Frank Kofi Otuo v Watch Tower Bible and Tract Society of Britain
| Jurisdiction | England & Wales |
| Judge | Richard Spearman |
| Judgment Date | 07 June 2019 |
| Neutral Citation | [2019] EWHC 1349 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Nos. HQ13D03735 |
| Date | 07 June 2019 |
[2019] EWHC 1349 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Spearman Q.C.
(sitting as a Deputy Judge of the Queen's Bench Division)
Nos. HQ13D03735
HQ14D02898
The Claimant appeared in person.
Mr Shane Brady (instructed by Legal Department, Watch Tower Bible and Tract Society of Britain) appeared on behalf of the Defendant.
Table of Contents
| The dispute in outline | 1 |
| Meaning | 5 |
| Slanders actionable per se | 11 |
| The threshold of seriousness | 211 |
| What the documents show | 45 |
| Authorisation and vicarious liability | 95 |
| The ultra vires issue | 115 |
| The issue of consent | 123 |
| Partial truth | 143 |
| Qualified privilege | 6247 |
| Malice | 157 |
| Interference with Convention rights | 79 |
| What relief is appropriate | 81 |
| Conclusion | 82 |
Hearing dates: 11, 12, 13, 14, 25, 26, 27, 28 and 29 March 2019, 15 April 2019
Richard Spearman Q.C.:
The dispute in outline
This is the trial of two claims for slander, brought by Frank Kofi Otuo. Mr Otuo is intelligent and articulate. He is also a very experienced litigant, having appeared in person throughout this long-running litigation, as he did before me, as well as in other proceedings to which I was referred in passing in the course of the trial. Mr Otuo argued his case ably and persuasively, as, for his part, did Mr Brady on behalf of the Defendants in both claims. However, Mr Otuo has no formal legal qualifications; and the Defendants' lawyers are not defamation specialists. The trial bundles comprised 4 bundles produced by the Defendants and 2 further bundles produced by Mr Otuo, but they included neither a core bundle nor any bundle of documents arranged in chronological order. In addition, I was referred to literally dozens of authorities, many of which transpired to be of little, if any, relevance to the issues that I have to decide. These factors have resulted in additional challenges for the Court.
The first claim (“Claim 1”) is brought against the Watchtower Bible and Tract Society of Britain (“Watch Tower Britain”), a company limited by guarantee and a registered charity with the objects of advancing in various ways the Christian religion “as practised by the body of Christian persons known as Jehovah's Witnesses”, in respect of an announcement made on 19 July 2012 at a meeting of the Wimbledon Congregation of Jehovah's Witnesses (“the Announcement”). The Announcement was made by Mark Lewis, a member of that congregation who had been appointed as an Elder, and consisted of the following words: “Frank Otuo is no longer one of Jehovah's Witnesses”. The Announcement had the effect that Mr Otuo was “disfellowshipped”. Claim 1 was commenced by a claim form which was issued on 19 July 2013. In a judgment handed down on 9 March 2017, the Court of Appeal held that Claim 1 had been brought marginally within the time limit specified by section 4A of the Limitation Act 1980, rather than marginally outside it, and allowed Mr Otuo's appeal against orders made by the Courts below which had the effect of ruling that it was time barred: see Otuo v Watchtower Bible and Tract Society of Britain [2017] EWCA Civ 136.
The second claim (“Claim 2”) is brought against Watch Tower Britain and Jonathan Morley, the coordinator of the body of Elders of the Wimbledon Congregation, in respect of words spoken by Mr Morley at a meeting on 22 July 2013. Claim 2 was commenced by a claim form dated 18 July 2014. That meeting was attended by Mr Otuo and by four Elders: Mr Morley, Mr Lewis, Andrew Sutton (all of whom were from the Wimbledon Congregation) and Colin Smith (who was from the Banstead Congregation). It was triggered by a letter from Mr Otuo to the Elders of the Wimbledon Congregation dated 17 June 2013, in which he sought reinstatement “to the congregation of Jehovah's Witness forthwith”. It has therefore been referred to as “the reinstatement meeting” at times in this litigation. No one else was present, or heard the words complained of. The precise nature of those words is not in dispute, because Mr Otuo surreptitiously tape recorded the meeting. They are as follows:
“So just going back to July of last year when you were disfellowshipped, I think it was July 19 that it was announced to the congregation, is that correct? I think it was … do you… how do [you] view then what you were disfellowshipped for? Do you understand what you were disfellowshipped for? … Just to summarise what I thought you have said, is that even today you would not accept it was fraud … That is what you seem to be saying?”
The principal issues raised by the parties' arguments in these claims are as follows:
(1) Whether there is any difference between “Scriptural fraud” and “fraud” in other contexts which is material in the particular circumstances of either of these Claims.
(2) Whether the slanders complained of are actionable per se (i.e. without proof of special damage), or in other words whether they impute a crime for which Mr Otuo could be made to suffer physically by way of punishment (i.e. be imprisoned).
(3) Whether Mr Otuo consented to publication of the words complained of.
(4) Whether the publications were made on occasions of qualified privilege.
(5) If so, whether the defence of qualified privilege is defeated by malice.
(6) Whether it is true that Mr Otuo had been disfellowshipped for fraud.
(7) Whether the decision to disfellowship Mr Otuo was ultra vires.
(8) Whether Watch Tower Britain authorised or is vicariously liable for the publications.
(9) Whether the Claims unjustifiably interfere with the Defendants' rights guaranteed by Articles 9, 10 and 11 of the European Convention on Human Rights.
(10) Whether Mr Otuo is entitled to any, and, if so, what, relief.
Meaning
In a judgment handed down on 5 December 2013, HH Judge Moloney QC, sitting as a Judge of the High Court, ruled that the words comprising the Announcement were not capable of being defamatory in their natural and ordinary meaning. He therefore ordered that in so far as Claim 1 was based on natural and ordinary meaning it should be struck out. However, Mr Otuo also pleaded that the Announcement was defamatory in a true innuendo meaning.
In one of a series of judgments that he handed down arising from what he described as the “prolonged” Pre-Trial Review in these claims, Warby J said, that, on analysis, Mr Otuo's pleaded case suggested two distinct innuendo meanings: first, the meaning which would have been conveyed to all those who were familiar with the general principles regarding disfellowshipping (“the Informed Audience”); and, second, the meaning which would have been conveyed to the sub-group who knew not only those matters but also that there had been a fraud investigation involving Mr Otuo (“the Insiders”). Warby J pointed out that there could be a third material group if, as alleged by Mr Otuo, members of the general public were present when the Announcement was made, but that it was hard to see how any of them could have drawn any defamatory meaning from the neutral wording adopted, as demonstrated by the judgment of HH Judge Moloney QC. Against the background that Mr Otuo's pleaded case alleged that 10 Insiders were present when the Announcement was made and Watch Tower Britain admitted that 6 Insiders were present (comprising 6 Elders who knew that there had been a fraud investigation involving Mr Otuo), Warby J concluded that he could, to a limited extent, decide the actual innuendo meaning of the words.
Warby J accordingly ruled that to an Insider, considered objectively, the words complained of will have conveyed the following true innuendo meanings: (1) that Mr Otuo had been disfellowshipped on the ground of fraud, and (2) that Mr Otuo was guilty of fraud. Warby J further determined that the words complained of were not capable of conveying any defamatory innuendo meaning to the Informed Audience. See Otuo v Watchtower Bible and Tract Society of Britain [2019] EWHC 571 (QB) at [32]–[59]. Before me, neither party sought to go beyond those rulings. In these circumstances, one issue for trial in this context is how many of the following 4 individuals pleaded by Mr Otuo and relied on in his evidence (see [137] of his witness statement dated 5 February 2019) were in fact Insiders: Anna Newitt, Richard Newitt, Sonia Greenidge, Olivier Da Silva. Once that factual issue has been resolved, it will be possible to say whether the Announcement bore a defamatory meaning to only the 6 Elders who already knew that there had been a fraud investigation involving Mr Otuo (one of whom was Mr Lewis, who made the Announcement, and was thus not a publishee), or to as many as 10 persons in total who already had that knowledge.
As set out in his Order dated 13 May 2016, following a hearing before him on the same date, Sir David Eady, sitting as a Judge of the High Court, ruled that the words complained of in Claim 2 bear the following natural and ordinary meanings: (1) that Mr Otuo had been disfellowshipped a year before the reinstatement meeting on the ground of fraud; (2) that Mr Otuo was guilty of fraud; and (3) that Mr Otuo was unrepentant.
In Otuo v Watchtower Bible and Tract Society of Britain [2019] EWHC 571 (QB), relying on a case summary prepared by the Defendants pursuant to an Order of HH Judge Parkes QC (sitting as a Judge of the High Court) dated 17 September 2018, Warby J stated at [24] that in relation to Claim 1 the following facts are not in dispute:
(1) Mr Otuo was baptised as one of Jehovah's Witnesses on 26 December 1992. By virtue of his...
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