Barbara Hewson v Times Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin |
| Judgment Date | 22 March 2019 |
| Neutral Citation | [2019] EWHC 650 (QB) |
| Docket Number | Case No: HQ18M01315 |
| Court | Queen's Bench Division |
| Date | 22 March 2019 |
[2019] EWHC 650 (QB)
THE HONOURABLE Mr Justice Nicklin
Case No: HQ18M01315
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
William Bennett QC (instructed by Gillen de Alwis Solicitors) for the Claimant
David Price QC (instructed by David Price Solicitors & Advocates) for the First Defendant
David Glen (instructed by ACK Media Law LLP) for the Second Defendant
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.
THE HONOURABLE Mr Justice Nicklin
These libel proceedings are brought by the Claimant against the publishers of The Times and MailOnline for articles published on 12 April 2017. The text of the articles complained of is set out in the Appendix to this judgment with paragraph numbers added in square brackets. The words selected for complaint by the Claimant are shown underlined in each article.
The Claim Form was issued on 10 April 2018. The Particulars of Claim are dated 12 June 2018. Following amendment, for which permission was granted on 8 March 2019, the meaning that the Claimant contends that both articles bear is:
“… the Claimant committed, or it almost certain that she committed, or it is highly likely or reasonably suspected that the Claimant committed the following criminal acts:
(a) threatened to murder a law student several times by personally telephoning him to make death threats;
(b) impliedly threatened to cause physical harm to the law student's ex-partner and his daughter by sending the law student a picture of his address, his ex-partner's details and a picture of his daughter's head and, as part of her campaign to intimidate and frighten him, further harassed him by pestering him so incessantly with nuisance phone calls that he has been left feeling frightened, alarmed distressed and anxious to the point that his exams might be jeopardised”.
Neither Defendant has filed a Defence. Instead, following an Application, by Order of 20 December 2018, the Court directed that meaning be tried as a preliminary issue. The time for the filing a Defence has been extended until the preliminary issue has been determined.
The First Defendant contends that The Times article bears the meaning:
“… that there were grounds to investigate whether [the Claimant] has committed the acts which are attributed to her in the article by Mr Desai and Ms Phillimore”
The Second Defendant contends that the MailOnline article bears the meaning:
“(1) The Claimant had been the subject of an investigation by the Metropolitan Police over allegations that she engaged in harassment of Sarah Phillimore and had been issued with a harassment warning from the Metropolitan Police in light of those allegations.
(2) There were sufficient grounds to investigate the Claimant of having engaged in the harassment of Sarah Phillimore, and Ms Phillimore's supporters such as Mehul Desai, by making repeated abusive and threatening communications towards and about them (including in Mr Desai's case, death threats).
(3) There had been at least 3 complaints to the Bar Standards Board concerning the Claimant's behaviour in this regard.”
The Claimant has also complained that the First Defendant published a link to The Times article on its Twitter account. The text of the Tweet was “ A barrister has been handed a harassment warning over alleged ‘death threats’ to student”. The Claimant contends that readers who read the Tweet “ in conjunction” with The Times article would have understood the “relevant words” to bear the same meaning as The Times article.
The Claimant contends that the relevant readers would also have read The Times article. As no case on reference is pleaded in relation to the Tweet, the Claimant's case depends upon the Twitter publishees following the link to the article. As such, the meaning will be the same as The Times article. Practically, all the Tweet does is increase the number of publishees of the article.
Determining meaning: the Law
In determining the meaning, I apply the well-established principles set out in Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB) [11]–[15].
In this case, the following principles assume particular importance:
i) although the Claimant has selected only parts of each article for complaint, the Court must ascertain the meaning of these sections in the context of each article as a whole: Koutsogiannis [12(viii)]; and
ii) the repetition rule: Koutsogiannis [15]; and Brown v Bower [2017] 4 WLR 197 [19]–[32].
Mr Bennett QC has emphasised in this case the capacity of headlines to affect the overall meaning of a publication. Although each article has to be read as a whole, as Lord Nicholls observed in Charleston v News Group Newspapers Ltd [1995] 2 AC 65, 72 and 74:
“Whether the text of a newspaper article will, in any particular case, be sufficient to neutralise the defamatory implication of a prominent headline will sometimes be a nicely balanced question for the jury to decide and will depend not only on the nature of the libel which the headline conveys and the language of the text which is relied on to neutralise it but also on the manner in which the whole of the relevant material is set out and presented…
… Those who print defamatory headlines are playing with fire. The ordinary reader might not be expected to notice curative words tucked away further down in the article.”
Mr Bennett QC has also objected to the form of both Defendants' meanings.
i) He contends that the First Defendant's meaning fails to identify (other than by reference to those “ attributed to her in the article”) the acts of the Claimant which would make the meaning a defamatory one. It has the effect, critically, of leaving for some later adjudication what the article alleges that the Claimant has done.
ii) He submits that the Second Defendant's meaning fails to identify the acts of the Claimant and instead relies upon the fact of investigations by, or complaints to, other bodies. He relies upon Alsaifi v Trinity Mirror plc [2017] EWHC 2873 (QB) [28]. The point is also made in Koutsogiannis [32(ii)], but is perhaps most clearly and succinctly articulated by Warby J in Miah v BBC [2018] EWHC 1054 (QB) [35]:
“Originally, the Defence sought to prove the truth of a meaning that the claimant ‘was the subject of an investigation’ at the time of publication. In the circumstances, one can understand the relevance of particulars setting out a narrative of the investigation. That plea was however always vulnerable to being struck out. Conventionally, in the modern law, an allegation that someone is under investigation is only considered defamatory because of what it implies, namely that there are grounds for an investigation or for suspicion of guilt. A defendant is not entitled to defend a libel action by proving the mere fact of an investigation, because proof of that does not establish anything of relevance.” (emphasis added)
In response, Mr Glen has relied on Lord Devlin's speech in Lewis v Daily Telegraph [1964] AC 234, 282 and upon Brooke LJ's judgment in King v Telegraph [2005] 1 WLR 2282 [29]–[34] to support the proposition that the Second Defendant is “entitled” to prove the fact of an investigation. I do not accept this submission.
i) In Lewis, Lord Devlin's obiter suggestion of three categories of defamatory imputation was: “ proof of the fact of an inquiry, proof of reasonable grounds for it and proof of guilt”. These three levels were expressly considered in Chase v News Group Newspapers [2003] EMLR 11 and “ proof of fact of an inquiry” became expressed as “ grounds to investigate” [45]–[46]. The underlined passage from Warby J's judgment in Miah explains why this is so.
ii) In King, the appeal was against the striking out of certain particulars of justification ([1], [17]). Consistently with the principles I have already identified, Eady J required a Lucas-Box meaning that sought to defend a meaning that “ the police suspected the claimant…” to be repleaded with the conventional (and permissible) “ grounds to suspect the claimant…” ([15]–[16]). The appeal against Eady J's order was dismissed, albeit that the Court observed that he should be ready to permit appropriate amendments to the defendant's case on justification reflecting some of the arguments the Court heard on the appeal [109]. The case does not stand as authority for Mr Glen's proposition. If anything, it tends to undermine it.
As it is for the Court to determine the single meaning of the article, argument as to the form in which a party articulates the meaning for which s/he contends is unlikely to have much bearing.
Finally, there is a dispute between the parties as to whether the Claimant can isolate a distinct sting or whether the articles bear a general meaning. The Claimant has limited her complaint to the words of the articles which concern Mr Desai and she has pleaded a meaning that relates only to him. The Defendants contend that the articles bear a more general meaning. Although there is a dispute as to its application in this case, there does not appear to be any challenge to the basic legal principle, summarised in Bokova v Associated Newspapers Limited [2018] 2 WLR 232 [5]:
“… Where a publication contained two or more ‘separate and distinct’ defamatory imputations, a claimant was entitled to select one for complaint, and the defendant was not entitled to assert the truth of the others by way of justification. Whether a defamatory imputation was separate and distinct from other defamatory...
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