David Haviland v The Andrew Lownie Literary Agency Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin |
| Judgment Date | 29 January 2021 |
| Neutral Citation | [2021] EWHC 143 (QB) |
| Docket Number | Case No: QB-2020-001358 |
| Court | Queen's Bench Division |
[2021] EWHC 143 (QB)
THE HONOURABLE Mr Justice Nicklin
Case No: QB-2020-001358
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Robert Sterling (instructed by Carruthers Law) for the Claimant
John Stables (instructed by Brett Wilson LLP) for the Defendants
Written submissions: 20 November 2020
Approved Judgment
I direct that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Nicklin
This is a claim for libel arising from seven emails that were sent by the Defendants concerning the Claimant to Reedsy, a British online author services firm. The Claimant describes himself as a well-known and highly respected editor and publisher and the First Defendant as a well-known and influential literary agency. The Second Defendant is a director and 50% shareholder of the First Defendant.
The Claimant's case is that Reedsy “ serves as a bridge uniting authors and editors and publishers” and has a “ very considerable influence in connecting writers with editors and publishers and other publishing professionals”.
The emails about which the Claimant complains are set out in the Appendix to this judgment, referred to as the First to Seventh Emails. They are set out as they originally appeared, included within email chains where applicable. Any errors appear in the original text.
The Claim Form was issued on 14 April 2020. The Claim Form with Particulars of Claim was not served until mid-August 2020. In the Particulars of Claim, each Email is pleaded separately. Each meaning relied upon by the Claimant is pleaded as arising as the natural and ordinary meaning of each individual Email. No innuendo is advanced, relying for example on earlier Emails. Where the email appears as part of a chain, the Claimant has set out the text of the main message in the Particulars of Claim.
The meanings pleaded by the Claimant are as follows:
i) First Email:
“[The Claimant] has made many false and misleading statements on his webpage on Reedsy's website, including the endorsement he claims was given by Andrew Lownie and his claim that he is the founder and running the business of the publishing company, Thistle Publishing”
ii) Second Email:
“[The Claimant] has falsely and misleadingly claimed on his website page on Reedsy's website to have edited or worked on the eight books listed below, which are unconnected with him”
iii) Third Email:
“The [First Defendant] has received a large number of well-founded complaints from its clients about the poor services provided to them by [the Claimant], when he was working at [the First Defendant]. In consequence, he has been removed from his position with [the First Defendant] and is being sued by the agency in relation to these complaints.
[The Claimant] has also falsely and misleadingly included on his Reedsy website page the endorsement he claims was given by [the Second Defendant], when, in fact, [the Second Defendant] had not given or consented to such endorsement.
Further, on his webpage with Reedsy [the Claimant] has falsely and misleadingly claimed to have edited or worked on the eight books listed below, which are unconnected with him.”
iv) Fourth Email:
“[The Claimant] is still falsely and misleadingly claiming on his webpage on Reedsy's website to have been the founder and to be running the business of the publishing company, Thistle Publishing.”
v) Fifth Email:
“[The Claimant] is still falsely and misleadingly claiming on his webpage on Reedsy's website to be running the business of the publishing company, Thistle Publishing, and also to be a publisher.”
vi) Sixth Email:
“[The Claimant] is still falsely and misleadingly claiming on his webpage on Reedsy's website that he is running the publishing company, Thistle Publishing, and that he is also a publisher.”
vii) Seventh Email:
“[The Claimant] is still falsely and misleadingly making the following claims on his webpage on Reedsy's website:
(1) That one of his books was a New York Times and Sunday Times No.1 bestseller for a total of 13 weeks and the best-selling non-celebrity memoir that year, when, in truth the book was the work of the author Cathy Glass, he made little contribution to the book and the changes that he made to the book had to be re-written by the publisher.
(2) That when he left [the First Defendant] he was ranked 6th in sales worldwide for UK Fiction by Publishers Marketplace.
(3) That he is running the business of the publishing company, Thistle Publishing.
(4) That the quoted endorsement had been given to him by [the Second Defendant], notwithstanding that [the Second Defendant] had not given the same.
(5) That, since 2013 he has been a publisher of the publishing company, Thistle Publishing.”
The Defendants have accepted that the natural and ordinary meaning of the First Email is the meaning pleaded by the Claimant in the Particulars of Claim.
On 20 October 2020, I directed that the following should be tried as preliminary issues:
i) the natural and ordinary meaning of the Second to Seventh Emails; and
ii) whether the meanings of the First to Seventh Emails are defamatory of the Claimant.
Pursuant to a further direction given in the Order of 20 October 2020, the Defendants have filed a written statement of their case on the natural and ordinary meanings of the seven Emails:
i) Second Email:
“The Claimant has included in his profile on the Reedsy website reference to eight listed works for which he incorrectly takes credit”
ii) Third Email:
“(a) The Claimant has included in his profile on the Reedsy website:
(i) reference to eight listed works for which he incorrectly takes credit; and
(ii) an endorsement from the Second Defendant for which permission has been withdrawn.
(b) The Claimant was the subject of numerous complaints when he worked at the First Defendant literary agency.
(c) The Claimant and the First Defendant are now engaged in a legal dispute from their former relationship.”
iii) Fourth Email:
“The Claimant has included in his profile on the Reedsy website a statement that he founded Thistle Publishing that is incorrect”
iv) Fifth Email:
“The Claimant has included in his profile on the Reedsy website statements that he runs Thistle Publishing and in that respect within the company carries the title ‘Publisher’ that are incorrect”
v) Sixth Email:
“The Claimant has included in his profile on the Reedsy website statements that he runs Thistle Publishing and that in that respect within the company carries the title ‘Publisher’ that are incorrect”
vi) Seventh Email:
“The Claimant has included in his profile on the Reedsy website:
(1) reference to his role in the creation of a bestselling book that is incorrect;
(2) a statement of the Claimant's ranking for worldwide sales that is incorrect;
(3) a statement that he runs Thistle Publishing that is incorrect;
(4) a statement that within Thistle Publishing the Claimant carries the title ‘Publisher’ that is incorrect;
(5) an endorsement from the Second Defendant for which permission had been withdrawn.”
The Defendants' case is that apart from the Defendant's meaning (b) advanced in respect of the Third Email, none of the emails bears a meaning that is defamatory of the Claimant at common law. The Defendants contend that the various Emails meant no more than “the Defendants took issue with the accuracy of certain statements the Claimant had posted on his Reedsy profile and was using an endorsement for which he did not have permission.”
With the consent of the parties, no hearing took place. Instead, I have considered the written submissions of the parties on the issues to be determined. In accordance with the practice outlined in Hewson v Times Newspapers Ltd [2019] EWHC 650 (QB) [16]–[27], copies of the parties' written submissions will be made available with copies of this judgment.
Natural and Ordinary Meaning: the Law
The law I apply in relation to resolution of the first preliminary issue is well settled and is set out in Koutsogiannis v Random House Group Ltd [2020] 4 WLR 25 [11]–[12]. The principles identified in [12(x)] and [12(xi)] have particular relevance to this case. The meaning that any individual publishee understood a particular Email to bear, whilst likely to be highly material to any assessment of serious harm to reputation (under s.1 Defamation Act 2013), is nevertheless irrelevant to the determination of the single natural and ordinary meaning.
The modern and approved practice when the Court comes to determine the natural and ordinary meaning of the publication in a defamation claim is to read the words complained of without reference to the parties' contentions or submissions: Tinkler v Ferguson [2020] EWCA Civ 819 [9] per Longmore LJ. The purpose of doing so is “to capture the Judge's initial reaction as a reader”. Only after doing so have I considered the parties' pleaded cases and arguments.
In Sheikh v Associated Newspapers Ltd [2019] EWHC 2947 (QB) Warby J noted:
[24] The overriding rule when dealing with both meaning and the question whether a statement is factual or opinion is encapsulated … above. It is always a question of how the reasonable reader would respond to the words.
[25] One important principle that follows from that overriding rule is the need to avoid unduly elaborate analysis. This is a constant theme of the jurisprudence. It applies to the arguments of Counsel, to the...
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David Haviland v The Andrew Lownie Literary Agency Ltd
...that it be on the basis of written submissions. iii) On 29 January 2021, Nicklin J handed down his judgment (neutral citation: [2021] EWHC 143 (QB)) and made his order setting out the natural and ordinary meaning of each of the seven emails complained of in the original claim. He found tha......