Jonathan Coulter v Independent Press Standards Organisation CIC
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 27 April 2018 |
| Neutral Citation | [2018] EWHC 919 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: CO/4073/2017 |
| Date | 27 April 2018 |
[2018] EWHC 919 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Warby
Case No: CO/4073/2017
Nikolaus Grubeck (instructed by Irvine Thanvi Natas) for the Claimant
Tom Richards (instructed by Sheridans) for the Defendant
Hearing date: 17 April 2018
Judgment Approved
The Honourable
Introduction
This is a claim for judicial review of decisions made by the Independent Press Standards Organisation (“IPSO”). The claimant's case is that IPSO mishandled his complaints that reports in The Times and The Sunday Times about a campaign meeting held at the House of Lords were inaccurate or misleading, or both.
Where a court carries out judicial review, it is not determining the merits of the decision under challenge, or conducting an appeal. It does not reach a decision of its own on the issue that was before the decision-maker, and substitute that for the original decision. It only assesses whether the decision-maker has acted lawfully. If not, the remedies available include declaratory orders, orders quashing the decision, and orders requiring the person or body concerned to re-make the decision.
In this case, the decisions under challenge are said to involve a failure to determine complaints that should have been adjudicated upon, if IPSO's rules had been properly applied; it is said that relevant evidence was wrongly left out of account; and that some complaints were brushed aside by IPSO as a result of a misinterpretation or misapplication of its own rules about the borderline between fact and opinion. The remedy sought is an order quashing the decisions.
Judicial review is a public law jurisdiction. Today, its exercise is governed by Part 54 of the Civil Procedure Rules which provides, so far as relevant, that judicial review is available in respect of “a decision, action or failure to act in the exercise of a public function”: r 54.1(2)(a)(ii).
IPSO
IPSO describes itself as “one of the independent regulators of the press in the United Kingdom”. It is a non-profit Community Interest Company which regulates those publishers who have agreed to be subject to its regulation. These include the publisher of The Times and The Sunday Times. The publisher has submitted to the jurisdiction of IPSO pursuant to a set of contractual arrangements.
The constitution, remit, functions, and procedures of IPSO are governed by its Articles of Association (and in particular Articles 5, 7, and 8.1), and by Regulations (“the Regulations”). One function which the Articles and the Regulations confer on IPSO is the provision of a “complaints handling” service. This involves ruling on complaints against regulated publishers that they have infringed the Editors' Code of Practice (“the Code”), which IPSO has adopted.
By Regulation 8, IPSO is given power to consider complaints in three categories: complaints from those “personally and directly affected” by the alleged breach; or, in specified circumstances, from a representative group; or from “a third party seeking to correct a significant inaccuracy of published information.” Regulations 14 to 31 and 37 provide for the investigation, mediation, and determination of complaints that the Code has been infringed, to be carried out by IPSO's Complaints Committee. This consists of 12 members, chaired by the Chair of IPSO's Board. Six of the 12 members (in addition to the chair) must be “independent as defined in the Regulator's Articles”.
This claim relates to decisions of the Complaints Committee about compliance with clause 1 of the Code. This provides, so far as relevant, as follows:
“1. Accuracy
i) The Press must take care not to publish inaccurate, misleading or distorted information or images, including headlines not supported by the text.
ii) A significant inaccuracy, misleading statement or distortion must be corrected, promptly and with due prominence, and — where appropriate — an apology published. In cases involving IPSO, due prominence should be as required by the regulator.
iii) A fair opportunity to reply to significant inaccuracies should be given, when reasonably called for.
iv) The Press, while free to editorialise and campaign, must distinguish clearly between comment, conjecture and fact. …”
Regulations 32 to 37 provide for decisions of IPSO's Complaints Committee to be subject to review by an Independent Complaints Reviewer. But the review is a procedural one, not a merits review. The criterion is laid down by Regulation 32:
“Requests for a review may be made only on the ground that the process by which the Complaints Committee decision was made was substantially flawed.”
Factual background
During the First World War, on 2 November 1917, the British Government issued a public statement announcing that it “view[ed] “with favour the establishment in Palestine of a national home for the Jewish people”, and would use its best endeavours to facilitate the achievement of this objective. The declaration was made in an open letter written to Lord Rothschild, one of the leaders of the British Jewish community, by the then Foreign Secretary, Arthur Balfour. It has become known as the Balfour Declaration.
On Monday 25 October 2016, there was a meeting at the House of Lords to launch the second phase of the “Balfour Apology Campaign”. This is a public campaign which seeks to secure from the British government an apology relating to the Balfour Declaration. The meeting was organised by the Palestinian Return Centre (“PRC”). It was chaired by Baroness Jenny Tonge. It was attended by the claimant, among others. This claim arises from reporting of and about the meeting.
On Wednesday 27 October 2016, The Times published in the hard copy paper and on its website an article by Dominic Kennedy, headed “Jews blamed for Holocaust at ‘shameful’ House of Lords event” (“the First Article”). The next day, Thursday 28 October 2016, The Times published — again in hard copy and online — an article by David Aaronovitch, headed “Tonge's obnoxious ideas on Jews set a terrible example” (“the Second Article”). On Sunday, 30 October 2016, the Sunday Times published in hard copy and online an article by Rod Liddle, entitled “Peace be upon Israel – the Lib Dems have cut off their Tonge” (“the Third Article”).
On 3 December 2016, the claimant and another 29 named signatories filed with IPSO a complaint in relation to each of the two Times articles. In summary, the complaint was that the articles represented “gross misreporting”, and presented a misleading picture; that they contained factual inaccuracies; and that they made unjustified and unfair accusations against Baroness Tonge.
On 6 December 2016, the claimant filed an addendum to the original complaint, and also raised issues about the Third Article, which he described as “an offensive rant” in which Mr Liddle inaccurately assumed the truth of “his colleague's fabrications”. Prompted by IPSO, the claimant expanded on his criticisms of the Third Article in a letter dated 8 January 2017, which was rather more analytical.
Correspondence followed during February and March 2017, concerning the role and status of Baroness Tonge in respect of the complaints. The Baroness was involved in this correspondence. I shall return to this, and to later correspondence with the Baroness.
On 15 March 2017, the House of Lords Committee for Privileges and Conduct published its 7 th report of the Session 2016–17, headed “The conduct of Barnoness Tonge” (“the Report”). The Report contained an assessment of Baroness Tonge's conduct at the Meeting, and its compliance with House of Lords standards.
On 24 March 2017, the claimant wrote to IPSO asking it to consider the Report as part of the process of assessing his complaints. On 5 April 2017, IPSO replied, declining to refer the Report to the Committee.
The Committee decisions
By letter of 19 April 2017, IPSO notified the claimant of the Complaints Committee's decisions on his complaints in respect of the First and Second Articles. These were as follows:
(1) The Committee upheld the complaint in relation to the First Article, finding that this had inaccurately reported that an audience member had been applauded after making remarks that “Hitler only decided to kill all the Jews after he was provoked by anti-German protests led by a Rabbi in Manhattan.” The Committee recorded that the video of the event showed an audience member claiming that a boycott on Germany in the 1930s had “antagonised” Hitler, with the result that he wanted to systematically kill Jews. The audience member was then interrupted by Baroness Tonge, who said words to the effect that the campaign to boycott Israeli goods and services (or BDS) was very important indeed. The audience then applauded. The Committee noted that the journalist had watched the video but, having done so itself, concluded that it was
“clear that the audience was applauding Baroness Tonge's further comments about the BDS campaign, which did not reflect the remarks of the audience member in question.”
The Committee considered this to be a significant inaccuracy that required correction. It concluded, however, that the newspaper's offer to publish a correction and amendment was sufficiently prompt, and that it had offered to publish it with due prominence. The newspaper should carry out what it had proposed, which was an appropriate remedy. No further action was deemed to be merited. The Times published the correction.
(2) The Committee did not uphold the claimant's complaint about the Second Article, concluding that this was “clearly presented as an opinion piece”. The author's claim that the PRC was “an organisation that wants there...
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