Jamal Hijazi (by his litigation friend Abdulnaser Yousef) v Stephen Yaxley-Lennon
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin |
| Judgment Date | 21 April 2020 |
| Neutral Citation | [2020] EWHC 934 (QB) |
| Date | 21 April 2020 |
| Docket Number | Case No: QB-2019-001740 |
| Court | Queen's Bench Division |
[2020] EWHC 934 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
THE HONOURABLE Mr Justice Nicklin
Case No: QB-2019-001740
Ian Helme and Emma Foubister (instructed by Farooq Bajwa & Co.) for the Claimant
William Bennett QC (instructed by Watson Woodhouse Limited) for the Defendant
Hearing date: 12 March 2020
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
This is a claim for libel. It was issued on 15 May 2019 and complained of two videos that were posted on Facebook by the Defendant on 28 and 29 November 2018 (“the First/Second Video”). Both videos were self-recordings showing the Defendant addressing his remarks directly to the camera. The First Video was just short of 7 minutes long, and the Second Video just over 8 minutes. Agreed transcripts of the two videos are set out in Appendices 1 and 2 to this judgment. I have added paragraph numbers – in square brackets, for ease of reference – and removed what appear to me to be some irrelevant asides. The Claimant's case is that the First Video and Second Video were “viewed directly” respectively over 850,000 and 100,000 times.
These libel proceedings are at an early stage. The parties have exchanged statements of case. The Defendant has admitted publication of the videos, that they defamed the Claimant at common law and that their publication has caused serious harm to the Claimant's reputation.
On 15 November 2019, Senior Master Fontaine ordered that the meaning of the two videos be determined as preliminary issues. This is the judgment following the trial of these preliminary issues. It is important to note that the Court is only dealing with the issue of meaning. The Defendant has advanced a defence of truth. Unless the parties resolve the litigation, that issue (and others) will be determined at a later trial. Expressly, the Court is not deciding whether the meaning that I find below is true or false. The Court has not considered any evidence on the underlying facts at this stage.
The parties' cases on meaning
The Claimant contends that both videos bear the following meanings:
“The Claimant:
(1) was a violent individual who was part of a gang that committed numerous acts of violence against schoolgirls;
(2) had himself committed very serious violence against at least one girl; and
(3) had threatened to stab an individual at school.”
In his written submissions, Mr Bennett QC on behalf of the Defendant argued that the two videos each bear the meaning that the Claimant has committed acts of violence against children. In his oral submissions, he amended this to:
“As part of a gang, the Claimant has committed serious acts of violence against a schoolgirl.”
Meaning: the Law
There a large measure of agreement as to the relevant principles.
The correct approach to determining meaning is set out in Koutsogiannis v The Random House Group Limited [2020] 4 WLR 25 [11]–[13]. Since Koutsogiannis, the Supreme Court, in Stocker v Stocker [2019] 2 WLR 1033; [2019] EMLR 18 [41]–[45] per Lord Kerr, has emphasised the importance of the medium of publication and context when assessing meaning. Similarly, on this point, Mr Bennett QC has reminded me of Sir Thomas Bingham MR's guidance from Skuse v Granada Television Limited [1996] EMLR 278, 286 where the publication complained of was viewed rather than read.
To avoid over analysis, and in an attempt to put myself in the position of the ordinary reasonable reader, I have followed the standard practice of watching the two videos and noted the impression they made on me and my immediate reaction to what they were saying about the Claimant: Triplark Limited v Northwood Hall (Freehold) Limited & Others [2019] EWHC 3494 (QB) [19]. I have deliberately not considered the truth defence advanced by the Defendant, which has no bearing on the meaning of the two videos.
Mr Bennett QC has relied upon passages in Turcu v News Group Newspapers Ltd [2005] EWHC 799 (QB) [105], [109]; Chase v News Group Newspapers Limited [2003] EMLR 11 [38] and Simpson v MGN Ltd [2016] EMLR 26 [14]–[21] which clearly state the principle that a defendant relying upon a truth defence is required to prove the substantial truth of the sting of the allegation. These authorities are not relevant to a determination of meaning; rather they establish the correct approach to the assessment of a truth defence.
In his argument, Mr Helme suggested that the two videos ought to be watched in the context of each other. He submitted that, “ given the prominence of the First Video and the … gravity of the allegations it makes, it provides important context for the meaning of the Second Video”. That is not, however, how the case has been pleaded. The Claimant has treated the two publications as separate and they are pleaded as distinct causes of action. There may well be, as a matter of fact, an overlap between those who watched the First Video and then watched the Second Video, but that is not necessarily so. Some people may only have watched the Second Video. The First Video is not pleaded as providing context for the Second Video and Mr Helme did not, in fact, submit that the meaning of the Second Video would be different if the hypothetical viewer also watched the First Video.
On the facts of this case, and given Mr Helme's concession, the point does not assume importance in this case, but I would respectfully agree with what Warby J held in Monroe v Hopkins [2017] EMLR 16 [35]. In assessing the natural and ordinary meaning of a publication, context will include (a) matters of ordinary general knowledge; (b) matters that the publisher put before the reader/viewer. The second category has provoked some discussion in earlier cases as to the limits of what can properly be regarded as having been put before the reader, in particular hyperlinks in the text complained of (see Greenstein v Falter v Atzmon [2018] EWHC 1728 (QB) [12]–[13]; Poulter v Times Newspapers Ltd [2018] EWHC 3900 (QB) [21]–[24] and Campaign Against Antisemitism [2019] EWHC 281 [17]).
Whether the material strictly extrinsic to the words complained of could properly be considered as context requires an assessment of several factors. In Monroe v Hopkins Warby J concluded [38]:
“… a matter can be treated as part of the context in which an offending [publication was made] if it is… sufficiently closely connected in time, content, or otherwise that it is likely to have been in the hypothetical reader's view, or in their mind, at the time they read the words complained of. The test is not the same as but is influenced by the test for whether two publications are to be treated as one for the purposes of defamation: Dee v Telegraph Media Group Ltd [2010] EMLR 20 [29] (Sharp J)”.
In Poulter v Times Newspapers Ltd I suggested the following would be considerations when assessing hyperlinked material [24]:
“Whether readers follow links provided like this is influenced by a number of factors, including: (1) their familiarity with the story or subject matter and whether they consider they already know that they are offered by way of further reading; (2) their level of interest in the particular article and whether that drives them to wish to learn more; (3) particular directions given to read other material in the article; (4) if the reader considers that he or she cannot understand what is being said without clicking through to the hyperlink. It might be reasonable to attribute items (3) and (4) to the hypothetical ordinary, reasonable reader, but (1) and (2) will vary reader by reader.”
This assessment is highly fact specific, but there are limits to what can properly be considered by the Court as “context” when assessing a natural and ordinary meaning. First, if a claimant (or a defendant) wishes to rely upon particular matters as “context” then they must be pleaded. It is not acceptable to introduce matters as alleged “context” in a skeleton argument for a preliminary issue trial. Second, there is what Warby J described as “ the rather important and principled distinction” ( Monroe v Hopkins [40]) between material that would have been known (or read) by all readers and material that would have been known (or read) by only some of them. The former is legitimately admissible as context in determining the natural and ordinary meaning; the latter is relevant only to an innuendo meaning (if relied upon).
Newspaper articles, by way of example, rarely require pre-existing knowledge on the part of the reader. As a matter of reality, the readership of a daily newspaper will fluctuate day-to-day, as will the articles any reader will choose to read, whether online or in hardcopy. The assessment of the natural and ordinary meaning is therefore what, read on its own, the article means, applying the well-established principles set out above ([7]). In the case of a series of published articles, if the claimant (or defendant) contends that the meaning of the subsequent articles(s) is altered if the reader has read the earlier article(s) (or has knowledge of other extrinsic facts) then that it usually a strong indication that it is an innuendo case and not a matter of “context”.
Meaning: Submissions
Mr Helme submits that the First Video bears the Claimant's pleaded meaning. The Defendant makes...
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