack on the claimants' claims for harassment contrary to the PHA. The case will therefore proceed on that cause of action at least. My decisions on the issues and applications I have mentioned will determine which, if any, of the other pleaded claims need to be addressed in the Defences, and may have an impact on when Defences need to be served. So, time for service of Defences has been extended until after this judgment.
The Parties' positions
The main features of the rival positions can be stated broadly in this way. The claimants complain of articles and Comment Posts. Their complaints are that the content of the articles was libellous, and harmful to the employment prospects of Mr Sube, involved harassment, was false or inaccurate, published maliciously, racially discriminatory in various respects, a misuse of their personal data (involving an invasion of their privacy and a breach of confidence), and for all these reasons, distressing. Allegations about the Comment Posts are woven into the complaint. Mr Engelman and Mr Whittock put it more colourfully, submitting that the series of articles published by the defendants “during the period next following the immediate aftermath of the Brexit Referendum … turned [the claimants] and their children into the targets of written and verbal racist abuse … [The defendants] lit the match in a tinder box.” The claimants seek damages for all these matters, including aggravated and exemplary damages, as well as remedies designed to remove the articles and Comment Posts and prevent any repetition. The claimants' children are not parties to the claim.
The defendants' position is that the words complained of contain nothing defamatory of the claimants or, if they do, the defamatory meanings are not factual but only comment which the defendants expect to succeed in defending as “honest opinion” in reliance on s 3 of the Defamation Act 2013. The defendants also maintain that the claimants' statements of case and draft amended statements of case present no adequate basis for claiming that any serious reputational harm has been suffered, no clear or sustainable case in respect of the Comment Posts, and no reasonable basis for claiming exemplary damages, or for claims in malicious falsehood, or under the EA. They say the existing DPA claims are manifestly unfounded in fact, and that the proposed amendments to that claim are wholly deficient in the necessary clarity and particularity. They further contend that the law requires a stay of any DPA claim that may survive their attacks.
Approach
The claimants have limited resources but are able to bring this action because their lawyers have agreed to act on a conditional fee basis. Mr Engelman has invited me to take this into account. I am not sure he was suggesting that a different approach should be adopted to the application of the rules and principles of pleading, or compliance with the CPR. But that clearly would not be appropriate. As Mr Price submits, on behalf of News Group, the claimants are not litigants in person; they are represented by solicitors and two Counsel. Moreover, as the Supreme Court has recently reminded us, even a lack of representation does not justify a lower standard of compliance with the CPR; the overriding objective requires courts to enforce compliance: Barton v Wright Hassall LLP [2018] UKSC 12 [18] (Lord Sumption).
I do accept that the need to find lawyers to work on a CFA justifies some delay in commencing the action. I also accept Mr Engelman's point, that the fact that the harassment claims are going to proceed in any event is something to be taken into account, when exercising any discretion I have, in relation to the issues and applications I have outlined. But in the end, I do not consider that this plays a very significant role, because most of...
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