James Wilson v James Mendelsohn
| Jurisdiction | England & Wales |
| Judge | Richard Spearman |
| Judgment Date | 30 March 2022 |
| Neutral Citation | [2022] EWHC 715 (QB) |
| Docket Number | Case No: QB-2021-002673 |
| Court | Queen's Bench Division |
[2022] EWHC 715 (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 Queens Bench Division)
Case No: QB-2021-002673
Gervase de Wilde (instructed under Direct Access) for the Claimant
Beth Grossman (instructed by 3D Solicitors and by Patron Law respectively) for the First and Third Defendants
The Second Defendant did not appear and was not represented
Hearing date: 16 March 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and release to Bailii. The date and time for hand-down is deemed to be 10:30am on 30 March 2022.
Richard Spearman Q.C.:
INTRODUCTION AND NATURE OF THE HEARING
This is a claim for libel, misuse of private information, harassment, and breach of data rights in large part concerning a Facebook post which was originally published on or about 3 December 2018 (“the Facebook Post”). The author and original publisher of the Facebook Post was the mother of a child at a primary school, and it apparently came into being following interaction between her and the Claimant outside the school. The identity of the mother and the name of the primary school are irrelevant to the issues which arise in these proceedings, and I have therefore omitted them from this judgment.
The Facebook Post comprised a photograph of the Claimant, apparently taken by the mother, together with the following text, which appeared underneath that photograph:
“Does anyone have any idea who this weirdo is, think he is from the Birkby area in Huddersfield, I was dropping my daughter off at… Junior school this morning, he has approached me by banging very hard on my car window asking me to turn my car engine off, I replied i am in the drop off zone its raining heavily the windscreen is getting steamed up, i was literally park up for a few minutes, this weirdo then had the nerve to take pictures of my car, of me, and my Daughter, he was very rude and i took a picture of him so that i could inform other parents and the school that this freak takes kids pictures. This is harassment he has my Daughters picture in his phone, I am fuming, I want to find out who he is, please share and help me find out who he is. Thanks.”
The photograph which accompanied these words was taken in daylight and shows a man (the Claimant) facing directly at the camera. He is wearing a short double-breasted navy blue coat which is fully buttoned up, pointing his right arm and hand at roughly shoulder height towards his right hand side, and holding the handles of a shopping bag or small item of luggage in his left hand. The expression on his face seems in keeping with the gesture, and suggests that he is making a point or possibly rebuking someone. Around his neck he has what appears at first glance to be a scarf, or the collar of some inner garment, which is predominantly light grey or white in colour, but which can be seen on closer inspection to be a supporting neck brace or collar. Behind him is a wall, a lamppost or similar post bearing what looks like a camera sign, and several trees.
On or about 12 August 2020 and 13 August 2020, as part of an extensive thread, the Second Defendant published a number of Tweets, which comprised screenshots of the Facebook Post together with additional messages. For the purposes of the present hearing, the material messages (in correct date order) are the following: (1) “I see yer Da is doing ‘community watch’ again”; (2) “‘this freak takes pictures of kids’ apparently”; (3) “Indeed. Quite so. As when this mother described the man who allegedly photographed her children as a ‘freak’ – for instance. One much (sic) uphold her right to free expression in what sounds like a situation of harassment”; and (4) “Ranting at people is so unattractive, don't you think, eh?”
In addition, as part of a separate thread, on or about 15 August 2020, the Third Defendant published a Tweet comprising a screenshot of the Facebook Post together with the following message: “Define weird”. The Claimant's case is that this Tweet remained live until around 19 April 2021.
The Claim Form is dated 1 July 2021, and was issued on 6 July 2021. The Particulars of Claim are also dated 1 July 2021, and therefore were presumably served at or around the same time as the Claim Form. On 22 November 2021, and by consent, Master Davidson directed the trial of the following preliminary issues in respect of the claim for defamation (“the Preliminary Issues”): (a) the natural and ordinary meaning(s) of the Facebook Post and each of the Tweets complained of in the Claimant's claim for libel; and (b) in respect of each publication complained of (i) whether each meaning found is defamatory of the Claimant at common law; (ii) whether it made a statement of fact or was or included an expression of opinion; and (iii) insofar as it contained an expression of opinion, whether, in general or specific terms, the basis of the opinion was indicated. Master Davidson further directed that, by 4.30pm on 20 December 2021, each Defendant should file and serve a written notice of his case on each of the Preliminary Issues. The Defendants duly complied with that direction.
On 15 January 2022, the Second Defendant sadly died. On his death, the Claimant's cause of action in defamation against him abated, although the Claimant's other causes of action against him survived against his estate. However, the Claimant's pleaded case includes the contentions that the First Defendant (a) is liable “as the ‘author’ of the Facebook Post for the purposes of section 10 of the Defamation Act 2013” in respect of each of the Second Defendant's Tweets identified in [4] above and also in respect of the Third Defendant's Tweet identified in [5] above and (b) is liable “in damages or compensation for the … reasonably foreseeable … republications” of each of those Tweets (see paragraphs 44.3 and 44.4 of the Particulars of Claim).
In these circumstances, by Order dated 14 February 2022, Nicklin J directed (a) that the hearing of the trial of the Preliminary Issues should go ahead to determine the Preliminary Issues in relation to the claim against the First and Third Defendants, (b) that the remaining parts of the Claimant's claim (being the non-defamation claims) against the Second Defendant should be stayed pending either an application to substitute personal representatives of the Second Defendant's estate or the filing of a notice of discontinuance, and (c) that the status of the claims against the Second Defendant's estate should be reviewed at the aforementioned hearing.
Thereafter, on 15 March 2022, the Claimant and the Second Defendant's widow, acting in her capacity as executrix of the estate of the Second Defendant (“the Estate”), entered into a Settlement Agreement. The main terms of that Agreement are (a) the Estate agrees to make a payment “in reflection of the Claimant's legal costs of dealing with the consequences of [the Second Defendant's] death and the complexity of resolving any matters as to the involvement of the Estate”; (b) the Estate will conduct a disclosure exercise with a view to providing the basis for an Order for Third Party Disclosure to be sought against the Estate; and (c) in consideration for the foregoing, subject to certain caveats, the Claimant will not apply to join the Estate as a party to the present claim.
Accordingly, I am now required to determine the Preliminary Issues (and nothing else). Before me, Gervase de Wilde appeared on behalf of the Claimant, and Beth Grossman appeared on behalf of the First and Third Defendants. I am grateful to both of them for their clear and helpful written and oral submissions.
THE APPLICABLE LEGAL PRINCIPLES
There was no difference between the parties as to the applicable legal principles, which are well settled: see Koutsogiannis v Random House Group Ltd [2019] EWHC 48 (QB); [2020] 4 W.L.R. 25 (Nicklin J) at [10]–[12], and Corbyn v Millett [2021] EWCA Civ 567; [2021] E.M.L.R. 19 at [8]–[10], where the Court of Appeal (see Warby LJ at [7]–[10]) approved Koutsogiannis and summarised the other requirements for establishing a cause of action in defamation, along with the law relating to fact and opinion.
Mr de Wilde expanded on those authorities by submitting, first, that principle (iii) in Koutsogiannis is taken from the summary of the principles approved by the Court of Appeal in Jeynes v News Magazines Ltd [2008] EWCA Civ 130 (Sir Anthony Clarke MR):
“(iii) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. A reader who always adopts a bad meaning where a less serious or non-defamatory meaning is available is not reasonable: s/he is avid for scandal. But always to adopt the less derogatory meaning would also be unreasonable: it would be naïve.”
Second, he submitted that this in turn amounts to a summary of comments in two speeches made in Lewis v Daily Telegraph [1964] A.C. 234 in what then became canonical statements of principle cited in Gatley on Libel and Slander, 12 th edn, under the heading “Ordinary meaning and implications” at 3.18. See Lord Reid, at p258:
“What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of words. But that expression is rather misleading in that it...
To continue reading
Request your trial
-
James Wilson v James Mendelsohn
...Richard Spearman KC dated 30 March 2022 in which he tried a preliminary issue as to meaning. (The neutral citation of the judgment is [2022] EWHC 715 (QB).) 2 The claimant is a part-time law lecturer at Sheffield Hallam university and a non-practising solicitor. He operates the Twitter acc......